C v Police
[2020] NZHC 225
•20 February 2020
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-000086
[2020] NZHC 225
BETWEEN C
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 February 2020 Appearances:
D A Ewen for the Appellant C Ure for the Respondent
Judgment:
20 February 2020
JUDGMENT OF COOKE J
Table of Contents
Procedural history[4]
Relevant law[10]
The pre-sentence detention[12]
Balemi v R[18]
Not new “proceedings”[23]
Are new charges required?[25]
Are there adverse practical considerations?[39]
Is fitness to plead implicitly reconsidered?[43]
Disposal of present appeals[47]
[1] This appeal raises important issues concerning the interpretation and application of certain provisions in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) when a person is initially found unfit to face criminal
C v R [2020] NZHC 225 [20 February 2020]
charges, but whose mental health later improves to the point that they can properly face such charges.
[2] The appellant has pleaded guilty to charges of sexual violation by rape and sexual violation by unlawful sexual connection. He has been sentenced to two years, nine months’ imprisonment.1 In determining that sentence Judge Davidson accepted the advice provided by the Department of Corrections, and the views of the parties before him, that time the appellant had earlier spent on remand would not be taken into account in determining the appellant’s release date under s s 90 and 91 of the Parole Act 2002. This was because this time spent on remand was in relation to a first set of charges he had faced on this offending which had been treated as finally determined as a consequence of a finding that he was not fit to stand trial. When he was later found to be fit to stand trial new charges were filed, and it was said that time spent on remand would not operate as time served. The Judge accordingly sought to adjust the sentence he would otherwise have given in an attempt to take into account this remand period.
[3] The appellant now appeals both his conviction, and his sentence. He appeals his conviction on the basis that the advice provided to the Judge was erroneous, and that he should have been convicted on the first set of charges, and the second set of charges were duplicitous. He appeals his sentence on the basis that the Judge’s credit for the remand period was wrong in law, and inadequate.
Procedural history
[4] In November 2017 the appellant was first charged with sexual violation by rape and sexual violation by unlawful sexual connection (the first set of charges). He was remanded in custody on 7 November 2017.
[5] Procedures were then triggered under the Act given the appellant’s mental health. By minute dated 30 November 2018 Judge Morris found the appellant was unfit to stand trial pursuant to s 8A of the Act. The Judge also found that on the balance of probabilities the evidence against the appellant was sufficient to establish that he
1 R v C [2019] NZDC 186315.
caused the act forming the basis of the offences.2 The Judge then ordered a psychiatric report to determine the most suitable method of dealing with the appellant under s 23 of the Act. In the interim the Judge ordered the appellant to be remanded in hospital.3
[6] The s 23 psychiatric report was completed on 14 January 2019. It recorded the appellant had suffered from paranoid schizophrenia complicated by substance abuse.4 It also noted that his mental health had improved following his remand in hospital and was now “in one of the best states of mental health he had experienced in his adult life”. The report writer concluded the appellant was no longer suffering from a mental disorder for the purposes of the Act. Accordingly Judge Walsh determined it was appropriate to make an order pursuant to s 25(1)(d) of the Act for his immediate release.5 Judge Walsh did not consider whether the proceedings should be stayed pursuant to s 27 of the Act.
[7] Immediately upon his release the appellant was arrested and charged again on 16 January 2019 with sexual violation by rape and sexual violation by unlawful sexual connection (the second set of charges). New charging documents were filed in the District Court. Those charges were “mirror” or “replacement” charges for the first set of charges. The appellant was remanded in custody.
[8] On 12 June 2019 the appellant applied for a permanent stay of proceedings so that he could then plead to the first set of charges. After considering the observations of the Court of Appeal in Balemi v R6 Judge Davidson dismissed the application. He said:7
[21] I am entirely satisfied that the earlier charges came to an end on 15 January 2019 when Judge Walsh made the immediate release order under s 25(1)(d) of the Act. Because the continuation of those charges in some form was not stayed, in my view there is no impediment, bar, or barrier to them being re-laid, as indeed they were.
[22] More than that, this was done so in the full knowledge of the applicant’s counsel, not only because of the inherent seriousness of the charges in themselves, but to combat the problems identified in R v K and E v I of the
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 10.
3 Section 23(2)(b).
4 R v C [2019] NZDC 437.
5 At [26].
6 Balemi v R [2014] NZCA 176.
7 R v C [2019] NZDC 1149.
court’s inability to place a defendant subject to an immediate release order under any form of control or supervision.
