Mist v The Queen

IN THE SUPREME COURT OF NEW ZEALAND
SC 12/2005
[2005] NZSC 29
BASIL STEVEN MARSHALL MIST
v
THE QUEEN
Court:Gault J and Blanchard J
Counsel:R M Lithgow for Applicant

B J Horsley for Respondent

Judgment:31 May 2005

JUDGMENT OF THE COURT

A.LEAVE TO APPEAL IS GRANTED.

B.The grounds approved in terms of r 29(1) of the Supreme Court Rules 2004 are:

(i)Did s 153(1)(b) of the Sentencing Act 2002 require the sentencer to sentence the appellant, aged 22 at the time of sentencing, as if he were aged 20, his age immediately before the commencement date of that Act?
(ii)If not, and if dealt with immediately before that commencement date, would the appellant have been able to be sentenced to preventive detention under s 75 of the Criminal Justice Act 1985, read with s 4(2) of that Act?

REASONS
[1]       Leave to appeal is limited to the above approved grounds. The two other issues sought to be raised do not meet the criteria in s 13 of the Supreme Court Act 2003. The Court of Appeal’s refusal to order a determinate sentence followed by extended parole supervision raises no question of principle, being a decision related to the perception of risk in the particular case.
[2]       The argument that an appeal to this Court must be heard whenever the Court of Appeal, in allowing a Solicitor-General’s appeal against a determinate sentence, imposes preventative detention, is plainly wrong. An appellant has to establish in each individual case that, in terms of s 13, it is necessary in the interests of justice for the Court to hear and determine the proposed appeal. The Act does not authorise the Court to accept a second appeal merely because a preventive detention sentence has been imposed on a first appeal.
[3]       It should be emphasised again that appeals against the nature or length of a sentence will only infrequently raise a question of general principle suitable for a second appeal, such as the jurisdiction issues in this case.
Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The case of Mist v The Queen involved Basil Steven Marshall Mist, the appellant, contesting the decision made by the Court of Appeal. The dispute centred around Mist's sentence and whether it complied with the Sentencing Act 2002 and the Criminal Justice Act 1985. The Supreme Court of New Zealand, comprising Gault J and Blanchard J, granted leave to appeal on two specified grounds. The first ground questioned whether section 153(1)(b) of the Sentencing Act 2002 required the sentencer to consider Mist's age at the time of the offence rather than his age at the time of sentencing. The second ground explored whether Mist would have been eligible for preventive detention under the Criminal Justice Act 1985 if his case had been dealt with prior to the commencement of the Sentencing Act 2002.

The court's reasoning focused on the interpretation and application of statutory provisions concerning sentencing. The court considered whether the Sentencing Act 2002 mandated that the sentencer should treat the appellant as if he were the age he was at the time of the offence, rather than his age at the time of sentencing. The court also examined whether, had the case been dealt with under the Criminal Justice Act 1985, Mist could have been sentenced to preventive detention. The court concluded that the appeal raised significant questions of principle regarding statutory interpretation and the application of sentencing laws. The leave to appeal was granted on these grounds, highlighting the importance of understanding how changes in legislation impact retrospective sentencing and the imposition of preventive detention.

In its judgment, the Supreme Court emphasised that appeals against sentences will only be heard when they raise questions of general principle or significant legal interpretation. The court made it clear that the appeal would be limited to the two approved grounds and that other issues, such as the Court of Appeal's refusal to order a determinate sentence followed by extended parole supervision, did not meet the criteria for a second appeal. The court's decision underscored the necessity for each appellant to demonstrate that an appeal was warranted in the interests of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established