Charteris v Ministry for Primary Industries

[2024] NZHC 353

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-002

[2024] NZHC 353

BETWEEN

SIMON JOHN MINSON CHARTERIS

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing (via VMR):

27 February 2024

Appearances:

E J Forster for Appellant

J D Bridgman for Respondent

Judgment:

28 February 2024

JUDGMENT OF GRAU J

[Sentence appeal]

Introduction

[1] On 10 March 2023, following a Judge-alone trial, Mr Charteris was found guilty of three charges under s 23(2)(c) of the Animal Welfare Act 1999. The charges related to the transportation of rams which were found to have been unfit to be transported by Mr Charteris’ specialist farm business, where end-of-life rams were aggregated onto his property at Hastings and held for a short period before they were sent for processing through Progressive Meats Ltd, also in Hastings.1

1      Ministry for Primary Industries v Charteris [2023] NZDC 3883. The maximum penalty for each charge is 12 months’ imprisonment and/or a $50,000 fine.

CHARTERIS v MINISTRY FOR PRIMARY INDUSTRIES [2024] NZHC 353 [28 February 2024]

[2]    On 18 August 2023, Judge Matenga declined Mr Charteris’ application to be discharged without conviction under s 106 of the Sentencing Act 2002, convicted  Mr Charteris, and fined him $3,800.2

[3]    Mr Charteris appealed to this Court against his convictions. He did not appeal his fine or the refusal to discharge him without conviction. Justice Grice dismissed the appeal against conviction on 22 November 2023.3

[4]    On 11 January 2024, Mr Charteris filed a notice of appeal against sentence; advanced only in relation to the Judge’s failure to grant him a discharge without conviction. The appeal was out of time. The Ministry for Primary Industries (MPI) did not oppose the application for leave to extend the time to appeal his sentence and, on 2 February 2024, Grice J granted leave.4

[5]    The basis of Mr Charteris’ appeal is that the Judge did not adequately consider his previous good character, nor did he consider factors that might have had a detrimental impact on his business. He argues it was inconsistent for the Judge to have found a real and appreciable risk of future employability being impacted by a conviction, but that it would not be so impacted because Mr Charteris was self- employed, despite Mr Charteris’ evidence that he would need to seek employment in light of pressures on his business.

[6]    Although MPI did not oppose Mr Charteris’ application for leave to appeal, MPI now submits that this Court has no jurisdiction to hear the appeal against the refusal to grant a discharge without conviction because it is an appeal against conviction, and this Court has already heard and determined Mr Charteris’ conviction appeal.

[7]    The appeal thus raises a preliminary jurisdictional question. After considering the issue and discussing it with counsel, I consider this issue needs to be determined

2      Ministry for Primary Industries v Charteris [2023] NZDC 12477. An application for permanent name suppression was also declined.

3      Charteris v Ministry for Primary Industries [2023] NZHC 3321. Mr Charteris had interim name suppression pending the outcome of the appeal but did not seek for suppression to continue beyond the delivery of the appeal decision.

4      Charteris v Ministry for Primary Industries HC Napier CRI-2024-441-002, 2 February 2024 (Minute of Grice J).

prior to, and separately from, any substantive appeal, whether against conviction and/or sentence.

[8]    I have formed the view that that this Court does not have jurisdiction to hear Mr Charteris’ appeal and that the correct appeal pathway for him is an application for leave to bring a second appeal against conviction to the Court of Appeal. My reasons follow.

