Fane v R

[2019] NZHC 408

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000006

CRI-2019-463-000012 [2019] NZHC 408

BETWEEN

CODY JAMES FANE

Appellant

AND

THE QUEEN

Respondent

Hearing:	20 February 2019
Appearances:	A Sykes and J Bartlett for Appellant A Gordon for Respondent
Judgment:	12 March 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 12 March 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Annette Sykes & Co, Rotorua Gordon Pilditch, Rotorua

CODY JAMES FANE v R [2019] NZHC 408 [12 March 2019]

[1]        Mr Fane appeals the sentence imposed by Judge Snell in the Rotorua District Court on 28 September 2018.1

[2]        The issue on appeal is how and to what extent the time Mr Fane spent in prison on recall, before he was sentenced, should be taken into account in the calculation of his term of imprisonment. It is not disputed that it should have been taken into account. As has happened before, there was a misunderstanding as to the need for this to be specifically addressed by the sentencing Judge.

[3]Mr Fane was charged with the following offences:

(a)discharging a firearm with reckless disregard;

(b)unlawful possession of a firearm; and

(c)breach of parole conditions (x 2).

Background

[4]        The facts of the offending itself are of no moment to this appeal. The important information is the procedural history.

[5]        Mr Fane was convicted of wounding with intent to cause grievous bodily harm in 2012. He was sentenced on 24 July 2012 to 10 years’ imprisonment with a minimum non-parole period of five years. He was given a first strike warning at that time.

[6]        Mr Fane was released on parole on 31 January 2017. The current offending occurred on 22 April 2017. In brief, Mr Fane was in an altercation with two members of the Mongrel Mob. He discharged a firearm into their car. Luckily, they were not injured.

1      R v Fane [2018] NZDC 20679.

[7]        Mr Fane was taken back into custody on 26 April 2017. Corrections made an application that Mr Fane be recalled to continue serving his previous sentence. An interim recall order was made on 27 April 2017, and a final recall order was made on 16 June 2017.

[8]        Mr Fane remained in custody subject to the recall order until he was sentenced on 28 September 2018  for  the  current  offending.  The  lengthy  period  between Mr Fane’s arrest and sentence was due to issues with the admissibility of evidence.

These issues were finally determined by the Court of Appeal in July 2018.2

[9]        Mr Fane requested a sentence indication prior to his pleading guilty, and Judge Cooper issued one on 21 September 2018.

[10]      In giving the sentence indication, Judge Cooper took into account that this was a gang conflict; Mr Fane displayed a high degree of recklessness in his offending; it was in a public place with members of the public nearby; and there was potential for significant harm.

[11]      The Judge came to a starting point of four years. He considered whether there should be an uplift for Mr Fane’s previous convictions, but decided that, as this was a second-strike offence, which meant that Mr Fane would serve the full sentence without parole, an uplift was not warranted.3 He indicated that an uplift of six months would be imposed because the offending was committed while on parole.

[12]      Finally, Judge Cooper indicated Mr Fane would receive a discount of 20 per cent for his guilty plea. This would bring the sentence to three years and seven months’ imprisonment.

[13]Mr Fane accepted the indication and pleaded guilty on 26 September 2018.

2      Fane v R [2018] NZCA 246.

3      Sentencing Act 2002, s 86C(4)(a).

[14]      He came up for sentencing on 28 September 2018 before  Judge  Snell.  Judge Snell did not deviate from the sentence indication, and imposed the sentence as indicated of three years, seven months.

[15]      Also in line with what Judge Cooper indicated, Judge Snell said that the sentence was to be served concurrently with Mr Fane’s sentence for wounding with intent, which he was still serving.

The problem

[16]It is here that confusion arises.

[17]      Soon after the sentencing, Corrections advised Mr Fane that his sentence would begin from the date of the sentencing, 28 September 2018.

[18]      Ms Sykes, for the appellant, (who appeared at the sentencing, but not at the sentence indication) says this is wrong. She submits that Mr Fane accepted the indication on the understanding the  sentence  would  be  effectively  backdated  to 27 April 2017, the date he returned to custody. In other words, Mr Fane would be deemed to have been serving his sentence from that date.

[19]      She says this point was made to the Crown and the Court at the time of sentencing, and neither objected to this analysis. She says this is what was meant by Judge Snell when he said that the sentence was to be served concurrently with his previous one.

[20]      Ms Sykes sent two letters on Mr Fane’s behalf to Corrections, outlining how in her view the sentence was intended to begin from 27 April 2017.

[21]Corrections was unmoved, and wrote the following:

You have asked that your client’s sentence end date be recalculated to accurately reflect his Honour’s sentencing direction. However, the start date of the sentence is set out in statutory provisions and is not a matter of judicial discretion.

