Smith v The Queen - [2016] NZCA 617

IN THE COURT OF APPEAL OF NEW ZEALAND

CA294/2014
[2016] NZCA 617

BETWEEN	ERNEST SMITH Appellant
AND	THE QUEEN Respondent

Hearing:	17 November 2016
Court:	Wild, Miller and Brown JJ
Counsel:	N P Chisnall and T Singh for Appellant A Markham for Respondent
Judgment:	16 December 2016 at 2.30 pm

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Mr Smith pleaded guilty to the murder of his former partner, Ms Amanda Taufale, on 17 September 2013. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years by Ronald Young J in the High Court at Wellington on 23 October 2013.[1]
[1]R v Smith [2013] NZHC 2782.
Mr Smith now appeals against his sentence. Because his notice of appeal was filed some eight months out of time, he applies for an extension of time to appeal against his sentence. The Crown does not oppose an extension of time and, since no prejudice arises, we grant Mr Smith’s application.
The notice of appeal contended that an MPI of 17 years was manifestly unjust because the Judge failed to take sufficient account of four matters:
(a)the appellant’s previous good character;
(b)the results of the psychiatric assessments which showed that a combination of factors contributed to his offending, including that the appellant suffered from a personality disorder, has limited intelligence, impaired literacy skills and was victimised as a child;
(c)the appellant’s cultural dislocation; and
(d)his remorse.
The first and fourth grounds were not pursued on the appeal. However in a minute of 25 August 2016 directing that the appeal be heard by a permanent rather than a divisional Court, the President of this Court invited counsel to file revised written submissions addressing two further issues:
(a)The manner in which a Court should make provision for a discount for a guilty plea in murder cases to which s 104 of the Sentencing Act 2002 applies.
(b)The level of appropriate discount for relevant mental illness in the context of a s 104 murder case.
Before considering these grounds, we detail the offending and the sentencing process.

The offending

Mr Smith was born and raised in Jamaica but moved to the Cayman Islands as a migrant worker in 2006. There he met Ms Taufale when she was on holiday in 2007. After a long-distance relationship lasting approximately one year, Mr Smith immigrated to New Zealand in 2009. The two had a son together but their relationship deteriorated shortly afterwards and they separated in 2012. Police became involved following incidents of family violence. Although no prosecution was ever brought, Ms Taufale made it clear the relationship was at an end. She required Mr Smith to give prior notice of access visits with their son, which were to be supervised by a family member. She also requested that Mr Smith return his house key, but he secretly kept a spare.
At…

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 [2016] NZCA 617
Case: [2016] NZCA 617
Decision Date: 16 December 2016 at 2.30 pm

CaseChat Overview and Summary

Ernest Smith was convicted and sentenced to life imprisonment with a minimum period of imprisonment of 17 years for the murder of his former partner, Ms Amanda Taufale. Smith appeals the sentence, arguing that the minimum period of imprisonment is manifestly unjust. The appeal was filed eight months out of time, but the Crown does not oppose an extension of time, and no prejudice arises, so the application is granted. The grounds of appeal focus on the mitigating effect of Smith’s intellectual disability, personality disorder, and childhood abuse. The Court finds that the trial Judge appropriately considered these factors and did not fail to take them into account. The Court also finds that the mitigating effect of these factors is limited by the fact that the murder was premeditated and involved brutality, and that intellectual impairments and anti-social personality structures are not generally susceptible to treatment. The Court further finds that the hardship of imprisonment for Smith is not disproportionate, as he has adjusted well to prison life and there is no indication of insurmountable hardships. Finally, the Court finds that this is not an appropriate case to revisit the issue of a discount for a guilty plea in cases to which s 104 of the Sentencing Act applies, as the appropriate level of discount would not bring the final minimum period of imprisonment below the 17-year threshold mandated by s 104.

An extension of time to appeal is granted. The appeal against sentence is dismissed.

Orders