Smith v The King
[2025] NZCA 270
•24 June 2025 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA785/2024 |
| BETWEEN | MICHAEL JAI SMITH |
| AND | THE KING |
| Hearing: | 13 May 2025 |
Court: | Cooke, Venning and van Bohemen JJ |
Counsel: | N P Bourke for Appellant |
Judgment: | 24 June 2025 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
Michael Smith appeals from his conviction on a charge of abducting a young person in contravention of s 210 of the Crimes Act 1961. He pleaded guilty to this, and a range of other charges, and was sentenced to four years’ imprisonment.[1] His conviction on the abduction charge followed an earlier ruling of the District Court that the elements of abduction were satisfied on the summary of facts to which he was pleading guilty.[2] In effect he is challenging this ruling, and contends that the abduction charge over-criminalises his admitted behaviour.
Relevant facts
[1]R v Smith [2024] NZDC 28970 [sentencing notes].
[2]R v Smith [2024] NZDC 21886 [abduction ruling].
The relevant offending occurred on 10 May 2024. At that stage Mr Smith was serving a sentence of home detention and his conduct was the beginning of his breach of that sentence and a spree of offending that followed.
He was outside a dairy in Waitara at approximately midday. A person drove to the dairy, parked and went inside leaving her car unlocked and running. The driver’s six-month-old baby was asleep, strapped into a car seat in the back. Mr Smith decided to steal the car. He got in the driver’s seat and started reversing the car out of the park. The driver tried to stop him by banging on the rear passenger window and shouting that her baby was in the back seat, but Mr Smith drove off, causing her to fall. The mother then got up and chased after him on foot.
Mr Smith then realised there was a baby in the back of the car. He stopped, opened the back passenger door and tried to get the baby out to leave it on the side of the road. But he was unable to manage this and the mother was approaching. He then got back into the car, did a right hand turn and drove another short distance down the road. He then stopped again and managed to get the baby out and put it on the grass verge close to the roadside. He then got back into the vehicle and drove off at speed. The baby’s mother had been picked up by a stranger in another car, and they arrived and recovered the screaming baby from the roadside shortly after.
Over the following days Mr Smith committed a number of additional offences until he was apprehended in another stolen vehicle on 17 May.
Mr Smith pleaded guilty to a series of charges in relation to the spree of offending over the period 10–17 May, including dangerous driving causing injury, driving while disqualified, stealing the mother’s car, displaying false licence plates, burglary, unlawfully taking another motor vehicle, unlawfully taking a third motor vehicle, failing to stop for police, taking a fourth motor vehicle, failing to stop for police again, dangerous driving, a further burglary, damaging property, further dangerous driving and three breaches of the home detention sentence.
Mr Smith’s concern relates solely to the offence of abducting the child. Prior to being sentenced a ruling was sought and given by the District Court on whether the facts set out in the summary of facts satisfied the requirements of a charge of abduction under s 210(1) of the Crimes Act, given Mr Smith’s argument that he had never intended to abduct the child. Judge Hikaka held that when Mr Smith drove off for the second time with the baby in the vehicle he was intentionally depriving the parent of possession of her six-month-old son, and that by doing so he was unlawfully abducting the child under s 210(1).[3]
[3]At [41]–[43].
Mr Smith appeals from the guilty plea flowing from this determination.
Argument
For the appellant Mr Bourke argues that the relevant circumstances fall within the ability to appeal notwithstanding a guilty plea arising under s 232(5) of the Criminal Procedure Act 2011, including that Mr Smith’s plea was induced by a ruling that was wrong in law.[4]
[4]Citing R v Le Page [2005] 2 NZLR 845 (CA).
Mr Bourke argues that the element of intention required by s 210(1) was not satisfied in the present case. Mr Smith’s primary aim was to extract the child out of the car as soon as possible upon learning of his presence. He did not have a secondary or oblique intention of the kind referred to in Police v K, as he never had any intention to deprive the baby’s mother of her child.[5] Given his motivation the facts did not allow a finding that Mr Smith had a secondary intention that satisfied the offence.
