MEN v R [2022] NZCA 229
Leave to bring a second appeal against sentence was granted because there is a real issue to be examined on second appeal: whether a miscarriage of justice arose when the High Court quashed representative convictions yet dismissed the sentence appeal; leave is required under the Criminal Procedure Act 2011.
Source-derived case information.
- Citation
- [2022] NZCA 229
- Parties
- Applicant: Guanfa Men; Respondent: The Queen
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 7 June 2022
- Procedural Posture
- Criminal Appeal / Leave Granted to Bring a Second Appeal Against Sentence
- Outcome
- Leave granted to bring a second appeal against sentence
- Legal Topics
- Indecent Assault of a Child, Second Appeal, Leave to Appeal, Miscarriage of Justice, Representative Charges
Source-derived case record
Summary, issues, holding and outcome
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Parties
Guanfa Men
Applicant
The Queen
Respondent
Procedural Posture
Criminal Appeal / Leave Granted to Bring a Second Appeal Against Sentence
Legal Issues
- 1 Whether leave should be granted for a second appeal against sentence
- 2 Whether quashing representative convictions rendered the original sentence a miscarriage of justice
- 3 Whether the sentence imposed was manifestly excessive given reduced convictions
Ratio Decidendi
Leave to bring a second appeal against sentence was granted because there is a real issue to be examined on second appeal: whether a miscarriage of justice arose when the High Court quashed representative convictions yet dismissed the sentence appeal; leave is required under the Criminal Procedure Act 2011.
Court Disposition
Leave granted to bring a second appeal against sentence
Orders
- Leave to bring a second appeal against sentence granted
Full Case Text
Judgment text and source record
1 paragraphs
MEN v R [2022] NZCA 229 [7 June 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA698/2021[2022] NZCA 229BETWEEN GUANFA MENApplicantAND THE QUEENRespondentCourt: Clifford, Venning and Moore JJCounsel: A M Simperingham for ApplicantI A A Mara for RespondentJudgment:(On the papers)7 June 2022 at 11.00 amJUDGMENT OF THE COURTLeave to bring a second appeal against sentence is granted.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] Guanfa Men was found guilty of 10 charges of indecent assault of a child under12 following a judge-alone trial before Judge Aitken in the Auckland District Court.1Five of the charges were specific. The remainder were representative. On 5 February2021, Judge Aitken sentenced Mr Men to three years and two months' imprisonment.21 Crimes Act 1961, s 132.2 R v Men [2021] NZDC 1925.[2] Mr Men appealed against his convictions and sentence to the High Court.On 22 July 2021, Jagose J allowed Mr Men's appeal against his convictions in part.He quashed the convictions on the five representative charges but upheld theconvictions on the specific charges.3[3] Notwithstanding the reduced convictions, Jagose J considered that the sentenceimposed by Judge Aitken was not manifestly excessive.4 He dismissed Mr Men'sappeal against sentence.[4] Mr Men now applies for leave to bring a second appeal against sentence.5We allow that application and grant leave for that appeal.[5] In terms of s 340(3) of the Criminal Procedure Act 2011, we do not need togive reasons. Nor does s 237(2)(b) of that Act contemplate this judgment stating thequestion or questions on which leave is grant. However, we indicate the issue on thesecond appeal will be whether a miscarriage of justice occurred when the High Court,having quashed Mr Men's convictions on the five representative charges, thendismissed his sentence appeal.Solicitors:Woodward Chrisp Solicitors, Gisborne for ApplicantCrown Law Office, Wellington for Respondent3 Men v R [2021] NZHC 1860 at [20]–[21].4 At [26].5 Criminal Procedure Act 2011, s 253 provides that a convicted person may bring a second appealagainst sentence only with leave of the second appeal court.