R v Latimer
[2023] NZHC 2315
•31 August 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-65
[2023] NZHC 2315
THE KING v
TRITAN LATIMER
Hearing: 24 July 2023 Appearances:
M Davie for the Appellant
N Dutch for the Respondent (via AVL)
Judgment:
31 August 2023
JUDGMENT OF POWELL J
This judgment was delivered by me on 31 August 2023 at 4.00 pm pursuant to
r 11.5 of the High Court Rules
…………………..
Registrar/Deputy Registrar
Solicitors: Crown Law
Counsel:
N Dutch
R v LATIMER [2023] NZHC 2315 [31 August 2023]
[1] The Crown has appealed against the sentence given to Tritan Latimer. In March 2023 Mr Latimer was sentenced to six months’ home detention by Judge M M Mason on a single charge of possession of methamphetamine for supply, a sentence currently being served at a Grace Foundation facility.1
[2] Mr Latimer had accepted a sentence indication from Judge Mason given on 9 March 2023.2 In that indication Judge Mason noted that the Crown had submitted that a starting point of five and a half years’ imprisonment was appropriate, together with a 25 per cent discount for a guilty plea.3 Instead, with reference to the Supreme Court decision in Philip v R,4 Judge Mason accepted the submissions of Mr Dutch on behalf of Mr Latimer that the starting point should be four and a half years’ imprisonment.5
[3] On that basis the sentencing indication was accepted by Mr Latimer and sentencing then proceeded on 15 May 2023. In addition to the guilty plea discount, at sentencing Judge Mason allowed for a 25 per cent discount for matters contained in the s 27 report,6 and a further 10 per cent for rehabilitation and remorse.7 This brought the end sentence below two years’ imprisonment and a result after deducting a further five and a half months for time spent in custody on remand Mr Latimer’s end sentence was six months’ home detention to be served while completing rehabilitation at the Grace Foundation.8
[4] The Crown appeals Mr Latimer’s sentence under s 246 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed.9
1 R v Latimer [2023] NZDC 9412 [DC sentencing notes].
2 R v Latimer DC Tauranga CRI-2022-070-003605, 9 March 2023 [DC sentence indication].
3 At [6].
4 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
5 DC sentence indication, above n 2, at [7]–[8].
6 DC sentencing notes, above n 1, at [7].
7 At [9].
8 At [11].
9 Criminal Procedure Act 2011, s 250.
[5] As this is a Solicitor-General’s appeal, and the Crown seeks the substitution of a sentence of home detention with one of imprisonment, the following principles apply:10
(a)A sentence should not be increased pursuant to a Solicitor-General’s appeal unless it is clear that the sentence which was imposed is manifestly inadequate or the Crown is able to point to some error in principle upon which the sentencing judge acted.
(b)As to whether a sentence is “manifestly inadequate”: “[this] turns first on the maximum sentence for the particular offence; then on a consideration of comparable sentences, to the extent that those are considered to be appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case”.11
(c)Considerations which justify an increase in sentence must be more compelling than those which might justify a reduction, and the appeal court will only increase sentences in “clear cut” cases.
(d)The appeal court must take care to ensure that it does not override the sentencing judge’s discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation. But a rehabilitative sentence or merciful approach must be justified by the special circumstances of the case.12
(e)If a Solicitor-General appeal is successful, the sentence will be adjusted by the minimum necessary to remove the manifest inadequacy. While the appeal court may be reluctant to convert home detention to imprisonment if this would be unjust to the offender, in some cases community confidence in the administration of justice requires the imposition of imprisonment; and
10 R v Donaldson (1997) 14 CRNZ (CA); McCaslin-Whitehead v R [2023] NZCA 259.
11 R v Wilson [2004] 3 NZLR 606 (CA) at [41].
12 McCaslin-Whitehead v R, above n 10, at [31].
(f)If the appeal court declines to interfere, “the court may find explicitly that the original sentence was inappropriate to ensure that, at a general or policy level, it does not have precedential value”.13
The position of parties on appeal
[6] The Crown argues that the sentence was manifestly inadequate. Mr Davie argues that the appropriate sentence was three and a half years’ imprisonment based on a starting point of seven years less a guilty plea discount of 25 per cent and a discount for personal circumstances of a further 25 per cent.
