Hudson v The Queen
[2017] NZCA 84
•28 March 2017 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA564/2016 [2017] NZCA 84 |
| BETWEEN | DUKE HUDSON |
| AND | THE QUEEN |
| Hearing: | 15 March 2017 |
Court: | Cooper, Woodhouse and Collins JJ |
Counsel: | G R Tomlinson for Appellant |
Judgment: | 28 March 2017 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is allowed.
DThe sentence imposed in the District Court is quashed.
EThe case is remitted to the District Court for re-sentencing on the basis that a sentence of home detention is to be considered.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
On 26 August 2016 Mr Hudson pleaded guilty to a charge of maiming Mr Williams with intent to injure him.[1] Mr Hudson pleaded guilty after receiving a sentence indication of two years and nine months’ imprisonment from Judge Ingram on 19 August 2016. When sentencing Mr Hudson on 16 September 2016, Judge Ingram imposed a sentence of one year and 11 months’ imprisonment, 10 months shorter than the period of imprisonment that had been indicated.[2] Mr Hudson now appeals against that sentence on the basis that he and his counsel misunderstood what credit Mr Hudson would receive for time spent in custody on remand and this led to Mr Hudson not pursuing a sentence of home detention.
[1]Crimes Act 1961, s 188(2), which carries a maximum penalty of seven years’ imprisonment.
[2]R v Hudson [2016] NZDC 18131.
The appeal was filed out of time. In the absence of any real opposition from the Crown, and because the delay is explained by Mr Hudson pursuing an application for re-sentencing under s 177 of the Criminal Procedure Act 2011, we grant the application for an extension of time in which to bring the appeal.
Background
Mr Hudson was arrested on 16 October 2015 on several charges, including a charge of assaulting Mr Williams. He was remanded in custody on all matters. Mr Hudson pleaded guilty to all charges other than the charge of assaulting Mr Williams and was sentenced on 17 December 2015 to one year and nine months’ imprisonment. The charge of assaulting Mr Williams, to which Mr Hudson had pleaded not guilty, was subsequently changed to one of maiming Mr Williams.
When Mr Hudson was sentenced on 16 September 2016 the Court had a pre‑sentence report but no home detention report. Mr Hudson and his counsel assumed that the time Mr Hudson had spent on remand would mean that he would be eligible for release in a matter of weeks if he was sentenced to the indicated period of imprisonment. For this reason Mr Hudson waived his right to have home detention considered as a sentencing option. He was then sentenced to one year and 11 months’ imprisonment.
After Mr Hudson was advised by the Department of Corrections that he would not be eligible for release until he had served half of the sentence imposed by Judge Ingram on 16 September 2016, he applied to the Judge to be re-sentenced pursuant to s 177 of the Criminal Procedure Act.[3] That application was determined on 28 October 2016. In concluding s 177 of the Criminal Procedure Act did not enable him to re‑sentence Mr Hudson in the circumstances of this case, Judge Ingram said:[4]
[2] [The] sentence indication was given on an understanding that the time that he had been in custody to that point would be taken into account by the prison authorities and his counsel, Mr Tomlinson, went to some trouble to persuade me not to impose a Parole Board sentence but rather impose a short term of imprisonment within the legislative meaning.
[3] I acceded to Mr Tomlinson’s submissions and Mr Hudson accepted the sentence indication. It now turns out that the basis upon which that sentence indication was accepted is incorrect and that the provisions of s 91(5)(a) Parole Act 2002 preclude Mr Hudson’s time in custody being taken into account. He has never to my knowledge had bail in respect of these matters and has been in custody for well over a year at this point.
[4] I am concerned that there may be a substantial injustice but I do not accept that the provisions of s 177 Criminal Procedure Act 2011 can be stretched so far as to include the present case.
[5] In my view, Mr Hudson has accepted a sentence indication on a misapprehension of a material matter, but that is not a matter that I consider I have jurisdiction to address under s 177, and nor do I consider that this Court has an inherent jurisdiction to address that matter.
[3]The Department of Corrections calculated a release date of 13 June 2017, relying on s 91(5)(a) of the Parole Act 2002.
[4]R v Hudson [2016] NZDC 21642.
Mr Hudson then filed a notice of appeal against both his conviction and sentence. He has now, through his counsel, abandoned his appeal against conviction. We dismiss it accordingly. Mr Hudson was granted bail on 20 January 2017 pending the hearing of his appeal in this Court.
Relevant law
The fact that Mr Hudson pleaded guilty after receiving a sentence indication does not affect his right to appeal the sentence imposed by Judge Ingram.[5]
[5]Criminal Procedure Act 2011, s 245.
We can only allow the sentence appeal, however, if we are satisfied of the requirements of s 250(2) of the Criminal Procedure Act, which provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
If we allow the appeal against sentence we may exercise the powers set out in s 251 of the Criminal Procedure Act, which include setting aside the sentence, varying the sentence or remitting the sentence back to the District Court with a direction that the District Court vary the sentence imposed.[6]
[6]Section 251(2).
The Crown properly accepts the circumstances of this case as we have outlined them. The Crown opposes the appeal however on the basis that a sentence of imprisonment was appropriate because of Mr Hudson’s extensive history of imprisonment for violence offences, his record of non-compliance with sentences, the risk of him reoffending, his justification for his current offending and belief that he did not require further rehabilitation, his involvement in 15 “family violence” callouts, and because Mr Hudson was recently convicted and sentenced to 40 hours’ community work for new offending.
Analysis
We are satisfied that an error occurred in the sentence imposed on Mr Hudson on 16 September 2016. The error occurred when Mr Hudson waived the opportunity to have Judge Ingram sentence him to home detention in the mistaken belief that he would soon be eligible for parole if he was sentenced to the indicated period of imprisonment.
What is not so straightforward is whether a sentence of home detention is appropriate in light of the factors brought to our attention by Ms Ewing on behalf of the Crown. It is clear, however, that the sentence of one year and 11 months’ imprisonment imposed by Judge Ingram qualifies as a short‑term sentence within the meaning of the Sentencing Act 2002, and that a sentence of home detention was considered by Judge Ingram to be a viable option. Judge Ingram’s candid references to the possibility that Mr Hudson may have been the victim of a “substantial injustice” persuades us that a sentence of home detention was appropriate provided that sentence could be imposed after proper assessments had been made.[7] Those assessments would necessitate the obtaining of a home detention report.
[7]R v Hudson, above n 4, at [4].
In these unusual circumstances we are satisfied that a sentence of home detention should be imposed if that is possible and now considered appropriate.
We accordingly allow the appeal against sentence.
We quash the sentence imposed in the District Court and remit the case back to the District Court for re-sentencing on the basis that a sentence of home detention is to be considered. If that sentence is not possible the District Court shall re‑sentence Mr Hudson to whatever other sentence is deemed appropriate.
Solicitors:
Gowing & Co Lawyers Limited, Whakatane for Appellant
Crown Law Office, Wellington for Respondent
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