Kerr-McCreath v The King

[2024] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2023-442-16

[2024] NZHC 367

BETWEEN

LOGAN KERR-MCCREATH

Appellant

AND

THE KING

Respondent

Hearing:	20 February 2024 (via VMR)
Appearances:	T D A Harrē for Appellant A J Ewing for Respondent
Judgment:	28 February 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 13 January 2023, Logan Kerr-McCreath pleaded guilty to a charge of doing an indecent act on a young person.1 On 24 August 2023, he was sentenced2 to a term of ten months’ imprisonment, with leave granted to apply for substitution of his sentence to one of home detention.

[2]    Mr Kerr-McCreath now appeals his conviction. He submits that the failure of trial counsel to follow instructions to advance an application for discharge without conviction led to a miscarriage of justice. He seeks the conviction to be quashed, and for the matter to be remitted back to the District Court for re-pleading and trial.

1      Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.

2      R v Kerr-McCreath [2023] NZDC 18282.

KERR-MCCREATH v R [2024] NZHC 367 [28 February 2024]

Background to the offending

[3]    In September 2020 the victim was staying with her father. Mr Kerr-McCreath, who was an extended family member, was visiting for the evening. Mr Kerr-McCreath had  been  drinking,  and  as  the  victim   left   a  bedroom   after  setting  up  for   Mr Kerr-McCreath, he asked her for a hug. When she complied, he pulled her hips towards him and touched her breasts and bottom over her clothing. She then pulled away and locked herself in her room.

District Court decision

[4]    In her notes on sentencing, Judge Rielly noted that Mr Kerr-McCreath entered his guilty plea for pragmatic reasons on the belief he would receive a discharge without conviction, but no such assurances were given during discussions in court.3

[5]    She also referred to the fact Mr Kerr-McCreath sought to adjourn sentencing proceedings to seek independent legal advice on applying to vacate his guilty plea. The Judge stated the threshold for doing so was very high, and that on the information available it was unlikely he would succeed.4 She also found there had already been significant delays in the proceeding, and so an adjournment was not granted.5

[6]    The Judge found that Mr Kerr-McCreath’s focus since entering his guilty plea had been solely on himself, with “a complete absence of remorse” for his offending.6

[7]    Taking into account the fact that Mr Kerr-McCreath had one previous unrelated conviction, had a job, and had alcohol abuse issues, the Judge found that a sentence starting point of 12 months’ imprisonment was appropriate, with a two-month credit for his guilty plea, which brought it down to 10 months.7

[8]    Judge Rielly granted leave to apply for an alternative sentence of home detention pursuant to s 80I of the Sentencing Act 2002 and set six month’s standard

3 At [3].

4 At [5].

5 At [6].

6 At [9].

7      At [10]–[12].

release conditions and six month’s special release conditions with the special condition that Mr Kerr-McCreath attend an assessment of his suitability for addiction counselling, treatment or programmes.8

Submissions

Appellant’s Submissions

[9]    Mr Harré, counsel for Mr Kerr-McCreath, has submitted that trial counsel failed to follow instructions, and the Judge failed to properly consider further adjournment of the sentencing decision, resulting in a miscarriage of justice.

[10]   Mr Harré states that prior to pleading guilty, Mr Kerr-McCreath signed instructions to trial counsel indicating his wish for an application for discharge without conviction to be advanced. Mr Harré alleges that trial counsel withdrew the application for discharge without conviction without instruction, and that they ought to have advanced the application regardless of its merits. Failure to do so was an irregularity which resulted in a miscarriage of justice.

[11]   Mr Harré submits that Mr Kerr-McCreath had entered his plea of guilty on the condition that an application for discharge without conviction would be made. He refers to the decision in Hall v R9 as supporting the argument that trial counsel failing to follow instructions generally gives rise to a miscarriage of justice. He also seeks to distinguish the decision in T v R,10 where the Court of Appeal quashed the conviction of the appellant who had pleaded guilty in the expectation of receiving a discharge without conviction, as there was an irregularity in the proceeding that resulted in a miscarriage of justice. He argues it is distinguishable as trial counsel in this proceeding made clear to the appellant the application was unlikely to succeed.

[12]   Mr Harré notes there is a conflict between Mr Kerr-McCreath’s assertion that he did not provide instructions to withdraw the application, and the trial counsel’s response that verbal instructions were received. He submits the discussion in court on

8      At [13]–[14].

9      Hall v R [2015] NZCA 403.

10     T (CA662/2012) v R [2013] NZCA 550.

24 August 2023 supports the proposition that Mr Kerr-McCreath did not want to abandon the application.

[13]   Additionally, Mr Harré submits that as a matter of natural justice, the Court was required to hear the defendant and the prosecutor on the issues of trial counsel indicating he sought leave to withdraw, Mr Kerr-McCreath requesting adjournment of sentencing, and trial counsel raising the need for Mr Kerr-McCreath to receive independent legal advice as to his plea, with a prospect of applying to vacate his guilty plea. Mr Harré argues the record suggests trial counsel had insufficient instructions to proceed, and so needed additional time to ensure safety of the conviction. Although the  prior  delays  meant  it  was  unsurprising  the  Judge  continued  to  sentence  Mr Kerr-McCreath, doing so meant an error was made.