[5]Police v K(CA320/2011) [2011] NZCA 533; and R v Wentworth [1993] 2 NZLR 450 (HC).
This was particularly so when the text of the offence provision is interpreted in light of its purpose.[6] The legislative history reflected a historical view that children were chattels that might be stolen.[7] The offence involved cases where children were abducted, sometimes for sexual purposes. The current conduct was not behaviour of this kind. He referred to the view outlined in Adams on Criminal Law that “… a mere temporary act may not amount to a sufficient interference with possession to establish the relevant intent”.[8] Mr Bourke argues that charging Mr Smith with abduction was an example of creating broader liability than Parliament intended, including given the historical background to the offending.[9] There was no dispute that upon learning there was a child present Mr Smith wanted to remove him from the vehicle, and that he then did so quickly.
[6]Citing Ihaia v R [2022] NZCA 95 at [27]–[28].
[7]See R v Tauiliili [1997] 1 NZLR 525 (CA) at 528–530 per Richardson P.
[8]Mathew Downs (ed) Adams on Criminal Law – Offences and Defences (online looseleaf ed, Thomson Reuters) at [CA210.04], citing R v Jones [1973] Crim LR 621 (Crown Court).
[9]Citing Regina v Job Timmins (1860) Bell 276, 169 ER 1260 (QB).
Relying on the decision of the Supreme Court in Fitzgerald v R, Mr Bourke also argues that qualifying words could be read in as an exception to the offending described in s 210, to the effect of “unless the taking is transitory”.[10]
Assessment
[10]Citing Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [61]–[63].
We accept that, if Mr Bourke’s arguments are correct, an appeal could be allowed notwithstanding the guilty plea on the basis explained in R v Le Page.[11] But we do not accept the arguments. We consider that the relevant elements of the offence were correctly identified by the District Court, and that the admitted conduct satisfied those elements.
[11]R v Le Page, above n 4, at [18]–[19].
Section 210 provides:
210 Abduction of young person under 16
(1)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.
(2)Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.
(3) For the purposes of subsections (1) and (2),—
(a)it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
(b)it is immaterial whether the offender believes the young person to be of or over the age of 16.
(4)In this section young person means a person under the age of 16 years.
This offence does not include any element directed to a motive connected with the intentional taking. In this way it is different from the other associated offences in s 208 of taking a person without consent to have sexual connection, or the kidnapping offences in s 209. The relevant elements are only that the person under 16 has been unlawfully taken, and that this has been done with an intention to deprive a person of lawful possession. Under s 210A an offence is not committed if a person gets possession when acting in good faith.
The elements of this offence were comprehensively considered by this Court in Wiley v R where a conviction was upheld in circumstances where the defendant had taken his domestic partner’s child for a short period in connection with an assault on his partner.[12] After reviewing the history of the offence the Court said:
Meaning of taking away or detaining
[120] In the context of s 210, a taking is to be interpreted as obtaining or getting possession of the young person. This is consistent with the language used in s 210A. To take a young person away is to remove the child from the possession of the parent, guardian or other person having the lawful care or charge of him or her. To detain the young person means to place or keep him or her in confinement. We do not consider it is desirable or helpful to define these terms in any greater detail.
[12]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
The Court also said:[13]
[141] The length of time over which a taking away continues will depend on the circumstances. A taking away may be brief and may involve no great physical distance as demonstrated in R v Wellard in which the English Court of Appeal held that, for the purposes of kidnapping, it was sufficient for the victim to be carried away for less than 100 yards before being released. But in other cases, the taking away may extend for a considerable period of time and involve the victim being taken from place to place as occurred in Davis and in Hou.
[13]Footnote omitted.
A qualifying taking may accordingly only be for a short period. But Mr Bourke’s argument focused on Mr Smith’s intent. He argued that in R v Wellard the defendant had the relevant intent to kidnap when taking a person only 100 yards, and similarly in Waaka v R the defendant had only taken the victim some 3–4 m but with the intent to have sex with her.[14] Mr Bourke argued that here, Mr Smith never had any intention of depriving the mother of her child.
