Feiam v The Queen
[2020] NZHC 1362
•17 June 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-29
[2020] NZHC 1362
BETWEEN MATTHEW RAY FEIAM
Appellant
AND
THE QUEEN
Respondent
Hearing: 10 June 2020 Appearances:
E Hall for Appellant
J M Irwin for Respondent
Judgment:
17 June 2020
JUDGMENT OF GRICE J
Overview
[1] Mr Feiam pleaded guilty to a charge of burglary.1 He accepted a sentence indication and was sentenced to eight months’ imprisonment on 14 May 2020.2 It was the understanding of the Judge, the Crown and the appellant that this sentence would be taken as served as the appellant had been in remand in custody for over four months.
[2] However, before the sentencing, the appellant had been recalled for an earlier conviction for aggravated robbery. His time in remand was not pre-sentence detention pursuant to s 91 of the Parole Act 2002 so did not count as time served. The appellant was only made aware of this error after sentencing and was ordered to remain in custody until September 2020.
1 Crimes Act 1961, ss 66 and 231(1)(a); maximum penalty of 10 years’ imprisonment.
2 R v Feiam [2020] NZDC 8496 (sentencing notes).
FEIAM v R [2020] NZHC 1362 [17 June 2020]
[3] The result is that Mr Feiam will have to return to custody for a period that is effectively the time on remand which did not count toward the sentence imposed on 14 May 2020.
[4] The Crown accepts that the Judge gave the sentence indication on the understanding that the time served would offset the period of imprisonment imposed on 14 May 2020. It takes the view that that appeal against conviction and sentence should be allowed on the basis of error.
[5] The appellant’s written submissions were directed toward the sentence appeal on the basis that the appeal be allowed and that this Court should substitute a sentence of a conviction and discharge. No presentence reports had been obtained in the District Court as all concerned including the Judge proceeded on the basis that Mr Feiam would not return to custody. The lack of such reports mean this Court has insufficient information to consider a community-based sentence.
[6] In the course of the hearing Ms Hall for Mr Feiam indicated she abandoned the appeal against sentence and instead brought an appeal against conviction. She provided submissions on that appeal at the hearing. In essence Ms Hall said that the error that Mr Feiam, counsel, the prosecution and the Judge operated under meant that Mr Feiam was induced to enter the guilty plea relying on the sentence indication and the assumption which underpinned it. Ms Irwin for the Crown supported that approach.
Background
[7] On 24 December 2019, the appellant drove an unknown associate to an address and parked outside. The appellant and the associate walked around the property shining torches into the house. This alerted the occupant upstairs who called the police. Mr Feiam did not go into the house but the associate did. At one point, Mr Feiam picked up a machete that rested against the backdoor of the house and threw it onto the lawn.
[8] The police then arrived. The associate ran away. The police located the appellant in a driveway beside a balaclava belonging to the associate.
[9] In the summary of facts, the appellant explained that he “visited the address with a bro that wanted to talk [to] his bro” and that he “was just the dumb driver”. He admitted to picking up the machete but noted it was outside the address.
District Court judgment and other events
[10] The appellant was sentenced based on the sentence indication given in the District Court on 14 May 2020.
[11] The Judge in the sentence indication, after going through the aggravating factors, noted that no property was stolen nor was there any damage to property. The appellant had played a lesser role than the associate and did not enter the residential property.
[12]The Judge arrived at a 12 months’ imprisonment starting point.
[13] In terms of personal circumstances, the Judge noted the following aggravating factors, giving a one-month uplift:
(a)The offending occurred while on release conditions for the 2017 conviction of aggravated robbery. The appellant was subject to a sentence, to come up if called for breaching release conditions.
(b)The appellant had a significant history of previous convictions including receiving property and the aforementioned aggravated property.
[14] For personal factors the Judge indicated that a discount in the vicinity of 20 per cent might be available, reducing the sentence to 10 months and two weeks’ imprisonment.
[15] As a guilty plea was entered early a maximum 25 per cent discount was applied, leading to an end sentence of eight months’ imprisonment.
[16]The Judge noted that a sentence of eight months’ imprisonment in total meant:3
…you would be eligible for a sentence of home detention, or alternatively a combination sentence of community detention, supervision and community work. I however appreciate that is somewhat academic given the time you have spent on remand.
