Knox v Police
[2014] NZCA 51
•6 March 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA824/2013 [2014] NZCA 51 |
| BETWEEN | KERRY BRUCE SHANE KNOX |
| AND | NEW ZEALAND POLICE |
| Hearing: | 10 February 2014 |
Court: | White, MacKenzie and Mallon JJ |
Counsel: | D A Ewen for Applicant |
Judgment: | 6 March 2014 at 10.00 am |
JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
The applicant, Mr Knox, seeks leave to appeal to this Court against his sentence in the High Court of two years and three months’ imprisonment on four methamphetamine supply charges involving at least 26.45 grams.[1] Mr Knox had pleaded guilty to these charges in the District Court and was sentenced in that Court to 12 months’ home detention and 200 hours’ community work,[2] but an appeal by the
police to the High Court under s 115A of the Summary Proceedings Act 1957 was successful and resulted in the imposition of the sentence of imprisonment.[3]
[1]New Zealand Police v Knox [2013] NZHC 2760 [High Court sentencing decision].
[2]R v Knox DC Wellington CRI 2012-085-1444, 31 July 2013 [District Court sentencing decision].
[3]Section 115A of the Summary Proceedings Act 1957 was repealed on 1 July 2013, by s 7(2) of the Summary Proceedings Amendment Act (No 2) 2011. The provision is now reproduced in substantially the same terms as s 246 of the Criminal Procedure Act 2011. Although the District Court sentencing decision was given on 31 July 2013, s 397(1) and (2) of the Criminal Procedure Act provide for the proceeding to continue in accordance with the law as it stood before 1 July 2013.
Mr Knox is required to obtain special leave to appeal to this Court against the High Court sentence because his application to that Court for leave to appeal “on a question of law” under s 144(1) of the Summary Proceedings Act was declined on the grounds that none of the questions identified by Mr Knox were questions which, by reason of their general or public importance or for any other reason, ought to be submitted to this Court for decision under s 144(2) of the Summary Proceedings Act.[4]
[4]New Zealand Policev Knox [2013] NZHC 2828 [High Court leave decision].
Mr Knox seeks special leave to appeal on the following four questions:
(1)On an informant’s appeal against sentence was the [High] Court required to assess the adequacy of the sentence first by reference to the lowest available starting point and assess discounts applied in light of that starting point?
(2)If the sentencing Judge has applied a discount for a mitigating factor available in law and grounded on existing authority and within the sentencing discretion, was the Court entitled to extinguish the credit allowed on an informant’s appeal?
(3)In determining the notional end sentence for the purposes of s 15A of the Sentencing Act 2002, was the sentencing Judge entitled to make a discreet [sic] adjustment in the prison term to take into account a cumulative community-based sentence coupled with home detention (in this case 200 hours’ community work and judicial monitoring)?
(4)Further or in the alternative to 3, were the facts that the Applicant [Mr Knox] had spent approximately 2 months in custody and was subject to a cumulative sentence of community work and judicial monitoring were [sic] factors the [High] Court should have taken into account in determining whether the sentence imposed was clearly inadequate, when measured against the sentence then imposed?
We note at the outset that the fourth question has been altered materially from the question upon which leave to appeal was declined in the High Court.[5] This on its own is probably sufficient reason for declining special leave in respect of this question,[6] but, as counsel addressed the merits of the question in terms of s 144(2), we propose to do likewise.
[5]High Court leave decision, above n 4, at [14(4)].
[6]Candy v Auckland City Council CA371/02, 25 February 2003 at [14].
For the purposes of the present application, the background to the charges faced by Mr Knox and his sentencing in the District and High Courts may be described briefly.
Mr Knox was apprehended in April 2012 as part of police Operation Marian, which targeted the supply of methamphetamine in the Wellington region. At the time of the current offending he was on bail relating to previous methamphetamine offences for which he was sentenced in 2009. On 28 March 2013 Mr Knox entered guilty pleas to four charges involving at least 26.45 grams of methamphetamine:
(a)one charge of conspiracy to supply methamphetamine;
(b)one representative charge of supplying methamphetamine;
(c)one representative charge of offering to supply methamphetamine;
and
(d)one charge of possession of methamphetamine for supply.
