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Simcic v R

Simcic v R

Case [2022] NZCA 592 30 November 2022

Admissibility of Evidence

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA131/2022
[2022] NZCA 592

BETWEEN	ANTON STEPHEN SIMCIC Applicant
AND	THE KING Respondent

Hearing:	31 October 2022
Court:	Miller, Muir and Gendall JJ
Counsel:	D B Stevens for the Applicant B J Thompson for the Respondent
Judgment:	30 November 2022 at 2.00 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is declined.
BThe application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

Having pleaded guilty to 13 charges involving possession and the supply of methamphetamine, MDMA, cannabis, and also firearm offences, the applicant Mr Simcic was sentenced in the District Court at Wellington on 1 December 2020.[1]
[1]R v Simcic [2020] NZDC 25599 [Sentencing notes].
His guilty plea followed a sentence indication by Judge Barry, after which the Judge imposed a final sentence of nine years’ imprisonment on the lead methamphetamine charges. Concurrent sentences were imposed on the charges relating to cannabis, MDMA, and unlawful possession of firearms.
Some 15 months out of time, Mr Simcic has applied for an extension of time to appeal against his sentence. The Crown opposes extending time for this appeal.

Extension of time

Having been sentenced on 1 December 2020, Mr Simcic did not file his notice of appeal until 18 March 2022. The time for filing his appeal expired in January 2021. Given the appeal is 15 months out of time, an extension of time is required under s 248(4)(a) of the Criminal Procedure Act 2011 (CPA).
The test for granting an extension of time to appeal is found in R v Knight and discussed in R v Lee.[2] This requires a balancing exercise to be undertaken which is to include the merits of the proposed appeal, the length of the delay and the reasons for it, the practical utility of the remedy sought, the impact on others affected, and the general administration of justice.[3] The overall question is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension.[4]
[2]R v Lee [2006] 3 NZLR 42 (CA) and R v Knight [1998] 1 NZLR 583 (CA).
[3]R v Lee, above n 2, at [95]–[99]; and R v Knight, above n 2, at 589.
[4] R v Knight, above n 2, at 587.
Extension of time applications generally reduce to two questions – first, why the appeal was filed late and, secondly, what merit, if any, the proposed appeal point appears to have.[5]
[5] Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].
As to the first question, the reason for the delay, Mr Simcic has filed an affidavit in support of his application to appeal out of time. In this affidavit, he says that when he received his sentence in December 2020, he thought it was severe and although his lawyer…

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 Simcic v R

Details

AGLC: Simcic v R [2022] NZCA 592
Case: [2022] NZCA 592
Decision Date: 30 November 2022 at 2.00 pm

CaseChat Overview and Summary

Anton Stephen Simcic appealed his sentence of nine years’ imprisonment imposed on the lead methamphetamine charges. He contended that the sentence was manifestly excessive. The appeal was filed out of time. The Court of Appeal considered whether to grant an extension of time to appeal. The Court noted that the delay was substantial and not adequately explained. The Court also considered the merits of the appeal. The Court found that the starting point for the methamphetamine charges was within range, but the uplifts for the other charges were higher than appropriate. The Court also found that the discounts for personal mitigating factors were generous. The Court concluded that the appeal did not establish a substantial risk that any miscarriage of justice may have occurred. The Court declined to grant an extension of time to appeal.

Orders