Smith v The the Queen - [2022] NZHC 1211

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-46

[2022] NZHC 1211

BETWEEN
WAYNE SMITH

Appellant

AND

THE QUEEN

Respondent

Hearing: 28 April 2022

Appearances:

A M McCormick and D J B Curnow for Appellant D L Elsmore for Respondent

Judgment:

27 May 2022

JUDGMENT OF OSBORNE J

Parts of this judgment contain redaction

This judgment was delivered by me on 27 May 2022 at 3.30 pm Registrar/Deputy Registrar
Date

SMITH v R [2022] NZHC 1211 [27 May 2022]

Introduction

[1] Wayne Smith appeals a sentence of 17 years’ imprisonment and the minimum period of imprisonment (MPI) imposed (40 per cent).1

[2] The sentence was imposed by Judge Neave following Mr Smith’s pleas of guilty to 38 charges, as tabulated in the Schedule to this judgment. The following summary from the Crown Charge List gives some impression of the gravity and sheer scale of Mr Smith’s offending — as Judge Neave observed “a catalogue of offences, the like of which I have rarely seen”.

SUMMARY OF CHARGES

Sexual violation by unlawful sexual connection (x13) Sexual violation by rape (x3)
Sexual violation by rape (representative) Doing an indecent act on a child (x10)
Doing an indecent act on a child (representative)

Knowingly made objectionable publications – Category A (representative) (victim)

Knowingly made objectionable publications – Category B (representative) (victim)

Knowingly made objectionable publications – Category C (representative) (victim)

Possession of objectionable publications – Category A (representative) (victim)

Possession of objectionable publications – Category B (representative) (victim)

Possession of objectionable publications – Category C (representative) (victim)

Possession of objectionable publications – Category A (representative) Possession of objectionable publications – Category B (representative) Possession of objectionable publications – Category C (representative) Sexual conduct with a child outside New Zealand

1 R v Smith [2022] NZDC 2665.

[3] An eight year old girl — referred to as “F” in this judgment — was the victim of all but the last four charges. She was known to Mr Smith, regularly visiting his house from early 2020, with numerous overnight stays. The offending, the subject of the resulting charges, took place between December 2020 and June 2021. Three additional (objectionable publications) charges relate to a vast quantity of child pornography and other objectionable material. The final charge involved the defendant, while overseas, grooming two young girls online and having them perform sexual acts on themselves and on one another.

[4]Mr Smith appeals the sentence upon the basis it was manifestly excessive.

[5] Mr Smith also appealed against the District Court’s refusal to make a final order of suppression of his name. That appeal was withdrawn before the hearing.

The offending

Offending against F

[6]The first of the offences committed on F occurred in early-December…

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 the Queen

Details

AGLC: Smith v The the Queen [2022] NZHC 1211
Case: [2022] NZHC 1211
Decision Date: 27 May 2022

CaseChat Overview and Summary

Wayne Smith appeals against his sentence of 17 years’ imprisonment and a 40 per cent minimum period of imprisonment imposed by Judge Neave. Smith’s appeal was based on the argument that the sentence was manifestly excessive. Smith’s offending was extensive, involving the sexual abuse of an eight-year-old girl, F, over a five-month period. The offending included rape, unlawful sexual connection, indecent acts, and possession of objectionable publications. The offending was filmed and involved overseas grooming of two additional children. The appeal court found that the starting point of 23 years was appropriate, taking into account the totality principle. The court also found that the 22.5 per cent discount for Smith’s guilty pleas was appropriate, given the strength of the Crown case and the fact that Smith had filmed his offending, which made it difficult for the defence to challenge the victim’s evidence. The appeal court concluded that the sentence was not manifestly excessive, and the appeal was dismissed.

Orders