R v Iuvale
[2024] NZHC 2882
•4 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-7913
[2024] NZHC 2882
THE KING v
NIGEL IUVALE
Hearing: On the papers Counsel:
R van Boheeman for the Crown M Taylor-Cyphers for Defendant
Judgment:
4 October 2024
JUDGMENT OF WILKINSON-SMITH J
[Application for transfer of District Court proceedings to the High Court]
This judgment was delivered by me on 04/10/2024 at 11am.
Registrar/Deputy Registrar
…………………………………
Solicitors:
Meredith Connell, Auckland
Marie Taylor-Cyphers, Barrister, Auckland
R v IUVALE [2024] NZHC 2882 [4 October 2024]
Introduction
[1] Following jury trials in the District Court and High Court earlier this year, Mr Iuvale was found guilty of methamphetamine related offending arising out of two interrelated criminal investigations.
[2] In the first, Operation Schrute, Mr Iuvale was convicted in the District Court for possession of methamphetamine for supply involving 29.7kgs. In the second, Operation Selena 1, Mr Iuvale was convicted in the High Court for possession of methamphetamine for supply involving at least 10kgs and for conspiracy to import an unspecified commercial quantity of methamphetamine.
[3] Mr Iuvale is now scheduled to appear for sentence in each court respectively. Sentencing in the High Court is set down for 15 November 2024.
[4] The Crown position is that Mr Iuvale played a similar role in the offending uncovered by both operations. The parties agree that it is preferrable that Mr Iuvale should be sentenced on all charges in the High Court and seek an order to that effect.
[5] An issue arises, however, as to whether the High Court has jurisdiction to order such a transfer. This judgment addresses the question of whether the High Court has such jurisdiction and, if so, whether it should be exercised in this case.
Does the High Court have jurisdiction to transfer a District Court sentencing matter to the High Court?
[6] The only statutory basis that the parties have identified for making an order for transfer of this kind is s 89 of the District Court Act 2016. That section provides as follows:
89High Court Judge may order removal of proceeding into High Court
(1)A High Court Judge may, on application by a party to a proceeding, order the removal of the proceeding into the High Court if the Judge is satisfied that it is desirable to do so.
(2)In deciding whether to make an order under subsection (1), the Judge must have regard to the following factors:
(a)the nature of the case:
(b)the complexity of the case:
(c)the general or public importance of the case:
(d)the amount in issue:
(e)the likely length of the hearing:
(f)the financial resources of the parties:
(g)whether it is otherwise in the interests of justice to make the order.
(3)The order may be made on such conditions, including conditions as to costs or giving security for costs, as the Judge thinks fit.
(4)This section overrides sections 86 to 88.
[7] Unfortunately for the parties, the provision is inapposite. While s 89 empowers the High Court to order the removal of a “proceeding” in the District Court, “proceeding” is defined in s 4 of the District Court Act to mean:
any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application
[8] It follows that s 89 is not the vehicle by which this Court might transfer a District Court sentencing matter to the High Court.
[9] There does not appear to be any equivalent statutory power in the criminal context.
[10] The Sentencing Act 2002 mandates the transfer of a defendant for sentencing in the High Court in cases where the defendant is liable to life imprisonment or preventive detention,1 but otherwise does not contain a provision of the kind in s 89 of the District Court Act in respect of sentencing.
[11] The same would seem to be true of the Criminal Procedure Act 2011. Section 68 of the Act only provides that a High Court Judge must determine whether a trial of a protocol offence should be in the District Court. And, while s 70 of the Act gives
1 Sentencing Act 2002, ss 81B and 90.
High Court Judges the power to direct that a defendant “be tried in the High Court” if charged with category 2 or 3 offences on either the application of a defendant or prosecutor, the language of that provision suggests that it applies to the transfer of proceedings before a defendant has pleaded or been found guilty. This is because the provision says:
(2)The defendant or the prosecutor may apply to a High Court Judge for an order directing that the defendant be tried in the High Court.
(3)The prosecutor and the defendant may make written submissions in relation to an application under subsection (2), but no party is entitled to be heard.
(4)The Judge must determine whether the defendant is to be tried in the District Court or the High Court and make an order accordingly.
(5)Before making an order under subsection (4) the Judge must consider—
(a)any information provided by the District Court about its capacity to hold the trial; and
(b)any submissions from the prosecutor and the defendant; and
(c)the matters listed in section 67(4)(b).
