Houston v R
[2013] NZCA 581
•25 November 2013 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA626/2013 [2013] NZCA 581 |
| BETWEEN | ELIZABETH STEPHANIE HOUSTON |
| AND | THE QUEEN |
| Hearing: | 13 November 2013 |
Court: | Wild, Simon France and Asher JJ |
Counsel: | M A Stevens for Applicant |
Judgment: | 25 November 2013 at 3 pm |
JUDGMENT OF THE COURT
The application for special leave to appeal to this Court is dismissed.
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REASONS OF THE COURT
(Given by Wild J)
This is an application under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court on three questions of law.[1] The application rather misconceives the role of a court dealing with an appeal against sentence. It could be viewed as an attempt to have this Court review the applicant’s sentence, after the High Court had dismissed an appeal.[2]
[1]An application made in the High Court for leave to appeal to this Court under s 144(2) was dismissed by Panckhurst J on 2 September 2013: Houston v NZ Police [2013] NZHC 2266 [Leave judgment]. Section 144(3) has since been repealed, but applies here because the informations against the applicant were laid before 1 July 2013. The current provisions are in pt 6, subpt 8, ss 297 and following of the Criminal Procedure Act 2011.
[2]Houston v New Zealand Police [2013] NZHC 1609 [High Court judgment].
The three questions of law the applicant seeks to have this Court answer are:
(i)Having found the District Court Judge’s sentencing was based on a wrong principle did the Judge in the High Court err in not approaching the sentencing de novo?
(ii)Having decided to undertake his own evaluation of the offending, did the judge err in not following the appropriate sentencing steps by selecting a starting point and then making allowances for personal aggravating and mitigating factors?
(iii)Did the Judge err in failing to allow a discount for remorse when he had found remorse to be present?
In the District Court at Dunedin on 22 April this year Judge Coyle sentenced Ms Houston to two years, one month and 14 days imprisonment.[3] She had pleaded guilty to stealing $159,148 from her employers over a 20 month period.
[3]R v Houston DC Dunedin CRI-2013-012-477, 22 April 2013.
Of the three grounds on which Ms Houston appealed to the High Court against that sentence, we need only mention greed and remorse. Because “desperate need” was not the motivation for Ms Houston stealing the $159,148, Panckhurst J accepted that greed was “really an integral element of theft of the present kind”.[4] He questioned how far the inquiry into greed the District Court Judge had undertaken was sensible, or really necessary, in cases such as this. But he found it difficult to judge whether greed had influenced the starting point adopted by the Judge, and pointed out that Mrs Stevens did not challenge that starting point.
[4]High Court judgment, above n 2, at [16].
Panckhurst J also accepted that the District Court Judge had misdirected himself about remorse, relying on this Court’s judgment in Hessell[5] rather than the subsequent reformulation by the Supreme Court.[6] Panckhurst J observed that remorse “is a very difficult area in relation to the sentencing exercise”.[7] The applicant had demonstrated remorse in some respects, for instance in the considerable assistance she had given the police in “unravelling the detail of her offending”.[8] But in other respects she had not, notably in terms of reparation. She had repaid only about $2,000 of the $159,148 she had stolen. At the $120 per fortnight rate she had offered by way of reparation, it would take her 60 years to repay the balance. Meanwhile, her employers, two small Dunedin businesses, were left in a parlous financial situation.
[5]R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298.
[6]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[7]At [26].
[8]At [26].
Panckhurst J expressed his conclusion in these terms:
[31] In the end result, I am not persuaded that the Judge erred in the final conclusion which he reached. It may be that one could have reached the end sentence of 25 months by a slightly different route, but I am not brought to the view that the sentence is clearly excessive. I do however, make one small adjustment. It seems to me undesirable to have a sentence of 25 months and 14 days. There should have been a rounding and the sentence is reduced to 25 months.
Proposed question (i) is based on the Supreme Court’s judgment in Austin, Nichols & Co Inc v Stichting Lodestar.[9] Mrs Stevens submitted that “if, as here, the High Court finds an error then as stated in Austin Nichols, it is not a matter of solely reassessing the area of error, the process must be begun again”. That is not the position. In Austin, Nichols the Supreme Court emphasised that an appeal court must allow the appeal and substitute its own view, if it considers the decision below is wrong. It must not defer to the court or tribunal under appeal, even where that court or tribunal has expertise deriving from its specialist jurisdiction.[10]
[9]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[10]At [3], [4], [5], [13], [16] and [18] and [19]. The Supreme Court excepted, at [13], “the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important” (footnotes omitted).
This Court has applied Austin, Nichols to criminal appeals, including appeals against sentence where this Court is required to reach its own opinion on facts in dispute.[11] However, this Court has held that Austin, Nichols does not apply to appeals from a discretionary decision,[12] which is the category of most sentencing decisions. In H(CA680/2011) v R this Court pointed out:[13]
… the Supreme Court has again emphasised the distinction between the exercise of judicial discretion and matters requiring judicial evaluation in R v Gwaze[14] in the context of case-stated appeals on questions of law under s 380 of the Crimes Act.
[11]Heke v R [2010] NZCA 476 at [19]; Clifton v R [2013] NZCA 85 at [18].
[12]Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8]; H(CA680/2011) v R [2012] NZCA 198 at [30]–[34].
[13]At [34].
[14]R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734 at [49].
Here Panckhurst J found the District Court Judge had erred in the way he had factored remorse into the sentencing exercise. Austin, Nichols had no application, because the factoring in of remorse was an integral part of the discretionary sentencing decision.
If Austin, Nichols has any application, it would only be to the extent of requiring Panckhurst J to be satisfied that the end sentence was within the available range. In other words, that the sentence was not manifestly excessive. If and to the extent that Panckhurst J considered the error as to remorse had resulted in a manifestly excessive sentence, he needed to correct the error. But he did not need to undertake the sentencing process all over again. There is nothing in Austin, Nichols to support Mrs Stevens’ proposition.
Second is a closely related point. As this Court has stressed in countless cases,[15] on an appeal against sentence the Court’s concern must be with the end sentence, rather than with the means by which the sentencing Judge arrived at it. Again, Mrs Stevens’ proposition is at odds with that.
[15]For example, in Kahui v R [2013] NZCA 124 at [25], where several cases making similar observations are cited.
Thirdly, the applicant’s appeal to the High Court was governed by s 121(3) of the Summary Proceedings Act. That provision gave the High Court power to quash the sentence and substitute another one, quash any invalid part of the sentence that was severable, and to vary the sentence or any part of it or any condition imposed on it. Those are “fix it” not “redo it all” powers. They cannot be reconciled with Mrs Stevens’ proposition.
As Panckhurst J pointed out in his leave judgment, proposed question (ii) is much the same as question (i). As to question (iii), we endorse what Panckhurst J said about that:[16]
… A reassessment of the offending led me to the view that substantial sums were stolen in months prior to the appellant’s apprehension, yet nothing of moment was repaid to her employers and this counted against any discount for remorse. Put another way, expressions of remorse were not matched by remorseful conduct. Accordingly, qualifying remorse was absent. I do not, therefore, regard question (iii) as apt to describe the reasoning process on appeal.
[16]Leave judgment, above n 1, at [7].
But, more fundamentally, question (iii) could not possibly be a question “which, by reason of its general public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.[17]
[17]The requirement in s 144.
The application for special leave to appeal to this Court is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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