[17] The Judge also indicated in response to a submission by Ms Hall, that a conviction and discharge would not be appropriate. The Judge at that stage also rejected a sentence of community work alone, as it would not achieve the purposes of sentencing under ss 7(a)-(c), (e)-(f), (h) and 16 of the Sentencing Act 2002.
The Law
[18]Section 232 of the Criminal Procedure Act 2011 provides:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
3 R v Feiam DC Porirua CRI-2019-091-002970, 14 May 2020 (Notes of Judge J M Kelly on Sentence Indication) at [37]. Emphasis added.
[19] In this case the relevant provision is s 232(2)(c). The Court may allow an appeal if satisfied that a miscarriage of justice occurred for any reason. The definition in s 232(4) of miscarriage of justice contemplates that a miscarriage of justice may occur in a case where the appellant has pleaded guilty.
[20] In Gleason-Beard v R the Court of Appeal noted that a guilty plea will be set aside only in exceptional circumstances.4 In that case the guilty plea was set aside in circumstances where the Judge had effectively given an informal sentence indication that did not involve imprisonment at the same time he suggested a not guilty plea might result in, if convicted, a sentence of imprisonment. The Court of Appeal considered that the Judge’s comments amounted to exceptional circumstances. This was despite the fact that the facts did not easily fit within the recognised categories of exceptional circumstances which would warrant allowing the vacating of a guilty plea.5 The Court noted there were some analogies with Hancock in which the defendant’s pleas were unnecessarily rushed and based on erroneous advice from counsel warning the defendant he would otherwise go to prison.6
[21] The Court of Appeal noted a willingness to adopt new categories involving circumstances that amount to an error, irregularity or occurrence in or affecting a proceeding in which the appellant has pleaded guilty.7
[22] The Court rejected the Crown’s submission that the appellant’s proposed defence had no prospect of success. The Court was of the view that there was some prospect of defence at least on one of the charges.
Appellant’s Position
[23]The appellant submitted that s 232(4) provides a two-step test:8
(a)Was there an error, irregularity, or occurrence in relation to or affecting the trial?
4 At [22].
5 At [44].
6 At [44] citing Hancock v R [2012] NZCA 292.
7 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [22]–[23].
8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].
(b)If so, did either of the two states of affairs in subs 4(a) or 4(b) arise in consequence?
[24] Step one requires an approach that best gives effect to the right of appeal in s 25(h) of the New Zealand Bill of Rights Act 1990.9
[25] As to step two, Ms Hall submitted that there was “a real risk” there is a reasonable possibility that the appellant would have been found not guilty (or another more favourable verdict) had nothing gone wrong.10 She noted the “error, irregularity or occurrence must be of sufficient seriousness to warrant the setting aside of the conviction without further enquiry into the potential effect of the error on the trial’s outcome.”11
Respondent’s position
[26] I have outlined the Crown’s approach to the substantive appeal above. Essentially it agrees with the appellant’s submissions. It considers the matter should be remitted to the District Court.
Analysis
[27] In this case Ms Hall submitted that Mr Feiam pleaded guilty induced by his reliance on the fact that he would need serve no further time in custody. This reliance was induced by an assumption of not only the Judge but that of his counsel and of the prosecution that time already spent in custody was “time served”. This was incorrect.
[28] The erroneous assumption had serious effects as it meant Mr Feiam would return to custody. Given Mr Feiam’s role in the offending it appears that, like Ms Gleason, he would have had a defence of sufficient substance to the charge he was facing.
9 Wiley v R, above n 8, at [26].
10 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
11 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA 232.06].
[29] It is also noted that the Crown in this case have supported the appeal against conviction. All parties involved, including the prosecution had made the error which induced the guilty plea and recognise the seriousness of that error.
[30] In the circumstances I am of the view that Mr Feiam received a conviction for the offence where he had a defence and he entered a guilty plea in circumstances where the Judge’s sentencing indication had been based on an erroneous assumption. Counsel’s advice to Mr Feiam was also based on that assumption.
[31] I am satisfied a miscarriage of justice occurred and the conviction should be quashed.
Result
[32]The appeal against sentence has been formally abandoned.
[33]Leave is granted to bring an appeal against conviction.
[34] The appeal against conviction is allowed to the extent that Mr Feiam’s guilty plea to the charge is vacated and the matter is remitted back to the District Court.
Grice J
Solicitors:
Crown Law Office, Wellington for Respondent
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