C v Police - [2020] NZHC 225

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C v Police

Details

AGLC: C v Police [2020] NZHC 225
Case: [2020] NZHC 225
Decision Date: 20 February 2020

CaseChat Overview and Summary

This appeal concerns the interpretation of provisions in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) and the Parole Act 2002 in the context of a defendant who was initially found unfit to face criminal charges, but whose mental health later improved to the point that they could properly face such charges. 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. The appellant appeals both his conviction and his sentence.

The appellant first argues that the advice provided to the sentencing Judge was erroneous, and that he should have been convicted on the first set of charges, and the second set of charges were duplicitous. The appellant secondly argues that the Judge’s credit for the remand period was wrong in law, and inadequate. The Court held that while 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. There is no possibility of double jeopardy as the appellant cannot be convicted more than once. The appeal against conviction should be dismissed.

The appeal against sentence is more complicated. The Court held 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 was remitted to the District Court for sentencing in light of this judgment. The appellant is to remain in custody pending the new sentence being determined.

The Court concluded that the period of pre-sentence detention was to be treated as time served, and that the appeal against sentence should be allowed. The appeal against conviction should be dismissed.

Orders