[14]   Mr Harré submits that by failing to advance the application for discharge without conviction, no material in mitigation was placed before the Court. Consequently, Mr Kerr-McCreath received the most “severe possible sentence” of a term of imprisonment, with the consequent registration as a child sex offender, where the Crown was not necessarily seeking such a sentence, and the Judge was not opposed to sentencing home detention.

Respondent’s submissions

[15]   Ms Ewing, counsel for the Crown, submits that although Mr Kerr-McCreath was automatically registered on the Child Sex Offender Register when he was sentenced to imprisonment, he no longer qualifies for registration as his sentence was converted to home detention. Secondly, she submits that Mr Kerr-McCreath was told by trial counsel that his continued denial of offending was a real problem for the application for discharge without conviction, and that he needed to focus on getting evidence on how a conviction would affect his work prospects, which he failed to do over a three month period.

[16]   Ms Ewing relies  on  the  evidence  that  on  25  July  2023,  trial  counsel,  Mr Bamford, told Mr Kerr-McCreath he had no realistic prospect of being discharged without conviction, and that Mr Kerr-McCreath accepted this and agreed to abandon his application. She points to an email between Mr Bamford’s associate, Mr Simonsen,

and the Crown prosecutor, explaining they had received some instructions and that Mr Kerr-McCreath would be abandoning his application for discharge without conviction. She also relies on the fact that on 25 July 2023, trial counsel abandoned the application in court with Mr Kerr-McCreath present.

[17]    Ms Ewing submits that the facts in this case do not amount to exceptional circumstances that warrant the guilty plea being impugned and the conviction set aside.

[18]   Ms Ewing submits that a guilty plea is not vitiated simply because matters are not working out as the appellant had hoped. She refers to Merrilees11 where it was stated that “later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned.” She also argues that counsel’s failure to follow instructions after a guilty plea cannot impugn the plea itself. To establish a miscarriage, the appellant needs to show that the outcome was affected by their counsel’s failure to follow instructions. Since the guilty plea was entered after the alleged failure to follow instructions, Mr Kerr-McCreath is unable to show that but for what was said to be erroneous advice, the guilty plea would not have been entered.

[19]   Additionally, Ms Ewing has submitted that to succeed in arguing that a discharge without conviction was the appropriate  outcome  after  pleading  guilty, Mr Kerr-McCreath would need to show he was entitled to a discharge without conviction, and that trial counsel’s error deprived him of this more favourable outcome. She argues there is no evidence of consequences that are out of all proportion to the gravity of his offending.

Evidence

[20]   Mr Kerr-McCreath, Tony Bamford and Kyle Simonsen were all called to give evidence and were cross-examined. There were irreconcilable differences between the evidence of Mr Kerr-McCreath on the one hand and Mr Bamford and Mr Simonsen on the other.

11     R v Merrilees [2009] NZCA 59 at [35].

Discharge without conviction

[21]   Mr Kerr-McCreath’s claim that the withdrawal of his application for a discharge without conviction was not discussed was categorially rejected by both  Mr Bamford and Mr Simonsen. Mr Bamford referred to a telephone conversation he had with the appellant when he was in his car travelling to Rolleston Prison. He recalled that, during that conversation he emphasized to Mr Kerr-McCreath the fact that his denial of the offending to the PAC report writer was a critical factor that meant an application for a discharge without conviction would be unsuccessful.

[22]   Mr Bamford accepted that Mr Kerr-McCreath was unhappy on being told this but nonetheless, gave instructions to withdraw the s 106 application.

[23]   Mr Simonsen’s evidence was consistent with that of Mr Bamford. He rejected the suggestion that there had been no discussion about withdrawing the application for a discharge without conviction. He referred to his file notes which recorded the advice given to Mr Kerr-McCreath in relation to aspects of the case and also to screen shots of text messages between him and Mr Bamford. He was able to give a detailed account of a telephone discussion with Mr Kerr-McCreath on 25 July 2023 when the withdrawal of the s 106 application had been discussed with Mr Kerr-McCreath.

[24]   One of the factors which Mr Simonsen says was relevant to the appellant’s decision not to pursue the s 106 application was the appellant’s advice to him that he had decided to move to Australia where he hoped that a conviction would be less of an impediment to obtaining employment than in New Zealand.

