Young v The Queen - [2018] NZCA 604

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA720/2017
[2018] NZCA 604

BETWEEN	MATTHEW JOHN YOUNG Appellant
AND	THE QUEEN Respondent

Hearing:	23 October 2018
Court:	Brown, Courtney and Katz JJ
Counsel:	R A A Weir for Appellant E J Hoskin for Respondent
Judgment:	18 December 2018 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for filing a notice of appeal is granted.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In April 2017, Matthew Young pleaded guilty to 13 charges of dishonesty and fraud.[1] There was a disputed facts hearing in August 2017 before Judge Cocurullo, who had case managed the proceeding since 2016. The Judge sentenced Mr Young in November 2017, imposing sentences totalling four years and 11 months’ imprisonment.[2]
[1]Five of dishonestly using a document (Crimes Act 1961, s 228); four of carrying on a business fraudulently (Companies Act 1993, s 380(1)); two of falsely obtaining credit while bankrupt (Insolvency Act 2006, s 424(1)(b)(i) and (iii)); one of obtaining by deception (Crimes Act, s 240(1)(b)); and one of causing loss by deception (Crimes Act, s 240(1)(d)).
[2]R v Young [2017] NZDC 24911.
Mr Young wishes to appeal both his convictions and sentence but filed his notice of appeal outside the required time; the time for filing the appeal expired on 1 December 2017 but the notice of appeal is dated 6 December 2017 and was accepted for filing by this Court on 18 December 2017.[3] Time for filing the appeal may be extended if it is in the interests of justice to do so.[4] The matter was not addressed by either counsel. However, in his notice of appeal, Mr Young (then resident at Spring Hill Corrections Facility) noted that he did not have counsel acting for him but proposed to instruct counsel once he obtained legal aid and later added that:
I have attempted to have this appeal completed and filed. My current counsel have advised they cannot file as they may be required to give evidence. I filed an earlier document which was returned to me by the Registry as being on the wrong form. I filed that form based on counsel’s advice. I also filed an appeal in the High Court at Hamilton as the matter started prior to the Criminal Procedure Act start date. I now file this form.
[3]The proceeding commenced in February 2013 and is therefore subject to the transitional provisions in s 397 of the Criminal Procedure Act 2011 which requires this appeal to proceed under part 13 of the Crimes Act (now repealed). Section 388 of the Crimes Act required notice of an appeal against conviction and sentence to be given not later than 28 days after the date of sentence.
[4]R v Lee [2006] 3 NZLR 42 (CA) at [95]–[97]; and R v Knight [1998] 1 NZLR 583 (CA) at
588–589.

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 Young v The Queen

Details

AGLC: Young v The Queen [2018] NZCA 604
Case: [2018] NZCA 604
Decision Date: 18 December 2018 at 3.30 pm

CaseChat Overview and Summary

Matthew Young appeals against his conviction and sentence following a guilty plea to 13 charges of dishonesty and fraud. The appeal against conviction asserts a miscarriage of justice resulting from the Judge's orders relating to pre-trial applications, refusal to adjourn the disputed facts hearing and refusal to grant bail pending sentence. The appeal against sentence asserts that the sentence is manifestly excessive. The Court rejected both appeals. In relation to the conviction appeal, the Court found no error in the Judge's orders. The Court was satisfied from the extensive reasons given in the Judge's decision refusing bail that the outcome would have been the same regardless of the Crown's position. In relation to the sentence appeal, the Court found that the Judge's approach to sentencing was orthodox and appropriate. The end sentence imposed, whilst stern, was not manifestly excessive.

Orders