The Queen v Smith [2009] NZCA 511 (23 October 2009)

Court of Appeal of New Zealand

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The Queen v Smith [2009] NZCA 511 (23 October 2009)

Last Updated: 27 October 2009

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA185/2009

[2009] NZCA 511

THE QUEEN

v

KARL RICHARD SMITH

Hearing: 13 October 2009

Court: Glazebrook, Potter and Wild JJ

Counsel: P J Kaye for Applicant
M D Downs for Crown

Judgment: 23 October 2009 at 3.15 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] On 2 April 2008, Mr Smith pleaded guilty to one charge of sexual violation by way of rape, one representative charge of sexual violation by unlawful sexual connection and one charge of indecently assaulting a child under 12 years of age. All of the offending occurred between July 1998 and July 2000 when the two female victims were aged between eight to ten years old.
[2] On 5 August 2008, Mr Smith was sentenced in the High Court by Fogarty J to a sentence of preventive detention with a minimum period of imprisonment of five years in respect of all charges.
[3] The appeal period expired on 2 September 2008. On 1 April 2009, Mr Smith filed a notice of appeal against his conviction and sentence. The appeal was thus filed almost seven months late.
[4] Mr Smith seeks an extension of time for filing an appeal on the basis that he is illiterate and that he did not know how to apply for appeal, who to contact in relation to an appeal or who could help him contact a lawyer.
[5] The Crown opposes the application for an extension of time, submitting that there is no adequate explanation for the delay in appealing and the appeal is in any event hopeless.

Our assessment

[6] We accept the Crown submission that Mr Smith has failed to explain the delay in appealing. As the Crown points out, there is no evidence that Mr Smith told anyone that he wanted to appeal in the intervening period or asked anyone, such as a prison officer, for assistance in getting a new lawyer. The Crown acknowledges that Mr Smith is of limited intellect and has impaired literacy skills. However, it points to the affidavit of former counsel, Ms Hughes, where she deposes that she advised Mr Smith on 16 May 2008 that “if he was considering any appeal he would need to get a new lawyer”.
[7] We also accept the Crown’s submission that the proposed appeal is hopeless. Mr Smith’s stated grounds of appeal effectively amount to an assertion of his innocence. Mr Kaye responsibly accepts that, given the guilty pleas, the issue narrows to whether Mr Smith understood the implications of a guilty plea.
[8] It is clear from the affidavit of Ms Hughes that she took great care to ensure that Mr Smith understood the position: R v Le Page [2005] 2 NZLR 845 (CA). Indeed, it is difficult to see what further steps she could have taken. This means that the appeal against conviction could not succeed.
[9] We also accept the Crown’s submission that the victims in this case would have been under the impression, particularly given the guilty pleas, that the criminal proceedings had been concluded a year ago. An appeal would likely have a negative impact on their recovery.
[10] All of the factors point against an extension of time to appeal being granted in terms of the test in R v Lee [2006] 3 NZLR 42 at [106] – [107] (CA).
[11] As to sentence, Mr Smith has an extensive history of sexual offending against children and has been considered for preventive detention on two previous occasions: by Laurenson J in May 2005 and Priestley J in June 2006. Fogarty J considered this a “clear case for a sentence of preventive detention”. We agree.

Result

[12] The application for an extension of time to appeal is declined.

Solicitors:
Crown Law Office, Wellington