Smith v Police - [2019] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA575/2018
[2019] NZCA 219

BETWEEN	ANNE-MARIE KATHERINE SMITH Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Lang and Whata JJ
Counsel:	K J Basire for Applicant K L Kensington for Respondent
Judgment: (On the papers)	13 June 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Ann-Marie Smith was sentenced by Judge Neave in the District Court to three years’ imprisonment for five charges of obtaining by deception involving the loss of about $20,000.[1] This comprised a starting point of three years and six months, and an uplift of six months for offending while on bail (twice) and for nine prior dishonesty convictions.[2] Dunningham J dismissed an appeal against this sentence.[3] Leave is now sought to bring a second appeal.[4]
[1]Police v Smith [2018] NZDC 6429 at [19].
[2]At [14]–[15].
[3]Smith v Police [2018] NZHC 1335 at [20].
[4]Criminal Procedure Act 2011, s 253.
Ms Smith also applies to extend the time to file, which is unopposed.[5] The extension is granted accordingly.
[5]Court of Appeal (Criminal) Rules 2001, r 11.
The primary submission in support of leave is that the starting point was too high and the uplift for offending while on bail and for prior convictions was excessive because, among other things, Ms Smith offended while on bail only once, not twice, as the District Court Judge assumed.
To qualify for leave, the intended appellant must identify a matter of general or public importance or show that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[6] Ms Smith claims miscarriage based on a material error and the fact the end sentence was manifestly excessive.

Background

[6]Criminal Procedure Act, s 253(3). See also McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[45].

Ms Smith obtained:
(a)30 taxi rides totalling $819.50 that she charged to the Acute Demand account of the Canterbury District Health Board;
(b)$4,800 from a woman by claiming to be a lawyer acting for the woman’s daughter and telling her that she needed the money to place the daughter into a rehabilitation clinic;
(c)$11,600 from a recent acquaintance on the premise of needing money to buy things for his niece who was having a baby and to pay for lawyer’s fees because his niece was being hassled;
(d)While on bail for the above offending, $1,400 from a woman by claiming to be from Children, Young Persons and their Families and stating the woman’s daughter had been beaten up in prison and was on suicide watch; and
(e)$1,680 from a couple after she contacted them claiming to be a case manager from Work and Income New Zealand for their daughter who she said was going to be evicted for non-payment of rent.

Analysis

The appeal does…

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 Smith v Police

Details

AGLC: Smith v Police [2019] NZCA 219
Case: [2019] NZCA 219
Decision Date: 13 June 2019 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application for an extension of time and leave to appeal against a sentence imposed by the District Court. Ann-Marie Smith was sentenced to three years’ imprisonment for five charges of obtaining by deception. The appeal sought to challenge the starting point and uplift of the sentence, claiming that the sentence was excessively high due to a material error in the District Court’s assumption that Ms Smith had offended twice while on bail, when in fact she had offended only once. The Court was required to determine whether the appeal identified a matter of general or public importance or whether a miscarriage of justice had occurred.

The Court of Appeal found that while there was an error in the District Court’s assumption about the number of times Ms Smith offended while on bail, it did not consider this error to be significant enough to render the sentence wrong or manifestly excessive. The Court observed that the starting point of three and a half years, though high, was permissible given the multiple aggravating factors, including five victims, a breach of trust, and the sophistication of the offending. The six-month uplift for prior convictions and offending while on bail was also deemed justified. The Court did not find any evidence of a miscarriage of justice or that the appeal identified a matter of general or public importance. The Court concluded that Ms Smith was attempting to relitigate the substantive merits of her sentence for the third time.

The Court granted the application for an extension of time to file the appeal but declined the application for leave to appeal. Consequently, Ms Smith’s appeal against the sentence was not permitted to proceed.

Orders