Green v Department of Corrections
[2015] NZHC 1169
•28 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-79 [2015] NZHC 1169
IN THE MATTER of an appeal against conviction and
sentence
BETWEEN
GLENN GREEN Appellant
AND
DEPARTMENT OF CORRECTIONS Respondent
Hearing: 25 May 2015 Appearances:
M Utting for Appellant
M Harborow for RespondentJudgment:
28 May 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
28 May 2015 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Utting Law, Auckland
Meredith Connell, Crown Solicitors, Auckland
GREEN v DEPARTMENT OF CORRECTIONS [2015] NZHC 1169 [28 May 2015]
[1] Mr Green was released from prison on 4 June 2014, after serving a sentence of 30 months’ imprisonment for criminal harassment. Special conditions were imposed upon his release. The District Court found that he had breached:
(a) A condition that he disclose to his probation officer the start of any new relationship or the resumption of any past relationships (“disclosure condition”); and
(b) A condition that he not to be in possession of gang regalia or
memorabilia (“gang regalia condition”).
[2] Mr Green successfully appealed the three convictions for breach of the disclosure condition. He says an appeal against the decision on the gang regalia condition was lodged, but was inexplicably deemed to have been abandoned.
[3] Mr Green returns to this Court challenging both the conviction and sentence in relation to possession of gang regalia. He says that given that the District Court judgment was flawed with respect to the disclosure condition, the conviction and/or sentence in relation the gang regalia condition is unsafe.
[4] The respondent submits that the appellant does not have jurisdiction to appeal his conviction or sentence as he has abandoned his appeal previously. In the event the Court allows Mr Green to resuscitate his appeals, it is submitted that the District Court Judge did not err in her assessment of the evidence to such an extent that there was a miscarriage of justice, but that the sentence appeal should be allowed. The respondent concedes that an end sentence of one year’s imprisonment is manifestly excessive.
[5] I must therefore consider:
(a) Whether Mr Green should be allowed to resuscitate his appeal on conviction and/or sentence; and
(b)If so, whether the appeal on either conviction and/or sentence should be allowed.
Background
Mr Green
[6] Mr Green is serial stalker who appears to have little regard for authority. He has over 50 previous convictions since 1985 including criminal harassment (x7), contravening a protection order (x34), perverting the course of justice (x6) and the misuse of a telephone (x4).
[7] The current appeal originates with his conviction on two counts of criminal harassment on 15 June 2012. He was sentenced to 1 year 3 months imprisonment on each count to be served concurrently. His release was subject to special conditions.
The District Court judgment
[8] In June 2014 six charges were laid against Mr Green for breach of the disclosure and gang regalia conditions. The District Court Judge convicted Mr Green on three charges of breaching the disclosure conditions and one charge of breaching the gang regalia condition. The remaining two charges were dismissed. The background facts as found by the District Court Judge relating to the gang regalia are dealt with succinctly in one paragraph:
[55] With regard to the gang regalia condition, I do not accept the defendant’s explanation for why the posters were in his possession. He had persistently flaunted his association with the Hells Angels to the Probation Officer and his wish to live at the headquarters in Mt Eden. He conceded that he removed the items out of the bags and boxes and had “chucked” them in the drawers. I do not accept he did not know he had these items in his possession. I am satisfied that the defendant knowingly had the two items of gang regalia in his possession. I find this charge proved beyond reasonable doubt.
Sentencing notes
[9] Mr Green was sentenced on each of the charges to 12 months’ imprisonment
to be served concurrently. The salient passage of the sentencing notes reads:1
[22] Your counsel has also filed very full and helpful submissions. He has adopted a totality starting point of eight to nine months in respect of the charges relating to the letters and text messages and suggests that again, the regalia charge could be dealt with by a short uplift. He accepts that there could be an uplift to take into account your previous convictions which will bring up the sentence to the statutory maximum of around 12 months.
High Court judgment on disclosure condition
[10] Thomas J allowed an appeal against the convictions for the non-compliance with the disclosure condition.2 But Thomas J assumed that the appeal against the gang regalia infringement was abandoned, so that matter was not addressed by the Court.
