Henderson v The Queen

[2005] NZCA 240

IN THE COURT OF APPEAL OF NEW ZEALAND

CA86/05

THE QUEEN

v

CRAIG IAN HENDERSON

Hearing:11 October 2005

Court:Glazebrook, Ronald Young and Doogue JJ

Counsel:Applicant in person

A Markham for Crown

Judgment:17 October 2005 

JUDGMENT OF THE COURT

A        The application for special leave to appeal is dismissed.

BThe sentences of six months imprisonment imposed upon the applicant for theft of property under $100 are quashed and sentences of three months imprisonment imposed instead.

REASONS

(Given by Doogue J)

Introduction

[1]       Craig Ian Henderson (the applicant) applies for special leave to appeal from a decision of the High Court at Palmerston North of 29 April 2004 upholding an appeal by him against sentences imposed upon him in the District Court at Levin on 11 February 2004.

[2]       The applicant claims that questions of law are involved which by reason of their general or public importance or for other reason, ought to be submitted to this Court for decision under the provisions of s 144 of the Summary Proceedings Act 1957.

[3]       The Crown opposes the application for special leave to appeal.

Background

[4]       On 11 February 2004 the applicant was convicted of 12 offences in the District Court at Levin and sentenced to an effective sentence of four years imprisonment.  The details of the offences and of the initial sentences were as follows:

Offence	Section	Maximum Penalty	Penalty Imposed
A	Obtaining credit through false pretences ($7,178 from Telecom)	Crimes Act, 247	1 year imprisonment	3 years
B	Failed to answer bail	Bail Act, s 37	1 year imprisonment or $1,000 fine	2 months
C	Using a document for pecuniary advantage (Mobil card – 3 charges)	Crimes Act, 229A (b)	7 years imprisonment	1 year
D	Obtaining a document for pecuniary advantage (Mobil card)	Crimes Act, 246 (2)(a)	7 years imprisonment
E	Theft of property over $300 (microwave, computer & stereo = $5000)	Crimes Act, 227(ba)	7 years imprisonment	1 year
F	Theft of property under $100 (petrol $40 and $47 – 2 charges)	Crimes Act, 227(d)	3 months imprisonment	6 months
G	Conversion of a motor vehicle	Crimes Act, 228 (1)	7 years imprisonment	1 year
H	Breach of parole	Criminal Justice Act 1985, s 107H	3 months imprisonment or $2,000 fine	1 month
I	Obtaining by false pretences ($600 from Ms Scott)	Crimes Act, 246 (1)	7 years imprisonment	18 months

[5]       Those sentences took into account pleas of guilty.  Judge Connell in the District Court adopted the four-year effective sentence as reflecting the totality of the applicant’s offending.

[6]       The applicant then appealed to the High Court upon the grounds the sentences imposed were manifestly excessive and wrong in principle.  His appeal was dealt with by Wild J on 29 April 2004.  The applicant was represented by counsel in the High Court as he had been in the District Court.

[7]       Wild J summarised the facts relating to the offending in the following manner:

[3]       The conversion charge relates to a rental vehicle that the appellant hired and made initial payments for but then ceased the payments and failed to return the car.  The vehicle had by the time of sentence been returned.  He had filled the vehicle with petrol on two occasions and failed to pay.  The theft charges relate to those incidents.  The Mobil cards referred to are cards distributed by Kiwi Fuel Line Ltd.  They were used by the appellant to purchase fuel and other sundries from Mobil service stations throughout New Zealand to the total value of $12,430.06.  The cards, four of them, were obtained using a false name.

[8]       Wild J went on to indicate that it was apparent that there was a technical error in the sentencing in that the sentence of three years imprisonment imposed for the false pretences offence exceeded the one-year imprisonment maximum penalty.  Wild J then traversed the aggravating and mitigating factors relating to the applicant’s offending and various aspects of Judge Connell’s sentencing remarks.  He noted that the appeal was against the total effective sentence imposed.  He summarised the points raised for the applicant on the appeal.  He went on to note the submissions for the Crown, which accepted that, if the sentences needed to be restructured because of the technical error, a total effective sentence of something under four years imprisonment might appropriately be imposed. 

