IN THE Supreme court OF new Zealand

I TE KŌTI MANA NUI	
 SC 23/2021
 [2021] NZSC 40	

	
BETWEEN	
STEVEN ROBERTSON
Applicant	
	
AND	
THE QUEEN
Respondent

Court:	
Glazebrook, O’Regan and Ellen France JJ	

Counsel:	
A F Pilditch for Applicant 
M R L Davie for Respondent 	

Judgment:	
10 May 2021	

JUDGMENT OF THE COURT

	A	The application for an extension of time to apply for leave to appeal is granted.

	B	The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS
Introduction 
[1]	The applicant was found guilty, after a judge-alone trial before Katz J, of 38 charges arising out of fraudulent trading on behalf of clients and taking funds for fictitious shareholdings.  The net loss to the victims of this offending over the approximately six‑year period was assessed at the time of sentencing to be approximately NZD 1.2 million and AUD 271,200.  Most of the 22 victims were elderly and either retired or approaching retirement. 
[2]	The applicant was sentenced to a term of six years and eight months’ imprisonment and a minimum period of three years and four months’ imprisonment (MPI) was imposed.
[3]	The applicant appealed unsuccessfully against sentence to the Court of Appeal.  He now seeks leave to appeal out of time to this Court.  The applicant wishes to argue no MPI should have been imposed.  There is no challenge to the term of six years and eight months’ imprisonment.
The proposed appeal
[4]	The applicant says the proposed appeal raises questions about the interpretation of s 86(2) of the Sentencing Act 2002.  Section 86(2) provides that an MPI may be imposed if the court is satisfied that the period before which the offender would otherwise be eligible for parole is “insufficient” for any of the stated purposes.  The applicant says first that there is a question as to the scope of s 86(2); in particular, whether, given the legislative history, it was intended to increase the cohort of offenders who could and would be made subject to MPIs, thereby altering the status quo for those who, like the applicant, had not committed crimes of serious violence.  Second, the applicant submits there is a question about the use of MPIs where an offender poses little or no risk to the community and whether s 86(2) should principally be applied in the interests of community safety and protection.
[5]	The applicant says these questions are important because MPIs are routinely applied.  His contention is that on the analysis he advances, where MPIs are applied to offenders posing no risk to the community, the effect is arbitrary because the MPI is imposed beyond the intent of the provision.  
[6]	As the respondent submits in opposing leave, the text of s 86 does not draw a distinction between violent and other offenders.  The essence of the applicant’s argument is accordingly that such a distinction would reflect a purposive interpretation of the section.   
Our assessment 
[7]	We consider the proposed appeal has insufficient prospects of success to justify granting leave to appeal.  In any event, as the applicant accepts, these issues were not squarely addressed in the appeal to the Court of Appeal.  Rather, the appeal focussed on the justification for the imposition of the MPI in the applicant’s case.  The absence of any consideration of the issues by the Court of Appeal also points against leave being granted. 
[8]	Nor, on the material before us, is there a risk of a miscarriage of justice arising out of the Court of Appeal’s assessment of the imposition of an MPI in this case.  In addressing the MPI, the Court of Appeal noted the sentencing Judge took the view that the first three of the four purposes identified in s 86(2) were engaged.  Further, the Court said there was no indication the Judge had “imposed the MPI mechanistically or as a matter of routine”.  Finally, the Court of Appeal rejected the argument that, based on comparable cases, no MPI was appropriate here.  
Result
[9]	An explanation is provided for the delay in filing the application for leave to appeal.  The application for an extension of time to apply for leave to appeal is granted.  The criteria for leave to appeal not having been met, the application for leave to appeal is dismissed.

Solicitors: 
Doug Cowan Barristers & Solicitors, Auckland for Applicant 
Crown Law Office, Wellington for Respondent