IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000028 [2015] NZHC 1118
BETWEEN SERGIO FEDERICO WILLIAMS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 May 2015 Appearances:
A G James for Appellant
S E Burdes for RespondentJudgment:
25 May 2015
JUDGMENT OF DUNNINGHAM J
[1] Sergio Federico Williams appeals against a sentence of 32 months’ imprisonment imposed on four charges of driving while disqualified (third or subsequent).
[2] He submits that the sentencing methodology used by the sentencing Judge was incorrect and has resulted in an end sentence which is manifestly excessive in terms of s 85(3) of the Sentencing Act 2003.
[3] He also seeks leave to appeal out of time as the notice of appeal was filed on or about 7 April 2015 when, under s 248 of the Criminal Procedure Act 2011, it was required to be filed within 20 working days of the date of sentencing, being
1 December 2014.
Leave to appeal
[4] I will deal with the application for leave to appeal out of time first as it necessarily precedes consideration of the substantive appeal.
WILLIAMS v NEW ZEALAND POLICE [2015] NZHC 1118 [25 May 2015]
[5] The explanation for the late filing of the appeal is that Mr Williams had previously filed a notice of general appeal within time, albeit on an incorrect form supplied to him by a corrections officer. This form, once completed, was erroneously emailed by the principal corrections officer to the Court of Appeal. Mr Williams, understandably, had assumed that he had filed his appeal within time and was awaiting advice on a hearing. Once the error came to light, the current appeal was filed.
[6] The Criminal Procedure Act 2011 permits an extension of time for the filing of an appeal.1 The “touchstone” for granting such an application is the interests of justice in the particular case.2 Factors of relevance to the overall balancing test approach include:3
… the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[7] Recent appellate authorities acknowledge that extension of time applications routinely reduce to the reasons for the delay and the merits of the proposed appeal.4
It is for the appellant to provide sufficient information to satisfy the Court that granting leave is in the interests of justice.5
[8] It is clear that there has been a genuine error in the filing of the appeal and that this failure arose in circumstances which are reasonably to be excused.6 It is also clear that granting leave will cause no prejudice to the respondent, indeed the respondent does not object to the extension of time sought. Furthermore, this is not a case where I could reject the appeal as meritless on its face. Accordingly, I grant leave to file the appeal…
Continue reading Williams v Police
Sign in free to access the full text
- AGLC
- Williams v Police [2015] NZHC 1118
- Case
- [2015] NZHC 1118
- Decision Date
CaseChat Overview and Summary
The explanation for the late filing of the appeal was that Mr Williams had previously filed a notice of general appeal within time, albeit on an incorrect form supplied to him by a corrections officer. This form, once completed, was erroneously emailed by the principal corrections officer to the Court of Appeal. Mr Williams, understandably, had assumed that he had filed his appeal within time and was awaiting advice on a hearing. Once the error came to light, the current appeal was filed. The Court found that there has been a genuine error in the filing of the appeal and that this failure arose in circumstances which are reasonably to be excused. It was also clear that granting leave will cause no prejudice to the respondent, indeed the respondent does not object to the extension of time sought. The Court granted leave to file the appeal out of time and went on to consider the parties' substantive submissions on the appeal against sentence.
The Court found that the Judge did not err in adopting the starting point of 40 months, or in adjusting it to culminate in an end sentence of 32 months’ imprisonment. As both stages of sentencing are within range, this ground of appeal must fail. The Court also found that both the seriousness of the offending and the appellant’s manifest history of non-compliance, favour cumulative sentences of imprisonment. The Court was entitled to adopt a cumulative approach. The end sentence proposed by the appellant of 18 to 23 months, is within the higher range of the sentencing band for one single such offence. However, such a sentence would not reflect the cumulative culpability for the four separate offences committed over an 18 month period and when the last two were committed in circumstances where he had had the warning of the District Court in Ashburton, and when one of them was committed while on bail. Accordingly, the appeal is dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.