[25]This is consistent with the email that Mr Simonsen sent to the prosecutor at

10.42 am on 25 July 2023. That email confirms that the appellant wished to abandon the appeal and noted that the appellant was hoping to move to Australia for work having lost his long-term employment in New Zealand as a result of having been charged.

[26]   I found Mr Kerr-McCreath to be an unimpressive witness and on all areas where his evidence conflicted with that of Mr Bamford and Mr Simonsen, I accept their evidence. I am satisfied that Mr Bamford and Mr Simonsen acted on the

instructions given to them by Mr Kerr-McCreath  to withdraw the application under  s 106. I am also satisfied that had it been pursued, any application under s 106 was wholly unrealistic and doomed to failure. I am also satisfied that the guilty plea was entered by Mr Kerr-McCreath following consideration by him of the legal advice he had received.

Approach to appeal

[27]   The  appeal  against  conviction  is  dealt  with  under  s  229  of  the  Criminal Procedure Act 2011 (CPA). For an appeal seeking to set aside a conviction entered after a guilty plea a miscarriage of justice must have occurred. Section 232(4) of the CPA defines a miscarriage of justice as any error, irregularity or occurrence in or in relation or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity. A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.12 The errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court must condemn the trial as unfair and quash the decision.13

[28]   A real risk that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.14 The appellant does not have to establish that the verdict was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.15 To meet the “real risk” test, “something more” than a simple disagreement with a Judge’s factual assessment is required.16

[29]   In such an appeal the appellate court must form its own independent judgment on the merits of the appeal.17

12     Matenga v R [2009] NZSC 18 at [30].

13     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]. UKPC 19, [2002] 1 WLR 2237 at [28].

14     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

15 At [110].

16     Gotty v R [2017] NZCA 528 at [15].

17     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[30]   A Failure of counsel to follow instructions can amount to miscarriage of justice. The leading case is R v Sungsuwan.18 Its approach was appropriately summarised in R v Scurrah as “whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe.”19 In Hall v R,20 the Court of Appeal held that there are three types of decisions where a failure of trial counsel to follow instructions will generally give rise to a miscarriage, namely decisions relating to pleas, giving evidence, and advancing a defence.

[31]   For an appeal against conviction to be successful following a plea of guilty, there must be exceptional circumstances, namely: (a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge, (b) where on the admitted facts the appellant could not in law been convicted of the offence charge, and (c) where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.21 If a plea of guilty is made freely after proper advice and the defendant knows what they are doing and the likely consequences, and are aware of the legal significance of the facts alleged by the Crown, then later retraction will only be permitted in very rare circumstances.22

Analysis

[32]   In relation to the appeal against the entry of the conviction there is no question of the appellant not intending to enter the guilty plea or not understanding what that involved. Mr Kerr-McCreath had the benefit of competent legal advice and cannot point to any error in the advice he received. None of the factors identified by the Court of Appeal in Merrilees v R are present. There is no basis on which an application to vacate the plea of guilty could succeed.

[33]   For the reasons set out above, I am satisfied that the application for a discharge under s 106 was withdrawn by counsel after the appellant instructed them to do so. I am also satisfied that, before giving them that instruction, counsel had appropriately

18     Sungsuwan, above n 14.

19     R v Scurrah CA159/06, 12 September 2006 at [17].

20     Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].

21     R v Merrilees [2009] NZCA 59 at [33], citing R v Page [2005] 2 NZLR 845 at [16]–[19].

22 At [35].

advised the appellant as to the factors that indicated that the application should be withdrawn.

[34]   The fact that there was no realistic prospect of ever obtaining a s 106 discharge is also relevant. The factors to be considered when deciding whether to grant a discharge without conviction were set out in Vincent v Police.23 These are the gravity of the offending, the direct and indirect consequences of a conviction, whether the consequences were out of all proportion to the gravity of the offending, and whether, after conducting the balancing exercise, the discretion should be exercised. The failure of the appellant to secure evidence of any impact conviction would have on his employment prospects, and the gravity of the offending, in terms of the impact this had on his victim as a 14 year old girl, coupled with his continuing denial of the offending even after pleading guilty, justifies the conclusion reached by counsel and conveyed to the appellant that there was no realistic prospect of success consequently not advancing the s 106 application.

[35]   In relation to the Judge failing to consider further adjourning the proceedings, Mr Kerr-McCreath had already caused the proceedings to be delayed considerably. In any event, the reality is that adjourning the proceedings would not have affected the overall outcome. There was no prospect of a successful application to vacate the plea of guilty. There was also no prospect of a s 106 application being successful. No miscarriage of justice has occurred.

Conclusion

[36]The appeal is dismissed.

Churchman J

Solicitors:
Crown Law Office, Wellington

23     Vincent v Police [2007] DCR 2777.