Boyd v Police

[2023] NZHC 2363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000326

[2023] NZHC 2363

BETWEEN

BRANDON RALPH BOYD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 August 2023
Appearances:	H Barakat and M J English for Appellant M Nash for Respondent
Judgment:	28 August 2023

ORAL JUDGMENT OF VENNING J

Appeal against sentence

Solicitors:           Crown Solicitor, Auckland

Public Defence Service, Waitakere

BOYD v NEW ZEALAND POLICE [2023] NZHC 2363 [28 August 2023]

[1]    Brandon Boyd pleaded guilty to charges of driving while disqualified (x2); driving in a dangerous manner (x2); resisting Police; assault on a person in a family relationship; and intentional damage. On 20 June 2023 Judge J M Jelaš sentenced Mr Boyd to 16 months’ intensive supervision and 100 hours’ community work.1 She also disqualified him from driving for one year and one day. The Judge remitted $4,000 of outstanding fines (the initial sentence).

[2]    Later that same day Mr Boyd was recalled before the Judge as it had emerged that he was being held in custody on new allegations of family harm offending against the same complainant as the assault charge.

[3]    The Judge considered the earlier sentencing hearing had proceeded in error because, as Mr Boyd was in custody the community based sentence was wrongly imposed. The Judge relied on s 180 of the Criminal Procedure Act 2011 (CPA) to re- sentence Mr Boyd. Judge Jelaš sentenced Mr Boyd to seven months’ imprisonment.2 She again disqualified him for one year and one day and confirmed the remission of the outstanding fines of $4,000 (the replacement sentence).

[4]Mr Boyd appeals against the replacement sentence.

Grounds of appeal

[5]    In support of the appeal on behalf of Mr Boyd, Ms Barakat submits the sentence of imprisonment was manifestly excessive and, in particular:

(a)the Judge incorrectly found she could not sentence Mr Boyd to intensive supervision and community work while he was in custody on other charges; and

(b)the least restrictive sentence in the appropriate circumstances was not applied as leave to apply for home detention under s 80I of the Sentencing Act 2002 was not considered.

1      New Zealand Police v Boyd [2023] NZDC 13180.

2      New Zealand Police v Boyd [2023] NZDC 12544.

The District Court decision

[6]    The Judge adopted a starting point on the assault charge of six months’ imprisonment. She considered an uplift for the driving while disqualified charges of four months’ imprisonment and a further one month for the additional driving offending to be appropriate which led to a nominal starting point of sentence of 11 months’ imprisonment. The Judge then applied a 30 per cent credit for Mr Boyd’s guilty pleas, his completion of the Right Track Programme and substantial completion of the Man Alive Programme. She also took into account the time Mr Boyd had spent on electronically monitored bail.

[7]    Ultimately the Judge imposed a sentence of six months’, two weeks’ imprisonment on the charge of assault on a person in a family relationship with further concurrent periods of imprisonment for the charges of resisting a police officer, wilful damage, and the driving charges. The Judge however imposed an additional and cumulative term of two weeks’ imprisonment in lieu of remitting the fines totalling

$4,000 which brought the total period of imprisonment to seven months. The Judge imposed as release conditions the conditions she had previously indicated for the intensive supervision for a period of six months from the sentence end date.

The appeal

[8]    The appeal raises a short point. Primarily the issue is whether the Judge was correct to invoke s 180 of the CPA. Section 180(1) of the CPA provides:

(1)If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a)on the application of either  of  the  parties  or,  as provided in section 181, the chief executive of the Department of Corrections; or

(b)on its own motion.

[9]    The Police submit that the Judge was able to rely on s 180, CPA as the original sentence was erroneous because, as the appellant was in custody the sentence could not by law be imposed as it was impossible for Mr Boyd to practically serve it.

[10]   Counsel for Police, Ms Nash, referred to s 54E of the Sentencing Act which provides that an offender sentenced to intensive supervision is subject to both standard conditions in s 54F and any special conditions imposed by the Court under ss 54G or 54I. The standard condition in s 54F(1)(a) is expressed in the following terms:

(a)the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable and not later than 72 hours after the sentence is imposed unless the start date of the sentence has been deferred under section 20A(2)(b), in which case the offender must report not later than 72 hours after that date: …

[11]   Mr Boyd did not meet the criteria in s 20A(2)(b) for the sentence to be deferred so the initial sentence made Mr Boyd subject to a mandatory condition that he report to a probation officer within 72 hours but that was effectively impossible for him to do given his custodial status. Ms Nash for the Police, submitted that in those circumstances the intensive supervision sentence could not, by law, be imposed.

