Rickus v The Queen - [2021] NZCA 435

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA727/2020
[2021] NZCA 435

BETWEEN	GYPSY RICKUS Appellant
AND	THE QUEEN Respondent

Hearing:	15 June 2021
Court:	Clifford, Thomas and Muir JJ
Counsel:	H T Young for Appellant J A Eng for Respondent
Judgment:	3 September 2021 at 2.30 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Gypsy Rickus was sentenced to six years and three months’ imprisonment for his involvement in a kidnapping and aggravated robbery, following his acceptance of a sentence indication based on a summary of facts and charges as negotiated between the Crown and his counsel.[1] Four years later he has filed an appeal against sentence and requires an extension of time in order to do so. He says the sentence indication proceeded on an incorrect basis, given he disputed one aspect of the summary of facts and that the discounts for youth and totality were inadequate.

Extension of time

[1]R v Rickus [2016] NZDC 25503. The sentence also included charges of unlawfully taking a motor vehicle, driving while disqualified, breach of release conditions and common assault.

An application for an extension of time must be granted if it is in the interests of justice to grant the extension, after taking into account all the relevant circumstances.[2] Relevant circumstances include whether the delay is adequately explained and whether there are compelling reasons to extend time.[3] Also relevant is the seriousness of the charges, the strength of the proposed appeal, the effect on others, prejudice to the Crown, and whether fresh evidence has come to light.[4]
[2]R v Lee [2006] 3 NZLR 42 (CA) at [97], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
[3]Oketopa v R [2020] NZSC 75 at [18]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
[4]R v Lee, above n 2, at [99]; and R v Ellis [2019] NZSC 83 at [15].
Given the extent of the delay and the absence of a compelling explanation for it, Mr Rickus’s application rests squarely on what he says is the strength of his appeal.

Background

We begin by explaining the background and the circumstances which resulted in the sentence Mr Rickus now seeks to challenge.
In the late afternoon of 23 March 2016, a 21-year-old man was approached on the street by Mr Rickus, a 16-year-old co-defendant and an older male (who was never identified). They engaged him in conversation and asked if he had a phone. Although he denied it, his cellphone rang and one of the offenders demanded it from him. Fearing for his safety, the victim handed it over. Mr Rickus then asked if the victim had a vehicle and, on being told he did, said that, if the victim took him to his vehicle, Mr Rickus would give him back…

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 Rickus v The Queen

Details

AGLC: Rickus v The Queen [2021] NZCA 435
Case: [2021] NZCA 435
Decision Date: 3 September 2021 at 2.30 pm

CaseChat Overview and Summary

Gypsy Rickus appeals against his sentence for a kidnapping and aggravated robbery, claiming that the sentence indication was based on an incorrect basis and that the sentence was manifestly excessive. He filed his appeal four years after the sentence was handed down and seeks an extension of time to do so. The Court of Appeal finds that the application for an extension of time must be granted if it is in the interests of justice to do so, taking into account all relevant circumstances. Given the extent of the delay and the absence of a compelling explanation for it, Mr Rickus’s application rests squarely on what he says is the strength of his appeal. The Court of Appeal finds that the sentence indication was not based on an incorrect basis as the defendant had the benefit of receiving the sentence indication and he could have rejected the sentence indication, entered a guilty plea and requested a disputed fact hearing on the issue of his knowledge of the presence of the handgun. The Court of Appeal further finds that the sentence was not manifestly excessive, as there was no error in the sentence and the seriousness of the offending warranted the length of the sentence. The Court of Appeal declines the application for an extension of time to appeal the sentence.

Orders