Frewer v The Queen - [2012] NZCA 187

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/2011
[2012] NZCA 187

BETWEEN MATTHEW FREWER
Applicant

AND THE QUEEN
Respondent

Court: Stevens, Ronald Young and Andrews JJ

Counsel: P J Kaye for Applicant
M J Lillico for Respondent

Judgment: 14 May 2012 at 11.45 am

(On the papers)

JUDGMENT OF THE COURT

The application for recall is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

This is an application that the Court reconsider its earlier decision allowing the applicant’s appeal in part only: [2012] NZCA 29. We treat it as an application for recall.

Background

The applicant appealed against a sentence of eight years and nine months imprisonment with a minimum period of imprisonment of four years and three months imposed in the High Court. The sentencing was carried out by Venning J after the applicant had pleaded guilty to three counts of supplying the Class B controlled drug MDMA.[1] The appeal was based on four grounds. The first was the correctness of the initial starting point. The second was whether a sufficient discount was given for time spent on electronically monitored (EM) bail. The third was the level of discount for the guilty pleas. The final issue concerned the imposition of a minimum period of imprisonment.
[1] R v Frewer HC Auckland CRI-2009-404-384, 24 June 2011.
This Court considered the four grounds and dismissed the applicant’s arguments in all but the second, namely, the failure to make an allowance for time on EM bail. With respect to this ground we held as follows:
[16] Given the lack of certainty as to whether an allowance for time on EM bail was in fact given, we need to ensure that the appellant is not disadvantaged. We therefore consider it appropriate to make an additional allowance to take account of the possibility that no specific allowance was in fact made. We would therefore, as invited to do by Mr Kaye, make an additional allowance of two months imprisonment.
[17] As we propose to make no further adjustment, that would give a final sentence of imprisonment of eight years and seven months. We will also make a consequential adjustment to the minimum period of imprisonment as described below.
We add by way of clarification that the appeal was allowed on this ground on the basis that the applicant had established that the sentence imposed in the High Court was wrong in principle.[2]
[2] Applying the test laid down in this Court in The King v Brooks [1950] NZLR 658 (CA) at 660.
On the ground relating to the level of discount for the guilty pleas, this Court stated:
[18] Mr Kaye submitted that the discount of 15 months for the guilty pleas was insufficient. Mr Kaye pointed to various factors that resulted in the guilty pleas being delayed including an outstanding challenge to the legality of the search warrants. This application was twice adjourned and counsel put the delay at the feet of the Crown. Mr Kaye submitted that…

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 Frewer v The Queen

Details

AGLC: Frewer v The Queen [2012] NZCA 187
Case: [2012] NZCA 187
Decision Date: 14 May 2012

CaseChat Overview and Summary

Matthew Frewer has applied for the Court to reconsider its earlier decision allowing his appeal in part only. The appeal was against a sentence of eight years and nine months imprisonment with a minimum period of imprisonment of four years and three months imposed in the High Court. The Court of Appeal allowed the appeal on the ground that the sentence did not take into account the time Frewer spent on electronically monitored (EM) bail, but rejected his other grounds of appeal. Frewer now applies for the Court to reconsider its decision. The Court of Appeal holds that it has no jurisdiction to reopen a decision once a judgment has been perfected by entry on the Criminal Register of the Court, and that there is no fundamental error in procedure in the earlier judgment. The Court therefore declines the application for recall. The Court makes no further orders.

Orders