Steele v Department of Corrections

[2017] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/2016
[2017] NZCA 23

BETWEEN	MARCUS JAMES STEELE Applicant
AND	DEPARTMENT OF CORRECTIONS Respondent

Court:

French, Mallon and Duffy JJ

Counsel:

Applicant in person
C A Brook for Respondent

Judgment:

(On the papers)

24 February 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.

BThe application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Steele pleaded guilty in the District Court to a charge of failing to comply with a condition of a supervision order.[1]  He was convicted and sentenced to a period of supervision of nine months.[2]  He then appealed his conviction and sentence to the High Court.  The appeal was dismissed by Muir J.[3]

   [1]The condition in question was a requirement that he attend an anger management programme.

   [2]R v Steele [2016] NZDC 14399.

   [3]Steele v Department of Corrections [2016] NZHC 2144.

2. Dissatisfied with that outcome, Mr Steele now wishes to appeal his conviction in this Court.  It is unclear whether the proposed appeal also includes an appeal against sentence, but we have proceeded on the basis that it does.  Because it would be a second appeal, Mr Steele requires leave.[4]  He also requires an extension of time because his leave application was filed out of time.[5]  Justice Wild directed that both applications be dealt with on the papers.[6]

   [4]Criminal Procedure Act 2011, ss 237 and 238.

   [5]Criminal Procedure Act, s 239.

   [6]Steele v R CA511/2016, 21 November 2016.

3. The application for leave was filed only one working day out of time and is explained by the fact that Mr Steele received the High Court decision the day after it was issued.  In those circumstances, we consider the application for an extension of time should be granted.  We turn now to consider the application for leave.

4. In order to be granted leave, Mr Steele must satisfy us that the proposed second appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[7]  The threshold is a high one.[8]

   [7]Criminal Procedure Act, s 237(2).

   [8]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

5. In our view the proposed appeal does not meet this test.  The grounds of appeal relate to certain internal documents held by the Department of Corrections which Mr Steele says were withheld from him and are fabricated.  However none of the documents in question is relevant to the charge to which Mr Steele pleaded guilty.  Their only potential relevance is to other charges which were originally laid against Mr Steele but withdrawn.

6. As regards any appeal against the sentence, we consider that it too would lack merit.  As noted by Muir J, it was simply a re-affirmation of the original supervision order which Mr Steele had breached.  It did not involve any additional punitive element and could not on any view of it be regarded as manifestly excessive.

7. The proposed appeal being without merit, we accordingly decline to grant leave.

Solicitors:
Crown Law Office, Wellington for Respondent