Patelesio v Police HC Auckland CRI 2009-425-31
[2010] NZHC 631
•23 April 2010
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2009-425-31
ANNE MARIE PATELESIO
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 April 2010
Appearances: Ms P Byrne and Ms Wilcox for Appellant
Ms K Siave for Respondent
Judgment: 23 April 2010 at 12 noon
JUDGMENT OF LANG J
[on appeal by way of case stated against order
requiring appellant to pay reparation]
This judgment was delivered by me on 23 April 2010 at 12 noon, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Macalister Todd Phillips, QueenstownCrown Solicitor, Invercargill
PATELESIO V NEW ZEALAND POLICE HC INV CRI-2009-425-31 23 April 2010
[1] The issue to be determined in this appeal by way of case stated relates to the jurisdiction of a Judge in the District Court to order an offender to pay reparation to the victim of his or her offending. More particularly, the issue is whether a Judge has jurisdiction to order an offender to pay reparation in circumstances where another Judge has already completed the sentencing of that offender in all other respects at an earlier date.
Facts
[2] Ms Patelesio initially appeared for sentence in front of His Honour Judge Phillips in the District Court at Queenstown on 19 October 2009. She had earlier pleaded guilty to charges of driving with excess blood alcohol and dangerous driving.
[3] The Judge sentenced Ms Patelesio to 250 hours of community work and
12 months supervision on the charge of driving with excess breath alcohol. He also disqualified her from driving for 12 months on that charge. He imposed concurrent sentences of community work and supervision on the charge of dangerous driving.
[4] A reparation report had been prepared prior to sentencing, but the Judge considered it to be incomplete. For that reason he deferred the issue of reparation until 2 November 2009, by which time he anticipated that an updated reparation report would be available.
[5] The updated report was available when the charges were called again on
2 November 2009. On that date a different Judge, His Honour Judge Flatley, ordered Ms Patelesio to pay $4150 in reparation to a person whose property had been damaged during the incident that led to the charges that Ms Patelesio faced.
[6] Ms Patelesio appeals by way of case stated against the order that she pay reparation. She contends that Judge Flatley had no jurisdiction to make that order because of the fact that she had already been sentenced by Judge Phillips.
The question posed by the case stated is as follows:
Did I have the jurisdiction to impose reparation on 2 November 2009 where the Defendant/Appellant had already been sentenced by Judge Phillips in respect of all matters on 19 October 2009?
The issue in greater detail
[8] Although the District Court does not have the inherent jurisdiction of the High Court, it is now well established that it has the implied power to do what is necessary to exercise its statutory functions, powers and duties: McMenamin v Attorney-General [1985] 2 NZLR 274.
[9] That power is necessarily, however, subject to any express statutory limits or restrictions. Two statutory provisions are potentially relevant when considering the power of the District Court to adjourn charges in the summary jurisdiction. The first is s 45(1) of the Summary Proceedings Act 1957, which provides as follows:
45 Power to adjourn
(1) The hearing of any charge may from time to time be adjourned by the
Court to a time and place then appointed.
…
[10] At first sight this section would appear to give the District Court blanket power to adjourn criminal charges at any time. That is not, however, how s 45 has been interpreted.
[11] In Jones v Police [1998] 1 NZLR 447 the Court of Appeal said at 452:
The structure and scheme of the relevant provisions of the Summary Proceedings Act lead us to the view that the concept of “the hearing” is designed to cover the whole process of enquiring into and determining the guilt or otherwise of persons brought before the District Court summarily on information.
[12] Although the Court was considering s 43 of the Act and not s 45, I consider that the same reasoning and interpretation must apply in respect of the word “hearing” in s 45. For that reason I do not consider that s 45 gave Judge Phillips the power to adjourn the sentencing of Ms Patelesio. It only provides the Court with
jurisdiction to adjourn a summary proceeding prior to the point at which the guilt or innocence of the defendant has been determined.
[13] The second provision is s 25 of the Sentencing Act 2002, which provides as follows:
25 Power of adjournment for inquiries as to suitable punishment
(1)A court may adjourn the proceedings in respect of any offence after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with for any 1 or more of the following purposes:
(a) to enable inquiries to be made or to determine the most suitable method of dealing with the case:
(b) to enable a restorative justice process to occur:
(c) to enable a restorative justice agreement to be fulfilled:
(d) to enable a rehabilitation programme or course of action to be undertaken:
(da) to determine whether to impose an instrument forfeiture order and, if so, the terms of that order:
(e) to enable the court to take account of the offender's response to any process, agreement, programme, or course of action referred to in paragraph (b), (c), or (d).
(2) If proceedings are adjourned under this section or under section 10(4), a Judge or Justice or Community Magistrate having jurisdiction to deal with offences of the same kind (whether or not the same Judge or Justice or Community Magistrate before whom the case was heard) may, after inquiry into the circumstances of the case, sentence or otherwise deal with the offender for the offence to which the adjournment relates (Emphasis added).
[14] Counsel for Ms Patelesio contends that this section operated in the present case to deprive Judge Phillips of the power to adjourn the proceeding after he had imposed the sentences of community work, supervision and disqualification on 19
October 2009. She argues that at that point the Judge was functus officio.
