Kumar v Police HC Auckland CRI 2010-404-361

[2010] NZHC 2082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000361

BETWEEN  LUI KUMAR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 November 2010

Appearances: B Castelino for Appellant

L Farmer for Crown

Judgment:      22 November 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            B Castelino, Auckland

KUMAR V NEW ZEALAND POLICE HC AK CRI-2010-404-000361  22 November 2010

[1]      On 5 May 2010 the appellant was sentenced by Judge Gibson in the District Court at Manukau to six weeks’ imprisonment on three charges of breach of community work.  The appellant seeks to appeal to this Court against that sentence.

[2]      There are, however, a number of procedural issues with the appeal.

[3]      First the appeal is significantly out of time.  The sentence was imposed and the warrant issued on 5 May 2010.  The 28 day period for an appeal under s 116 of the Summary Proceedings Act 1957 expired on 2 June 2010.  Although the notice of appeal is dated 1 September it appears it was not received by the District Court until

22 September 2010.  While there is provision for this Court to extend time for an appeal pursuant to s 123 of the Summary Proceedings Act for the reasons that follow it is unnecessary to consider whether leave should be granted.

[4]      The other and principal procedural issue is that the appeal is really directed at the process that the Judge adopted in the District Court and the Judge’s failure to address  s  78(2)  of  the  Sentencing  Act  2002  as  opposed  to  the  end  sentence. Although Mr Castelino noted the recommendation in the pre-sentence report for home detention and the hierarchy of sentences identified in the Sentencing Act, it has to be said that given the background and history of this particular appellant an appeal against a sentence of imprisonment would face considerable difficulty.

[5]      The main point is that as a result of the Judge failing to address s 78(2) of the Sentencing Act, the appellant now finds himself at the risk of a further sentence of imprisonment for failure to comply with the underlying community work sentence which led to his conviction and sentence to imprisonment for six weeks on 5 May.

[6]      Section 78(1) and (2) of the Sentencing Act provide:

(1)      Subsection (2) applies if an offender who is subject to a community- based sentence is subsequently sentenced to—

(a)      a term of imprisonment of not more than 12 months; or

(b)2 or more terms of imprisonment to be served concurrently, each term of which is not more than 12 months; or

(c)       2 or more terms of imprisonment that are cumulative, the total term of which is not more than 12 months.

(2)      If this subsection applies, the court must either—

(a)      order that the community-based sentence be suspended; or

(b)order that the community-based sentence be suspended for the duration of the period in which the offender is detained under the sentence or sentences of imprisonment.

[7]      Section 78(1) and (2) were engaged in this case.   Despite the mandatory direction in s 78(2) the District Court Judge did not address the sub-section in the sentencing notes.  The Judge has not expressly referred to the subsection – s 78(2). Section 78(2) contemplates that either the community based sentence will be suspended under s 78(2)(a) or suspended for the duration of the sentence of imprisonment  imposed  by  the  Court  under  s  78(2)(b).    It  is  only  if  the  Court suspends under s 78(2)(b) that the original sentence of community work effectively resumes on the expiry of the term of imprisonment.  In that case then s 78(5) would apply, with the offender reporting to the probation officer within 72 hours of being released from detention.

[8]      In the event that the original sentence of community work is suspended under s 78(2)(a) then, in accordance with s 80, the original community based sentence, in this case the community work, will be cancelled when the offender’s detention in prison ends:   s 80(5) unless the term of imprisonment is quashed on appeal and s 80(3) applies.

[9]      Because  of  the  differing  possibilities  a  sentencing  Judge  is  required  to address s 78(2).  The Judge failed to do so in this case.  The Judge has failed to make an order that the Judge was required to make at the time of the original sentence. The appropriate Court to address that issue is the District Court rather than this Court on an appeal against sentence.

[10]     I note that s 77 of the Summary Proceedings Act provides that the District Court has power to amend defective sentences.  That section confirms that Court is the appropriate Court to address the issue.  I understand that the application relating to the cancellation of the community work sentence and the imposition of a further

alternative sentence are before the District Court on 24 November.   It would be appropriate for the present issue, the failure to address s 78(2) to also be considered at that time so that the matter can be resolved.

[11]     For those reasons the appeal is formally dismissed.  The matter is remitted to the District Court for the District Court to address s 78(2) of the Sentencing Act in light of s 77 of the Summary Proceedings Act and the matters identified in this

decision.

Venning J