Rerekura v Police
[2021] NZHC 273
•24 February 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-21
[2021] NZHC 273
BETWEEN PETER REREKURA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15, 18 February 2021 Appearances:
Mr Rerekura, Appellant in person, 15, 18 February 2021 Mr T Cheng for the Appellant on 18 February 2021
J Kang for the Respondent
Judgment:
24 February 2021
JUDGMENT OF DUFFY J
This judgment is delivered by me on 24 February 2021 at 4:30 pm
.....................................................
Registrar / Deputy Registrar
Solicitors:
Meredith Connell, Auckland
And to:
The Appellant Mr T Cheng
REREKURA v NEW ZEALAND POLICE [2021] NZHC 273 [24 February 2021]
[1] The appellant, Peter Rerekura, was convicted and sentenced by Judge Glubb in the Waitakere District Court for offences of aggravated assault, reckless driving and failing to stop.1 For the aggravated assault, Mr Rerekura received a sentence of seven months’ imprisonment to be served cumulatively on his “current sentence”. For each of the remaining offences he received sentences of two months’ imprisonment to be served concurrently with the seven month sentence. He now appeals against conviction and sentence for the aggravated assault.
[2] The appeals are brought out of time and require leave of this Court. The circumstances that have triggered the appeals were not known to Mr Rerekura until well after time for bringing the appeals had expired. Further, there is merit in the arguments he makes. Accordingly, I am satisfied there is a proper basis for granting leave to appeal out of time.
[3] Mr Rerekura’s complaint about how matters were dealt with in the District Court centres on the effect of the imposition of a cumulative sentence and his lack of knowledge as to how that sentence would operate. In short, had the sentence been imposed concurrently, Mr Rerekura would have been released from prison last year. Because the sentence was imposed cumulatively, the sentence will not expire until 23 April 2021. Mr Rerekura was not aware of this at the time he accepted a sentence indication. Neither were his lawyer or the sentencing Judge. The question is whether these circumstances warrant the intervention of this Court on appeal. To understand the complaint, it is necessary to recall the legal context in which Mr Rerekura came before Judge Glubb.
Background to the entry of guilty pleas an sentence on 21 July 2020
[4] Mr Rerekura was sentenced to a total of nine years and six months’ imprisonment on 8 March 2012.2 This represents an aggregate of cumulative sentences he received from Potter J in this Court. There were cumulative sentences for three sets of offending. In addition, Mr Rerekura was re-sentenced following the cancellation of a sentence of home detention for other offences. Because criminal
1 Police v Rerekura DC Waitakere CRI-2020-090-000987 (21 July 2020).
2 R v R [2012] NZHC 479.
history is a relevant consideration for sentencing purposes, it is helpful to set out the various offences and the sentence structure.
First set of sentences
[5] On each of the four charges of injuring his daughter with intent to injure, Mr Rerekura was sentenced to four years, three months’ imprisonment. He also received two concurrent sentences of one year’s imprisonment for assault on a child.
Second set of sentences
[6] On a charge of unlawfully taking a motor vehicle, he received a sentence of three months’ imprisonment to be served cumulatively on the other sentences imposed.
Third set of sentences
[7] On a charge of aggravated robbery, Mr Rerekura was sentenced to four years six months’ imprisonment. This sentence was imposed cumulatively on the sentences of four years, three months’ imprisonment in the first set above and the sentence of three months’ imprisonment in the second set.
[8] Also, in the third set of sentences, Mr Rerekura received sentences of three months’ imprisonment on two charges of unlawfully taking a motor vehicle; one months’ imprisonment on two charges of driving while disqualified (and a six month disqualification for driving). He was convicted and discharged on one offence of failing to stop for red/blue lights.
Fourth set of offences
[9] These were offences of driving with excess breath alcohol (EBA) third or subsequent offence (maximum sentence two years’ imprisonment) and possession of cannabis. Mr Rerekura had initially received a sentence of home detention for these offences and had served one and a half months of that sentence before he came before Potter J for sentence on the other offences. His imprisonment on those offences meant he could no longer complete the home detention sentence and was therefore required to be re-sentenced. Potter J accepted the Crown’s suggestion of six months’
imprisonment for the EBA charge and imposed a three month concurrent sentence for the possession of cannabis charge.3 These two sentences were to be served concurrently but they were cumulative on the sentences for the other three sets of offending.