Analysis

[12]   The circumstances in which s 180 CPA applies are limited. The equivalent section under the Crimes Act 1961 was s 372. Section 372(1) provided that “if any sentence is one that could not by law be passed, or if the Judge does not pass a sentence that is required by law to be passed, either party may apply to the Judge to pass a proper sentence”. The only difference in wording in the operative part of the section, s 372, and the current section 180, is the use of “court” and “imposed” as opposed to “Judge” and “passed” in the former section.

[13]   Section 372 was considered by the Court of Appeal in R v Shepherd.3 In that case the Court confirmed that s 372 conferred a “closely limited jurisdiction on the sentencing Judge”,4 and that the section was “directed to sentencings which on their face require correction because they are beyond the jurisdiction of the Court or they fail to record the mandatory sentence for the particular offence”.5 In Shepherd the sentencing Judge had failed to give Mr Shepherd proper credit for the time in remand

3      R v Shepherd [1990] 3 NZLR 39 (CA).

4      At 40.

5      At 41.

which was then applicable so there was an error in the process by which the end sentence was reached. But the section could not be invoked as the sentence was still within the statutory maximum. The Court had acted within its jurisdiction even though in error.

[14]   While the Police accept the cases of R v Wai-Poi,6 and Singh v New Zealand Police,7 which applied s 180 were different from the present, as there does not appear to be a clear statutory provision providing the appellant could not be sentenced to a non-custodial sentence, Ms Nash emphasised in her written submissions the practical situation was that the sentence of supervision could not be imposed.

[15]   In my judgment the wording of s 180, CPA is clear. Its meaning is more constrained than the approach taken by the Police in submission. The second part of s 180 does not apply. There is no statutory requirement to impose a particular sentence. Nor can it be said the sentence of supervision could not “by law” be imposed. Section 180 would only apply in this case if there was an express provision of the Sentencing Act which prevented the imposition of the sentence of supervision. Section 54F does not go that far.

[16]   The initial sentence of supervision was open to the District Court Judge. There was a remedy, or remedies, for the practical situation that existed as a consequence of Mr Boyd’s custodial status on the sentence of supervision. Apart from the issue of bail, Mr Boyd could have alternatively applied under s 54K of the Sentencing Act, or indeed a probation officer could have applied under s 54K of the Sentencing Act for an order under subs (3) of s 54K on the ground Mr Boyd was unable to comply with the conditions of the sentence. Section 54K(3) provides:

(3)On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—

(a)remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions:

(b)cancel the sentence:

6      R v Wai-Poi [2018] NZHC 964.

7      Singh v New Zealand Police [2022] NZHC 679.

(c)cancel the sentence and substitute any other sentence (including another sentence of intensive supervision) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.

[17]   However, the section only refers to an application by the defendant or a probation officer. Neither Mr Boyd nor a probation officer had made such an application, which is perhaps, not surprising given the timing. There was no jurisdiction however for the Judge to act on her own initiative to effectively invoke   s 54K.

[18]   As the Judge was wrong in my judgment to invoke s 180 as the jurisdiction for the application of s 180 did not exist, the replacement sentence imposed must be set aside. In the circumstances it is unnecessary to consider the alternative submissions made on Mr Boyd’s behalf in relation to s 80I.

Result

[19]   The appeal is allowed. The sentence of imprisonment imposed by Judge Jelaš is quashed.

[20]   As discussed with counsel there is a practical issue that arises because I understood from counsel that Mr Boyd has effectively served most of, if not all of, the sentence imposed, although of course he is on bail for other charges as well.

[21]   In the circumstances, I consider the appropriate course of action is to remit the issue of sentencing on the charges referred to, to the District Court under s 251, CPA for that Court to impose whatever sentence might be appropriate in the circumstances that can be put before it on behalf of Mr Boyd and the Police. As noted, Mr Boyd is currently before that Court in any event in relation to other charges.

Venning J