Yad-Elohim v The King - [2024] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA79/2024
[2024] NZCA 206

BETWEEN	GABRIEL YAD-ELOHIM Applicant
AND	THE KING Respondent

Court:	Wylie, Lang and Campbell JJ
Counsel:	R M Mansfield KC for Applicant J A A Mara for Respondent
Judgment: (On the papers)	4 June 2024 at 10 am

JUDGMENT OF THE COURT

The application for an extension of time within which to appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Yad‑Elohim was found guilty of murder by a jury in the High Court at Auckland. On 20 September 2018, van Bohemen J sentenced him to life imprisonment.[1] The Judge also made an order that Mr Yad‑Elohim was required to serve a minimum period of 13 years’ imprisonment before being eligible to apply for parole.[2]
[1]R v Yad-Elohim [2018] NZHC 2494 [sentencing notes].
[2]At [64].
Mr Yad‑Elohim appealed against conviction, but his appeal was dismissed by this Court in a judgment delivered on 1 May 2023.[3] Mr Yad‑Elohim now seeks leave for an extension of time within which to appeal against sentence. If granted leave, Mr Yad‑Elohim proposes to argue that it was manifestly unjust for the Judge to impose a sentence of life imprisonment.
[3]Yad-Elohim v R [2023] NZCA 136 [conviction appeal].
Mr Yad‑Elohim filed his notice of appeal against sentence more than five years out of time. The Crown opposes leave for an extension of time within which to appeal being granted. It contends Mr Yad‑Elohim has not provided an adequate explanation for the delay and the merits of the proposed appeal are not strong.
In a minute issued on 20 March 2024, Ellis J directed that the application for leave was to be dealt with separately to the appeal. We now determine the application for leave based on the written submissions filed by counsel for Mr Yad‑Elohim and the Crown.

The offending

Mr Yad‑Elohim was charged with the murder of Michael Mulholland. Mr Yad‑Elohim had never met Mr Mulholland prior to the incident giving rise to the charge.
In his sentencing remarks, van Bohemen J described the events that led to Mr Mulholland’s death as follows:
[2] There was never any doubt that you killed Mr Mulholland. The assault was captured on CCTV footage at the scene. You went to Mr Mulholland’s apartment building with Ms Uru, with whom you had a slight acquaintance and whom you had approached on the street to buy drugs. Ms Uru, who was known to Mr Mulholland, persuaded you to hand over $200 and to stay on the landing below Mr Mulholland’s apartment while she bought the drugs for you. You say Ms Uru had told you Mr Mulholland had gang associations. You remained on the landing awaiting Ms Uru’s return. But she did not return. She had climbed over the balcony at Mr Mulholland’s apartment, clambered back to the ground and ran away with your money. As Ms Uru admitted in evidence, that had always…

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.

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Details

Case: [2024] NZCA 206
Decision Date: 4 June 2024 at 10 am

CaseChat Overview and Summary

Gabriel Yad-Elohim applied for an extension of time to appeal against the sentence imposed by the High Court at Auckland, where he was found guilty of murder. The Court of Appeal of New Zealand, comprising Wylie, Lang, and Campbell JJ, considered the application on the papers. Yad-Elohim had been sentenced to life imprisonment with a minimum non-parole period of 13 years, and his appeal against the conviction was dismissed. He sought an extension of time to appeal against the sentence, arguing it was manifestly unjust. The Crown opposed the application, asserting Yad-Elohim failed to provide an adequate explanation for the delay and that the merits of the appeal were weak.

The Court noted that leave to appeal is only granted in exceptional circumstances where there has been a significant delay. The analysis involved two main questions: the explanation for the delay and the merits of the appeal. Yad-Elohim did not provide any evidence to explain the delay, but his counsel argued that the focus had been on the appeal against conviction, which involved complex issues. The Court found it unlikely that Yad-Elohim had always intended to appeal against sentence, suggesting the delay was not adequately explained.

Regarding the merits, the Court examined whether the sentencing judge erred in finding it was not manifestly unjust to impose a life sentence. The sentencing judge considered various factors, including Yad-Elohim's mental health issues, in concluding that life imprisonment was appropriate. The Court found that the judge had adequately considered all relevant circumstances, including the impact of Yad-Elohim's mental health, and determined that the brutality and prolonged nature of the offending weighed against a finding of manifest injustice. Consequently, the Court concluded that the appeal had weak merits.

The Court dismissed the application for an extension of time to appeal against the sentence. The appeal against sentence was denied leave, and the life sentence with a minimum non-parole period of 13 years stood.

Orders