R v Rowe

[2007] NZCA 492

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/07 [2007] NZCA 492

THE QUEEN

v

PAUL ALEXANDER ROWE

Court:  Wilson, Chisholm and Potter JJ Counsel:        M A Kennedy for Appellant

S B Edwards for Respondent

Judgment (On the papers):     9 November 2007         at 12.30pm

JUDGMENT OF THE COURT

Appeal allowed and Extended Supervision Order quashed.

REASONS OF THE COURT

(Given by Wilson J)

[1]      This appeal has been heard on the papers under s 392B of the Crimes Act

1961.   The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon

this Judgment.

R V PAUL ALEXANDER ROWE CA CA448/07  9 November 2007

[2]      In the District Court at Auckland on 17 August this year, Judge Cunningham made an Extended Supervision Order against the appellant for a period of seven years.

[3]      Mr Rowe appealed against the making of the order on the ground that there was no jurisdiction to make it.

[4]      In the written submissions for the Crown, counsel responsibly, and we think correctly, acknowledged that there was no jurisdiction because the appellant did not come within the definition of an “eligible offender” in s 107C(1) of the Parole Act

2002.

[5]      Paragraph (b) of the definition materially requires that the offender “has not ceased, since his or her latest conviction for a relevant offence … to be subject to a sentence of imprisonment … or to release conditions …”

[6]      Mr Rowe has not been continuously subject to a sentence of imprisonment or to release conditions since 30 September 2004, the date of his latest (and only) conviction for a relevant offence.

[7]      There was therefore no jurisdiction to make the order.  The appeal must be allowed and the order quashed.

[8]      In fairness to Judge Cunningham, we record that the specific  ground on which we are allowing the appeal was not advanced by either party in the District Court.

Solicitors:

Crown Law, Wellington for Respondent