[11] Mr Green says that he appealed what he believed all four convictions to be heard by the High Court. He says he only learned after the appeal that his then counsel only appealed the three convictions that related to the relationship condition, and that his counsel was instructed to appeal on all four.
[12] There is a further appeal on two separate charges of criminal harassment which is not encompassed in these proceedings.
Jurisdiction
[13] Ordinarily, I may allow a conviction appeal in the case of a Judge alone trial if I am satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason.3
[14] In relation to sentence, I must allow an appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence
1 Department of Corrections v Green DC Auckland CRI-2014-092-007117, 12 November 2014.
2 Green v Department of Corrections [2015] NZHC 322.
3 Criminal Procedure Act 2011, s 232(2).
should be imposed.4 It is now accepted that the legal principles for an appeal against sentence did not substantially change on the passing of the Criminal Procedure Act
2011 (CPA).5 I must allow the appeal if I consider the sentence to be manifestly
excessive.
[15] I must however first decide however whether Mr Green ought to be able to pursue an appeal at all.
Should Mr Green be allowed to revive his appeal?
[16] This Court may, in exceptional circumstances allow a reinstatement of a criminal appeal. As stated by the Court of Appeal in R v Bridgeman6 I must have regard to the importance of finality in criminal cases, the circumstances in which a notice of abandonment was given, and the necessity for such an order to satisfy the Court that the reasons for the application are of an exceptional nature. The Court of Appeal in R v Cramp7 also affirmed the further requirement, namely “if the interests of justice so require”.
[17] In light of those authorities, I consider that there is a proper basis for resuscitating the appeal against sentence for two reasons:
(a) The “notice” of abandonment was inadequate; and
(b) The basis for the sentence was unequivocally flawed. [18] I turn now to expand on these reasons.
Notice and reasons for abandonment
[19] Section 337 of the CPA states:
337 Abandonment of appeal by appellant
4 Criminal Procedure Act 2011, s 250(2).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
6 R v Bridgeman CA87/04, 10 November 2005.
7 R v Cramp [2009] NZCA 90 at [26].
(1) An appellant may, at any time, abandon an appeal by filing in the appeal court a notice advising that he or she—
(a) does not intend further to prosecute the appeal; and
(b) abandons all further proceedings concerning that appeal. (2) The notice must be authenticated by—
(a) the appellant personally; or
(b) the appellant's lawyer.
[20] The submissions on behalf of Mr Green before Thomas J record:
No appeal is brought against conviction for the gang regalia charge or against sentence.
[21] The submissions for the respondent also simply noted that Mr Green “appeals three of his four convictions”. This is curious, because Mr Green’s appeal referred expressly to four convictions and to the gang regalia breach. Furthermore as late as
15 December 2014 Mr Green referred in written submissions to the Court to the gang regalia breach/conviction, stating that it was “illegal and wrong in law”. Plainly an appeal was in fact “brought” against the conviction and sentence on the possession of gang regalia. Indeed, Thomas J records that although Mr Green had indicated an intention to appeal on these matters, “those appeals have been
abandoned”.8
[22] Problematically, while I have no doubt that Thomas J correctly describes the position as put to her by Counsel, the “notice” of abandonment given by Counsel did not conform to the express requirements of s 337. There is, at best, an oblique reference to “abandonment” in their submissions. This suggests that Counsel was not either not properly aware of the requirement to give formal written notice pursuant to s 337 or did not understand that the gang regalia conviction was also appealed. Additionally, it is difficult to be confident that abandonment was thoroughly explored with Mr Green in the absence of a formal notice of abandonment. Moreover, a separate notice, preferably signed by the appellant, should have been be tabled with the Court referring to s 337 so there can be no
debate, like the present, as to whether counsel was properly instructed to abandon the appeal.
[23] This is not a matter of semantics or procedural nicety. On the contrary, it is a matter of substantive fairness, given that finality in criminal proceedings is a compelling factor against grant of leave to resuscitate an abandoned appeal.
[24] I have come to the view therefore that the “notice” of abandonment was inadequate and that this is a relevant factor to be taken into account for the purposes of resuscitating the appeal.
A flawed sentence
[25] I also consider that Mr Green has established good reasons for his appeal on the sentence to be resuscitated. The Crown accepts it was manifestly excessive. But more fundamentally the entire basis for the sentence is gone and to persist with it would exacerbate an unequivocal miscarriage of justice.
