French v The King - [2023] NZSC 103

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 57/2023
[2023] NZSC 103

BETWEEN	DANIEL GARY FRENCH Applicant
AND	THE KING Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	A J Bailey for Applicant Z A Fuhr for Respondent
Judgment:	10 August 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr French pleaded guilty to a charge of manslaughter and was sentenced to a term of imprisonment of three years, cumulative on a sentence of seven years and two months imposed in relation to earlier drug and firearms‑related charges.[1] The earlier sentence was imposed by Gendall J along with a sentence of life imprisonment for murder.[2] Mr French successfully appealed against the murder conviction (the 2021 Court of Appeal judgment).[3] He subsequently pleaded guilty to manslaughter. He also appealed against the sentence for the drug and firearms offending. That appeal was allowed on technical grounds, and the sentence was recalibrated without altering the overall outcome of an effective sentence of seven years and two months.[4]
[1]R v French [2022] NZHC 2470 (Osborne J) [HC judgment].
[2]R v Cochrane [2020] NZHC 1485.
[3]Sullivan v R [2021] NZCA 702 (Brown, Mallon and Moore JJ).
[4]At [93].
A point raised on Mr French’s behalf at the time of the manslaughter sentencing was that Mr French faced a threat to his life from the members of a gang while in prison, arising from the fact that the victim of the manslaughter had been a member of that gang. This led to special measures being taken to keep Mr French separate from members of that gang in the prison. It was argued these measures reduced the availability to Mr French of rehabilitative programmes, which could impact on his chances of being granted parole.
In sentencing Mr French, Osborne J allowed a 10 per cent discount to recognise this factor.[5]
[5]HC judgment, above n 1, at [52].
The sentencing approach adopted by Osborne J was to commence with a starting point of six years and nine months for the manslaughter charge. He then allowed a 25 per cent discount for Mr French’s guilty plea, a five per cent discount to recognise that Mr French had agreed to participate in a restorative justice process and a further 10 per cent for the problems Mr French would face in prison. This amounted to a 40 per cent discount, reducing the starting point to four years. He then made a further adjustment based on totality, given that Mr French was already serving a sentence of seven years and two months for the earlier offending. Applying the totality principle, he made a further reduction and reached a final sentence of three years’ imprisonment.[6]
[6]At [57].
If Osborne J had allowed a 15 per cent discount for Mr French’s problems in prison, that would have increased the overall discount from 40 per cent to 45 per cent, reducing the starting point of six…

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 French v The King

Details

AGLC: French v The King [2023] NZSC 103
Case: [2023] NZSC 103
Decision Date: 10 August 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Daniel Gary French sought leave to appeal against his sentence for manslaughter. French had previously been convicted of murder, which was overturned on appeal. He subsequently pleaded guilty to manslaughter and was sentenced to three years' imprisonment, cumulative on a sentence of seven years and two months for earlier drug and firearms-related charges. French appealed the manslaughter sentence, which was reduced by the Court of Appeal to two years and six months. He now seeks leave to appeal to the Supreme Court, arguing that the reduction was insufficient, particularly regarding the discount for problems he faces in prison.

The central legal issue was whether the Court of Appeal's reduction of French's sentence was justified and whether it had effectively overruled earlier jurisprudence regarding the discount for custodial issues faced by prisoners. French contended that the Court of Appeal's discomfort with the discount for his custodial problems amounted to a decision that such discounts should not be applied, thus overruling previous decisions. He argued this overruling constituted a matter of public importance warranting leave to appeal. The Court had to determine whether the Court of Appeal had indeed overruled prior case law and whether there was an appearance of a miscarriage of justice in its handling of the appeal.

The Supreme Court found that the Court of Appeal had not overruled earlier decisions on the discount for custodial issues. The Court of Appeal had expressed discomfort with applying the discount to a sentence that was not under appeal but did not indicate this was a general rule. The Supreme Court concluded that the Court of Appeal's comments were specific to the situation of applying the discount to a non-appealed sentence, and there was no general prohibition on such discounts. Consequently, the Court saw no public importance in French's appeal and dismissed the application for leave to appeal.

The final orders of the Supreme Court were that the application for leave to appeal was dismissed. The sentence of two years and six months for manslaughter, as reduced by the Court of Appeal, was upheld.

Orders