[7] The increased starting point, not only well above that on which Mr Latimer was sentenced but well above the starting point proposed by the Crown at the sentence indication, was justified on the basis of an assertion of Mr Latimer having had a greater role in the offending than the Crown had submitted in the course of the sentence indication and subsequent sentencing. Mr Davie also questioned the need for a rehabilitative sentence given previous unsuccessful attempts at rehabilitative sentences and courts identified by Mr Davie in the s 27 report as to whether rehabilitation was even necessary.
[8] Notwithstanding these submissions, taking into account the fact that it was a Solicitor-General’s appeal and that Mr Latimer had by the date of the hearing served two months of the home detention sentence the Crown submitted an end sentence of around two years and two months’ imprisonment would be at the bottom end of the available range.
[9] Mr Dutch pointed out on behalf of Mr Latimer that the Crown’s position on appeal was inconsistent to the position taken at the sentencing indication hearing where the Crown had argued for a starting point of five years’ imprisonment and did not contend at sentencing that the four and a half years adopted by Judge Mason was wrong at the subsequent sentencing. Mr Dutch noted the change in Crown position appears to have been merely due to a reconsideration of Mr Latimer’s role in the
13 At [31].
offending and that such an approach was antithetical to the way the sentencing indication process is supposed to work.
Discussion
[10] I observe at the outset that the Crown has not attempted to reconcile the position it took at the sentencing indication hearing and subsequent sentencing with its position now taken on appeal. It is important to remember that at all times there is only one Crown. As Fitzgerald J noted in Solicitor-General v Meyer,14 “[i]t is worth explaining that there are not two Crown ‘entities’ or parties in play in this case. The Crown for present purposes is indivisible and thus, in short, the Crown is the Crown”.
[11] As Mr Dutch submitted it is important that the Crown act consistently at sentence indication, sentencing and at on appeal, as to do otherwise risks undermining the sentencing indication process, and the assumption of criminal liability by the defendant on a relatively certain and controlled basis. That certainty and control can be lost if the Crown is allowed to change its position on something as critical as the role played by the defendant after that defendant has accepted a sentence indication, pleaded guilty, been sentenced and commenced serving that sentence.
[12] Turning to the substance of the appeal it is not necessary to undertake a detailed analysis of the matters the Crown now relies upon given even on its face the adjusted sentence the Crown ultimately seeks is so close to the threshold for a community-based sentence in any event.15
[13] I also leave aside whether this minimum appropriate sentence, identified by Mr Davie, would, if adopted, amount to impermissible tinkering; or the practical problems would arise in the event the appeal was allowed as identified by Mr Dutch.16
14 Solicitor-General v Meyer [2022] NZHC 2692 at [56].
15 For completeness it is noted that home detention is not strictly a community-based sentence. See s 44 of the Sentencing Act 2002 instead provides that the four types of community-based sentences are (a) community work; (b) a sentence of supervision; (c) a sentence of intensive supervision; (d) a sentence of community detention.