Prior to pleading guilty, Mr Knox had received a sentence indication of two years and ten months’ imprisonment from Judge Barry in the District Court. Mr Knox declined this indication. He was subsequently sentenced by Judge Broadmore to 12 months’ home detention and 200 hours community work.[7]
[7]District Court sentencing decision, above n 2.
In the High Court appeal by the police against this sentence, Collins J noted Mr Knox’s previous relevant convictions.[8] On 27 February 2009 he had been sentenced by Ronald Young J to two years and six months’ imprisonment for charges relating to the supply of methamphetamine. On 29 March 2012 he had again been convicted of drug-related offences. His convictions on that occasion related to possessing methamphetamine and possessing utensils used in relation to methamphetamine offending. He was sentenced to nine months’ supervision.
[8]High Court sentencing decision, above n 1, at [8].
Collins J then considered the sentences imposed on Mr Knox’s co-offenders and concluded that the District Court sentence was manifestly inadequate.[9] Seven of Mr Knox’s eight co-offenders had been sentenced to terms of imprisonment.[10]
[9]At [9] and [33].
[10]High Court leave decision, above n 4, at [7].
Collins J considered that the process followed by Judge Barry in reaching the indicative sentence of two years and ten months’ imprisonment was entirely correct.[11] Collins J held the sentencing Judge was incorrect to allow a further discount of ten months to reflect:[12]
(a)the further time Mr Knox had spent on electronically monitored bail;
(b)the impact of a prison sentence on Mr Knox’s son; and
(c)Mr Knox’s steps towards rehabilitation.
[11]High Court sentencing decision, above n 1, at [34].
[12]At [33(1)–(3)].
Collins J allowed the appeal, quashed the sentence of home detention and community work, and substituted a sentence of two years, three months’ imprisonment. That sentence was calculated by adopting Judge Barry’s calculation, and allowing further discounts of four months for the time spent on electronically monitored bail and three months for the time spent on home detention and completing 23 hours of community work. No allowance was made, at least explicitly, for Mr Knox’s parenting responsibilities.
In support of the application for special leave to appeal to this Court, Mr Ewen submits for Mr Knox that the four identified questions meet the requirements of s 144(2) of the Summary Proceedings Act because:
(a)There is no authority that addresses the first question, whether an appellate court is required to assess manifest inadequacy by reference to the range for the sentence starting point, when that is not the issue on appeal.
(b)The Crown’s response in relation to the second question confuses the application of credit within the sentencing discretion and the reduction of credit outside the sentencing discretion.
(c)The third question raises the issue whether 12 months home detention and 400 hours’ community work is fairly and lawfully referable to a sentence of more than two years.
(d)Whilst the High Court determined that the fourth question was not one of general or public importance, appellate courts at all levels would benefit from a statement of principles relevant to the exercise of the discretion to interfere with a sentence on a prosecution appeal, and for this reason it ought to be submitted to this Court for answer.
Mr Ewen then submits that an appeal would not be nugatory because allowing the appeal on either of the first two grounds results at least in the sentence originally imposed. Accordingly, the reasons stated by Collins J for exercising the residual discretion to refuse leave to appeal appear to be wrong. This in itself would justify the grant of special leave.
For reasons which largely reflect the decision of Collins J declining leave and the submissions for the Crown opposing the application to this Court for special leave, we do not accept that the requirements of s 144(2) are met in this case.
The starting point is to recognise the importance of the criteria under s 144(2), which do not simply provide for a general second tier of appeal.[13] There must not only be “a question of law” but the question must also be one which, “by reason of its general or public importance or for any other reason”, ought to be submitted to this Court for its decision. The reference to “any other reason” does not mean that any reason relied on by an applicant for leave will suffice. Like a reason of “general or public importance”, it must be a reason which is also sufficient to persuade the Court that the question of law “ought” to be submitted to this Court. Without inappropriately fettering the discretion of the Court to grant leave, the question of law must at least be one which the Court is satisfied should, in the interests of justice, be determined by this Court.
[13]R v Slater [1997] 1 NZLR 211 (CA) at 215.