[9] A sentencing indication was given on 26 March 2019 of four years, three months’ imprisonment. Guilty pleas were entered. The appellant was sentenced on 18 September 2019.8 The sentencing addressed the significance of the 14–15 month period of pre-sentence detention served prior to the second set of charges being filed. The Judge determined it was appropriate for a downward adjustment. From the sentencing indication of four years three months, an end sentence of two years, nine months’ imprisonment was given.
Relevant law
[10] An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied a miscarriage of justice has occurred for any reason.
[11] An appeal against sentence is governed by s 244 of the Criminal Procedure Act. Under s 250, the appeal court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9
The pre-sentence detention
[12] It is now common ground that the advice provided to the District Court Judge by the Department for Corrections, which was followed by the parties before the Court, is erroneous. As a consequence of the error, the Judge’s approach at sentencing was inconsistent with s 82 of the Sentencing Act 2002 which provides:
8 R v C [2019] NZDC 18615.
9 Ripia v R [2011] NZCA 101 at [15].
82Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
[13] It would only be appropriate for the Judge to take into account the detention on remand if it were not able to be taken into account under s 90 of the Parole Act 2002 when determining the length of time the defendant had served in prison. Under that section pre-sentence detention is automatically taken into account. Pre-sentence detention is defined under s 91 in the following way:
91 Meaning of pre-sentence detention
(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—
(a)any charge on which the person was eventually convicted; or
(b)any other charge on which the person was originally arrested; or
(c)any charge that the person faced at any time between his or her arrest and before conviction.
…
[14] The meaning and effect of these provisions were considered by the Supreme Court in Booth v R.10 Here the majority held:11
[24] In summary, the s 91(1) definition of pre-sentence detention relates to detention12 during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment. The entirety of that period is deducted from each sentence or sentences of imprisonment imposed in terms of s 90(1). This applies whether the sentence of imprisonment relates to a single charge or more than one, whether or not the sentence of imprisonment relates to the charge for which a person was originally arrested, whether or not sentences are imposed cumulatively or concurrently and whether or not the sentences
10 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
11 Per Glazebrook J for Elias CJ, Glazebook, Arnold, and O’Regan JJ.
12 Section 91(2) sets out the types of detention that are pre-sentence detention, including detention on remand pursuant to a court order in a prison or police station: s 91(2)(a). Pre-sentence detention does not include any time served as a sentenced prisoner.
are imposed at the same time or subsequently as long as any charges for which the sentence or sentences of imprisonment relate were faced after arrest and before conviction.13
[15] The only limitation identified by the Supreme Court is that credit is given for detention “as long as it was faced during the proceedings leading to conviction or pending sentence”.14 Adams notes that pre-sentence detention “encompasses any detention that occurs at any stage during the proceedings leading to the conviction or sentence of the person, whether or not the detention relates to the charge leading to that conviction or sentence”.15 That approach has been followed in a number of cases. For example in Chamberlain v Manager of Christchurch Men’s Prison the offender was sentenced to six months’ imprisonment on four charges of obtaining by deception. The charges of obtaining by deception replaced an earlier charge of theft in respect of which he had been remanded in custody from 13 February 2012.16 Chisholm J found the time spent in custody on the theft charge must be counted as pre-sentence detention pursuant to s 91(1)(b).
[16] What was suggested, and what was no doubt part of the Department of Corrections reasoning, was that the pre-sentence detention here did not occur during the “proceedings” leading to convictions or pending sentence. That is because the second set of charges involved new proceedings. Earlier detentions on remand during the first proceedings, whether they were faced in relation to charges for the same matters or other charges, did not occur after the second set of charges had been laid.17
[17] It is now accepted this conclusion is not correct, although there is a difference between the parties as to the reason why it is incorrect. Ms Ure for the Crown accepted that all periods of the earlier detention were properly within s 91, although she rather relied on a pragmatic point that that was now the number of days that had formerly been advised to the appellant as amounting to credit without pinning her colours precisely on an analytical pathway leading to that result. Mr Ewen for the appellant
13 Parole Act, s 91(1)(c).
14 Booth v R, above n 10, at [15].
15 Simon France (ed) Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at PA91.01.
16 Chamberlain v Manager of Christchurch Men’s Prison [2012] NZHC 1207, citing Maile v Manager Correction Facility [2012] NZAR 39 (HC).
