Hearing:
17 August 2017

Additional Affidavit Evidence Filed: Rebecca Slade            23 August 2017

Kate McHugh            29 August 2017 and 18 September 2017
Wendy Muir               29 August 2017

Further Submissions Filed:
11 September 2017

Second Memorandum of Agreed Facts Filed:
11 September 2017

Appearances:

K J Beaton for Appellant
S K Barr for Crown

Judgment:

10 November 2017

JUDGMENT OF GENDALL J

REID-MANUEL v THE QUEEN [2017] NZHC 2768 [10 November 2017]

Introduction

[1] The appellant, Mr Reid-Manuel, appeals against his conviction and sentence in the District Court at Alexandra on one charge of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961. He pleaded guilty prior to trial. He was convicted and sentenced on 29 August 2016 to three years nine months’ imprisonment and given a three-strikes warning.

[2] The charges arose from events which occurred shortly after midnight on

27 February 2016 in the business district of Cromwell. This involved a fist fight which culminated in the appellant attacking the victim including when he was said by the sentencing Judge to be “lying on the ground insensible”.

[3] The conviction appeal is brought on the grounds that a miscarriage of justice has occurred in that:

(a) The appellant did not intend to plead guilty to the charge; and

(b)The guilty plea was entered on the basis of incorrect or inadequate advice from trial counsel as to the non-availability of a defence and as to the consequences and outcomes.

[4] The grounds for his appeal against sentence are that:

(a) the sentence process miscarried as the appellant’s lawyer failed to advise the sentencing court of a material disputed fact (that he had kicked the victim to the head once), resulting in an error in the sentence imposed;

(b)in any event, even if the disputed kick to the head was established, the Judge erred in taking a starting point of seven years and six months’ imprisonment for the sentencing; and

(c) even with the significant discounts for personal mitigating factors, the end sentence imposed was manifestly excessive.

Leave to appeal out of time

[5] Section 231(2) of the Criminal Procedure Act 2011 requires the appellant to file an appeal within 20 working days after the date of sentence for the conviction appealed against. However, under subs (3), the Court may at any time extend the time allowed for filing a notice of appeal. Here, the appellant’s appeal is brought out of time, this appeal not being filed in this Court until 6 April 2017. However, the Crown consents to extending the time for filing this appeal. I am satisfied that in all the circumstances here, leave should be granted. Leave to appeal out of time is accordingly granted.

Appeal against conviction

[6] Section 229 of the Criminal Procedure Act…

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 Reid-Manuel v The Queen

Details

AGLC: Reid-Manuel v The Queen [2017] NZHC 2768
Case: [2017] NZHC 2768
Decision Date: 10 November 2017

CaseChat Overview and Summary

Niko William Vernon Reid-Manuel appeals his conviction and sentence imposed in the District Court at Alexandra. Reid-Manuel pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961. He was convicted and sentenced on 29 August 2016 to three years nine months’ imprisonment and given a three-strikes warning. Reid-Manuel appeals his conviction on the grounds that a miscarriage of justice has occurred in that: (a) the appellant did not intend to plead guilty to the charge; and (b) the guilty plea was entered on the basis of incorrect or inadequate advice from trial counsel as to the non-availability of a defence and as to the consequences and outcomes. The grounds for his appeal against sentence are that: (a) the sentence process miscarried as the appellant’s lawyer failed to advise the sentencing court of a material disputed fact (that he had kicked the victim to the head once), resulting in an error in the sentence imposed; (b) in any event, even if the disputed kick to the head was established, the Judge erred in taking a starting point of seven years and six months’ imprisonment for the sentencing; and (c) even with the significant discounts for personal mitigating factors, the end sentence imposed was manifestly excessive. The appeal against conviction is dismissed. The appeal against sentence is also dismissed.

Orders