[9]       With that background, Wild J went on to look in detail at other relevant sentencing cases to which he had been referred.  Having done so, he found:

If only because the least sentence imposed by the Judge exceeded the statutory maximum, the sentences under appeal cannot stand and need at least to be restructured.  However, in the light of the cases I have reviewed I consider a total effective sentence of four years imprisonment is manifestly excessive. 

[10]     The Judge then referred to the applicant’s previous criminal record in respect of similar offending as being a major aggravating factor and recorded aspects of it. 

[11]     Wild J then said: “I consider that the least sentence of imprisonment which can properly be imposed on the [applicant] is an effective total sentence of 3 1/2 years [imprisonment].”  He therefore allowed the appeal and altered the sentences in categories A, C, G and I as set out in [4] above in the following manner: 

Offence	Sentence quashed	Sentence substituted
A	Obtaining credit through false pretences ($7,178 from Telecom)	3 years	6 months
B	Using a document for pecuniary advantage (Mobil card – 3 charges)	1 year	1 year cumulative
C	Conversion of a motor vehicle	1 year	1 year cumulative
D	I.  Obtaining by false pretences ($600 from Ms Scott)	18 months	1 year cumulative
Total effective sentence			3 1/2 years

[12]     Wild J determined that all other sentences should stand and that they were concurrent.  Unfortunately the Judge did not pick up that there was also an error in respect of the two sentences for theft of property under $100 in category F in [4] above, where sentences of six months imprisonment had been imposed when the maximum penalty was three months imprisonment.

[13]     On 3 January 2005 (seven months out of time) the applicant applied to the High Court for leave to appeal the decision of Wild J on a question of law pursuant to s 144 of the Summary Proceedings Act 1957.  Leave was declined by Wild J on 10 February 2005 with the result that the present application was filed.  Wild J took the view that none of the grounds of appeal raised came within s 144(2) of the Summary Proceedings Act 1957.  He accepted that there was the error in his judgment in respect of the lesser theft charges.  He made plain that if an application were made to him the sentences, which were in any event concurrent sentences that did not contribute directly to the effective sentence, would be corrected. 

[14]     Concurrently with his application for leave to appeal to this Court, the applicant had also applied to the High Court for a writ of habeas corpus based on similar grounds.  That was declined by the High Court on 1 February 2005.  There was an appeal to this Court, Henderson v The Superintendent of Manawatu Prison CA27/05 19 May 2005, which was dealt with on the papers.  The appeal was dismissed.  The Court referred to the penalties imposed in excess of the maximum penalties available and referred to the applicant’s rights in respect of those.

[15]     There needs also to be brief reference to an application by the applicant to the High Court on 22 February 2005 seeking an order that the whole of Wild J’s judgment of 29 April 2004 be set aside on the grounds that it was nullity.  Understandably Wild J dismissed that application on 5 April 2005, and it is unnecessary for it to be referred to any further.

Grounds of the present application

[16]     The applicant submits that three questions of law of general importance arise which justify leave being given to him under s 144 of the Summary Proceedings Act 1957.  They are:

1.    Does s372 s Crimes Act 1961 provide jurisdiction to the High Court, to correct an erroneous District Court sentence, mistakenly allowed to stand on appeal to the High Court?

2.    Where the High Court identifies that a sentence imposed by a District Court is wrong in law, or wrong in principle, and where the High Court chooses to re-sentence the offender, is the High Court required to approach the issue of re-sentencing afresh?

3.    Was the High Court correct in allowing the applicant’s previous convictions to justify a sentence that would otherwise be out of proportion to the overall gravity of the offending?

Principles applicable to application for special leave to appeal

[17]     In R v Slater [1997] 1 NZLR 211 at 215 this Court said that before special leave can be granted under s 144:

there must be:

(i)a question of law;

(ii)the question must be one which, by reason of its general and public importance on any other reason, ought to be submitted to the court of Appeal; and

(iii)the Court must be of the opinion that it ought to be so submitted …

The Court might, perhaps, in certain circumstances decide that a question of law which is not of general or public importance ought to be submitted to the Court for decision because of the words ‘or for any other reason’.  But these words go to the reasons for submitting the question of law to this Court for decision; they do not enable the Court to dispense with the requirement that there must be a question of law.