17 Here the period of remand also included a period on other charges not involving the sexual offending.
argued that, contrary to the Court of Appeal’s observations in Balemi, the appellant was properly sentenced on the first set of charges.18
Balemi v R
[18] In Balemi v R the defendant was declared unfit pursuant to what was then s 14 of the Act, but his mental health improved before the Court could address options for disposition of the matter under ss 23, 24 and 25 of the Act.19 The Judge committed the defendant for trial, and the defendant appealed. The question was whether the finding of unfairness to stand trial was able to be revisited once initially made. The Court concluded it was not:
[46] … In effect a revisiting of a finding of unfitness is, in the absence of a statutory provision allowing for a new process, a reopening of the earlier decision. That could lead to difficulties in the event that a decision as to unfitness under s 14 was subject to both an appeal and to an application to reopen in the trial court.
[47] We consider that if Parliament had intended that there be a reopening of s 14 decisions as to unfitness, it would have provided for this. We do not see this as a situation where there is an unintended lacuna that should be filled by the Court…
[19]The Court earlier commented:
[37] While we agree that the draftsperson does not seem to have contemplated the possibility that a person who was found to be unfit becomes fit before the subpart 3 issues are resolved, we do not think that the Act is completely unworkable in that situation. One of the options available to the Court under s 25 is to release the person into the community which would then allow for the police if necessary to arrest the person and charge him or her again. We accept that release into the community may be inappropriate in the case of a serious offence where there is a danger to the public. It may be that an immediate arrest would be necessary in those circumstances, followed by determination of bail. Obviously the legislation is not entirely satisfactory in that regard, but we do not think that we can make a deduction that, because this has not been well provided for in the legislation, the legislation must contemplate a revisiting of the unfitness decision.
[20]The Court addressed section 27 of the Act which provides:
18 Balemi v R, above n 6
19 Balemi v R, above n 6.
27 Court may stay proceedings when alternative decision made in respect of defendant unfit to stand trial
(1)When the court makes an order under section 25, or a decision under section 25(1)(c), in respect of a defendant who has been found unfit to stand trial, the court may order that the proceedings in which that finding was made are stayed.
(2)While a stay of proceedings ordered under subsection (1) is in force, the defendant in the proceedings may not be charged again with an offence with which he or she was charged in those proceedings.
[21]The Court said of this provision:
[19] The Court must then decide under s 27 whether the proceedings should be stayed.20 Under s 27(2) the effect of the stay is that the defendant may not be charged again with the offence with which he or she was charged in the stay proceedings. It is not entirely clear what the status of the proceeding is if no stay is entered. It is not necessary for us to decide the point and we did not hear argument on it. But we observe that the scheme of the legislation seems to contemplate that a proceeding will come to an end once the subpart 3 process is completed. The significance of a stay not being entered is that there will be no impediment to the charge or charges being relaid in the event that the mental health of the defendant improves.
[22] I have been advised that the practice has been to follow these obiter observations and treat the first charges as being discharged by the decisions under ss 24 and 25. This is what happened in the present case, which is why new charges were laid.
Not new “proceedings”
[23] The first analytical pathway that allows for the detention under the first set of charges to be treated as time served involves a purposive interpretation of s 91 of the Parole Act 2002. As the Court of Appeal said in Balemi, the consequence of an s 27 decision not to grant a stay is that the charge or charges can be “relaid”. Given that the new charges essentially replicate the old, then it seems to me that it could be found that there are no new “proceedings” for the purposes of s 91(1). It is, in substance, a continuation of the same proceedings for the purposes of s 91(1). This would be consistent with the apparent purpose of s 91, including its broad terms and its reference to any other charge on which the person was originally arrested.
20 See the discussion of s 27 in H (CA841/2012) v R [2013] NZCA 628, (2013) 26 CRNZ 628 at [23].
[24] That provides an attractive solution for the present case. But such a conclusion may have unintended consequences in other situations. Having considered the provisions and received detailed argument for the purposes of this appeal, there seems to me to be an alternative approach that not only solves the immediate problem for the present case, but appears to involve a preferable interpretation of the provisions overall.
Are new charges required?
[25] The alternative approach was advanced by Mr Ewen. It calls into question whether the obiter observations of the Court of Appeal at [19] of Balemi are correct.21 The Court of Appeal was careful to note it had not heard argument on the point. Having now had the benefit of that argument, I am satisfied that the observations are not correct, and that the charges that are before the Court are not implicitly dismissed in the processes surrounding a determination that a person is not fit to stand trial.
