New Zealand Law Society - Courts roundup 4 May - 10 May 2023
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Young and anor v Zhang [2023] NZSC 44 (2 May 2023)
Unsuccessful leave application – Application for leave to appeal from CA declining to recall earlier judgment in proceedings – Earlier judgment dismissed appeal against HC refusal to set aside consent order and appeal against contempt finding –
Y and Y wished to pursue arguments based on alleged forgery and directed to showing Z breached consent order and in contempt, not second applicant –
SC said question about jurisdiction to hear proposed appeal or at least part – CA treated contempt finding as criminal contempt – No right of appeal from CA decision declining recall in criminal jurisdiction – In terms of civil aspect of proposed appeal SC assumed, without deciding, right of appeal from CA decision declining to recall its earlier decision regarding consent order –
However proposed appeal characterised, clear leave criteria not met – Applications declined.
Kupec v R [2023] NZSC 43 (3 May 2023)
Unsuccessful time extension application – In 2017, Czech citizen K convicted of one charge of importing into New Zealand class A controlled drug (being 20 kilograms of methamphetamine) –
Sought extended time to apply to SC for leave to appeal 2018 CA sentencing judgment – Previous application to SC confined to conviction only not MPI – Sought time extension because limited English meant that, at time of his original appeal to CA did not understand lawyer challenging MPI –
SC said where leave application out of time, applicant had to provide adequate explanation for delay and compelling reasons for extending time – Had to show in all circumstances, interests of justice favoured granting leave – No risk of substantial miscarriage of justice here – Application declined.
Legler and anor v Formannoij and anor [2023] NZSC 46 (4 May 2023)
Successful leave application – Leave to appeal granted – Approved question is whether CA correct to dismiss appeal.
Van Silfhout v Pathirannehelage [2023] NZSC 47 (4 May 2023)
Successful leave application – Approved question whether CA correct in interpreting s 64(1) Prisoners’ and Victims’ Claims Act 2005 which suspended limitation period for offence victim claiming under Act while offender is “serving a sentence of imprisonment” and, in particular, concluding time spent in pre-sentence detention counted to extend suspension period.
Woolworths New Zealand Ltd v Auckland Council and ors [2023] NZSC 45 (5 May 2023)
Unsuccessful appeal from CA – W and F New Zealand’s two major supermarket chains – They, among others, appealed to Alcohol Regulatory and Licensing Authority (Authority) under s 81 of 2012 Act – Said several elements of Auckland provisional local alcohol policy (PLAP) unreasonable in light of sale and Supply of Alcohol Act 2012 (2012 Act) objective –
Authority said 9 am opening time but not 9 pm closing time unreasonable and Council to reconsider trading hours restriction – Licensing Authority was not persuaded that new off-licence restrictions unreasonable –
W and F both sought judicial review of Licensing Authority’s decision – HC said Authority made error of law by failing to provide appropriate reasons regarding 9 pm closing time and new off-licence restrictions – Also said local impacts reports element ultra vires (meaning Auckland Council not able to include this element in Auckland PLAP) – On appeal (which did not extend to local impacts reports element), CA reinstated Authority decision on 9 pm closing time and new off-licence restrictions –
SC unanimously dismissed appeals – Said while there no legal burden of proof, was persuasive burden on appellant to demonstrate unreasonable element in light of 2012 Act object – SC agreed with CA that precautionary approach open and restriction might be justified because of reasonable likelihood would reduce alcohol-related harm – However, did not mean element could not be successfully challenged – SC said Authority made no error of law concluding 9 pm closing time not unreasonable in light of 2012 Act object –
SC agreed with CA ultra vires references to local impacts reports in clauses dealing new off-licence restrictions did not mean clauses had to be referred to Auckland Council for reconsideration – More generally, SC said Authority entitled to conclude, and gave adequate reasons for concluding, new off-licence restrictions justified on basis of likelihood of reducing alcohol-related harm – Authority also adequately addressed countervailing proportionality factor of difficulties supermarkets faced obtaining new off-licences – Appeals dismissed.
