Carr v Police

[2015] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000108

CIV-2015-404-000882 [2015] NZHC 865

BETWEEN	JOHN ROBERT CARR Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 April 2015
Counsel:	M Pitch for Applicant LJ Clancy for Respondent
Judgment:	29 April 2015

JUDGMENT OF ASHER J

Solicitors/Counsel: M Pitch, Auckland.

Meredith Connell, Auckland.

CARR v NZ POLICE [2015] NZHC 865 [29 April 2015]

[1]      For reasons that I will outline, I am treating this is an appeal against a decision of Judge A J Fitzgerald on 22 April 2015 sentencing the applicant John Robert Carr to three months’ imprisonment on a charge of assault, that sentence to be concurrent with the 15 month sentence of imprisonment imposed on charges of breach of bail, driving with excess blood alcohol, driving while disqualified and injuring with intent on 10 October 2014.

Background

[2]      On 10 October 2014 Mr Carr came up for sentence on the five charges that I have outlined.  He had entered a guilty plea on the driving, injuring with intent and breach of bail charges, but a not guilty plea on the assault charge (which at that stage was an assault with intent to injure charge).   Therefore he was sentenced on 10

October 2014 to the driving charges, the injuring with intent charge and the bail charge, but not the assault with intent to injure charge.

[3]      Mr Carr was sentenced to 15 months’ imprisonment.  He was convicted and discharged on the bail count, sentenced to six months on driving with excess blood alcohol, two months on driving while disqualified and one year and three months on the injuring with intent charge, with the injuring with intent being the lead charge and the other sentences being concurrent.

[4]      In March 2015 the Police agreed to reduce the assault with intent to injure charge to common assault, and on 4 March 2015 Mr Carr pleaded guilty to that charge of common assault.  The charge related to a domestic incident where an argument broke out between Mr Carr and his partner.   It appears there was some physical give and take which involved him grabbing his partner by the throat, applying pressure to her neck and punching her so that she suffered some contusions to her eye and nose, swelling to the back of her head and lower lip, and general tenderness in her body.

[5]      At the time of the guilty plea being entered Judge Fitzgerald gave a sentence indication indicating a sentence of three months’ imprisonment. I do not have a copy

of what he said in the indication, but in his sentencing notes of 22 April 2015 he recorded: 1

… [t]he indication was also on the basis that the three months’ imprisonment would run at the same  time  as  the  sentence  of imprisonment  you  were serving for other offending.

[6]      When the Judge sentenced Mr Carr on 22 April 2015 he summarised the facts and noted Mr Carr’s history of offending and also noted the plea of guilty and the willingness to be involved in a restorative justice meeting. He stated:2

The offence for which I am sentencing you now predates the sentencing for those other matters. What that requires me to do is put myself in the position of the Judge who was sentencing you at the time and decide whether there would have been any increase in the sentence of imprisonment imposed if this matter had been there at the same time.

Having regard to all of the information that was provided, including the submissions that were made at the time by Sergeant Felton and Ms Pitch, I formed the view that there would not have been an increase or certainly not a significant increase.   For that reason, on this charge, you are sentenced to three months’ imprisonment.  That sentence is concurrent with the sentence imposed on 22 June last year.  Ms Pitch has explained that you are therefore due for release today.

[7]      It seems clear that it was the Judge’s intention that the effect of the sentence he was imposing would be that Mr Carr would be released immediately. He was due for release on the sentences that had been imposed on the other counts on that day. This is why the Judge said to Mr Carr that he would be released immediately.

[8]      However, immediate release was not possible because by virtue of s 76(1) of the Parole Act 2002 the start date of a sentence of imprisonment is the date on which the sentence is imposed. A Court is not able to order that a sentence of imprisonment should commence at a time earlier than the date on which it is passed.  A Judge

cannot backdate a sentence to commence at an earlier time.3

[9]      Thus, contrary to the intention and expectation of Mr Carr and his counsel, and indeed the Police and the Judge, Mr Carr found that he was not released on that

1      Police v Carr [2015] NZDC 6828 at [3].

2      At [7] and [8] (emphasis added).

3      Wootton v R [2010] NZCA 548 at [14].

day and has in fact stayed in prison down to the present time – a total of a further seven days.