[26] It is first to be noted that the Court of Appeal’s observations are based on a consideration of the overall scheme of the legislation. It is not suggested that there is a section that provides that the charges are dismissed, or treated as dismissed. Neither is it clear when in the process that is said to occur, or the decision that has that necessary implication. By itself that might be thought to be somewhat surprising given that the provisions are otherwise detailed, and it might be thought that a determination that the charges were dismissed would be clearly spelt out in the procedures.
[27] In any event it seems to me that the position is directly addressed by the statutory provisions, and s 27 in particular. Section 27 applies when the Court makes a decision under s 25. As Mr Ewen argued the terms of s 27(1) contemplate that the proceedings are still alive, and that the charges have not been dismissed. That is why Parliament has bestowed on the Court the power to stay such proceedings. You cannot stay proceedings that have already finally been determined. It is clear that s 27(1) is empowering the Court to decide what to do with those proceedings, and accordingly those charges.
21 Balemi v R, above n 6.
[28] It would appear that in understanding the role of s 27 greater attention has been focused on subs (2), which prevents the person from being charged again. Ms Ure emphasised the terms of s 27(2) in supporting the Court of Appeal’s analysis. I accept that if subs (2) was all that was in s 27 the argument would have force. But the terms of subs (1) cannot be ignored — the charges are still alive if no stay is entered. It follows here that Judge Davidson was wrong to find that Judge Walsh’s decision to release the appellant under s 25 implicitly dismissed the charges.
[29] It seems to me that the purpose of subs (2) is simply to provide that the stay contemplated by subs (1) cannot be avoided by the laying of fresh charges. Subsection
(2) only applies if the original charges have been stayed under subs (1). Subsection
(2) has an ancillary, and supporting role. The real work done by the section is contained in subs (1). I also note that a decision under s 27 is one of those that is subject to appeal rights under s 29.
[30] The observations of the Court of Appeal in Balemi also appear inconsistent with the Court of Appeal’s decision in R v P.22 In that case the defendant was found unfit to stand trial, with an order made that the defendant be cared for as a care recipient in accordance with s 25(1)(b). The Court then addressed the relevance of s 27. It said:
[23] According to s 27, when the Court makes an order under s 25 in respect of a defendant who has been found unfit to stand trial, it may order that the proceedings in which that finding was made be stayed. While a stay of proceedings ordered under subs (1) is in force, the defendant may not be charged again with an offence with which he or she was charged in those proceedings.
[31]And then later:
[44] So long as the appellant lacks legal responsibility for his actions there can be no purpose in pursuing proceedings on which he is unfit to be tried. Parliament has recognised by s 27 of the … Act that the just response to such a situation may be to stay the proceedings so long as that condition lasts. While the possibility of improvement is no doubt remote we accept the common contention of counsel that an order of stay rather than dismissal is appropriate.
22 R v P (CA400/08) [2008] NZCA 469.
[32] A stay was entered in that case. It is plain from this that the Court was proceeding on the basis that the charges were still alive and had not implicitly been disposed of. It is also clear that the Court contemplated that the purpose of s 27 is to address the desirability of staying the proceedings when a person is unfit. It follows that if the person is no longer unfit, and safe to be released into the community under s 25(1)(d), the proceedings may be pursued.
[33] The relevant provisions have been amended since they were considered by the Court of Appeal in Balemi, but not in a way that clarifies the point in issue here. The amendments addressed the matters the Court of Appeal suggested warranted potential reform, but did not include the question raised in its obiter comments.23 The main change is in the order in which matters are addressed by the District Court. The determination whether a person is fit to stand trial now occurs first under what is now s 8A, with the inquiry into the evidential basis for the defendant’s involvement in the alleged offending then occurring under what is now s 10.24 Mr Ewen argued that the new s 13(2)(c) supported the interpretation as it confirmed that sub-part 2 and sub-part 3 were inherently inter-related.25 But in my view that change is too subtle to amount to any real support for his argument. The amending legislation simply did not address the Court of Appeal’s obiter observations one way or the other.
[34] The Court of Appeal referred to the views of Professor Brookbanks when it made its suggestions for reform.26 In his view, the Act intended for “trial judges [to] craft solutions that are both fair to the defendant and which are consistent with the purposes of the legislation and common law rationale for the unfitness to stand trial rules”.27 Having considered those views, it seems to me that the interpretation referred to above is more consistent with his opinion. Moreover, little crafting is required in applying s 27 in its terms.
