Shute v The King - [2024] NZSC 158

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 96/2024
[2024] NZSC 158

BETWEEN	KAIYA FRANCES SHUTE Applicant
AND	THE KING Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	J-A Kincade KC and E P Priest for Applicant Z R Johnston for Respondent
Judgment:	14 November 2024

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Ms Shute seeks leave to appeal against her sentence of two years and two months’ imprisonment[1] following an unsuccessful appeal against sentence to the Court of Appeal.[2] Ms Shute was 18 years old at the time of the offending which gave rise to charges of assault with intent to injure, common assault and manslaughter. Her co-offender, Mr Grace, was also charged with manslaughter. She seeks leave to appeal from the Court of Appeal’s decision on the basis the proposed appeal raises a general question about the approach to sentencing for young people convicted of serious offending.
[1]R v Shute [2024] NZHC 197 (Gault J) [Sentencing remarks].
[2]Shute v R [2024] NZCA 334 (Cooke, Collins and Moore JJ) [CA judgment].

Background

The offending comprised a number of incidents. The first incident led to a charge of assault with intent to injure the complainant, Ms Olson. The relevant facts were that, about three days prior to the incident leading to the most serious of the charges (manslaughter), Ms Shute confronted Ms Olson in a bar. She poured drinks over Ms Olson’s head before punching and kicking her. The second incident leading to a further charge of assault with intent to injure took place three days later when, at the same bar, Ms Shute again assaulted Ms Olson, pulling her hair and dragging her to the ground.
Shortly after this, there were various incidents involving another complainant, Mr Boyd, which involved pushing, punching and kicking by Ms Shute. Further, while a passenger in a vehicle, Ms Shute reached out of the rear passenger window and struck Mr Boyd on the head. These incidents led to three charges of common assault and a further charge of assault with intent to injure.
The Crown case in relation to manslaughter was described by the trial Judge in these terms:[3]
[3]R v Shute [2023] NZHC 3835 (Gault J) at [11].
… Mr Grace then leaned out of the driver's window and grabbed Mr Boyd by the shirt, and drove off at speed while holding onto Mr Boyd, causing him to stumble and run alongside the vehicle. Ms Shute then grabbed onto the back of Mr Boyd’s shirt. Mr Grace and Ms Shute both held onto Mr Boyd’s shirt while Mr Grace proceeded to drive along Gore Street and through the intersection without slowing down. Mr Grace then turned right onto Customs Street at speed, while Mr Boyd was still being held by the vehicle’s occupants on the exterior of the vehicle, causing Mr Boyd to have to stand on the exterior step of the vehicle…

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 Shute v The King

Details

AGLC: Shute v The King [2024] NZSC 158
Case: [2024] NZSC 158
Decision Date: 14 November 2024

CaseChat Overview and Summary

In Shute v The King, Kaiya Frances Shute sought leave to appeal her two-year and two-month sentence, which was imposed following her unsuccessful appeal against the sentence to the Court of Appeal. Shute was convicted of assault with intent to injure, common assault, and manslaughter. The Court of Appeal had dismissed her appeal, considering the sentence within the appropriate range and rejecting her contention that the sentence should be reduced further. Shute argued that the Court of Appeal should have adopted a different sentencing methodology, specifically the approach suggested by Goddard J in Diaz v R, which considers whether home detention or imprisonment is the least restrictive outcome appropriate in the circumstances.

The legal issues involved whether the Court of Appeal erred in its sentencing methodology, whether youth culpability should be considered at the first stage of sentencing, and whether the uplift for the offending against Ms Olson was too high and the discounts for personal mitigating features were inadequate. The court was required to determine if the appeal raised general questions about the approach to youth sentencing and whether it would be appropriate to address those questions in the absence of a considered assessment by the Court of Appeal.

The court found that the proposed appeal did not raise an appropriate case to address the general question of youth sentencing. The court noted that the Court of Appeal had not considered the approach suggested by Goddard J in Diaz, which specifically addresses sentencing for young people under section 18 of the Sentencing Act. Shute did not fall within this section, making the approach inapplicable to her case. Additionally, the court saw no appearance of a miscarriage of justice, as the sentence was within the available range given the seriousness of the offending. Consequently, the application for leave to appeal was dismissed.

Orders