[22]      Ms Sykes now appeals the sentence, but does not take issue with the sentence itself. She instead seeks a sentence that she says will implement  the  intent  of Judges Cooper and Snell. That is, Mr  Fane  wants  credit  for  the  one  year  and five months he spent in prison before being sentenced.

[23]      The Crown do not accept, or say it is unclear, whether Judge Cooper intended there be such a credit. I agree with  Ms  Gordon  that  it  does  not  follow  from Judge Cooper’s saying the sentences were to be concurrent that the second sentence was to be back-dated.

[24]      The Crown accepts, however, that counsel who appeared at the sentence indication (being Mr Hill for the Crown and Ms Bartlett for Mr Fane), were both operating on the basis the sentence would be back-dated.

[25]      There is also an indication from an email sent by the Registrar of  the  District Court that one or both Judges may have thought the sentence was to be back-dated. I cannot place much weight on that.

[26]      The Crown accepts there should be a discount, but says it should be a portion of the time spent on recall, not the full period, in accordance with the usual approach.

Approach on appeal

[27]      Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.4

[28]      In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.5 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.6

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

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

[29]      The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.7 The focus is on the end result rather than the process by which the sentence was reached.8

[30]      In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).9 In any other case, the Court must dismiss the appeal.10

Law

[31]      Thankfully both the appellant and the Crown are now in broad agreement on the applicable law.

[32]      It is clear that Corrections were correct to begin Mr Fane’s sentence from the date it was imposed.

[33]      The correct method of recognising Mr Fane’s time spent on recall prior to sentencing is by way of a discrete discount at sentencing. The only real point of contention now between the parties is the amount of that discount. That is, should  Mr Fane receive credit for the full time he spent in custody prior to sentence, or only for some portion of that.

[34]      While both sides agree on the applicable law, I will still set it out below. I will then consider what credit Mr Fane should receive.

[35]      Section 76 of the Parole Act 2002 requires that the start date of a sentence of imprisonment is the date on which the sentence is imposed. For this reason, a Judge cannot backdate a sentence to commence at an earlier time.11

[36]      Section 90 of the Parole Act 2002 provides that any time spent on pre-sentence detention after a person is arrested is deemed to be time served on the sentence

7      Tutakangahau v R, at [36].

8 At [36].

9 At [36].

10     Criminal Procedure Act 2011, s 250(3).

11     Oliver v R [2014] NZCA 285; R v Griffiths [2018] NZHC 3132.

subsequently imposed and is therefore counted towards that sentence. This occurs administratively and is not taken into account at sentencing.12

[37]      But, under s 91(5) and (6), pre-sentence detention does not include time spent in prison following an application for a recall order.13

[38]      As such, it is clear that the automatic credit given to prisoners who have been on remand prior to being sentenced does not extend to prisoners who have been recalled.14

[39]      Under s 9(1)(c) of the Sentencing Act 2002, the fact that the offending occurred while the appellant was still subject to a sentence is an aggravating factor and an uplift on that account will generally be appropriate.

[40]      While a prisoner does not receive an automatic discount for a period on recall, as they do for time spent on remand, the Courts have recognised that not receiving a discount can result in a form of double punishment. If a prisoner does not receive credit for their time on recall, they are effectively, at least in part, being punished for their breach of parole twice: first by spending time on recall, then by spending time for the sentence for the breach of their parole.

[41]      The Court of Appeal considered this issue in Oliver v R.15 The appellant was on recall awaiting sentence, for a period of approximately nine months. The Court acknowledged that time spent on recall can be taken into account by a sentencing Judge and that the sentencing Judge would have made an allowance for the time on recall if it had been drawn to their attention.16 The Court said that the allowance is not necessarily the same as the time spent in custody.17 Further, the sentencing Judge in that case had not applied an uplift on account of the offending occurring while on parole. The Court found that an uplift of nine months would not have been out of range in the particular circumstances of that case. The Court considered that the uplift

12     And, in fact, it may not be taken into account at sentencing: Sentencing Act 2002, s 82.

13     As long as a final recall order is made following the application, as is the case here.

14     Silioto v R [2016] NZCA 328.

15     Oliver v R [2014] NZCA 285.

16 At [9].

17 At [9].

and discount would “to some extent at least” have cancelled each other out and therefore the sentence was not manifestly excessive.