[26] This case is also nothing like the cases cited to me by the Crown where leave to appeal was declined. In R v Curtis9 ten years had elapsed between the notice of abandonment and the first indication that the appellant wished to resuscitate the appeal. The appellant had also escaped custody and had been on the run for the majority of that period. Understandably the Court observed that it would be an affront to commonsense to allow the appellant to resuscitate the appeal.
[27] In R v Cramp,10 the reason given for the abandonment was that the applicant’s husband had taken ill. The Court of Appeal assessed the merits of the grounds of appeal and found them to be weak. In those circumstances the Court of Appeal did not consider that the case to be exceptional or require the Court’s intervention in the interests of justice.
[28] By contrast, in R v Bridgeman the Court of Appeal granted leave to appeal in circumstances where the appeal was “abandoned on the basis that it had absolutely
9 R v Curtis CA288/04, 17 February 2005.
10 R v Cramp, above n 7.
no prospect of success, without any consideration of the concerns about [a complainant] video; and it was abandoned by a person with border-line intellectual ability at that.”11 While there are no concerns about Mr Green’s intellectual ability, the appeal was abandoned, it appears, without forethought as to the implications for Mr Green’s sentence if he succeeded on the appeals against the more serious breaches of the parole conditions.
[29] For completeness, Mr Harborow argued that as sentence has been served the issue is effectively moot. But this is not a simple case where an appellant challenges sentence many years after the sentence has been served. The trigger point here is that the appellant’s convictions on the charges driving the length of sentence were quashed. While its practical value may be doubtful, the constitutional value in providing access to a remedy for a clear miscarriage remains substantial in this case.
[30] Taken together, the apparent inadequacy of the notice and the manifestly excessive sentence provide a proper basis for resuscitating the appeal against sentence.
Appeal against conviction
[31] While the basis for resuscitating the appeal against conviction is not established, I propose to address its merits for completeness. I agree with the respondent that there is nothing before me to suggest that Judge’s assessment of credibility about the possession of the gang regalia is wrong. Furthermore, the special condition is a straightforward one, namely Mr Green was required not to be “in possession” of gang regalia or memorabilia. This was a positive obligation to ensure that he did not hold in his possession gang regalia. Mr Green does not dispute that he was in fact in possession of the gang regalia. The circumstances are clear. He failed to discharge this obligation. Mr Green conceded he chucked the gang regalia into his drawers. This appeal was always destined to fail.
[32] As the respondent concedes, a one year sentence for possession of the gang regalia was manifestly excessive. The District Court considered that a sentence of two to four months was within range. Mr Harborow submitted that a sentence comprising a starting point of 3 months with 1 month uplift for prior offending is within range. Mr Utting, optimistically in my view, promoted discharge without conviction. By contrast, Mr Broad who appeared for Mr Green at first instance argued that one month uplift on the sentences for the other breaches was appropriate.
[33] I have come to the view that the starting point is properly 3 months. Mr Green’s long history of disregard for authority provides a compelling basis for a sentence that will send a clear message of deterrence for breach of a condition designed to secure, among other things, the safety of the public. I am not minded however to provide a further uplift on account of the prior offending, as that would double count this factor in my view. My position might have been different had the offending been very closely similar to prior offending. This would have qualified as an additional aggravating factor.
[34] One other matter brought to my attention was that as Mr Green is in custody facing charges of criminal harassment, he would have had to be incarcerated over the same period in any event. It was submitted therefore that any injustice to Mr Green serving the sentence was small. While I accept the force of this argument in terms of the effect on Mr Green of the sentence, I am not persuaded that it is permissible to allow a plainly wrong sentence to remain part of Mr Green’s record. The integrity of our justice system depends on strict adherence to the rules that govern it.
[35] Leave to resuscitate the appeal against sentence (out of time) is granted. The appeal against sentence is allowed. The sentence of one year imprisonment is set aside and a sentence of three months is imposed on the charge of breaching the gang regalia condition. The special conditions imposed by the District Court are unaffected by this judgment. The breach demonstrates an ongoing need to secure the safety of the public and the conditions serve that purpose.
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