Smith v The Queen - [2020] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA509/2019
[2020] NZCA 295

BETWEEN	CHRISTOPHER RAMIA SMITH Appellant
AND	THE QUEEN Respondent

Hearing:	25 June 2020
Court:	Gilbert, Ellis and Katz JJ
Counsel:	M E Goodwin and C M Chester-Cronin for Appellant Z R Johnston for Respondent
Judgment:	16 July 2020 at 9 am

JUDGMENT OF THE COURT

AThe application to adduce the s 27 report is granted.
BThe appeal against sentence is allowed.
C The sentence of six years’ imprisonment imposed in the High Court on the charge of manslaughter is set aside. A sentence of five years’ imprisonment is substituted. The concurrent sentence of three years’ imprisonment for the charge of kidnapping is confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Following a trial by jury in the High Court at Hamilton, Mr Smith was found guilty of manslaughter and kidnapping. He was sentenced by Davison J on 6 September 2019 to six years’ imprisonment.[1] Mr Smith now appeals against his sentence.

Grounds of appeal

[1]R v Smith [2019] NZHC 2251 [Sentencing judgment].

Mr Smith contends the starting point adopted of seven years’ imprisonment was too high, particularly when compared with the eight-year starting point adopted for Mr Walker, a co-offender. Mr Walker played a more significant role and directly caused the death by placing the victim in a sustained chokehold whereas Mr Smith merely assisted by restraining the victim’s legs. Mr Smith also contends that the global discount of 12 months’ imprisonment was inadequate for the five personal mitigating factors accepted by the Judge — no previous convictions, previous good character, motivation to address his drug addiction, genuine remorse and seven months spent on electronically monitored (EM) bail. This equates to an overall discount of 14 per cent.
Mr Smith also applies to adduce further evidence in support of the appeal, being a cultural report prepared by Ms Turner under s 27 of the Sentencing Act 2002. As will become apparent, the report is highly relevant to Mr Smith’s personal mitigating factors and we are prepared to receive it in the interests of justice. We grant the application accordingly.

The facts

The offending occurred after Mr Wilson, the president of the Waikato chapter of the Nomads gang, discovered that the victim, Mr Paterson, had been going around making disparaging remarks about him. In the early hours of the morning on Thursday, 12 July 2018, Mr Wilson made arrangements for Mr Paterson to be brought before him to answer for this. Mr Walker, a Nomad’s gang prospect, either offered or was directed by Mr Wilson to find Mr Paterson and bring him to Mr Wilson’s address. He was joined by two others who were present when the arrangements were made, Ms Kerridge, who was then Mr Walker’s partner, and Mr Boyle. The three of them went in Mr Boyle’s car and located Mr Paterson at an address in Mill Lane, Hamilton. Mr Smith was not involved at this stage.
Mr…

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 The Queen

Details

AGLC: Smith v The Queen [2020] NZCA 295
Case: [2020] NZCA 295
Decision Date: 16 July 2020 at 9 am

CaseChat Overview and Summary

In the case of Smith v The Queen, the appellant, Christopher Ramia Smith, appealed against his sentence of six years' imprisonment for manslaughter and three years' imprisonment for kidnapping, both to run concurrently. Smith contended that the starting point adopted of seven years' imprisonment was too high, particularly when compared to the starting point of eight years for his co-offender, Mr Walker. Smith also argued that the global discount of 12 months for personal mitigating factors was inadequate. The Court allowed Smith's application to adduce a cultural report prepared under s 27 of the Sentencing Act 2002, which was relevant to Smith's personal mitigating factors. The Court found that the starting point of seven years was appropriate, but the discount for personal mitigating factors was insufficient. The Court determined that a discount of not less than 25 per cent was necessary to account for Smith's personal circumstances, family background, previous good character, low risk of reoffending, rehabilitative efforts, and genuine remorse. The Court also found that an additional discount of three months was required for the time Smith spent on electronically monitored bail. Consequently, the Court allowed the appeal against sentence, set aside the six-year imprisonment for manslaughter, and substituted a sentence of five years' imprisonment. The concurrent sentence of three years' imprisonment for kidnapping was confirmed.

Orders