Feiam v The Queen - [2020] NZHC 1362

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…

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 Feiam v The Queen

Details

AGLC: Feiam v The Queen [2020] NZHC 1362
Case: [2020] NZHC 1362
Decision Date: 17 June 2020

CaseChat Overview and Summary

In Feiam v The Queen, Matthew Ray Feiam pleaded guilty to a charge of burglary. The District Court sentenced him to eight months’ imprisonment on 14 May 2020. The appellant had been in remand for over four months, and all parties understood this would be taken as time served. However, the appellant was recalled for an earlier conviction for aggravated robbery, and his time in remand 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.

The appellant appealed against his conviction and sentence. The appeal against sentence was abandoned. The appellant argued that he pleaded guilty relying on the sentence indication and the assumption that he would not return to custody. The Crown agreed 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. The Court found that a miscarriage of justice had occurred for any reason, and the conviction should be quashed. The appeal against conviction was 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.

The Court found that a miscarriage of justice had occurred and quashed the conviction. The appeal against conviction was allowed, and the matter was remitted back to the District Court. The Court of Appeal found that 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. The Court was of the view that there was some prospect of defence at least on one of the charges.

Orders