[10] Before his conviction and sentence on 21 July 2020, Mr Rerekura’s sentence end date was 23 September 2020. This informs me that by 21 July 2020, the only live sentence for the sets of cumulative sentences imposed by Potter J in 2012, was the six months’ imprisonment sentence for the EBA charge.
Release from prison and subsequent events
[11]Mr Rerekura was released on parole on 17 February 2020.
[12] On 26 February 2020, he was arrested on the charges for which he was convicted and sentenced by Judge Glubb. Also, on 26 February 2020 an interim recall order from parole was made by the New Zealand Parole Board. A final recall order was subsequently made on 21 April 2020.
[13] The District Court file shows that Mr Rerekura first came before the District Court on the latest offending on 26 February 2020. On 4 May 2020 the Record of Hearing shows that he entered not guilty pleas and was remanded in custody to 21 July 2020 for a sentence indication hearing. No date was allocated for a Judge alone trial.
Hearing on 21 July 2020
[14] A transcript of the hearing on 21 July 2020 shows that Mr Rerekura, who was then represented by Mr Eastwood, came before Judge Glubb at 2:46pm.4 The transcript of the legal discussion before the Judge reveals that Mr Rerekura attended the Court hearing by video link. The sentencing indication of seven months’ imprisonment on the lead charge of aggravated assault was given.
3 Above n 2, at [79].
4 The transcript was filed by the Crown in the judicial review proceedings brought by Mr Rerekura: Rerekura v Prison Director Auckland South Corrections Facility HC Auckland CIV-2020-404- 002254 (21 December 2020). It was admitted into evidence with the consent of Mr Rerekura and the respondent.
[15] The Judge then advised Mr Rerekura that he would have the opportunity to discuss the sentence indication by telephone with Mr Eastwood. However, before this happened, Mr Eastwood asked the Judge if the proposed sentence would be concurrent or cumulative. The Judge said it would be cumulative on the “current sentence”. The Judgethen said he had given two thirds discount, which was a reference to the discount mentioned in the sentence indication to account for the time spent in custody following recall from parole. The exchange is recorded as follows:
MR EASTWOOD:
And that would be concurrent with the existing sentence? It wouldn't be cumulative or it’s concurrent.
THE COURT:
No, it would be cumulative, MR EASTWOOD:
On the…
THE COURT:
His current sentence.
MR EASTWOOD:
On the current sentence? THE COURT:
Mhm. But I've given an allowance, in any event, for that two thirds discount. All right?
MR EASTWOOD:
All right.
THE COURT:
All right, so I’ll just stand it down and Mr Eastwood will talk to you, and I’ll come back to you shortly Mr Rerekura. Thank you.
COURT ADJOURNS: 2:54 PM
[16] The Court recommenced at 3:02pm when Mr Eastwood advised the Judge Mr Rerekura would plead guilty to the charges based on the sentencing indication. There was some further brief exchange between the Judge and Mr Eastwood. Mr
Rerekura waived his right to a pre-sentence report and then the sentencing commenced.
Structure of sentence indication and sentence
[17] In the sentencing indication the Judge identified aggravating factors being a degree of premeditation in terms of the manner of Mr Rerekura’s driving, and the risk associated with driving to both the community and the victim specifically. There was also the prolonged nature of the police pursuit, and the fact that the victim of the assault was a sworn police officer acting in the execution of his duties. The Judge identified aggravating factors personal to Mr Rerekura being his previous conviction history, and the fact that he offended whilst on parole. The Judge saw no mitigating factors.
[18] The police had sought a global starting point of 12 months’ imprisonment for the offending with an uplift for previous offending and a discount for the guilty pleas. Mr Eastwood sought a starting point in the range of six to eight months’ imprisonment with a discount for the guilty pleas, leading to a possible four month end sentence.
[19] The Judge adopted a starting point of ten months’ imprisonment for the aggravated assault charge. He uplifted that by two months for the driving related offending, and one month for previous convictions. He described the one month uplift for previous convictions as generous, given Mr Rerekura’s criminal history. He mentioned: nine convictions for violence, four for burglary, three for unlawfully taking a motor vehicle, two for aggravated robbery, and one for rape. As to driving convictions there were three for driving whilst disqualified, two for failing to stop and a breach of home detention. With the uplift the Judge came to a sentence of 13 months’ imprisonment. He then gave Mr Rerekura a discount of 20 per cent for his guilty plea which he calculated from the 13 months, which brought the sentence down to 10.4 months. The Judge noted that Mr Rerekura had spent five months on recall. The Judge was aware Mr Rerekura would not get any credit for that time spent in prison. The Judge said he would give a discount for the guilty plea of 20 per cent.
