Joe v The Queen - [2020] NZCA 154

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA672/2018
[2020] NZCA 154

BETWEEN	PHILLIP RICHARD JOE Appellant
AND	THE QUEEN Respondent

Court:	French, Mallon and Moore JJ
Counsel:	A J Bailey for Appellant C A Brook and Z A Fuhr for Respondent
Judgment: (On the papers)	11 May 2020 at 10 am

JUDGMENT OF THE COURT

The application for recall is granted and orders made as set out at[24].

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

Phillip Joe was convicted following his trial on one charge of kidnapping, two charges of male assaults female and one charge of threatening to do grievous bodily harm. The charges related to two incidents which occurred on separate occasions, in February and May 2017. Both involved the same female complainant. In addition, Mr Joe pleaded guilty on the morning of trial to one charge of driving whilst disqualified. He was sentenced on those charges to a term of imprisonment of four years and six months.[1] Mr Joe was also disqualified from holding or obtaining a driver’s license for a period of 18 months.
[1]R v Joe [2018] NZDC 22723.
Mr Joe appealed to this Court against sentence.[2] He was unsuccessful. He then applied for leave to appeal to the Supreme Court, alleging three errors in this Court’s judgment. The Supreme Court suggested the appropriate course was for him to apply to recall this Court’s judgment.[3] This judgment deals with that application.

The errors

[2]Joe v R [2019] NZCA 394.

[3]Joe v R [2019] NZSC 120.

The first of the matters raised by Mr Joe is that the appeal was dealt with on the basis that one of the two convictions for male assaults female involved what the complainant described as a “round house” kick to the head (Charge 11). This was an error because Mr Joe was acquitted on Charge 11. The charge he was in fact convicted on (Charge 9) involved a punch to the complainant’s head which took place during the course of the same incident.
The second complaint is that the concurrent sentences of three years and nine months’ imprisonment imposed on the two male assaults female convictions were in excess of the statutory maximum of two years.[4] This was an error originally made in the District Court but not corrected by this Court on appeal.
[4]Crimes Act 1961, s 194(b).
Thirdly, Mr Joe submits that this Court wrongly treated a remark the complainant claimed was made in the course of one of the incidents as a threat to kill. When outlining Mr Joe’s offending, we said:
[15] The detention ended when Mr Joe told R to get back in the car. He said he would drop her off, adding “… ride or die we’re in this together”, a reference which R understood to be to Bonnie and Clyde. …
The Crown accepts that this Court erred in considering the appellant’s sentence on the basis of Charge…

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 Joe v The Queen

Details

AGLC: Joe v The Queen [2020] NZCA 154
Case: [2020] NZCA 154
Decision Date: 11 May 2020 at 10 am

CaseChat Overview and Summary

Phillip Joe appealed against his sentence to the New Zealand Court of Appeal, which found that he had committed one charge of kidnapping, two charges of male assaults female, and one charge of threatening to do grievous bodily harm. Joe was sentenced to four and a half years in prison, and disqualified from holding or obtaining a driver’s license for 18 months. Joe appealed against his sentence, and was unsuccessful. He applied to the Supreme Court for leave to appeal, but was advised that he should instead apply to recall the judgment of the Court of Appeal. The Court of Appeal found that there was a fundamental error in the original judgment, but that it did not result in a substantial miscarriage of justice. The Court found that the sentences imposed for male assaults female were in excess of the statutory maximum, and were therefore unlawful. However, the Court held that it did not have the jurisdiction to correct the error on recall. Instead, counsel could apply to the District Court to amend the sentence. The Court of Appeal granted the application for recall, and reissued its judgment to correct the error in the description of the male assaults female charge.

The Court of Appeal found that there was no fundamental error in the original judgment, as the error in the description of the male assaults female charge did not change the overall assessment of Joe’s culpability. The Court found that the concurrent sentences for the male assaults female convictions were in excess of the statutory maximum, but that it did not have the jurisdiction to correct the error on recall. Instead, counsel could apply to the District Court to amend the sentence. The Court found that the reference to Joe’s remark, “ride or die we’re in this together”, did not require correction, as it was not the subject of an individual charge or held to be aggravating in any way.

The Court of Appeal granted the application for recall, and reissued its judgment to correct the error in the description of the male assaults female charge. The Court found that Rule 45B of the Court of Appeal (Criminal) Rules 2001 permitted the Court to correct the first error, which arose from an accidental slip or omission. However, the Court held that it did not have the jurisdiction to correct the second error on recall. Instead, counsel could apply to the District Court to amend the sentence. The Court found that the reference to Joe’s remark, “ride or die we’re in this together”, did not require correction, as it was not the subject of an individual charge or held to be aggravating in any way.

The Court of Appeal granted the application for recall, and reissued its judgment to correct the error in the description of the male assaults female charge. The Court found that there was no error on the face of the decision, and that the sentences imposed for male assaults female were unlawful. However, the Court held that it did not have the jurisdiction to correct the error on recall. Instead, counsel could apply to the District Court to amend the sentence. The Court found that the reference to Joe’s remark, “ride or die we’re in this together”, did not require correction, as it was not the subject of an individual charge or held to be aggravating in any way.

Orders