Decision
[15] As is plain from its terms, s 25 permits a sentencer to adjourn proceedings for several specified purposes. The first of these is to enable inquiries to be made, or to
determine the most suitable method of dealing with the case: s 25(a). I accept that a proceeding could properly be adjourned under this subsection to enable a reparation report to be prepared. An order requiring an offender to pay reparation to the victim of his or her offending may well form part of the most suitable method of dealing with the case. There is no doubt, either, that reparation is a form of “sentence” for the purposes of the Act. It is described throughout the Act as a “sentence” in its own right, and is included in the “hierarchy of sentences” prescribed by s 10A of the Act.
[16] Importantly for present purposes, the Court may only adjourn a proceeding under s 25 “before the offender has been sentenced or otherwise dealt with”. This requirement clearly reflects Parliament’s intention that all relevant inquiries should be completed before an offender is dealt with in any way at all. The reason for this requirement is obvious. As the present case demonstrates, the sentence that is ultimately imposed on an offender will often have several components. Here those components were community work, supervision, disqualification and reparation. In order to impose an appropriate mix of sentences it is necessary to ensure that the ultimate combination of sentences is consonant with the gravity of the case, and the circumstances of the offender.
[17] A decision by the sentencer to impose one form of penalty may well affect the remaining penalties that are imposed. The fact that the offender is prepared to pay reparation may, for example, be regarded as a mitigating factor that operates to reduce the severity of the other penalties. For this reason it is essential that the end sentence is imposed in its entirety by the same Judge on the same occasion. If that does not occur, there is a risk that one or more components of the sentence will end up ‘out of synch’ with other components.
[18] Theoretically at least, Judge Phillips ran the risk of imposing a sentence of community work and/or supervision that was too long having regard to the fact that a sentence of reparation might also be imposed subsequently. Similarly, Judge Flatley ran the risk of being restricted in the amount of reparation that he could order by the sentences of community work and supervision that Judge Phillips had imposed earlier.
[19] I consider that the wording of s 25 prevented Judge Phillips from deferring the issue of reparation unless he also deferred sentencing Ms Patelesi in all other respects as well. It was not open to him to sentence her in part and to defer the issue of reparation to a later date. Such authority as there is on the point also supports that conclusion.
[20] In Barton v Auckland City Council [1977] 1 NZLR 732 (SC) the appellant had pleaded guilty in the Magistrates Court to a charge of driving with excess blood alcohol. The Magistrate immediately disqualified him from driving for a period of
18 months, and then remanded him on bail to a later date for the purpose of obtaining a probation report. When the appellant next appeared, another Magistrate sentenced him to 10 days imprisonment.
[21] Mahon J allowed the appeal and said at 734:
...in the context of the present appeal the ordinary principles of sentencing must prevail. A disqualification order is a criminal penalty, and is, indeed, regarded by persons convicted under the Transport Act as a penalty far more severe than the substantial fine which normally accompanies such an order. The combination of penalties selected by the sentencing tribunal in relation to one offence together comprise one sentence, and in the present case, as in all others, the entire sentence was required to be imposed by one magistrate. The order for disqualification imposed by Mr McLean was valid, and the subsequent sentence of imprisonment imposed by Mr Gilliand was necessarily invalid.
[22] Even though the appeal was decided on the issue of the sentence being imposed by two different magistrates, Mahon J also commented on the practice, apparently then prevalent in the Magistrates Court, of splitting the sentencing process over more than one court appearance. His Honour said at 734 and 735:
A further and incidental question arises as to the propriety of the practice which evidently subsists in the Magistrate's Court of imposing an immediate disqualification on a plea of guilty for this type of offence by way of prelude to a further penalty to be imposed later by the same magistrate. The reason for the existing practice is, no doubt, to keep a convicted person off the road as from the time he pleads guilty. I can see the justification for this approach but it has been said on many occasions that it is bad sentencing practice for a tribunal to impose different discretionary penalties at different points of time in respect of the one offence.
…
Where a discretionary period of disqualification is imposed upon a plea of guilty and thereafter the question of further sentence is adjourned, as occurred in the present case, I think it follows that upon consideration of the factual material which comes to hand during the adjournment, whether by way of a probation report or otherwise, the sentencing magistrate could find himself in the position of realising that the length of the disqualification order was inappropriate, either because of the further facts as ascertained or because of the type of further sentence which the nature of the offence now seems to justify. Mr Harrison conceded these difficulties but pointed out that the matter was not directly at issue on the present appeal and I agree with that view. Nevertheless, having regard to the opinions of the English Divisional Court and the Criminal Division of the English Court of Appeal [in R v Talgarth Justices, ex parte Bithell [1973] 1 WLR 1327 and R v Annesley [1976] 1 WLR 106], and also as a matter of general principle, it does not seem correct practice to split the imposition of discretionary penalties in the manner which occurred in this case.
