R v Smith - [2018] NZHC 2361

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE TIHI-Ō-MARU ROHE

CRI-2016-076-001086 [2018] NZHC 2361

THE QUEEN

v

GEORGE DAVID HENRY SMITH

Hearing: 7 September 2018

Appearances:

A R McRae and H V Bennett for the Crown T J Jackson for the Defendant

Date:

7 September 2018

SENTENCING REMARKS OF NATION J

[1] Mr Smith, you are being sentenced on charges of kidnapping, unlawful possession of a firearm, possession of methamphetamine and possession of utensils for using methamphetamine.

[2] You have heard counsel tell me that they have filed written submissions. They were long and detailed and I have considered them carefully. And, those present in Court need to be conscious of the fact that I have carefully considered very detailed submissions that have been filed by both the Crown and by Mr Jackson for Mr Smith.

[3] In November 2016, you were aged 35. You had been in an intermittent relationship with your victim for approximately 15 years. You married in December 2015 but in September 2016 she ended the relationship. You could not accept that it was over.

R v SMITH [2018] NZHC 2361 [7 September 2018]

[4] Early in the morning of 30 November 2016, you were waiting outside her house. When she went to get into her van to drive to work, you grabbed her and pushed her forcefully into the back of the van. You had an associate drive the vehicle away. You held her down in the vehicle as it left the scene. You and your associate drove her into the country. The van was driven to a point under a bridge where it was unlikely to be seen and where you had set up a makeshift camp. Your associate left the scene and probably drove away in your ute. It was found more than a month later in a forested area, about 30 minutes drive away from the scene, hidden from view of the road.

[5] Your actions were serious, sinister and potentially life-threatening for your victim.

[6] A seriously aggravating feature of the offending was the pre-meditation involved. You knew your victim did not want to have any contact with you. There had been an earlier incident when you had, without her agreement, got into her vehicle at her work place and pressured her into driving you to a place in the country where you were married. Although you had ended up being with her for the night, she had been disturbed by what had happened. She went to the Police and ultimately obtained a protection order. She was in Australia for a short time but, on returning, made it clear to you directly that she did not want to have any further contact with you and she did not want you to be harassing her friends and family in the way that had been occurring.

[7] You decided to force her to be with you. On the day before the kidnapping, you contacted her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2018] NZHC 2361
Case: [2018] NZHC 2361
Decision Date: 7 September 2018

CaseChat Overview and Summary

The case of R v Smith was heard in the High Court of New Zealand, Timaru Registry. The defendant, George David Henry Smith, was charged with kidnapping, unlawful possession of a firearm, possession of methamphetamine, and possession of utensils for using methamphetamine. Smith, who had been in an intermittent relationship with the victim for approximately 15 years, had been unable to accept that the relationship had ended. This culminated in a premeditated kidnapping of the victim, involving force, threats, and the use of a weapon.

The primary legal issue before the court was the appropriate sentence for the defendant's crimes. The court had to consider the gravity of the kidnapping, the premeditated nature of the offence, the psychological trauma inflicted upon the victim, and the mitigating factors. The court also needed to determine whether a minimum term of imprisonment should be imposed for the kidnapping charge, considering the need for deterrence, denunciation, and protection of the victim and the community.

The court reasoned that the kidnapping was particularly serious due to the premeditation, the psychological trauma inflicted on the victim, and the breach of trust. The court noted that the defendant's actions had many of the features which the Court of Appeal had identified as making such cases no less serious than other types of kidnapping. The court accepted that the harm caused to the victim was serious and ongoing. The court established a starting point sentence of four years for the kidnapping charge, considering it a prolonged and lawless invasion of the victim's rights, dignity, and integrity.

The court also considered the defendant's personal mitigating and aggravating factors. While the defendant had a limited conviction history and had addressed his drug abuse issues in prison, he displayed a lack of remorse for his actions and had denied responsibility for the kidnapping. The court found that these factors did not warrant an uplift in the starting point sentence. The court determined that a concurrent sentence of four years for kidnapping, two months for unlawful possession of a firearm, and one month each for possession of methamphetamine and utensils for using methamphetamine was appropriate.

The court did not impose a minimum term of imprisonment for the kidnapping charge, as it did not find any additional aggravating factors that would require such a term. The court issued a warning to the defendant regarding the three-strikes legislation and ordered the forfeiture of the firearm and utensils for methamphetamine use.

Orders