Trotter v R

IN THE SUPREME COURT OF NEW ZEALAND
SC CRI 18/2004
[2005] NZSC 7
DONALD LYALL TROTTER
v
THE QUEEN
Court:Gault J and Tipping J
Counsel:M A Kennedy for Applicant

F E Guy for Respondent

Judgment:3 March 2005

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS
[1]       The applicant seeks leave to appeal against the judgment of the Court of Appeal delivered on 14 October 2004 upholding the sentence of preventive detention imposed upon conviction after a jury trial in the District Court.
[2]       Having considered the written submissions of counsel in support of, and in opposition to, the application, we are satisfied that an oral hearing is unnecessary and that the application should be dismissed.
[3]       The applicant seeks to advance in this court substantially the same grounds as were considered in the Court of Appeal. They are, in effect, that by reference to the mandatory principles and purposes relating to the sentence of preventive detention, the sentence in the case of the applicant should not have been imposed. The challenges are to the assessment of the likelihood that the applicant would commit another qualifying offence upon release and of the need for preventive detention in preference to a lengthy determinate sentence.
[4]       The grounds put forward do not raise issues of sentencing principle. They are directed to the application of established principles to the circumstances of the applicant and do not raise any matter of general or public importance.
[5]       Before granting leave the Court must be satisfied that it is necessary in the interests of justice for the Court to hear the proposed appeal. Where a sentence has been reviewed in the Court of Appeal and there is not raised a question of law or of general sentencing principle that requirement will not be met.
[6]       It is not sufficient to contend that a substantial miscarriage of justice may occur if the sentence is not reviewed on a second appeal. Justice requires that sentences be imposed in accordance with the law and by the application of correct principles, with the opportunity for review on appeal. It does not require a further review of the severity or appropriateness of the sentence by way of second appeal. A further appeal is appropriate only when there is raised a question whether the sentencing process has seriously miscarried. That is not this case.
[7]       The approach that we are taking to the criteria for leave in s 13 of the Supreme Court Act is substantially the same as that in respect of second appeals in other Commonwealth jurisdictions. Although there are some differences in the statutory provisions conferring jurisdiction, the general approach to the grant of leave is the same: see Taylor on Appeals at 14.028 (House of Lords) and 18.096 et seq (Privy Council), Lowe v The Queen (1984) 154 CLR 606 (High Court of Australia) and R v M [1996] 1 SCR 500 at [33] (Supreme Court of Canada).
[8]       Accordingly leave to appeal is refused.
Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application from Donald Lyall Trotter for leave to appeal a decision of the Court of Appeal that upheld a sentence of preventive detention. Trotter sought to challenge the assessment of the likelihood that he would commit another qualifying offence upon release and the need for preventive detention in preference to a lengthy determinate sentence. The Court of Appeal had previously upheld the sentence and dismissed Trotter's appeal.

The legal issues before the Supreme Court were whether the Court of Appeal's decision warranted a second appeal and whether there was a miscarriage of justice that necessitated further review. The Court noted that Trotter's grounds for appeal were directed at the application of established sentencing principles to his specific circumstances rather than raising broader issues of general or public importance. The Court held that the criteria for granting leave to appeal required a showing that there was a question of law or of general sentencing principle that had not been addressed by the Court of Appeal.

The Court concluded that the grounds for appeal did not meet the threshold for a second appeal because they did not involve a serious miscarriage of justice or an error in the application of sentencing principles. The Court emphasised that justice required sentences to be imposed according to the law and by the application of correct principles, with the opportunity for review on appeal. However, it did not require a further review of the severity or appropriateness of the sentence unless there was a significant error in the sentencing process. In this case, the Court found no such error and therefore dismissed the application for leave to appeal.

The Supreme Court's decision was that the application for leave to appeal was dismissed, and the sentence of preventive detention upheld by the Court of Appeal would stand. The Court did not grant leave to appeal, finding that it was not necessary in the interests of justice to review the case further.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established