When, as here, the application for special leave relates to an appeal against sentence already determined by the High Court, this Court is unlikely to be satisfied that leave should be granted if the answers to the proposed questions of law will have no practical effect on the end sentence imposed by the High Court. An appellate court will only interfere with a sentence if persuaded that the end sentence is manifestly excessive or manifestly inadequate or inappropriate.[14] Whether an end sentence meets one or other of these requirements in a particular case depends on an examination of the sentence actually imposed rather than the precise process by which it is reached.[15] Sentencing is not an arithmetical exercise and, when multiple offences are involved, it is always necessary to stand back and assess the totality of the offending.[16]
[14]The test laid down by this Court in R v Brooks [1950] NZLR 658 (CA) at 659 is that an appellant must establish that the sentence imposed was wrong in principle. See also Frewer v R [2012] NZCA 187 at [4] and R v Radich [1954] NZLR 86 (CA) at 87. See now Criminal Procedure Act, s 250.
[15]R v Peters CA12/03, 14 May 2003 at [13].
[16]Sentencing Act 2002, s 85.
The difficulty for Mr Knox is that there is really no prospect of persuading this Court that the end sentence of two years and three months’ imprisonment on the four methamphetamine charges was manifestly excessive,[17] especially when taking into account his previous serious offending and the need for consistency with the sentences imposed on his co-offenders.[18] Apart from the absence of any express reason for making no allowance for Mr Knox’s parenting responsibilities, the steps taken by Collins J in calculating the end sentence are not able to be criticised. They accord with well-established sentencing principles applicable in the context of an appeal by the police.
[17]Compare for example Pulete v R [2013] NZCA 216; Ropiha v R [2013] NZCA 60 and Martin v R [2012] NZCA 572.
[18]Sentencing Act, s 8(e) and R v Lawson [1982] 2 NZLR 219 (CA) at 223. See also Geoffrey Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [APPII.6.11].
While Mr Ewen placed considerable emphasis on the absence of any allowance for Mr Knox’s parenting responsibilities, we are not persuaded that the absence of such an allowance undermined the end sentence in this case. Collins J had already decided that Judge Broadmore had erred in allowing a further discount of ten months to reflect the further time Mr Knox had spent on electronically monitored bail, the impact of a prison sentence on Mr Knox’s son and Mr Knox’s steps towards rehabilitation.[19] It was then open to Collins J to decide that there should be no discount for Mr Knox’s parenting responsibilities. In a case involving serious drug offending by a repeat offender with a history of dealing in methamphetamine where a custodial sentence is justified, the unfortunate effect on a child of a sentence of imprisonment on a parent does not normally amount to an exceptional personal circumstance warranting a non-custodial sentence.[20] No question of substantial injustice arises.
[19]See above at [10].
[20]Misuse of Drugs Act 1975, s 6(4); Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12]–[14]; Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]; and Horsfall v R [2012] NZCA 97 at [15].
We are therefore not satisfied that the answers to any of the questions identified by Mr Ewen would have any practical effect on the end sentence correctly imposed by the High Court.
The first and second questions, which we accept are formulated as questions of law, relate to the approach taken by Collins J to a prosecutor’s appeal against sentence. But, as Ms Cooke submits, these questions do not require a decision from this Court. The relevant principles, including the principle of minimum possible intervention, are well known and were referred to by Collins J.[21] No further appellate guidance is required on these questions.
[21]High Court leave decision, above n 4, at [5].
The third and fourth questions are not questions of law of general or public importance. As Ms Cooke submits, the answers to these questions are in the Sentencing Act. The availability of a non‑custodial sentence such as home detention or community work is not a mitigating factor which may discount a term of imprisonment but rather an option which may be available if, having regard to the principles and purposes of sentencing and the aggravating and mitigating features of the offending and the offender, a custodial sentence of less than two years would otherwise be appropriate.[22] Taking into account a potential community sentence before identifying an appropriate sentence is impermissible.[23] Pre‑sentence detention cannot be taken into account when setting the length of imprisonment.[24]
[22]Sentencing Act, ss 7–10.
[23]R v Williams CA23/05, 15 March 2005 at [22] and R v Edwards [2006] 3 NZLR 180 (CA) at [46].
[24]Sentencing Act, s 82.
This means that we are not satisfied that any of the four identified questions “ought”, in the interests of justice, to be determined by this Court.
Result
For the reasons given, the application for special leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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