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Williams v Police

Williams v Police

Case [2015] NZHC 1118 25 May 2015

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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 Respondent

Judgment:

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…

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 Williams v Police

Details

AGLC: Williams v Police [2015] NZHC 1118
Case: [2015] NZHC 1118
Decision Date: 25 May 2015

CaseChat Overview and Summary

Sergio Federico Williams appeals against the sentence of 32 months' imprisonment imposed on four charges of driving while disqualified (third or subsequent). He argues that the sentencing methodology used by the sentencing judge was incorrect and that the sentence is manifestly excessive in terms of s 85(3) of the Sentencing Act 2003. Williams 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.

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