Bancroft v The Queen
[2015] NZCA 192
•30 April 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA737/2014 [2015] NZCA 192 |
| BETWEEN | WILLIAM PHILLIP BANCROFT |
| AND | THE QUEEN |
| Hearing: | 29 April 2015 |
Court: | French, Simon France and Clifford JJ |
Counsel: | M Dyhrberg QC for Appellant |
Judgment: | 30 April 2015 at 11.30 am |
Reasons: | 26 May 2015 |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BPursuant to s 385(3)(c) of the Crimes Act 1961, the case is remitted to the High Court with a direction that:
(a)The High Court quash the sentence of three years and six months’ imprisonment.
(b)The High court re-sentence the appellant on the basis of a factual finding that the amount of methamphetamine supplied was 0.5 grams.
CThe case is to be brought before the High Court at the earliest possible opportunity.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Bancroft filed an appeal against sentence on the grounds of disparity. In a results decision delivered on 30 April 2015, we allowed the appeal and remitted the case back to the High Court for re-sentencing.[1]
[1]Bancroft v R [2015] NZCA 140.
Our reasons for that decision now follow.
Background
Mr Bancroft was jointly charged with Mr Bogue on a count of supplying methamphetamine to an unknown person. The particulars of the charge stated that the amount involved was half an ounce (14 grams).
The charge arose out of a police investigation into a drug syndicate which resulted in a number of arrests for drug-related charges against several other people.
Mr Bancroft defended the charge laid against him, but was found guilty at trial. He was sentenced on 7 August 2014.[2] In sentencing him, the trial Judge, Brewer J, found that the quantity of methamphetamine involved was half an ounce and adopted a starting point of three years’ imprisonment. This was adjusted upwards by six months on account of a personal aggravating factor, resulting in an end sentence of three and a half years’ imprisonment.
[2]R v Murray [2014] NZHC 1843.
At the sentencing hearing, Mr Bancroft’s counsel had submitted that the correct amount was only half a gram. However, the Judge rejected that contention on the grounds of trial evidence about the amounts characteristically supplied by Mr Murray (the kingpin of the syndicate) and evidence that Mr Bogue was not a person who dealt in such small amounts as half a gram.[3] Justice Brewer also stated that looking at the intercepted communications, the quantity of half an ounce fitted the overall matrix of evidence.[4]
[3]At [81].
[4]Ibid.
Unlike Mr Bancroft, Mr Bogue pleaded guilty to the charge as well as five other drug-related offences arising out of his role in the syndicate. Mr Bogue disputed the quantities of methamphetamine involved and a contested facts hearing was set down before Brewer J for 14 August 2014. On the day before the disputed facts hearing, Mr Bogue filed an application requesting that Brewer J recuse himself because of the findings he had made about quantities at the sentencing of Mr Bancroft and the other offenders who had defended the charges.
Justice Brewer granted the application and recused himself.[5]
[5]R v Bogue [2014] NZHC 1989.
The contested facts hearing was then held before another judge, Woolford J. After hearing evidence, Woolford J delivered a disputed facts judgment in which he made various findings relating to the offences to which Mr Bogue had pleaded guilty.[6] In relation to the charge of supplying methamphetamine jointly with Mr Bancroft, Woolford J found that the amount was only half a gram.[7] Unfortunately, Woolford J did not refer to the very different finding on the same issue made by Brewer J at the sentencing of Mr Bancroft.
[6]R v Bogue [2014] NZHC 2706.
[7]At [26].
On the basis that the amount was only half a gram, Woolford J sentenced Mr Bogue to a term of imprisonment of six months in relation to the count of supplying methamphetamine jointly with Mr Bancroft.[8]
[8]R v Bogue [2014] NZHC 2754. Because of other more serious charges the overall end sentence imposed on Mr Bogue was nine years and three months’ imprisonment. The sentence of six months’ imprisonment imposed in respect of the offence at issue in this appeal was made concurrent with these other charges.
The difference between the three and a half year sentence imposed on him and the six month sentence imposed on Mr Bogue prompted Mr Bancroft to file an appeal.
Analysis
To have two judges making radically different findings in respect of the same transaction for sentencing purposes is a situation that is obviously highly undesirable. It resulted in the two co-offenders being placed in different sentencing bands under the relevant sentencing guideline decision, R v Fatu.[9] Moreover, it was a situation that we consider could have been avoided.
[9]R v Fatu [2006] 2 NZLR 72 (CA).
In our view, if there was to be a disputed facts hearing, it should either have been held before the trial or, if that were not possible, before the trial judge. As it was, Mr Bogue secured an unfair advantage. He was able to provide evidence in somewhat of a vacuum and before a judge less well placed to assess its cogency. It is not apparent to us that Woolford J in fact heard significant new evidence.
In our view, there was no need in the circumstances for the trial Judge to feel constrained about conducting the disputed facts hearing. On the contrary, it was the most desirable course of action. He had presided over an eight week trial and had a comprehensive knowledge of the background facts and the activities of the syndicate. He was in a far better position than any other judge to determine the quantity of methamphetamine involved. He was, of course, required to keep an open mind to the possibility that the fresh evidence might raise doubts about his prior conclusions but there is no reason why a fair-minded, impartial and properly informed observer could reasonably think that he would not do so.[10]
[10]This is the test for whether a judge ought to recuse himself or herself on the basis of unconscious bias as set out by Tipping J in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [37].
As it was, we were confronted with a disparity that, as the Crown accepted, could not be justified and that has brought the administration of justice into disrepute.
In the circumstances, the only just option in our view was to quash the sentence imposed on Mr Bancroft and, pursuant to s 385(3)(c) of the Crimes Act 1961, remit the matter back to the High Court for re-sentencing on the basis of the quantity involved being half a gram. We made an order accordingly.
Finally, for future reference we note that a defence counsel who is disputing facts that have been the subject of a prior finding will need to obtain access to the material that informed the previous decision and will be expected to highlight how the new evidence supports a different conclusion.
Solicitors:
Crown Law Office, Wellington for Respondent
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