Simpson v The Queen

[2004] NZCA 101

IN THE COURT OF APPEAL OF NEW ZEALAND

CA65/04

THE QUEEN

v

THOMAS WILLIAM SIMPSON

Hearing:23 June 2004

Coram:McGrath J
Paterson J
Doogue J

Appearances:  D C Ruth for Applicant

B J Horsley and J L Moreland for Crown

Judgment:28 June 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]       Thomas William Simpson applies for leave to appeal out of time in respect of a sentence of four years imprisonment imposed in the District Court on 18 February 2003.  The sentence was imposed by Judge Hobbs for six offences of theft, nine offences of false pretences, five offences of unlawfully converting a motor vehicle and one offence of using a document.  All those offences occurred between February and April 2001. 

[2]       At the time that the sentences were imposed the applicant was, as the Judge noted in his sentencing remarks, serving a custodial sentence with a final release date of 10 April 2003.  The Judge made clear that he intended the sentence imposed to commence upon 18 February 2003 and not to be cumulative upon the sentence that the applicant was then serving.  Thus the effective sentence was near to three years and ten months.

Background

[3]       The applicant is now 38 years of age.  At the time of his sentencing the Judge noted that he had been involved in a systematic spree of offending (in the early part of 2001 in a number of places in New Zealand) in the course of which property to the value of some $23,630 was taken or acquired.  As the Judge noted, the applicant has a list of previous convictions extending back over a lengthy period, with some 200 of his previous convictions involving dishonesty.  He has had at various times breached court orders and parole.  At the time of sentencing he had been recalled in respect of one of those breaches of parole to serve out a prison sentence imposed earlier.  As the Judge noted, the applicant’s series of offences, for which he was before the court for sentence, commenced immediately after release from his previous term of imprisonment.

[4]       In sentencing the applicant the Judge noted the aggravating features of the offending, in particular the continuous and prolific nature of his offending, the fact that he used various aliases to avoid detention and that the offending in total amounted to gross interference with rights of complainants.  The Judge took the view there could be only one mitigating circumstance and that was his pleas of guilty.  He did take into account, however, the fact that the applicant had been suffering from ill health for a long time being a diabetic and currently suffering from an ulcerated injury which had led a number of operations.  The Judge noted that the applicant was then on morphine to assist with pain.  The Judge further noted that the pre-sentence report took the view that the applicant’s motivation to change was low and that he was at a high risk of reoffending.  The Judge commented that:

Sadly, you can only be described as a recidivist.  Under those circumstances the protection of the community becomes the paramount consideration.

[5]       The Judge accepted that it was not a case where a sentence close to the maximum penalty should be imposed, as the offences were not the most serious but became of greater significance because of the total number of offences involved.  He accepted that he was bound to impose the least restrictive sentence that was appropriate and he took into account the lengthy period of time that the applicant had already been incarcerated. 

[6]       In sentencing the applicant the Judge, after allowing for the aggravating features, took a sentence of five years imprisonment and reduced it by one year for the applicant’s pleas of guilty leaving the sentence of four years imprisonment.

Application for leave to appeal out of time

[7]       The applicant filed a notice of appeal on 15 January 2004, the notice being dated 23 December 2003.  The reason advanced for the appeal being filed out of time was “I was told by a previous lawyer that an appeal had been filed and was proceeding but I found out that this was not true”.

[8]       Mr Ruth, who had not previously been involved for the applicant in respect of this matter, lodged a memorandum with the court dated 3 March 2004.  In it he noted the applicant’s misapprehension that his trial counsel who appeared for him upon sentence was proceeding with an appeal on his behalf.  He further noted that that counsel was under the impression that the appeal may have been in the hands of other counsel in Auckland. 

[9]       It is submitted for the applicant that this is a case where leave to appeal out of time should be granted on the basis that the delay arose because of his misapprehension and further because there is a substantial issue requiring determination by the court.  It is also noted for the applicant that his trial counsel could not in fact have conducted the appeal as he was not able to be granted legal aid for that purpose.

[10]     The Crown opposes the application for leave to appeal out of time upon the basis that the documentation does not adequately explain the reasons for the delay in filing the appeal.  In addition, it is submitted that any appeal has little merit.  It is submitted that the applicant appears to accept that the sentence of four years imprisonment was appropriate. 

[11]     We go on to traverse the merits of the situation before returning to this aspect of the matter.  We note at this time that there is no affidavit from the applicant explaining his failure to take steps between his being sentenced and his filing of a notice of appeal. 

The merits

[12]     In the submissions for the applicant it is accepted that he had to expect a lengthy term of imprisonment.  It is, however, submitted that the Court should intervene to reduce the sentence in such a way that more substantial effect is given to the express desire on the part of the District Court Judge that the no cumulative effect on the terms of the sentence be imposed. 

[13]     This submission is made because it is said the Judge, while probably understanding the various dates and their significance, has taken a course where his stated intention seems to have been frustrated in fact. 

[14]     We can see no merit in this submission whatever.  It is clear from the Judge’s sentencing notes that he was well aware that the sentences being imposed by him would be concurrent with the sentences that the applicant was then serving until his release date of 10 April 2003.  There can be no suggestion that the very experienced Judge was under any impression to the contrary.  It is entirely clear that he was not seeking to delay the application of the sentences that he imposed until the release date in April 2003.  To that extent, he was giving the applicant the benefit of a reduction of approximately two months from the sentence of four years imprisonment that could properly have been imposed cumulatively upon the earlier sentences. 

[15]     In any event it is submitted the Judge could properly have taken a starting point of four year’s imprisonment, ending at three to three and a half years imprisonment when a discount was made for the guilty pleas.

[16]     The respondent submits that the applicant is a public menace who is highly likely to re-offend and that in the circumstances a sentence in excess of four years imprisonment could have been imposed properly by the Judge.  It is submitted that he has one of the most extensive list of previous convictions for dishonesty that come before the court and that on at least two occasions, including the present, has commenced offending almost immediately upon release upon parole from an earlier term of imprisonment. 

[17]     It is submitted for the respondent that however the sentence is viewed that it is not manifestly excessive.

[18]     We agree.  We can see no merit in any appeal by the applicant.  The protection of the community had to be the principal factor for the sentencing Judge.  The sentence imposed by him regardless of whether it was partially concurrent or totally cumulative upon the previous sentences being served by the applicant could not be said to be manifestly excessive.  The Judge gave due effect to the applicant’s pleas of guilty and took into account all relevant factors.

Comment

[19]     We can see no basis for granting leave to appeal in this case.  We approach the matter in accordance with the principles discussed by this Court in R v Knight (1997) 15 CRNZ 332, 336 – 338.   

The feature which provides the reason for the time limit for appealing set by s 388(1) [Crimes Act 1961] is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time.[336]

The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.[338]

[20]     Here the length of the delay, the absence of compelling reasons for it and the absence of any merit in the proposed appeal all speak against leave being granted.

Result

[21]     The application for leave to appeal out of time is dismissed.

Solicitors:

Crown Law Office, Wellington