[12] Section 70(4) has been utilised to this effect before. In R v Huirama, Lang J sentenced a defendant who faced charges for drug offending in both the High Court and the District Court.2 The sentencing followed a sentence indication the Judge gave on the basis that, if accepted, the defendant would consent to his charges in the District Court being transferred to the High Court under s 70(4) of the Criminal Procedure Act.3 The Judge said:4
This has its obvious advantages, because it avoids difficult issues relating to totality that will arise if the two sets of proceedings are dealt with separately.
[13] The difficulty however is that in Huirama the issue of transfer arose prior to plea at the sentence indication stage. Mr Iuvale, by contrast, has been found guilty following two trials and it strains the meaning of the section to apply it to the current situation.
2 R v Huirama [2018] NZHC 864.
3 R v Huirama [2018] NZHC 352.
4 At [2].
[14] Section 114 of the Criminal Procedure Act sets out the procedure after a defendant has pleaded or is found guilty:
(1)If a defendant pleads guilty or is found guilty, the court may convict or deal with the defendant in any other manner authorised by law and—
(a)adjourn the proceeding; or
(b)sentence or otherwise deal with the defendant immediately.
(2)Despite subsection (1), if the defendant is before the District Court the court must transfer the proceeding to the High Court (at the place determined in accordance with section 74(4) and (5) as if the High Court were the trial court) for the sentencing of the defendant if—
(a)section 81B of the Sentencing Act 2002 applies; or
(b)section 90 of the Sentencing Act 2002 applies; or
(c)the offence is a category 4 offence.
[15] Section 114(2) is directed to the District Court and to the three circumstances where the District Court must transfer a proceeding to the High Court.
[16] The Sentencing Act also mandates transfer of certain sentencing matters from the District Court to the High Court. The High Court has sole jurisdiction to sentence defendants for category 4 offences; category 2 or 3 offences that are transferred to the High Court for trial under s 68 (protocol offences) or s 70 of the Criminal Procedure Act; and cases that are transferred for sentence under s 81B (where life imprisonment may be appropriate), or s 90(2) (to allow for preventive detention to be considered) of the Sentencing Act.5 Again, however, the provisions limit the jurisdiction of the District Court which derives all of its jurisdiction from statute.
[17] There is no statutory provision which either clearly permits or clearly prohibits an order by the High Court for transfer of a District Court sentencing matter. If the High Court possesses such a power, it must be as an exercise of inherent jurisdiction.
5 Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAA1.02].
The High Court’s inherent jurisdiction
[18] This Court’s inherent jurisdiction refers to its originating authority at common law to hear and determine matters at first instance.6 That authority is confirmed by s 12 of the Senior Courts Act 2016 which provides that the High Court has:
(a)the jurisdiction that it had on the commencement of this Act; and
(b)the juridical jurisdiction that may be necessary to administer the laws of New Zealand; and
(c)the jurisdiction conferred on it by any other Act.
[19] The inherent jurisdiction is broad but necessarily grounded in determining existing disputes between litigants.7 It empowers the High Court to entertain common law actions, grant remedies in equity, construe and apply statutes and declare the rights and liabilities of individuals.8 It also empowers the High Court to make any order to enable it or inferior courts to function effectively, subject only to legislation and rules of court.9
[20] The consequence of this broad jurisdiction is that only matters expressly removed by statute are beyond the jurisdiction of the High Court.10 Where Parliament vests exclusive jurisdiction over proceedings in another court the High Court has no jurisdiction. However, the statutory intention to give another Court exclusive jurisdiction must be clear.11 This is especially so since the High Court assumes that Parliament has not intended to deprive it of its general jurisdiction absent clear statutory wording to that effect.12
6 Philip A Joseph Constitutional and Administrative Law in New Zealand (5th ed, Thomson Reuters, Wellington, 2021) at 897. The inherent jurisdiction stands in contrast to the inherent powers that a court possesses to determine its own procedures. The former is unique to the High Court whilst the latter is common to all courts, including those created by statute: Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113].