Approach to appeals concerning s 106

[9]    The Court of Appeal, in Jackson v R, has characterised an appeal against a decision refusing a s 106 order for discharge without conviction as a “composite appeal against conviction and sentence”.5 The Court considered the essence of the challenge is to the entry of a conviction, with the setting aside of the conviction being the necessary prerequisite to, and objective of, the appeal. It is only when an appeal against a refusal to discharge without conviction is unsuccessful that an appellant would pursue any secondary appeal against sentence alone.6

[10]   As explained by the Court of Appeal in Jackson v R, the principled basis on which to determine such an appeal is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering the conviction. In the alternative, it can be argued that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharge without conviction set out in s 107 of the Sentencing Act.7 If the appellate court is satisfied that either error is established, it must set aside the conviction, with the result that the sentence appeal does not require determination.8

[11]   However, if the conviction appeal fails, the Court must then proceed to the second stage of determining whether the end sentence imposed was correct.9 Should this be necessary, sentence appeals are governed by s 250 of the Criminal Procedure Act 2011 (CPA) and must be allowed where the Court is satisfied that there is an “error in the sentence imposed on conviction” and “a different sentence should be

5      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].

6 At [8].

7 At [12].

8 At [13].

9 At [13].

imposed”.10 Under s 251 of the CPA, the Court can impose another sentence or vary the sentence, but it cannot at this stage impose a discharge without conviction.11

[12]   That being the case, despite the parties and the Court proceeding on the basis that Mr Charteris was advancing an appeal against sentence—which would, appropriately, be a first appeal to this Court—as the Jackson decision establishes, he is in fact pursuing an appeal against conviction as a necessary precondition to any sentence appeal (although there is no appeal against the fine). Mr Charteris has already exercised his right of first appeal against conviction to this Court, however, and the CPA does not provide for the possibility of a second conviction appeal to this Court. Rather any second appeal must be by a grant of leave to the Court of Appeal pursuant to s 237 of the CPA.

[13]   Mr Forster’s submission was that a strict interpretation of the appeal pathways in the CPA was inconsistent with s 25(h) of the New Zealand Bill of Rights Act 1990, which provides the right for a convicted person to appeal against conviction, sentence, or both. He also pointed to the hybrid nature of the appeal, being one against conviction and sentence, and said this case shows why it is appropriate to deal with such an appeal as an appeal against sentence.

[14]   I am unable to accept those submissions. The lack of jurisdiction for this Court to hear the appeal is not inconsistent with a convicted person’s right of appeal. That right of appeal exists, but it is to a different Court. And that Court has made it clear what the nature of such an appeal is.

[15]   I nevertheless have some sympathy for Mr Charteris’ position. I therefore considered the Court of Appeal’s decision in Lyon v R. In the context of appeals to the Court of Appeal, that case discussed the circumstances in which the Court might entertain a “second appeal,” although the correct description was a “recall”.12 The Court described its inherent power to recall a final decision in exceptional circumstances when required by the interests of justice, which was the inherent jurisdiction described in the Court’s decision in R v Smith.13 The Court listed three

10     Criminal Procedure Act 2011, s 250(2).

11     Jackson v R, above n 5, at [14].

12     Lyon v R [2019] NZCA 311 at [25].

13     At [23]; R v Smith [2003] 3 NZLR 617 (CA).

preconditions to achieving recall: a fundamental error in procedure, a substantial miscarriage of justice if the error was not corrected, and the absence of an alternative effective remedy.14

[16]   Assuming the same principles would apply to this Court’s exercise of its inherent jurisdiction, it might be arguable in this case that there has been a fundamental error in procedure where counsel and the Court appear to have proceeded to a hearing on the basis that the appeal is one against sentence only, in respect of which Mr Charteris’ right of first appeal to this Court could be exercised. A substantial miscarriage of justice if the error was not corrected might also be arguable, where it appears that Mr Charteris has some seriously arguable points in relation to the consequences of the conviction on him, and where the gravity of the offending was assessed as low. However, the third precondition, being the absence of an alternative effective remedy, cannot be made out here, when Mr Charteris has a route to a second appeal.

Result

[17]The Court has no jurisdiction to hear a second appeal against conviction.

[18]   Mr Charteris has not appealed his sentence of a $3,800 fine. To the extent the appeal purports to be an appeal against sentence, it is dismissed.

Grau J

Solicitors/Barrister:

Crown Solicitor’s Office, Napier for Respondent E J Forster, Barrister, Hastings for Appellant

14     Lyon v R, above n 12, at [27].