23 See Balemi v R, above n 6, at [49]–[53].
24 See Simon France (ed) Adams on Criminal Law – Procedure II (looseleaf ed, Thompson Reuters) at [CM8A.01].
25 So a finding under s 13 that the person was not involved in the offending meant that the Court could not deal with the defendant under sub-part 3, including the power to stay under s 27.
26 Balemi v R, above n 6, at [49]–[53]; Warren Brookbanks Reconsidering Fitness to Plead [2014] NZLJ 8; and Warren Brookbanks Competencies of Trial: Fitness to Plead in New Zealand (LexisNexis, Wellington, 2001) at 353.
27 Warren Brookbanks Reconsidering Fitness to Plead, above n 26, at 12.
[35] I also accept Mr Ewan’s further submission that the interpretation he contended for is supported by a consideration of other provisions, and the scheme of the legislation overall. If in the process the Court decides that it has sufficient information in relation to a person found unfit to stand trial under s 24 the Court can make orders under s 25, including that the person be detained as a special patient or care recipient. Section 31(2) then contemplates that such a person may later become “no longer unfit to stand trial”. The Attorney-General must then make a decision under s 31 that the defendant either be held as a patient/care recipient, or that he or she be brought before the appropriate Court. Section s 32 then provides:
32 Proceedings stayed following certain directions under section 31
When a direction is given under section 31 that a defendant be held as a patient or, as the case requires, as a care recipient,—
(a)the proceedings in which the defendant was ordered to be detained are stayed; and
(b)the defendant may not be charged again with an offence with which he or she was charged in those proceedings.
[36] So if the person is to remain a patient/care recipient the proceedings are stayed (which is in the same terms as the power in s27(1)) and charges may not be re-laid (which is in the same term as s 27(2)). If not, the person is brought before the appropriate Court. The implication is that they will return to address the charges. There would be no other reason why the defendant would be “brought before the appropriate Court”. It follows that the charges must still be alive in that situation.
[37] Ms Ure argued that the terms of s 31 provided a mechanism for the charges to be revived or revisited, but that in respect of orders pursuant to s 25 there was no such mechanism. I do not accept that. It seems to me that s 27 provides that mechanism. Its effect is the same as s 32 except that it is for the Court to make a decision rather than the Attorney-General’s decision under s 31(2) having the automatic consequences.
[38] These wider contextual arguments can only be taken so far, however. Perfect coherence of provisions of this kind would requires much of legislative drafters. The legislation must be made to work as Parliament appears to have intended without
expectations of drafting perfection. In substance that was what I interpret Professor Brookbanks to have been calling for. For the purposes of the present argument, the most important point is that the terms of s 27(1) are inconsistent with the idea that the initial charges, and the proceedings in which they are progressed, are implicitly disposed of without a decision under s 27 being made.
Are there adverse practical considerations?
[39] At the hearing I invited counsel to consider whether there were any adverse implications involved in adopting the above interpretation. Ms Ure asked for time to consider this and the parties were granted leave to file written submissions after the hearing.
[40] Ms Ure raised a potential concern arising from the fact that there will have been cases where the Court and the parties have proceeded on the assumption that an s 25 decision to release a defendant into the community involves a dismissal of their charges. Yet if the interpretation referred to above is correct those charges are technically still alive.
[41] It does not seem to me that there are any real concerns arising from this. I accept that the Court, and the parties may have proceeded on that basis in past cases, and as a consequence no s 27(1) stay decision has formerly been made. But if that is the basis upon which the Court and the parties have proceeded, there is no real risk for such a defendant. Both the Crown, and the Court, can be expected to address such cases sensibly. The Crown will not likely bring the matter back before the Court as it has previously agreed that the charges should not proceed as a consequence of the decision not to lay fresh charges calling for a decision to be made under s 27. And the Court would likely enter a stay under s 27(1) if the matter was brought back before it. So I see this concern as being both technical and theoretical only. Neither do I think there is any need for any steps to regularise the position for any such prior cases.
[42] Mr Ewen raised a similar point in relation to any ongoing bail liability. It seems to me, however, that a decision under s 25 that the person be released means there is no question of remand in custody, and that there would then be no basis for arrest of
such a person given that determination. As Mr Ewen said this issue is more apparent than real.
Is fitness to plead implicitly reconsidered?
[43] There is a final implication of the above interpretation that may be worth noting. When a decision is made under s 25(1)(d) to release a defendant to the community it may be because their mental health has improved to the point that there is no longer any concern about that release. On the basis of the approach to the legislation referred to above, it is then also for that Court to decide whether there should be a stay of the charges against that person under s 27(1). If the Court concludes that the person is now fit to face those charges, then the Court can decide that they should not be stayed. If they are not stayed, then it seems to me that the charges may now be prosecuted notwithstanding the earlier decision that the defendant was not fit to face the charges.
