R v Perry

[2019] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2014-076-000781

[2019] NZHC 1594

THE QUEEN

v

VERDUN ASHLEY PERRY

Hearing:	8 July 2019 (By way of telephone conference)
Appearances:	A R McRae for Crown S Bailey for Defendant
Reasons:	9 July 2019

REASONS OF GENDALL J

[1]    On 5 April 2017, the defendant, Mr Perry was sentenced in this Court following his conviction for manslaughter and assault with intent to rob.

[2]    Nation J sentenced Mr Perry on the charge of manslaughter to imprisonment for a period of three years seven months, and on the charge of assault with intent to rob, to imprisonment for a period of two years six months, these sentences to be served concurrently.

[3]    Subsequently, Mr Perry appealed his manslaughter conviction and sentence to the Court of Appeal, and this appeal was upheld.

R v PERRY [2019] NZHC 1594 [9 July 2019]

[4]    Mr Perry did not appeal to the Court of Appeal his conviction on the assault with intent to rob charge and in the meantime, he has now been released from his sentence of imprisonment for this charge, on the basis of time served with parole.

[5]    The Crown now seeks, however, that Mr Perry be re-sentenced on this charge of assault with intent to rob, even though as Mr McRae acknowledges this does not appear to be a situation where any increased sentence would necessarily be imposed. In his submissions before me, Mr McRae nevertheless went on to indicate that although this is likely to be a time served situation at least, it is still an issue that should be addressed in terms of s 236 of the Criminal Procedure Act 2011.

[6]With respect, however, I disagree.

[7]    When this matter was before me on 8 July 2019, I indicated as much and directed that there was no proper legal basis for Mr Perry to be resentenced on the assault with intent to rob charge here. Any resentencing which had been scheduled for Friday, 12 July 2019, was  cancelled  and  neither,  Mr  Perry nor  his  counsel, Ms Bailey, was required to attend this Court on Friday next. In making these directions, I indicated that my reasons would follow. I now set out those reasons.

[8]Section 236 Criminal Procedure Act 2011 states:

236     Confirmation or substitution of sentence for another offence

(1)This section applies if—

(a)a first appeal court allows a convicted person’s appeal against conviction for one offence (offence A); and

(b)the sentencing court took the sentence it imposed for offence A into account in imposing sentence for a conviction for a different offence (offence B) and the convicted person remains convicted of offence B.

(2)The first appeal court may—

(a)confirm the trial court’s sentence for offence B; or

(b)substitute any sentence that is allowed by law; or

(c)remit the proceeding to the court that imposed the sentence for offence B and direct that court to take any action of a kind described in paragraph (a) or (b).

[9]    In explanation of this particular provision Adams on Criminal Law at paras CPA236.02 and CPA236.03 states in part:

CPA236.02  Confirmation or substitution of sentence

Section 236 gives the appeal court a broad discretion to ensure that the sentence for the remaining offences accurately reflects the seriousness and culpability of each offence and the totality of the offending. The ability to confirm or substitute a sentence is not dependent on an appeal against sentence being before the court.

As with the previous power in s 386(1) of the Crimes Act 1961, subs 2(b) should be given a liberal and purposive construction which will permit the court to ensure that an appropriate sentence is imposed on the convicted person: R v Collie [1997] 3 NZLR 653… In that case it was held that the court could properly increase the sentence imposed on counts in relation to which no appeal had been filed where this was necessary to achieve a proper sentence for the remaining convictions…

CPA236.03  Remittal of proceeding for re-sentencing

An appeal court that remits the proceeding must also allow the appellant to go at large, grant the defendant bail or remand the defendant in custody pending sentencing...

[10]   In this case, Mr Perry’s conviction and sentence on the assault with intent to rob charge was never challenged before the Court of Appeal. His concurrent sentence of two and a half years imprisonment on conviction on this charge, as I understand it, is now effectively completed. That sentence, I repeat, was never part of the appeal, nor, did the Court of Appeal in its decision, make reference to that sentence.

[11]   From its decision, I am satisfied that the Court of Appeal did not, in any way consider, that the sentence imposed by the High Court against Mr Perry for the assault with intent to rob charge, should be substituted, or that this proceeding should be remitted back to the High Court as the sentencing court for resentencing. In terms of the comments in Adams noted above at [9], the Court of Appeal did not at any point indicate it was remitting the proceeding back to the High Court, and thus, it did not address the need for Mr Perry to go at large, for him to be either granted bail or, remanded in custody, pending sentencing.

[12]   I am satisfied the Court of Appeal in its decision in this matter effectively by implication at least took no issue with the sentence imposed by Nation J on Mr Perry for the assault with intent to rob charge. In terms of s 236(2) of the Criminal Procedure Act, there can be no question, in my view, that the Court of Appeal either substituted an alternative sentence for this offence or remitted the proceeding back to this Court.

[13]   For these reasons, I conclude that there is no legal basis for Mr Perry to be resentenced by this Court on the assault with intent to rob charge. The sentence of two years six months imposed on 5 April 2017 by Nation J for this charge stands.

[14]   For these reasons, any resentencing which was scheduled to take place in this Court on Friday, 12 July 2019 is cancelled. No appearances are required at that time by either Mr Perry or his counsel, Ms Bailey.

Solicitors:

Gresson Dorman, Timaru

Serina Bailey, Barrister, Timaru