R v Dodd

Case [2019] NZHC 667 2 April 2019

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI 2017-088-000964

[2019] NZHC 667

THE QUEEN

v

NICKY BRYAN DODD

Hearing: On the papers

Counsel:

S Barnaart for Crown

J A Kincade for Mr Dodd

Ruling:

2 April 2019

JUDGMENT OF DUFFY J ON RECALL OF SENTENCE

This judgment was delivered by me on 2 April 2019 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

R v DODD [2019] NZHC 667 [2 April 2019]

[1] Counsel for Nicky Dodd seeks correction of an error in the sentence of Mr Dodd.

[2] Since receiving notice of the correction request I have issued a minute on 14 February 2019 and held two telephone conferences. In the minute of 14 February 2019, I acknowledged that an error had occurred in the sentencing of Mr Dodd through me wrongly attributing his brother Adam Dodd’s criminal history to Mr Dodd, which led to me uplifting the starting point of Mr Dodd’s sentence by two months. I also acknowledged that I would be prepared to correct this error in Mr Dodd’s sentence if persuaded that I had jurisdiction to do so.

[3] To date I have expressed doubts as to the jurisdiction of this Court to correct the sentencing error.

[4] However, I have now considered authorities and academic comment on the inherent jurisdiction of this Court to correct errors. This has led me to conclude that the inherent jurisdiction does permit correction of the error.

Scope of the inherent jurisdiction

[5] The academic commentator IH Jacob states in an article “The Inherent Jurisdiction of the Court” that under its inherent jurisdiction the High Court of England and Wales can:1
Again, under its inherent jurisdiction, the court can at any stage of the proceedings, even after judgment, vary, modify or extend its own order so as to express correctly its intention and meaning and thereby to ensure that the purposes of justice are not defeated.

[6] This article has often been referred to by New Zealand courts on occasions where there has been cause to consider the inherent jurisdiction.2

1 IH Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23 at 39.
2 Taylor v Attorney-General [1975] 2 NZLR 675 at 682 and 689; Mafart v Television New Zealand [2006] 3 NZLR 18 (SC) at [16]; Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29]; and Re Lee [2018] 2 NZLR 731 at [29].

[7] In Mafart v Television New Zealand, the majority of the Supreme Court in a judgment delivered by Elias CJ referred to IH Jacob’s article with approval and stated:3

[16] The adjectival jurisdiction and powers of the High Court, which enable it to give effect to its substantive jurisdiction, are part of the general jurisdiction recognised by s 16 of the Judicature Act. They were derived from the practice of the superior Courts in England as at 1860, based on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dodd

Details

AGLC: R v Dodd [2019] NZHC 667
Case: [2019] NZHC 667
Decision Date: 2 April 2019

CaseChat Overview and Summary

Counsel for Nicky Bryan Dodd sought correction of an error in his sentence, which involved the judge attributing his brother Adam Dodd’s criminal history to Nicky Dodd, thereby increasing the starting point of his sentence by two months. The court had previously expressed doubts about its jurisdiction to correct the sentencing error. However, upon considering authorities and academic commentary on the inherent jurisdiction of the court, the court concluded that its inherent jurisdiction did permit the correction of the error. The court found that the inherent jurisdiction was broad enough to allow the court to correct sentencing irregularities, as long as any order did not conflict with any statutory or regulatory provision. The court also found that the principles of finality and functus officio were not an obstacle to using the inherent jurisdiction to correct irregularities. The court gave the parties an opportunity to address the court on the exercise of this power before taking any further steps to correct the irregularity in Nicky Dodd’s sentence.

The legal issues the court was required to decide included whether the court had the jurisdiction to correct the sentencing error, and if so, whether it was appropriate to exercise that jurisdiction in this case. The court found that the inherent jurisdiction did permit the correction of the error, and that it was appropriate to give the parties an opportunity to address the court on the exercise of this power before taking any further steps. The court held that the inherent jurisdiction provides authority to recall and correct irregularity in a sentencing decision, and that the parties should be given an opportunity to address the appropriateness of correcting the irregularity in this case.

Orders