[44] That seems to me to mean that the Court can reconsider whether the person is fit to face the charges. That is at least part of the effect of s 27(1). A s 27 decision may be appealed by either the Crown or the defence in accordance with s 29. On that basis the legislation does contemplate the Court reconsidering the mental health of a person to decide whether they are fit enough to face the charges. Indirectly that can involve a reconsideration of fitness. There may be other considerations that are relevant to a stay under s 27(1), but whether the person is sufficiently well to face the charges is likely to be a potentially significant one.
[45] This conclusion is not inconsistent with the Court of Appeal’s actual decision in Balemi v R.28 In Balemi no decision had been made under s 27. Rather a decision had been made at an earlier stage, not contemplated by any provision, that the defendant in that case was now fit to face the charges. The Court held there was no power to do this, whereas the earlier unfitness decision was under a specific provision with prescribed consequences, including appeal rights. The Court of Appeal did not consider the role of s 27 given that its effect in this respect had not been addressed in argument, although it made the obiter observations addressed above. Based on those
28 Balemi v R, above n 6.
observations the matter would proceed by the prosecution laying fresh charges, with the fitness to plead assessments potentially being triggered again.
[46] The alternative approach I have set out above may be a simpler route to a similar end. It seems to be the approach contemplated by R v P.29 The effect of this approach is that as a matter of substance the District Court does potentially reconsider fitness to stand trial, at least in connection with a s 27 stay decision. These conclusions may be an important qualification of the Court of Appeal’s conclusion in Balemi that the District Court does not reconsider the question of fitness. I am nevertheless satisfied having heard the argument that the interpretation I have outlined is the correct one.
Disposal of present appeals
[47] What then are the implications for these findings for the two appeals, one against conviction, and the other against sentence that have been pursued by the appellant?
[48] First I do not accept that the appeal against conviction should be allowed. Whilst technically the conviction should have been entered against the first set of charges, the second set of charges were simply a re-laying of the first set. Mr Ewan refers to the rule against duplicity. A duplicitous charge may occur where the charges states two or more separate offences arising from the one factual allegation.30 Here there is only one set of charges as the first were treated as dismissed. The position is more analogous to filing amended charges. There is no possibility of double jeopardy as the appellant cannot be convicted more than once.
[49] The appeal against sentence is more complicated. Given the existence of a sentencing indication prior to any issue about time served arising, at the hearing I was hopeful there was some prospect of simply allowing the sentence appeal, with this Court imposing sentence in accordance with that sentencing indication. However
29 R v P, above n 22.
30 See Sharman v New Zealand Association of Counsellors Inc [2013] NZHC 3553, [2014] NZAR 638 at [37]; and Ministry of Transport v Burnetts Motors Ltd [1980] 1 NZLR 51 (CA) at 54. This rule used to be contained under s 16(1) of the Summary Proceedings Act 1957 and is now contained under s 17(1) of the Criminal Procedure Act 2011.
Mr Ewen submitted, in my view correctly, that it was not entirely clear whether the discounts given by the Judge related solely to addressing the period of incarceration which was incorrectly understood not to be time served. The sentencing indication was four years, three months’ imprisonment and the final sentence was two years, nine months’ imprisonment — a difference of some 18 months. The period of pre-sentence detention was 14–15 months. At sentencing the Judge appears to have imposed a global discount taking into account the period of pre-sentence detention and the appellant’s personal circumstances referenced in the psychologist reports.
[50] The matter will accordingly need to be remitted to the District Court so that the Judge can consider what the final sentence should be. Obviously in the meantime the appellant will be remanded in custody.
[51] On this approach the appellant’s appeal against conviction should be dismissed, but his appeal against sentence should be allowed on the basis that it proceeded on a misinterpretation of the relevant provisions, and offends against s 82 of the Sentencing Act 2002. For these reasons:
(a)The appeal against conviction is dismissed.
(b)The appeal against sentence is allowed on the basis that the period of time on remand referred to in this judgment is to be treated as time served under s 91 of the Parole Act 2002. The matter remitted to the District Court for sentencing in light of this judgment.
(c)The appellant is to remain in custody pending the new sentence being determined.
Cooke J
Solicitors:
Brandon Street Chambers for the Appellant Crown Law Wellington for the Respondent
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