Smith v R - [2021] NZCA 169

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA481/2019
CA482/2019
[2021] NZCA 169

BETWEEN	MICHAEL RICHARD SMITH Applicant
AND	THE QUEEN Respondent

Hearing:	22 March 2021
Court:	Miller, Brewer and Dunningham JJ
Counsel:	M J English and JAS Thompson for Applicant J E Mildenhall for Respondent
Judgment:	6 May 2021 at 3.00 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

On 24 July 2015, the applicant, Michael Richard Smith, was sentenced to five years’ imprisonment after being found guilty at a judge-alone trial on 21 charges of theft by a person in a special relationship.[1] On the same day, Mr Smith sought a sentence indication on the balance of the dishonesty offending charges he still faced. A sentence indication of two years’ imprisonment, cumulative on the earlier sentence, was given. Mr Smith accepted the sentence indication, pleaded guilty and was sentenced accordingly.
[1]R v Smith [2015] NZDC 14227.
Mr Smith now seeks to appeal his overall sentence on all charges on the grounds that:
(a)the starting point was too high in respect of both sentences;
(b)there should have been a greater adjustment to reflect totality; and
(c)insufficient discounts were applied for mitigating factors.

Application to extend the time for filing the notice of appeal

The applicant filed an appeal against both conviction and sentence on 20 September 2019, almost four years outside the permitted timeframe and has applied to extend the time for filing the appeal.[2]
[2]Criminal Procedure Act 2011, s 248(2).
Mr Smith relies on an affidavit sworn on 21 May 2020 to support an application to adduce fresh evidence and a bail application, to explain the delay in filing the appeal. In the affidavit he describes the pressures that led to him accepting the sentence indication, saying he felt “overwhelmed, and … caved in under the immense pressures”. He then explains the difficulties he has faced in advancing his conviction appeal from prison, noting in particular that some of the evidence he wished to rely on “simply can’t be obtained from prison”. However, there is no information which, on its face, explains why he could not file his sentence appeal until almost four years after the statutory timeframe for doing so.
That said, in determining applications to extend the time for filing, the touchstone is the interests of justice in the particular case.[3] The factors which are relevant to that issue were summarised in R v Lee as follows:[4]
… factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

The decision in Lee also acknowledged that “the strongest factor favouring an extension of…

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 [2021] NZCA 169
Case: [2021] NZCA 169
Decision Date: 6 May 2021 at 3.00 pm

CaseChat Overview and Summary

The applicant, Michael Richard Smith, sought to appeal his overall sentence on multiple charges of theft by a person in a special relationship. He argued that the starting point of the sentence was too high, there should have been a greater adjustment for totality, and insufficient discounts were applied for mitigating factors. Smith filed an appeal almost four years after the permitted timeframe and applied for an extension of time. The court considered the interests of justice, including the strength of the appeal, the finality of decisions, the impact on victims and the administration of justice, and any prejudice to the Crown. The court found that the starting point of the sentence was not excessive, and the overall sentence was not manifestly excessive. Given the delay in filing the appeal and the lack of merit in the appeal, the court declined the application for an extension of time.

The legal issues the court had to decide were whether the starting point of the sentence was too high, whether there should have been a greater adjustment for totality, and whether insufficient discounts were applied for mitigating factors. The court found that the starting point was appropriate, the sentence did take into account mitigating factors, and there was no basis for giving a further discount for the applicant's troubled background, alcohol and drug issues. The court also found that the overall sentence was not manifestly excessive, given the aggravating features of the offending. The court declined the application for an extension of time to appeal due to the delay in filing the appeal and the lack of merit in the appeal.

Orders