[14]R v Wellard [1978] 1 WLR 921 (CA); and Waaka v R CA260/01, 24 October 2001.
This submission conflates motive or objective with intent. The relevant question is more simply whether Mr Smith took the child intentionally. The submissions before us referred to the discussions of secondary or oblique intent, including as discussed by Fisher J in R v Wentworth.[15] But we do not consider it necessary to refer to these more sophisticated analyses. On the admitted facts Mr Smith plainly intended to drive off with the child on the second occasion. He clearly preferred not to take the child with him. But when confronted with his inability to extract the child from the car before the mother arrived, he made a choice. He could either abandon his intended theft of the car and run off, or he could continue with the theft of the car. By continuing with the theft of the car, he intentionally took the child with him, albeit only for a short period.
[15]R v Wentworth, above n 5. See also Police v K (CA320/2011), above n 5.
We also do not agree that it is appropriate to read down the offence, or read in provisos, because it over-criminalises behaviour or because the origins of the offending might now be considered anachronistic. Offending of this kind has real contemporary significance relating to the custody and care of children. We accept Mr Marshall’s submission that a summary of the general purpose of this kind of offence was provided by the Supreme Court of Canada in R v Chartrand:[16]
… [T]he purpose of [the section] is to secure the right and ability of parents (guardians, etc.) to exercise control over their children (those children for whom they act as guardians, etc.) for the protection of those children, and at the same time to prevent the risk of harm to children by diminishing their vulnerability. It is also a recognition by Parliament that children are best protected by the supervision of their parents (guardians, etc).
[16]R v Chartrand [1994] 2 SCR 864 at 880 per L’Heureux-Dubé J.
It is unrealistic to say that Mr Smith did not commit offending in relation to this child. Intentionally driving off with the child is a significant offence of a different kind from theft of the vehicle. That is reflected in the impact of the offending. When sentencing, Judge Greig referred to the impact on child’s mother, and Judge Hikaka in his ruling described the mother as being distraught and traumatised by the events.[17]
[17]Sentencing notes, above n 1, at [38]–[40]; and abduction ruling, above n 2, at [40].
In response to Mr Bourke’s submission that he could not identify any other cases of contemporary offending of this kind, Mr Marshall referred us to cases from the United States in almost identical situations which are consistent with our analysis of the elements:
(a)In Taylor v Indiana the Indiana Court of Appeal upheld a conviction when the defendant had acknowledged that he had not abandoned a stolen car as soon as he had discovered it was occupied by two children.[18]
(b)In Bowling v State of Maryland, the Maryland Court of Special Appeals upheld a conviction when the defendant had stolen a car with its engine running which contained children as he had continued driving the car a short distance after noticing them in the car.[19]
(c)By contrast in Delgado v Florida the theft of an unattended and running vehicle from outside a shop which contained a two-year-old child did not involve an offence because there was insufficient evidence that the defendant knew the child was in the car.[20]
(d)And in Illinois v Hall the Illinois Supreme Court held the defendant had established a plausible defence to an offence of aggravated kidnapping when the defendant only discovered the child’s presence after later crashing the vehicle.[21]
[18]Taylor v State of Indiana 879 NE 2d 1198 (Ind Ct App 2008).
[19]Bowling v State of Maryland No 2165, September Term (Md Ct Spec App filed Oct 12 2018).
[20]Delgado v State of Florida 71 So 3d 54 (Fla 2011).
[21] People of the State of Illinois v Hall 841 NE 2d 913 (Ill 2005).
Mr Smith only intentionally deprived the child’s mother of lawful possession of the child for a short period of time. We do not need to decide whether there may be cases where a taking may be so transitory that no offence is committed. But the taking here had real significance even though it was for a temporary period, and its temporary nature is a matter that can be, and was, reflected in sentencing.
Result
For the above reasons the appeal is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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