DICKEY v R [2021] NZCA 600

DICKEY v R [2021] NZCA 600 [15 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA393/2018[2021] NZCA 600BETWEEN GEORGIA ROSE DICKEYAppellantAND THE QUEENRespondentCourt: Gilbert and Collins JJCounsel: D J More for AppellantC A Brook and H S Cunningham for RespondentJudgment:(On the papers)15 November 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to withdraw the notice of abandonment of appealis granted.B Ms Dickey's appeal against sentence is reinstated and shall be heard inconjunction with Mr Brown's appeal on 15–16 March 2022.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Georgia Dickey, who is now 20 years of age, pleaded guilty in March 2018 tohaving been a party to the murder of Jack McAllister in Invercargill on 7 June 2017.At the time of the murder Ms Dickey was 16 years old. Ms Dickey was one of threeyoung people convicted of murdering Mr McAllister. She was sentenced tolife imprisonment by Dunningham J with a minimum period of imprisonment of10 years.1[2] On 11 July 2018, Ms Dickey filed a notice of appeal against sentence.Mr Brown, one of Ms Dickey's co-defendants, appealed against his conviction andsentence. His conviction appeal was separated from his sentence appeal and has beenheard and dismissed.2[3] Because Ms Dickey and Mr Brown's appeals against sentence raised importantissues about imposing sentences of life imprisonment on young persons, the sentenceappeal was to be considered by a Permanent Court. The Children's Commissionerwas granted leave to intervene.[4] In September 2020, Ms Dickey abandoned her appeal. Mr Brown's appealagainst sentence remains on course and will be considered by a Permanent Court on15–16 March 2022.[5] Although she was represented by counsel Ms Dickey filed her notice ofabandonment of appeal without telling her lawyer. The Crown and Ms Dickey'scounsel were concerned Ms Dickey may not have fully understood what she wasdoing. The Court shared those concerns and appointed an independent lawyer to speakto Ms Dickey. That lawyer reported that Ms Dickey insisted that she wished toabandon her appeal.[6] Ms Dickey's lawyer has now filed on her behalf an application for leave towithdraw her notice abandoning her appeal against sentence. Ms Dickey has sworn asupporting affidavit saying she is "still kind of confused about [her] situation". It isclear she blames herself for the death of Mr McAllister and for Mr Brown'sinvolvement in the homicide.1 R v Dickey [2018] NZHC 1403.2 Brown v R [2021] NZCA 120.Legal principles[7] In R v Cramp,3 this Court identified two grounds upon which leave might begranted to withdraw a notice of abandonment of appeal:4(a) if the notice of abandonment of appeal was null and void because it wasnot the result of a deliberate and informed decision; or(b) if, in exceptional circumstances, the interests of justice require a courtto, in effect, set aside a notice of abandonment of appeal.Analysis[8] The Crown responsibly acknowledged "that Ms Dickey is still relativelyyoung. She is serving a life sentence for murder and it cannot be said the appeal isentirely without merit". This reflects the decision of this Court to have the sentenceappeal considered by the Permanent Court. The Crown acknowledges "[t]hese factorssupport the granting of leave".[9] We are satisfied that the circumstances concerning Ms Dickey's abandonmentof her appeal were exceptional and that the interests of justice require this Court togrant her leave to withdraw her notice of abandonment of her appeal against sentence.The issues raised by her proposed appeal are important and the merits of her proposedappeal ought to be properly considered, particularly given the fact that she is a youngperson currently serving a sentence of life imprisonment.Result[10] The application for leave to withdraw the notice of abandonment of appeal isgranted.3 R v Cramp [2009] NZCA 90.4 At [26].[11] Ms Dickey's appeal against sentence is reinstated and shall be heard inconjunction with Mr Brown's appeal on 15–16 March 2022.Solicitors:Crown Law Office, Wellington for Respondent