R v Smith CA589/95 [1996] NZCA 267 (28 March 1996)

Last Updated: 12 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.589/95}

THE QUEEN

v.

_{JOHN LIONEL SMITH}

Coram: Henry J.

Thomas J. Temm J.

Judgment: 28 March 1996 (ex parte)

_{JUDGMENT OF THE COURT DELIVERED BY TEMM J.}

The applicant seeks legal aid, leave to be present and leave to call further evidence in support of an appeal against conviction for abduction, and an appeal against sentences imposed totalling seven and a half years.

The applicant was convicted of abduction when he kept his victim at his home for over two hours against her will in the hope that he could have sexual activity with her. She was unwilling and he attacked her with his fists, kicking her and hitting her with a stick. She received severe bruising to the face, especially the eyes, and for a time there was anxiety that she might lose the sight of one eye. That injury healed without lasting damage.

The Judge sentenced the applicant to four years' imprisonment for the abduction. The applicant's submissions are that there was no abduction because she came to his home willingly in a taxi he had hired. That may well be true, but the

crime occurred when, as the victim deposed in her evidence, she was forced into the applicant's house and detained there against her will until the chance presented itself for her to make good her escape. The sentence of four years for this kind of crime is not excessive.

The second conviction was for assault causing grievous bodily harm. The Judge decided that this crime was so serious that any sentence imposed could not be served concurrently and although it might have justified a sentence of four years' imprisonment taken on its own, he decided rightly that an eight year term for the two crimes would be excessive and imposed instead a two year sentence to be served cumulatively upon the four year sentence for abduction.

The applicant was also sentenced for other crimes of burglary and theft committed in quite separate circumstances. The sentence of 18 months in respect of those matters was quite appropriate, and because they were committed separately the sentence was imposed cumulatively upon the six years already imposed.

The applicant has a criminal history of considerable length. The Judge recognised that there is a public interest factor in keeping a violent person out of the community.

The sentences are not excessive either individually nor in totality, and the application for legal aid is refused. There is nothing to support the application to call further evidence and that application is also refused. The appeal against conviction on the count of detaining the complainant with intent to have sexual intercourse with her cannot succeed because there was direct evidence from the complainant which, if accepted by the jury as it undoubtedly was, justified the guilty verdict.

All applications are dismissed.