[18]     In Slater at 215, this Court also said:

Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[19]     This Court has also noted that only in rare cases will a sentencing matter raise a question of law of such importance as to justify a further appeal to this Court, Waitakere CC v Hertzke [1997] NZRMA 222 (CA).

First question – Does s 372  Crimes Act 1961 provide jurisdiction to the High Court, to correct an erroneous District Court sentence, mistakenly allowed to stand on appeal to the High Court?

[20]     It is unnecessary to traverse the applicant’s submissions in respect of this matter.  It was not a matter on which Wild J’s judgment turned, and is not referred to within it.  As this Court made clear in Henderson v The Superintendent of Manawatu Prison at [16], it is clear that in both the District Court and the High Court there are provisions to enable correction of sentences which have been imposed in excess of jurisdiction and there is no reason to restrict or confine their operation.  Wild J made plain that he would correct the mistake if requested to do so.  There is simply no issue of general and public importance in relation to this point.  Nor is it one which involves a question of law which for any other reason ought to be referred to this Court for decision.

[21]     However, everyone concedes an error occurred which should be fixed.  After discussion with the applicant and Miss Markham there was agreement that we should exercise the powers vested in us as High Court Judges to correct the error and this we will do by reducing the sentences to the maximum permitted by law.  This aspect of the matter could not and did not affect Wild J’s assessment of the appropriate overall sentence as this Court accepted in Henderson v The Superintendent of Manawatu Prison at [12].

Second question - Where the High Court identifies that a sentence imposed by a District Court is wrong in law, or wrong in principle, and where the High Court chooses to re-sentence the offender, is the High Court required to approach the issue of re-sentencing afresh?

[22]     The High Court’s powers in respect of an appeal to it in respect of sentence are found in ss 119 and 121 of the Summary Proceedings Act 1957.  Those powers are well known and the principles applicable to them are well established:  see Halls Sentencing, Appendix II at 5.1 and 5.4.

[23]     It is again unnecessary for us to traverse the applicant’s submissions in detail.  Wild J’s judgment did not turn on the issue of sentencing afresh.  The error that he found in the District Court decision was characterised by him as “technical”, a view that was open to him given that the District Court Judge properly had put emphasis on the correct sentence for the totality of the offending.  The overall effective sentence was not found by Wild J to be “wrong in principle”.  That was the sentence at the nub of the appeal, not the actual sentences in excess of jurisdiction.  Nevertheless it is clear that Wild J did in fact sentence afresh.  He did not reconstruct the sentences imposed in the District Court.  He reviewed the relevant circumstances and cases and imposed the lesser effective sentence of three and a half years imprisonment.  No question of law therefore arises in respect to his general approach to the applicant’s appeal against sentence.

Third question – Was the High Court correct in allowing the applicant’s previous convictions to justify a sentence that would otherwise be out of proportion to the overall gravity of the offending?

[24]     This question is predicated upon a basis that is not supported by the judgment of Wild J.  It does not give rise to a question of law in any event.  Wild J was entitled to treat the applicant’s previous convictions for similar offending as a “major aggravating factor”.  The sentencer is required to take that factor into account under s 9(1)(j) of the Sentencing Act 2002.  Thus no point of law arises under this heading and it is again unnecessary for us to traverse the applicant’s submission.

Miscellaneous

[25]     The applicant has raised numerous matters within his written submissions, but not orally, which assume this Court can act as a second general appeal court.  Those matters do not come within the purview of s 144 of the Summary Proceedings Act 1957 and are not traversed here.

Decision

[26]     For the reasons given, the application for special leave to appeal is dismissed.  However, the sentences of six months imprisonment imposed upon the applicant for theft of property under $100 are quashed and sentences of three months imprisonment imposed instead.

Solicitors:

Crown Law Office Wellington