Purdie v Police HC Auckland CRI 2007-404-178

[2007] NZHC 1904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000178

BETWEEN  KARYN ROIMATA ANNE PURDIE Appellant

AND  POLICE Respondent

Hearing:         19 and 22 June 2007

Appearances: JIS Kovacevich and L E Zamiri for Appellant

M R Harborow for Respondent

Judgment:      22 June 2007

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

JIS Kovacevich, PO Box 5316, Wellesley Street, Auckland

PURDIE V POLICE HC AK CRI 2007-404-000178  22 June 2007

[1]     The appellant was convicted of possession of a precursor substance in contravention of s 12A(2) of the Misuse of Drugs Act 1975.  It was alleged that she had in her possession pseudoephedrine knowing that it was to be used in the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act.

[2]      On 7 June 2007, she was sentenced in the Auckland District Court by District Court Judge Hole to imprisonment for a term of seven months.  He granted her leave to apply for home detention, but he did not defer the start date of that sentence.  He dealt with that issue at paragraphs[20-22] of his sentence where he said:

[20]      The next issue which arises is whether or not the commencement date of imprisonment should be deferred pending the Parole Board hearing your application for home detention.

[21]      The reason given, by counsel, was in particular the concern for your children and I think that I can add, although I do not think he specifically said it, your need for ongoing treatment.

[22]      I   take   the   view,   however,   that   those   particular   reasons   are insufficient,  in  the circumstances,  to  justify  to  [sic]  Court  deferring  the commencement date of imprisonment and that application is declined.

[3]      The appellant has purported to appeal against the sentence.  The grounds of the appeal are that because she suffers from extreme ill-health, and has the full-time care of two children aged two and 14 years respectively, the start date should have been deferred on humanitarian grounds, under s 100(1)(a) of the Sentencing Act

2002.  She has congestive heart failure, requiring her sleep to be monitored and for oxygen to be available to her through the night.  She is morbidly obese.  If she lies in a horizontal position she is in danger of heart failure due to fluid build-up around her heart.  It was also maintained that the same matters would have justified deferral of the start date of the sentence as “exceptional circumstances” under s 100(1)(b) of the Act.

[4]      The Crown, however, takes the point that there is no right to appeal where the right to apply for home detention has been granted, but the start date of the sentence has not been deferred by the sentencing Judge.   That is because s 100(4)(d) of the Act provides that, “no Court may defer the start date of a sentence of imprisonment

if … (d) the offender has already commenced serving the sentence or is detained under any other sentence or order”.

[5]      Unless the start date is deferred, the sentence commences immediately and once that has occurred the plain result of s 100(4)(d) is that a Court on appeal could not defer the start date.

[6]      In R v Morgan [2004] 3 NZLR 738, the Court of Appeal held that there was no right to appeal against the refusal of a deferment. Its reasoning was based on an analysis not only of s 97 of the Sentencing Act, but the Court also made reference to the fact that under the Parole Act 2002, if a sentencing Judge refused to defer the start date of a sentence of imprisonment, then the start date must be the date on which the sentence is imposed. The Court noted at [9] that neither the Sentencing Act nor the Parole Act makes any provision for what would happen if an Appellate Court were to reverse a sentence of a Judge’s decision not to defer.

[7]      Chambers J, delivering the judgment of the Court said at [10]:

If  there  were  a  right  of  appeal  against  a  refusal  to  defer,  then  almost inevitably the offender will apply for bail so as to preserve the efficacy of his or her appeal right.   Almost inevitably bail would have to be granted; otherwise the right to appeal against the refusal to defer would be rendered nugatory.   (Indeed, that is exactly what happened in the present case.   Ms Morgan was granted bail so that her purported appeal right was not rendered nugatory.)   Unless this Court grants priority, the offender would then effectively get the deferment by a side wind.  It would be, as Ms Markham described it, “a de facto ‘deferment’ which undermines the legislative scheme”.

[8]      Mr Kovacevich was I think, taken by surprise by this point when the appeal was first called on 19 June 2007 and I adjourned the matter for further mention today to  give  him a  further opportunity to  consider  the  position and  in  particular  the possibility that  an  application  for  bail  pending  sentencing  might  still  enable  an application  for  deferment  to  be  made.     This  afternoon  he  has  made  further submissions to me in which he has referred to two decisions of the High Court where, on appeal, Judges have in fact purported to defer the start date of sentences on appeal.    The first  of those was a decision of Frater J in  Shapleski  v  Police (unreported HC AK CRI 2005-404-439, 31 May 2006) and the second is a decision

of John Hansen J in Watson v Police (unreported, HC CHCH CRI 2007-409-000079,

26 April 2007).  In neither of those cases, however, was there specific reference to either s 100(4)(d) or to the decision of the Court of Appeal in R v Morgan.

[9]      In the absence of any discussion of either the section or the binding Court of Appeal authority of R v Morgan, those decisions are plainly not ones which I can purport to follow.   In the circumstances, there is no  jurisdiction to entertain the appeal and it must be dismissed.