16 For example, even if at the date of the hearing Mr Latimer would have been eligible for parole after serving one-third of his sentence (noting that at that point, Mr Latimer had served five and a half months remanded in custody and a further two months on home detention post-sentence) At that point parole to a suitable rehabilitation facility may well have been approved leading him to be immediately paroled to the same location to which he had hitherto been serving a sentence of
[14] Instead, it is clear from the decision of the Supreme Court in Philip v R that even at its highest, the Crown case on appeal fell well short of meeting the high threshold for the Court’s intervention with regard to the line of authority commencing with R v Donaldson.17
[15] The outcome of Philip v R is instructive.18 In that case Mr Philip had been sentenced in the High Court to home detention for one year in respect of five charges of possession of methamphetamine for supply and two charges of possession of cannabis. On appeal by the Solicitor-General, the Court of Appeal quashed the sentence of home detention and substituted a term of two years and 11 months’ imprisonment.19 The Court of Appeal did not accept the sentencing Judge’s characterisation of Mr Philip’s role as coming within the “lesser” category, set out in Zhang v R.20 The offending was “at least on the cusp between lesser and significant categories of involvement”.21 By that point Mr Philip had served approximately seven months of his sentence of home detention.
[16] The Supreme Court allowed Mr Philip’s appeal and imposed a sentence that resulted in his immediate release. The majority of the Supreme Court accepted the High Court starting point of six years’ imprisonment was in range and that the discounts applied by the High Court were appropriate. The Court noted the high threshold for appeals by the Crown in this context:22
[43] As the respondent accepted, at least since R v Donaldson, it has been the case that an appellate court will not increase a sentence unless it was manifestly inadequate but, even if the sentence is considered manifestly inadequate, the Court is still “reluctant to interfere if this would cause injustice to the offender”. As the respondent also accepted, that is especially so where the offender has been complying with the conditions imposed as part of the community-based sentence. That is because of the harsh effect of substituting a term of imprisonment. The Court in Donaldson acknowledged that the latter consideration would not always result in the non-custodial sentencing being left undisturbed. But, where the proper custodial sentence the Court would substitute would be two years’ imprisonment or less, the “deficiency or
home detention.
17 R v Donaldson, above n 10.
18 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
19 McMillan v R [2022] NZCA 128 at [158].
20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [123]–[126].
21 McMillan v R, above n 19, at [138].
22 Philip v R, above n 18.
discrepancy in the sentence under appeal may be met by the Court indicating” the appropriate term but not reversing the sentence.
[44] In the Court of Appeal Mr Paino made submissions, reflecting the Donaldson approach, emphasising both the rehabilitative steps taken and Mr Philip’s role in parenting his infant son (now, two infants). The Court of Appeal dealt with his submission in this way:
Regrettably, the Court cannot rely on that aspect to diverge from what is otherwise the appropriate response to a successful challenge to a sentence found to be manifestly inadequate. This is not a case in which the appeal was pursued solely to avoid the creation of a wrong precedent.
[45] We do not see the latter factor as determinative. Although the sentence imposed may have been lenient, it was a therapeutic response and, moreover, a response strongly supported by the factual material that was before the Judge. The reports before the judge showed that Mr Philip had responded well to the rehabilitation programme he attended and that the presence of his son and his involvement with the child were positive factors in his ongoing rehabilitation prospects. He also had good whānau support. In these circumstances, where at the time of sentencing the rehabilitative prospects were to the fore, reversing the sentence did lead to an injustice. That was the case particularly given the procedural history and where the term of imprisonment imposed on the appeal was two years and 11 months, that is, not a great deal longer than the two year period seen as significant in Donaldson.
(Footnotes omitted).
[17] The minority of the Supreme Court (Glazebrook and O’Regan JJ) went even further. Their Honours’ concluded that the six year starting point in the High Court was too low and the eight-year starting point adopted by the Court of Appeal was the lowest available given Mr Philip’s role and the quantity of methamphetamine involved.23 Despite this significant conclusion, the minority nonetheless accepted the majority’s approach in this type of Crown appeal and agreed that the appeal should be allowed.
[18] Given the significant differential identified in that case, coupled with a clearly greater role of the appellant in Philip, and the Crown’s belated change of position as regards the sentence starting point, it is clear that the only possible result in this case is to dismiss the present appeal.
23 At [63].
Decision
[19]The appeal is dismissed.
Powell J
2
6
0