R v Read

[2014] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-070-7563

CRI-2012-070-1397 [2014] NZHC 1651

THE QUEEN

v

GARY JOHN READ

On the papers
Counsel:	R Jenson for Crown P Mabey QC for the Prisoner
Judgment:	15 July 2014

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 July 2014 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R v READ [2014] NZHC 1651 [15 July 2014]

Introduction

[1]      On 9 August 2013, I sentenced Gary John Read to terms of imprisonment on

70  counts  of  importing  pseudoephedrine  and  other  drug  dealing  and  related offences.1   The total effective end sentence of 11 years’ imprisonment was made up of a combination of cumulative and concurrent sentences.  On the principal charges, I directed that Mr Read should serve a minimum period of five years and three months’ imprisonment before being eligible for parole.  Counsel for Mr Read and for the Crown have asked me to recall some of the sentences to correct what they submit

is an unintended outcome of the sentences imposed.

[2]       The sentences were imposed in the following terms:2

(a)        On each of the 70 counts of importing pseudoephedrine you are   sentenced   to   eight   years’   imprisonment,   to   be   served concurrently with each other.   On each count, you shall serve  a minimum period of five years and three months’ imprisonment.

(b)       On the count of possession of methamphetamine for supply you are sentenced to three years’ imprisonment.  This sentence is to be served cumulatively on the sentence of eight years for the importation of pseudoephedrine.

(c)        On the count of possession of pseudoephedrine for supply you are sentenced to one year imprisonment, to be served concurrently with the other sentences.

(d)       On the count of unlawful possession of a firearm, you are sentenced to six months’ imprisonment, to be served concurrently with the other sentences.

(e)        On the count of participating in an organised criminal group you are sentenced to two years’ imprisonment, which is also to be served concurrently with the other sentences.

[3]      At [66] I said:

This means your effective end sentence is one of eleven years imprisonment, of which you shall serve a minimum period of five years  and  three  months’ imprisonment  before  being  eligible  for parole.

1      R v Read [2013] NZHC 2005.

2 At [65].

[4] That observation reflected the overall outcome I intended in imposing sentences in the terms cited at [2] above.

The error in the original sentences imposed

[5]      Mr Mabey QC and Mr Jenson have filed a joint memorandum directing my attention to the view of the relevant statutory provisions which  is taken by the Department of Corrections.  If the Department is right, Mr Read will be required to serve a longer minimum period of imprisonment than was intended by the Court; namely, one of six years and three months.

[6] The Department has calculated Mr Read’s parole eligibility date on the basis of a five year and three months minimum period in accordance with the sentence at [2](a) above, to which it has added the statutory parole eligibility date on the cumulative term of three years’ imprisonment in [2](b); namely, one year.3 This view is reached by applying a combination of ss 20(1) and 84(1) of the Parole Act

2002.  I am satisfied it is correct.  The result in law is that, if the sentences stand, Mr Read will have to serve a year longer than I had intended before he becomes eligible for parole.

What is needed to correct the error?

[7]      In the circumstances, Mr Mabey has invited me to exercise my discretion to recall the sentence judgment, so far as Mr Read is concerned, to correct the error. Mr Jenson concurs on behalf of the Crown.

[8]     Counsel have suggested that the appropriate way to sentence Mr Read consistently with my summarised intentions at [66] of the sentencing notes is to reduce the minimum parole period on the charges of importing pseudoephedrine to four years three months.  To that period a further year’s non-parole period would be added by ss 20(1) and 84(1) of the Parole Act, producing an overall minimum non-

parole period of five years and three months’ imprisonment.

3      Parole Act 2002, s 84(1).

[9]      To achieve that end, it is necessary to set aside the former sentence, if that is possible, and re-sentence Mr Read in accordance with the Court’s original intentions.

High  Court’s  inherent  and  implied  jurisdictions  to  correct  an  erroneous sentence

[10]     Section 180(1) of the Criminal Procedure Act 2011 provides the Court with a statutory jurisdiction to correct an erroneous sentence by imposing a new one.  The section applies, however, only if any sentence  is one that could not by law be imposed, or if the Court does not impose a sentence that is required by law to be imposed.

[11]     In this case, the sentences imposed were available to the Court as a matter of law.  The error arises from my having made an order as to the minimum period of imprisonment to be served in relation to the 70 counts of importing pseudoephedrine which produced a result which was not intended.

[12]     In R v Smith, the Court of Appeal held that it had the power to revisit its decisions in exceptional circumstances when required by the interests of justice.4

This  was  said  to  be  an  implied  power  necessary  for  the  Court  to  maintain  its character as a court of justice.  The Court held that recourse to the power to reopen a matter was not to undermine the general principle of finality; it is available only where a substantial miscarriage of justice would result if a fundamental error in procedure were not corrected and where there was no alternative effective remedy reasonably available.

[13]     This Court has inherent powers to correct an injustice which may result from an earlier decision, even in respect of matters which are regulated by statute, as long as that exercise is not inconsistent with the relevant legislation.5   I consider also that the Court may re-sentence Mr Read under an implied power to correct errors in the exercise of the Court’s statutory jurisdiction under the Sentencing Act 2002.   In

Smaill v Police,6  Miller J re-sentenced a prisoner on an appeal from the District

4      R v Smith [2003] 3 NZLR 617 (CA) at [36].

5    R v Moke [1996] 1 NZLR 263; (1995) 13 CRNZ 386 (CA).

Court, in order to take into account relevant facts not known to the Court at the time the appeal was decided.  In doing so, the Judge relied upon an implied power in the Court’s statutory jurisdiction under the Summary Proceedings Act 1975.

Is a practical alternative remedy available?

[14]     It would be possible for the error to be remedied by an appeal by Mr Read against the sentence, filed out of time, but it would be unduly burdensome for the Court of Appeal, Mr Read, and the Crown to have to address the matter in that way. Similar concerns about the availability and practicality of an appeal were considered by the Court of Appeal in Smith.7   In that case a second and expensive appeal to the Privy Council would have been needed if the Court of Appeal had not assumed jurisdiction to remedy the injustice.

[15]      I propose to deal with the issue by relying on the Court’s inherent and

implied jurisdictions.

Procedure for imposing correct sentence

[16]     Counsel have suggested that it would be appropriate for me to recall the sentence judgment and release revised sentencing notes containing a reduced minimum non-parole period in an amended paragraph [65](a).  While I agree with counsel’s objectives, I regret that I have concluded that the matter cannot be dealt with so simply.

[17]     It is necessary Mr Read should be re-sentenced on the 70 counts in respect of which he was convicted and sentenced to a minimum period of imprisonment.   I regard that as more than a mere administrative task.   The new sentences must be imposed, with reasons, in open court.8

[18]     The  importance  of  conducting  a  proper  hearing  to  impose  the  sentences intended is recognised in the provisions of s 182(1) of the Criminal Procedure Act

7 Above n 4, at [38].

8      Sentencing Act 2002, s 31(1); R v Scott (2003) 20 CRNZ 352 (CA) at [39].

which require, when s 180(1) is applied, that the defendant be brought before the

Court to be re-sentenced.

[19]     The inconvenience to Mr Read and to the Corrections Department of that procedure is regretted.  Any inconvenience to counsel based in the Bay of Plenty might be mitigated by agents being instructed to appear on a matter which, while important, can be dealt with routinely without the need for further submissions.

Order

[20]     In the circumstances, I direct that Mr Read be brought before me in Auckland as soon as possible so he may be re-sentenced in accordance with this judgment.

……………………………

Toogood J