R v Smyth - [2013] NZHC 2043

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRII-2012-004-019462 [2013] NZHC 2043

THE QUEEN

v

CORTNEY SMYTH

Hearing: 13 August 2013

Appearances:

A A Prasad for Crown
N J Manning for Prisoner

Judgment:

13 August 2013

JUDGMENT OF ELLIS J

R v SMYTH [2013] NZHC 2043 [13 August 2013]

[1] Mr Smyth, you appear for sentence today, having pleading guilty to two charges of sexual violation by rape, nine charges of unlawful sexual connection, one charge of abduction for sex, one charge of indecent assault, one charge of aggravated robbery, on charge of threatening to kill and one charge of unlawfully taking a motor vehicle. I now have to formally convict you on those charges.

[2] The charges of sexual violation by rape and unlawful sexual connection carry maximum penalties of 20 years imprisonment. The other charges carry maximum sentences of either 14 or seven years imprisonment.

[3] Because these convictions relate to serious violent offending that was committed after l June 2010 you are now subject to the three strikes law and so I am required to warn you that:

(a) If you are in future convicted of any other serious violent offence other than murder committed after this warning then you will serve any sentence of imprisonment imposed on you without parole or early release.

(b)If you are in future convicted of murder committed after this warning then you will be sentenced to life imprisonment without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[4] You will also be given a written warning about those things. [5] But now I am now going to talk about your sentencing today.
[6] Your lawyer, Ms Manning, and the Crown’s lawyer, Ms Prasad, are agreed that the main question for me is whether you should be sentenced to preventive detention or to a finite, or fixed, term of imprisonment. A second question will be the length of time which you must serve as a minimum term of imprisonment.

[7] First of all, I need to talk about what it is you have done because that is going to have a big effect on whether or not I sentence you to preventive detention and also, if instead you are sentenced to a finite term, the length of that term.

[8] Now all the offences that I am sentencing you for today were committed within a six hour period on 7 December 2012.

[9] On that day you were hanging around near the car park at the Lynn Mall. Just after 6 pm you saw a 17-year-old girl walking to her car while talking on her cellphone. You did not know her but her name was C. You followed her. You waited until she had gotten into the car and off the phone and then you opened the driver’s door…

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 Smyth

Details

AGLC: R v Smyth [2013] NZHC 2043
Case: [2013] NZHC 2043
Decision Date: 13 August 2013

CaseChat Overview and Summary

The case of R v Smyth involved the sentencing of Cortney Smyth for multiple serious offences, including sexual violation by rape, unlawful sexual connection, abduction for sex, indecent assault, aggravated robbery, threatening to kill, and unlawfully taking a motor vehicle. The crimes were committed in a violent and brutal manner against a 17-year-old girl, causing her significant physical and emotional harm. The primary legal issues for the court were whether Smyth should be sentenced to preventive detention or a fixed term of imprisonment, and if the latter, the length of the minimum term required.

The court considered several factors in its decision, including the nature and severity of Smyth’s crimes, his history of offending, the harm caused to the community, and his potential risk of re-offending. The psychologists’ reports indicated that Smyth had a difficult upbringing marked by violence, neglect, and gang involvement, and that he had not received adequate treatment for his sexual offending despite recommendations. The court noted that although Smyth had completed a rehabilitation programme, he re-offended shortly after his release, indicating a high risk of re-offending if not properly treated. The court also considered Smyth’s lack of remorse and his inability to accept responsibility for his actions.

Ultimately, the court decided against preventive detention, reasoning that Smyth’s young age offered some hope for rehabilitation. The court imposed a sentence of 13 years’ imprisonment with a minimum term of eight years, reflecting the seriousness of the crimes and the need to protect the community. The court also imposed concurrent sentences for the other charges, which would not extend the total sentence but were necessary to be detailed in court.

Orders