7 At 892.
8 At 899.
9 At 899.
10 At 900.
11 At 900.
12 At 900.
[21] The Supreme Court’s approach in Zaoui v Attorney-General is instructive.13 There, the Court had to consider whether the High Court possessed jurisdiction to grant bail to a man detained under the Immigration Act 1987. The Court concluded that the High Court did have such jurisdiction even in cases where a person was detained under a civil statutory power and where bail was not ancillary to other proceedings already before the Court. The Supreme Court then considered whether the provisions of the relevant legislation – there, the Immigration Act – “precluded” the exercise of the High Court’s inherent jurisdiction.14 It concluded that they did not.15
[22] Given the breadth of the High Court’s inherent jurisdiction, the starting point must be that, subject to statute, the High Court possesses jurisdiction to sentence all those convicted of a criminal offence. As Winkelmann CJ said in Fitzgerald v R, “sentencing for criminal offences is the constitutional role of the third branch of government – the judicial branch”.16 Because the High Court possesses the “judicial jurisdiction” necessary to administer the laws of New Zealand, it follows that the High Court has at least a presumptive jurisdiction to impose sentences for criminal offences and thus to sentence defendants on charges for which they have been convicted in another court.
[23] The question is whether the Sentencing Act 2002, Criminal Procedure 2011 and other statutes have “precluded” or otherwise altered the High Court’s presumptive jurisdiction to do so.
[24] The fact that Parliament has provided a statutory basis for District Court matters to be sentenced in the High Court where life imprisonment or preventive detention is involved does not mean that it has restricted or precluded the High Court’s inherent jurisdiction to transfer other matters to the High Court for sentencing if it is in the interests of justice to do so. While s 114(2) provides a limited pathway for sentencing of a defendant in the High Court where they have pleaded or been found guilty in the District Court, it is important in my view that the provision is directed to
13 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).
14 At [59].
15 At [69].
16 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [117] per Winkelmann CJ.
the District Court. In the absence of clear wording to the contrary, this Court should be slow to see its inherent jurisdiction ousted. That is especially so given the Court’s originating authority to determine a matter can exist concurrently in both statute and in its inherent jurisdiction.
[25] Finally, and appositely in this case, I have found at least one occasion where the High Court’s inherent jurisdiction would seem to have been invoked in this way.
[26] In R v Simpson, the defendant pleaded guilty to drug charges in both jurisdictions. He accepted a sentence indication in the District Court. Brewer J directed that the District Court charges be transferred to the High Court for sentencing.17 The Judge did so on the basis that it would “obviously” be sensible for one Judge to consider the defendant’s case in its entirety, and to factor into that the credit which the defendant should receive for his rehabilitative efforts to date.18
[27] In Simpson the charges were transferred after the defendant had pleaded guilty. There is no reference to any statutory provision in the judgment. Although not explicitly stated it is my view that the order was clearly made in the exercise of the High Court’s inherent jurisdiction.
[28] I accordingly consider that the High Court does possess jurisdiction to order the transfer of a District Court sentencing matter to the High Court. The foregoing analysis reveals that none of the provisions in the Criminal Procedure Act or Sentencing Act should be read as having precluded this Court’s jurisdiction to act in this way. The provisions of the Criminal Procedure Act and Sentencing Act should not be read as restricting the High Court’s inherent jurisdiction to impose sentence.
Should Mr Iuvale be sentenced on all charges in this Court?
[29] Often defendants will be sentenced for unrelated offending in different jurisdictions and often that will be appropriate. This decision should not be read as meaning all charges a defendant is facing should always be joined for sentencing. The
17 R v Simpson [2021] NZHC 2728. The defendant was later sentenced by Lang J in R v Simpson
[2021] NZHC 3548.
18 At [6].
fact that this Court possesses the jurisdiction to make such an order is different from the question of whether that jurisdiction should be exercised. The latter inquiry will fundamentally turn on when it is in the interests of justice to do so.
[30] In the present case however the two sets of offending are closely related and closely connected in time. The High Court charges both pre-date and post-date the District Court charges. Evidence of the District Court matter was admitted as propensity evidence in the High Court trial.
[31] Separate sentencing for such interrelated offending is an inefficient use of court time. The sentencing process would be needlessly complex, and care would need to be taken to avoid double counting personal mitigating and aggravating features. The second sentence would also need to be expressed as a cumulative uplift to the first sentence, which runs the risk of being excessive when compared to the totality of Mr Iuvale’s overall offending.
[32] It is important that the full picture is considered, and that Mr Iuvale’s sentence accurately reflects the totality of his offending. That is best achieved by sentencing Mr Iuvale for all matters together.
[33]Accordingly, I make the following orders:
(a)Mr Iuvale is transferred for sentencing to this Court on charges for which he has been convicted in the District Court in CRI 2021-004- 006158.
(b)Mr Iuvale will be sentenced on all those charges together with the charges already in this Court scheduled for 15 November 2024.
Wilkinson-Smith J