Martel v R [2023] NZSC 48 (5 May 2023)
Unsuccessful leave application – M pleaded guilty and sentenced to 18.5 years for importing restricted drugs into New Zealand – Sought leave to appeal against CA decision dismissing his appeal against sentence – As this application over four years out of time, also sought time extension to bring application –
SC acknowledged drug addiction relevant to commercial drug sentencing – MPIs not to be imposed mechanistically – Here sentence and MPI reflected leading role M had in operation – No risk of miscarriage of justice if leave not granted – No point in granting time extension – Application dismissed.
Zhou v Levonz Investment Ltd [2023] NZCA 137
Unsuccessful appeal against profit forfeiture orders made under s55 Criminal Proceeds (Recovery) Act 2009 – H sold synthetic cannabis from a dairy she owned in Christchurch – Z worked in H’s’ dairy at this time and also sold synthetic cannabis – Value of unlawful benefit obtained by Z determined to be $2.214M (s53) and Commissioner of Police entitled to recover it all – Whether presumption in s53 rebutted, and Judge erred by not considering “double recovery”, and when declined Z’s undue hardship application (s56) – HELD: Judge entitled to accept the Commissioner’s calculation was reasonable, and that Z’s attempts to argue that he only sold 65.5kg of synthetic cannabis was grossly misleading – Z had not proven he and H were jointly benefitting from the offending, and no error involved when Commissioner calculated Z’s benefit by focusing on the gross revenue he received – Double recovery not established – No matters raised that went beyond the hardship most people would suffer if they had their property confiscated under the Act – Undue hardship not established – Appeal dismissed.
Mohamed v R [2023] NZCA 143
Unsuccessful appeal against conviction – Wounding with intent to cause grievous bodily harm – Sentence imposed 7 years 2 months imprisonment – Defence case was that M was not the person who stabbed the victim – Whether miscarriage of justice established – M understood and accepted advice of counsel (H) when time came to make election whether to give evidence – H followed M’s instructions and no counsel error in failing to present case on the basis that the attacker was G – H was not in error in failing to make inquiries before advising M that the suggestion of G as the attacker should not be put to O and advising M against giving evidence in these circumstances – Unlikely H would have consented to the Crown’s hearsay application without obtaining instructions from his client – Well open to the jury to reject K’s evidence as unreliable – Identification evidence from a formal procedure did not give rise to a risk of a miscarriage of justice – HELD: appeal against conviction dismissed.
M (CA 78-2022) v R [2023] NZCA 151
Unsuccessful appeal against sentence of 3 years 2 months imprisonment – Injuring with intent to injure (x2), assault with a weapon, ill treatment and neglect of a child, attempting to pervert the course of justice (x2) – M sought to adduce fresh evidence being literature review explaining the disempowering impact of colonisation and intergenerational violence on wāhine Māori raised in violent gang life and their ability to care for whānau – Whether starting point too high and discounts insufficient – HELD: having regard to Nuku v R and the aggravating features in this case, starting point of 3 years imprisonment was appropriate – Uplifts were appropriate – 15 percent discount fairly reflected extent to which background factors contributed to M’s offending and 5 percent discount for remorse was generous – “Fresh” evidence report did no more than provide a generalised historical dissertation on the effects of colonisation on Māori and, in particular, on wāhine Māori and those links were well understood by the Courts – Application to adduce further evidence on appeal declined – Appeal against sentence dismissed.
Fox v R [2023] NZCA 154
Williams v R [2023] NZCA 156
Successful appeal against sentence of 4 years 8 months imprisonment – Supplying methamphetamine (Class A drug), offering to supply methamphetamine, participating in an organised criminal group – Evidence gathered through the interception of communications following the issue of surveillance device warrants – Six co-offenders – Identifiable quantity in W’s offending was 463gm – Whether excessive starting point and insufficient discounts – HELD: offending correctly placed in band 3 of Zhang v R – No dispute W’s role was “significant” – No error in starting point of 9 years 2 months imprisonment – W’s background comparable to that of B in Berkland v R and difficult to see that the 17 percent W was afforded at sentencing was inconsistent with the 20 percent B was afforded on appeal by the Supreme Court – Not consistent that co-offenders were afforded separate discounts for rehabilitative potential whereas was included within the 17 percent allowed for W – Resulted in Gross and unjustified disparity – Immaterial that co-offenders were sentenced subsequently to W – Additional 8 percent discount appropriate – Appeal allowed, sentence of 3 years 11 months imprisonment substituted.
