The Queen v Shepherd - [2008] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND
CA253/07
[2008] NZCA 17
THE QUEEN
v
DEAN JOSEPH SHEPHERD
Hearing:11 February 2008

Court:Glazebrook, John Hansen and Wild JJ
Counsel:P T R Heaslip for Appellant

K Hastie and N P Chisnall for Crown

Judgment:22 February 2008 at 11.30am

JUDGMENT OF THE COURT

AN EXTENSION OF TIME TO APPEAL AGAINST BOTH CONVICTION AND SENTENCE IS REFUSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by John Hansen J)
[1]       The appellant was indicted on a charge of murdering his former landlady, Darunee Aphiromlerk on 3 October 2004. His trial commenced on 1 May 2006. On 8 May, on the request of the appellant’s counsel, the trial was adjourned to enable instructions to be taken. On 9 May 2006 the appellant was re-arraigned and pleaded guilty to murder. He was convicted, and on 2 November 2006 was sentenced to life imprisonment with a minimum term of 17 and a half years.
[2]       The appellant seeks an extension of time to appeal. His unexplained delay in appealing would in itself be a sufficient ground to refuse an extension.   But we prefer to refuse an extension of time because the appeal lacks any merit.
Background
[3]       The deceased was the appellant’s landlady. On a spasmodic basis he carried out work for her. On the day in question the appellant took umbrage with the deceased because she made demeaning comments about him and his family and because she had not paid him for some work he maintained he had carried out. She was also pursuing him for unpaid rent. He assaulted and restrained the deceased, tying her hands behind her back, and tying her ankles. He then wrapped her in a duvet where further ties were applied. After dark he placed her in her vehicle and drove her to Mercer. In a small lay-by near the Whangamarino swamp inlet he parked the vehicle. He sat with the deceased for several hours deciding what he should do. He says the deceased was still alive and pleading to be let go. He then removed her from the duvet and removed the duvet inner. He placed her back inside the duvet cover and tied the end closed. He tied the outside of the duvet with a strap and with rope he found near where he was sitting. According to the appellant, the deceased was still alive at that time. He carried her out onto the railway bridge which crosses the Whangamarino swamp inlet and threw her into the water.
[4]       After this he drove her vehicle back towards Auckland, on the way burying credit cards belonging to the deceased, throwing her watch from the vehicle and discarding her handbag and purse. He then threw her cellphone from the vehicle into a creek. He drove to his home where he stayed for several days contemplating what he had done. He then returned to the deceased’s address where he stole her 29-inch television which he placed into the rear of her motor vehicle. He…

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 The Queen v Shepherd

Details

AGLC: The Queen v Shepherd [2008] NZCA 17
Case: [2008] NZCA 17
Decision Date: 22 February 2008

CaseChat Overview and Summary

In the case of The Queen v Shepherd, the appellant, Dean Joseph Shepherd, was convicted of murdering his former landlady, Darunee Aphiromlerk. Shepherd was sentenced to life imprisonment with a minimum term of 17 and a half years. He now seeks an extension of time to appeal against both his conviction and sentence. The primary legal issues were whether the appeal against conviction had any merit and whether the sentence imposed was manifestly unjust. The Court found that the appeal against conviction lacked merit as Shepherd had effectively admitted all the necessary elements of the crime by pleading guilty. Furthermore, the Court held that the sentence was not manifestly unjust, as the murder involved high levels of brutality, cruelty, depravity, and callousness. The Court concluded that there were no clearly demonstrable factors to warrant a departure from the 17-year minimum term.

The Court of Appeal of New Zealand, comprising Glazebrook, John Hansen, and Wild JJ, examined the appeal against conviction and sentence. The appeal against conviction was based on the argument that the necessary elements of the crime of murder were not present when Shepherd pleaded guilty. However, the Court rejected this argument, finding that Shepherd had effectively admitted to the necessary elements by pleading guilty and that his unchallenged statements to the police made the case against him overwhelming. The Court also held that the appeal against sentence was misguided, as there were no clearly demonstrable factors to warrant a departure from the 17-year minimum term.

As a result of the Court's decision, Shepherd's appeal against both conviction and sentence was dismissed, and no extension of time to appeal was granted. The Court further requested the Registrar to refer a copy of this decision to the Legal Services Agency.

Orders