[42]A similar issue, to different effect, arose in the Court of Appeal in Sililoto v

R.18 The appellant in that case was on parole for a sentence of life imprisonment when he committed further offences. The appellant was sentenced two years after he was arrested, so was on recall for all of that time. The Court referred to conflicting approaches taken earlier to this issue. In two decisions of its own in 2005, R v Paul and R v Graham, the Court in the first had allowed a full discount and in the second, refused to reduce the sentence at all.19

[43]      In Sililoto, the Court applied an uplift of six months to reflect the appellant’s offending while on parole, and then applied a discount of 18 months to reflect the time the appellant spent on recall. The Court wrote that this struck a balance between punishing the appellant for offending while on parole, and ensuring he was not doubly punished. While Harrison J said the point would be the subject of authoritative consideration in the near future, that does not seem to have occurred.20 It may be thought that Sililoto had taken the matter far enough.

[44]      The Court of Appeal faced the same dilemma in Tukuafu v R.21 In that case, the appellant had been on recall for seven months. The Court did not consider it appropriate to adjust the end sentence by the full period. The Court wrote that to do so would be to ignore that the offending occurred while on parole. The Court reduced the sentence imposed by five months. It is not clear from the judgment whether the sentencing Judge had applied an uplift in the first place.

[45]      The Crown also draws my attention to R v Griffiths, a decision of Lang J.22 In that case, Lang J accepted that a Court should take into account the effect of being recalled on parole.23 He noted, however, that a Court is not required to reduce any sentence on a “month-for-month” basis in accordance with time spent completing a

18     Sililoto v R [2016] NZCA 328.

19     R v Paul CA409/05, 25 April 2006; and R v Graham CA/05, 14 December 2005.

20 At [38].

21     Tukuafu v R [2015] NZCA 251.

22     R v Griffiths [2018] NZHC 3132.

23 At [7].

previous sentence.24 Lang J applied an uplift of 18 months to account for the defendant’s previous criminal history and for offending while on parole. The defendant had served approximately 6 months on recall. Lang J gave a discount of four months to account for this.

Discussion

[46]      Having read the cases referred to me, it is clear that, especially where the breach of parole has been taken into account in the new sentence, the Courts now generally allow a discount for time spent on recall, so as not to doubly punish a defendant.

[47]      The discount is not usually on a one-for-one basis. Had that been intended by Parliament, there would have been a statutory provision to that effect, as there is for a defendant being on remand. Clearly there is some double-up in being recalled to prison because of the parole breach, while also being sentenced for that breach, but to some extent the prisoner’s continuing to serve the outstanding sentence is a consequence, or loss of benefit, rather than an added punishment.

[48]      Without the matter having been considered in depth, the Courts seem now to apply an uplift to reflect the particular breach and then allow a credit of approximately two-thirds or a little more, of the period on recall. That seems, as a general approach, a just and proper course.

[49]      For example, in Sililoto v R, the time on recall was two years; the Court applied an uplift of six months to reflect the breach of parole; they then discounted by        18 months to reflect the time on recall. Lang J followed a similar process in R v Griffiths, allowing four months’ discount for six months on recall, but after a significant uplift for previous offending and breach of parole.

[50]      As I have said already, the Crown accepts that some discount is appropriate to reflect the one year and five months spent in custody on recall. They suggest a discount of six to twelve months.

24     Referring to the Court of Appeal in Vernon v R [2010] NZCA 308 at [16].

[51]      The appellant seeks that I discount by the full amount of time spent on recall: one year and five months.

[52]      Were it not for the common  mistake of counsel, I would discount by about  13 months. But in this particular case, I consider the most appropriate course of action is to allow a full discount, as the appellant suggests. Mr Fane accepted a sentence indication on a clear understanding between counsel that it would result in an effective further time in prison of two years, two months from the sentencing date. Both parties thought the new sentence would take effect from date of recall. That was in error. That would entitle Mr Fane to apply for a retrial, an outcome that neither party wants. Further, it seems to me that, had counsel suggested a 17-month discount be applied at the time of the sentence indication, or at least the Crown not opposed that, it is likely Judge Cooper would have indicated accordingly, and that would in turn have been adopted by Judge Snell.

[53]      Towards the end of her submissions, Ms Gordon acknowledged that in this particular case at least, a one-for-one discount might be available.

[54]      For the above reasons, I consider that Judge Snell erred in not giving a discount for the time spent on recall and the discount should have been 17 months. This has resulted in a sentence that is manifestly excessive.

[55]      I consider the end result is what Judge Snell would have ordered, had the matter been put to him. It seems counsel involved at the hearing simply made a mistake as to the law – a not uncommon mistake, if the authorities referred to above are anything to go by.

Conclusion

[56]I allow the appeal.

[57]      I allow a discount of 17 months for the time spent on recall and I substitute the sentence of three years and seven months’ imprisonment for a sentence of two years and two months’ imprisonment.

[58]I thank counsel for their submissions and their fair approach to this matter.

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Hinton J