A man who stole a car with a sleeping baby in it, then ditched the infant on the roadside, claims his actions have been over-criminalised.

Michael Jai Smith was serving a sentence of home detention when, on May 10 last year, he came across an unattended car with the keys in the ignition.

Smith jumped in the car without realising there was a 6-month-old sleeping baby in the back seat.

As he reversed away from the High Street Dairy in Waitara, the child’s mother, who had stopped to buy a drink, left the shop and ran to the vehicle, banging her fists on the window and trying to open the door.

He slammed the car into drive, causing her to fall on to the road, and drove off.

As he was driving, Smith realised the baby was in the back.

He stopped up the road and tried to remove the boy, but struggled to release the car seat.

The mother found her baby on the roadside outside Waitara's meatworks.

When he saw the mother was approaching, he got back into the car and drove another short distance before stopping again and removing the baby from the seat.

Smith left the child on the grass verge outside Anzco Foods and sped off, a moment that was captured on CCTV and shared online.

Over the following days, he committed many additional offences until he was apprehended in another stolen vehicle on May 17.

Smith later pleaded guilty to 21 charges relating to the crime spree, including abduction, and was sentenced to four years’ imprisonment.

Now, he has gone to the Court of Appeal to challenge the abduction conviction.

The appeal disputed an earlier ruling of District Court Judge Gregory Hikaka, who found the police summary of facts, to which Smith pleaded guilty, satisfied the requirements of an abduction charge.

Smith had argued he never intended to abduct the child but Judge Hikaka held that when Smith drove off for the second time with the baby in the vehicle, he intentionally deprived the mother of her son.

Michael Jai Smith was sentenced in the New Plymouth District Court. Photo / Tara Shaskey

At the appeal, defence lawyer Nathan Bourke argued that the abduction charge over-criminalised Smith’s actions and the element of intention had not been satisfied.

“Mr Smith’s primary aim was to extract the child out of the car as soon as possible upon learning of his presence,” the recently released Court of Appeal judgment stated, referring to Bourke’s submissions.

But Justices Francis Cooke, Geoffrey Venning and Gerard van Bohemen, who heard the appeal, found Judge Hikaka correctly identified the relevant elements of the offence, and that Smith’s admitted conduct satisfied those elements.

“Mr Smith plainly intended to drive off with the child on the second occasion,” the justices held.

“He clearly preferred not to take the child with him. But when confronted with his inability to extract the child from the car before the mother arrived, he made a choice.

“He could either abandon his intended theft of the car and run off, or he could continue with the theft of the car. By continuing with the theft of the car, he intentionally took the child with him, albeit only for a short period.”

In dismissing Smith’s appeal, the senior court also considered the significant impact the ordeal had on the baby’s mother.

At Smith’s sentencing, she told the court that she felt her life was over when she saw him driving away with her baby.

“Nothing felt real. I felt that I had really messed up and I would never see [my son] again. In my heart, I thought he would die.”

She spoke in her victim impact statement about how she suffered a seizure when she found her son on the roadside, where Smith had left him.

Tara Shaskey joined NZME in 2022 and is currently an assistant editor and reporter for the Open Justice team. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.