Smith v R - [2012] NZCA 419

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/2012 [2012] NZCA 419

BETWEEN TREVOR SMITH Appellant

ANDTHE QUEEN Respondent

Hearing: 21 August 2012
Court: Harrison, Heath and Courtney JJ Appearances: M B Meyrick for Appellant
C L Mander for Respondent

Judgment: 14 September 2012 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed. B The appeal against sentence is allowed.
CThe sentence of two years imprisonment is quashed and substituted with a sentence of three months imprisonment together with: (a) the standard conditions provided by s 14 of the Parole Act 2002 which will expire six months after the sentence expiry date; and (b) a special condition under s 15(3) of the Parole Act 2002 that Mr Smith must participate in a programme (as that is defined in s 16) to reduce the risk of further
offending as directed by a probation officer.

SMITH V R COA CA417/2012 [14 September 2012]

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Following a judge alone trial before Judge Tompkins the appellant, Trevor Smith, was convicted on one charge of indecent assault.1 On 26 June 2012 he was sentenced to two years imprisonment.2 The charge arose from an incident in which Mr Smith went to the complainant’s house, exposed himself and asked the complainant if she wanted to have sex.

[2] Mr Smith appeals his conviction on the ground that there was no evidence of any assault having occurred. He appeals the sentence on the ground that the matter did not warrant a custodial sentence and the Judge, therefore, failed to impose the least restrictive sentence that was appropriate.

Appeal against conviction

[3] A charge of indecent assault requires proof of an assault, which is defined in s 2 of the Crimes Act 1961 as including:

threatening by any act or gesture to apply ... force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

The case against Mr Smith was put on the basis that there was an implied threat to apply force.

[4] Mr Meyrick, for Mr Smith, submitted that the evidence did not show any threatened force, merely an invitation, clumsily made, for the complainant to have sex with him. Therefore, an essential element of the charge had not been proved.

[5] The complainant was a neighbour of Mr Smith. Although aged in her thirties and working part-time, she still lives with her mother and suffers from a mild

1 R v Smith DC Hamilton CRI-2011-019-4733, 17 May 2012.
2 R v Smith DC Hamilton CRI-2011-019-4733, 26 June 2012.

intellectual disorder. On the day of the offence the complainant was at home alone when Mr Smith knocked on her door. What happened next is recorded in the statement she gave to the Police, which was…

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 [2012] NZCA 419
Case: [2012] NZCA 419
Decision Date: 14 September 2012

CaseChat Overview and Summary

The appeal in Smith v R involved Trevor Smith, who appealed both his conviction and the sentence imposed. Smith was convicted of indecent assault and sentenced to two years imprisonment. The appeal against the conviction was based on the assertion that there was no evidence of any assault, while the appeal against the sentence argued that the custodial sentence was disproportionate and failed to consider the least restrictive alternative. The Court of Appeal of New Zealand heard the case and delivered its judgment on 14 September 2012.

The primary legal issues before the court were whether there was sufficient evidence to support the conviction of indecent assault and whether the sentence imposed was appropriate under the circumstances. The court considered the definition of indecent assault under the Crimes Act 1961 and whether the elements of the charge were met. Additionally, the court evaluated the appropriateness of the sentence in light of the objectives of rehabilitation and reintegration, as well as the need to protect the public.

The court found that the evidence was sufficient to establish that Smith's actions constituted an indecent assault, as they amounted to a threat of force. The court rejected Smith's argument that his actions were merely an invitation and found that the Judge had correctly assessed the situation as threatening. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the court concluded that the two-year term was excessive and did not adequately consider the need for rehabilitation and reintegration. The court substituted the sentence with three months imprisonment, accompanied by specific parole conditions aimed at reducing the risk of reoffending.

In summary, the Court of Appeal dismissed Smith's appeal against conviction but allowed the appeal against sentence. The original sentence of two years imprisonment was quashed and replaced with a sentence of three months imprisonment, along with specific parole conditions designed to ensure Smith received necessary assistance post-release.

Orders