Habeas corpus

[10]     The immediate response of Ms Pitch, Mr Carr’s counsel, was to apply for a writ of habeas corpus.  This was an understandable reaction and has had the useful effect of getting the matter before the Court promptly.  However, it was the wrong procedure.

[11]     There is nothing wrong with the warrant of commitment that was issued by the District Court Judge in respect of the 22 April 2015 sentence.  That warrant was issued under s 91 of the Sentencing Act 2002.   It cannot be said that Mr Carr is presently unlawfully detained.

[12]     Habeas corpus is concerned with whether the detention is lawful, rather than background errors that have led to the commitment to detention.   So no writ of habeas corpus can be issued.

[13]     However, when the matter was called before me this morning I raised with counsel the prospect of proceeding on the basis that Mr Carr was appealing his sentence.   The Crown had understandably filed a notice of opposition to the application for writ of habeas corpus.  But having investigated the matter the same alternative possible procedure was suggested by Mr Clancy, counsel for both the Department of Corrections and the Police.

[14]     Rule 8.2 of the Criminal Procedure Rules 2012 provide:

8.2  Departure from this Part for reasons of urgency

(1)   In the case of any application or appeal to which this Part applies, the appeal court may on its own initiative, or on the application of a party, direct, authorise, or accept a departure from a requirement of this Part for reasons of urgency.

(2)  If an application for leave to appeal to which section 223 of the Act applies is filed in any case where the High Court is the second appeal court in accordance with section 224(a) of the Act, a Registrar must refer the application to a Judge for directions under subclause (1).

[15]     There is no doubt that the situation is urgent, as contrary to the expectations of everyone Mr Carr is held in custody.  In the circumstances on my own initiative I depart from the requirement that a notice of appeal be filed.4   I propose treating the application for a writ of habeas corpus as a notice of appeal.  I proceed to consider the appeal.

Appeal

[16]     Under s 116(2) of the Criminal Procedure Act 2011 a sentence indication is binding  on  the  judicial  officer  unless  further  information  becomes  available. However, the defined meaning of sentence indication under s 60 of that Act limits it to the types and range of quantum of sentences, and s 116 does not apply.

[17]     However, I consider that there is be a proper basis for appellate intervention to quash the sentence imposed, because there has been a significant procedural unfairness to Mr Carr.  He entered a plea of guilty on the basis that he would have immediate liberty, to find that he is bound to stay in custody for a further period.  In fact if he has to serve the sentence imposed he will not be released until 8 May 2015. It is to be noted that Mr Carr had already served a month in prison for the assault charge as he was denied bail for a period and was remanded in custody.  This unfair outcome is a consequence of an error of the Court.

[18]     I  emphasise  that  the  Judge  did  not  intend  to  depart  from  his  sentence indication. He makes it quite clear in his sentencing notes that he intended to impose a sentence entirely in accord with what he had indicated.  However, the operation of s 76(1) defeated that intention.

[19]     The only way in which the Judge could have achieved the result he intended would have been to have convicted Mr Carr on that day and then discharged him without further sentence.    I observe that there was a considerable distance in time and circumstance between the incident that led to the assault charge, and the injuring with intent on which Mr Carr had been earlier sentenced.   However, the Judge

clearly saw it in terms of it being a domestic incident and although I consider a

4      Criminal Procedure Rules 2012, r 8.3.

conviction and discharge to be a lenient outcome for Mr Carr, it is not out of the range of sentences available.

[20]     Thus,  I  am  prepared  to  allow  the  appeal  because  of  the  error,  and  the unfairness it has caused.  I will substitute the sentence imposed with a sentence that achieves the effect that the Judge intended, and which will mean that Mr Carr is released from custody immediately.

Result

[21]     The appeal is allowed.

[22]     The concurrent sentence of three months’ imprisonment is quashed.

[23]     In  substitution,  on  the  charge  of  assault  on  29  June  2014,  Mr  Carr  is convicted and discharged.

……………………………..

Asher J