Tamiefuna v R [2023] NZCA 163
Unsuccessful appeal against conviction for aggravated robbery – Partially successful appeal against sentence of 4 years 11 months imprisonment which was ordered to be served without parole – Offending involved the break in of a residential property – Police able to identify T as one of the robbers by cross-referencing CCTV footage with close-up photographs that were taken of T when the vehicle he was travelling in was the subject of a random stop in the early hours of the morning (vehicle impounded when discovered driver was unlicensed) – Admissibility of photographs relied by the Crown and whether unreasonable search under s21 New Zealand Bill of Rights Act 1990 – Hamed v R relevant – HELD: situation in which photograph taken was a “search” – Police did not have a free-ranging right to take and retain close-up photographs of members of the public acting lawfully in public places – Section 21 right breached, but evidence admissible under s30 Evidence Act 2006 – Disparity in sentence resulting from s86C(4) Sentencing Act 2002 order so great that sentence disproportionately severe – Appeal against conviction dismissed – Sentence appeal allowed to extent s86C(4)(a) order set aside.
R v Sharma [2023] NZHC 1055 (4 May 2023) Wylie J
Sentencing – Followed guilty pleas for murder, sexual violation by unlawful connection and dangerous driving following different victim – Crown sought life imprisonment, 22 to 23 years MPI, and preventive detention for sexual violation conviction – Defence said life imprisonment appropriate, but sought MPI of 19 years – For sexual offending Defence opposed detention – Said nine and half years imprisonment finite sentence appropriate –
HC said life imprisonment appropriate for murder – No circumstances rendering life imprisonment manifestly unjust – Section 104 Sentencing Act engaged – Several aggravating factors: attempt to avoid detection (s 104(1)(a)); murder committed during another serious offence (s 104(1)(d)); high brutality, cruelty, depravity or callousness level (s 104(1)(e)); and victim highly vulnerable (s 104(1)(g)) – MPI 22 year starting point appropriate and in line with comparable cases – 18 months discount available for S’s mental health condition – Paranoia and schizophrenia – Further 12 months discount for late guilty plea in face of very strong Crown case – No discount for s 27 factors as not causative contributor to offending – No discount for remorse as did not appear sincere – Life imprisonment for murder with 19.5 years MPI –
No preventative detention – HC not satisfied, as s 87(2)(c) Sentencing Act required, that defendant likely to commit qualifying sexual or violent offence when ultimately released – Concurrent 11 years three month sentence for sexual violation charge – 27 month discount for mental health disorder and 18 months for guilty plea –
Two months imprisonment and mandatory disqualification from driving for six months for dangerous driving charge.
R v G [2023] NZHC 1048 (5 May 2023) Edwards J
Successful permanent name suppression application – G pleaded guilty to offending involving storage and distribution of terrorist related material and threats to carry out attack – Sentenced to two years five months' imprisonment – Crown and media did not oppose application –
Twenty one year old G diagnosed with Foetal Alcohol Spectrum Disorder and mild intellectual disability – Highly suggestible and vulnerable to negative online influences – History of abandonment abuse, bullying, and social alienation which contributed to offending –
Application granted – Publication might lead to extremist groups reaching out to take advantage – Publication would also expose G to toxic social media resulting in further alienation from society – Likely to lead to increased anxiety and depression which would compound social isolation and create suicide and self-harm risk – Social isolation and deterioration in mental health would also be detrimental to G's ability to successfully rehabilitate and reintegrate into society – Vulnerabilities life-long, and rehabilitation ongoing, so permanent suppression critical – Permanent suppression also required to avoid inspiring others motivated by fame and notoriety to offend in same way –
Open justice principles favoured suppression as allowed full reporting of reasons for sentence imposed, and for this decision – Order permanently prohibiting publication of G's name and other identifying details – Did not extend to publication of diagnoses.