Smith v R - [2014] NZHC 3033

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2014-406-12 [2014] NZHC 3033

BETWEEN
LEVI JAMES BRIAN SMITH

Appellant

AND

THE CROWN Respondent

Hearing:
25 November 2014

(At Wellington)

Counsel:

R M Gould for Appellant
N McKessar for Respondent

Judgment:

28 November 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] On 11 August 2014 Mr Smith pleaded guilty to two counts of injuring with intent to injure and one charge of possession of an offensive weapon (a knife) in circumstances that showed an intention to use it to commit an offence involving a threat of violence. On 25 August 2014 Judge Zohrab sentenced Mr Smith to two years and nine months’ imprisonment on the injuring charges, and one year’s imprisonment on the offensive weapon charge,1 the two sentences to be served concurrently.

[2] Mr Smith now appeals on the grounds that:

(a) The uplift for previous offending was too great;

(b) The Judge did not give a sufficient discount for Mr Smith’s mental

impairment and rehabilitative needs.

1 Police v Smith DC Blenheim CRI-2014-006-661, 25 August 2014.

[3] No challenge is made to the starting point adopted of three and a half years’ imprisonment on the lead charges. Indeed it was the figure defence counsel had advocated.

Background

[4] Mr Smith is a 26 year old man. He has had an extremely difficult upbringing. The Judge described it as “miserable”.2 His mother was a drug addict. His father was in prison. His step-father is a member of the Mongrel Mob. Between the ages of 7 and 16 he was the care of Child, Youth and Family. He was physically and sexually abused during that time. He did not achieve any formal qualifications at school. He has been in and out of prison himself since the age of 17.

[5] During his most recent stay in prison, Mr Smith received a $40,000 compensation payment from the Ministry of Social Development. That was for the sexual abuse he suffered while in their care. His stepfather caught wind of this. Against Mr Smith’s wishes, he picked him up from the prison gate upon his release. He took him to live with him in Napier. He was regularly assaulted and bullied by his father and his Mob associates. In less than two months, he had spent all of the
$40,000 on methamphetamine (purchased from his father’s associates) and on cars (which were then taken by the Mob). Once the money was gone, they threw him out.

[6] Wanting to escape the influence of the Mob, avoid substance abuse and find a job, Mr Smith and his girlfriend moved to Blenheim in April 2014. They found seasonal work on vineyards. The work did not last. Nor did he manage to abstain from cannabis and alcohol abuse. This created friction in the relationship.

[7] During this time, Mr Smith’s mental health deteriorated. He continued his heavy substance abuse. Mr Metoui, a forensic psychologist, reports that he developed paranoid and bizarre beliefs. He…

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 R

Details

AGLC: Smith v R [2014] NZHC 3033
Case: [2014] NZHC 3033
Decision Date: 28 November 2014

CaseChat Overview and Summary

Levi James Brian Smith appealed against the sentence imposed on him by Judge Zohrab for two counts of injuring with intent and one charge of possession of an offensive weapon. The appellant contended that the uplift for previous offending was too great and that the Judge did not give a sufficient discount for his mental impairment and rehabilitative needs. The court considered the arguments made by both parties and examined the background of the appellant, which included a difficult upbringing, a history of abuse, and mental health issues. The court found that the uplift for previous offending was not excessive, and that the discount for mental impairment was within an appropriate range. The court further held that the appellant's voluntary intoxication could not be considered in the discount and that it was inappropriate to inflate discounts to allow for release conditions. The appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by Judge Zohrab would stand. The appellant would serve two years and nine months’ imprisonment on the injuring charges, and one year’s imprisonment on the offensive weapon charge, with the two sentences to be served concurrently.

Orders