[23] Three months after Mahon J delivered his judgment in Barton, Speight J encountered a similar situation in Martin v Auckland City Council HC Auckland M532/77, 22 June 1977. In that case a Magistrate had convicted the appellant after a defended hearing on a charge of driving with excess blood alcohol. He had immediately disqualified the appellant from driving for a period of three years, and had then adjourned the proceeding to a later date so that a probation report could be prepared and sentencing could be completed. When the hearing resumed, the same Magistrate sentenced the appellant to ten days imprisonment.
[24] Relying on the decision in Barton, counsel submitted on appeal that the Magistrate had been functus officio after he had disqualified the offender from driving at the first hearing. For that reason he contended that the Magistrate had no power to adjourn the proceeding to a later date for further consideration of additional penalties to be imposed upon the appellant.
[25] Counsel relied for these submissions upon the wording used in s 48(1) of the
Criminal Justice Act 1954, which provided as follows:
48. (1) Any court may from time to time adjourn the proceedings in any case against any offender after he has been convicted and before he has been sentenced or otherwise dealt with, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case.
[26] In considering the effect of s 48 Speight J said at 5:
… There is, in my view, compelling logic in the submission that when the sub-section says that the power to adjourn may be exercised after a defendant has been convicted and before he has been sentenced, then inferentially once sentenced, even though it be only intended to be partial sentence, the power to adjourn no longer exists and the Magistrate is functus officio. The only answer to such a submission is to seek elsewhere for powers to adjourn either within the statute or by inherent jurisdiction. I can find no other power to adjourn which would cover this situation and on the question of inherent jurisdiction, even without reference to authority, the proposition that such power exists seems negated by the clear way in which Section 48 (1) has been drawn.
[27] Speight J drew support for this conclusion from the English authorities to which Mahon J referred in Barton, namely R v Annesley and R v Talgarth Justices. Both of those cases involved the interpretation of English legislation that was very similar in wording to s 48 of the 1954 Act. In the Talgarth Justices case the learned Chief Justice, Lord Widgery, said at 719:
….. but more fundamentally than that the Justices did not decide to adjourn after convicting the applicant and before sentencing him or otherwise dealing with him. They endeavoured instead partially to deal with him and I think that that was outside the powers conferred by the section. It seems to me that however tiresome it must have appeared to those Justices in view of the behavior of the applicant, that they were in fact in duty bound if they were going to consider disqualification, to adjourn the whole question of sentencing and disposal under Section 14 (3) and deal with this matter as one matter when the adjourned hearing took place. In the circumstances I think that they were in excess of their jurisdiction when they purported to make the disqualification order and I would allow certiorari to go to quash the disqualification.
[28] When Parliament enacted s 25 of the 2002 Act it must be taken to have known the manner in which Speight J had interpreted s 48 of the 1954 Act in Martin. The fact that it chose to retain substantially the same wording in s 25 of the 2002 Act means that Parliament was content with that interpretation. For that reason I consider that I should interpret s 25 in a manner that is consistent with the interpretation that Speight J gave to s 48 of the 1954 Act in Martin. That interpretation also accords with Parliament’s intention, expressed through the manner in which it has chosen to word s 25, that all relevant enquiries should be completed before an offender is sentenced or otherwise dealt with.
[29] The question in the case stated must therefore be answered in the negative.
What orders should be made as a consequence of this determination?
[30] Section 112 of the Summary Proceedings Act 1957 provides as follows:
112 High Court to determine the questions on the case
The [High Court] shall hear and determine the question or questions of law arising on any case transmitted to it as aforesaid, and shall thereupon do any one or more of the following things:
(a) Reverse, confirm, or amend the determination in respect of which the case has been stated; or
(b) Remit the matter to the [District Court] with the opinion of the [High
Court] thereon; or
(c) Exercise any power conferred by section 201 of this Act; or
(d) Make such other order in relation to the matter as it thinks fit.
[31] Counsel for the respondent submitted that, in the event that I determined the question posed by the case stated in favour of Ms Patelesio, I should nevertheless confirm the order for reparation that Judge Flatley made. She pointed out that Ms Patelesio has succeeded with an argument that is essentially technical in nature, and that her substantive position is totally devoid of merit. She also pointed out that Counsel who acted for Ms Patelesio in the District Court encouraged the Judge to take the step about which she now complains. Given those factors counsel submitted that this Court would be justified in leaving the order for reparation undisturbed.
[32] That argument has some attraction, because these points both have merit. I have concluded, however, that it would be wrong in principle for this Court to confirm an order that is legally a nullity. I therefore find that I have no option but to reverse the order for reparation that Judge Flatley made at the second hearing.
[33] In reaching this conclusion I am conscious of the effect that this order will have on the victims who have suffered losses as a result of Ms Patelesio’s offending. The fact that they will be out of pocket is hardly a just result for them. I have no doubt, either, that the fact that they are entitled to pursue Ms Patelesio in civil proceedings will be of little comfort to them. I can only express the hope that Ms Patelesio will accept that she has a moral and legal obligation to rectify the economic
effects of her offending, and that she will therefore accept responsibility for reimbursing the victims who have suffered as a result of her actions.
Result
[34] The answer to the question posed by the case stated is “No”. [35] The order for reparation is quashed.
Lang J
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