[20] The Judge referred to authorities which, he said, provide for a two thirds allowance in such circumstances. Accordingly, he discounted three months from the
five months served on recall on remand. This brought the end sentence indication down to seven months’ imprisonment. There was also a disqualification from driving.
[21] The formal record of the sentencing indication omits any reference to the exchange between the Judge and Mr Eastwood regarding whether the new sentence would be cumulative or concurrent.
[22] The sentencing notes follow the sentence indication. The Judge referred to the sentence indication, stating the end sentence was one of seven months’ imprisonment cumulative on Mr Rerekura’s “current sentence”. The Judge adopted the sentence indication and stated he would not repeat the balancing exercise. He then set out in greater detail than he had in the sentencing indication an account of the summary of facts. The Judge then repeated the starting point, the uplifts for aggravating features of the offender and the guilty plea discount. The Judge again referred to the sentence of seven months’ imprisonment which he had reached as being cumulative on Mr Rerekura’s current sentence. He then proceeded to deal with the question of whether Mr Rerekura would be granted leave to convert the sentence to one of home detention, stating as follows:
I do not grant leave to convert. It is a short term of imprisonment and it is one that I have a discretion in appropriate circumstances to do so. I look to the need for denunciation, deterrence and the need to hold you to account and also protect the community. I am simply not satisfied in the circumstances that a conversion of this sentence is appropriate and I would decline.
[23] The Judge next dealt with the two driving offences and the period of disqualification from driving which was 30 months starting on 26 February 2020.
Corrections intervention post sentence and following events
[24] On the day Mr Rerekura was sentenced, the warrant of imprisonment executed by Judge Glubb identified the earlier charge of aggravated robbery (CRN 11019002973) as the base charge on which the cumulative sentence for the aggravated assault was to rest. By 21 July 2020, Mr Rerekura would have completed serving his sentence on the aggravated robbery charge and have been some way towards serving the sentence on the EBA charge, which was the final cumulative charge imposed in 2012 by Potter J.
[25] As explained in the affidavit sworn in the judicial review proceeding by Karl Van der Veen, senior advisor sentence calculations employed by the Department of Corrections (Corrections), under the first warrant of imprisonment that Judge Glubb executed Mr Rerekura would have had a sentence expiry date of 21 October 2020 on the aggravated assault and driving charges.5 This was the sentence expiry date that Corrections first gave to Mr Rerekura, which is why he took no steps to appeal his sentence within the required time limit.
[26] Mr Van der Veen has deposed that it was not until mid-October 2020 that Corrections staff realised that the warrant of imprisonment for the seven month sentence was made cumulative on the sentence for the aggravated robbery charge and not the sentence for the final charge (the EBA charge). Corrections contacted the District Court and on 20 October 2020 a new warrant was executed by Judge Glubb which recorded the seven month prison sentence as being cumulative on the EBA charge (CRN10068000382). The change was made without any notice beforehand to Mr Rerekura. The effect was to extend his sentence end date to 21 April 2021. Once this came to his attention he took steps to challenge his detention.
[27] On 23 November 2020, Mr Rerekura commenced his judicial review proceedings against Corrections and the District Court, challenging the lawfulness of the revised calculation of the sentence end date. Throughout those proceedings, Mr Rerekura has represented himself with the assistance of another prisoner, Thomas Cheng.
[28] On 22 December 2020, Walker J issued a minute in which she referred to the affidavit evidence given by Mr Van der Veen and suggested that, given the explanation from Crown counsel regarding the calculation of sentence end dates for cumulative sentences under s 75 of the Parole Act 2002, Mr Rerekura may have to pursue his complaint about the sentence he received on 21 July 2020 by appeal rather than judicial review. On 16 January 2021 he filed his notice for leave to appeal out of time.
5 This affidavit, which was filed in Rerekura v Prison Director Auckland South Corrections Facility, above n 1, was admitted by consent in this appeal.
[29] Given the timeline of relevant events and Mr Rerekura representing himself from prison I am satisfied Mr Rerekura has acted expeditiously and has a proper explanation for the appeal being brought out of time.
Approach on appeal
Appeal against conviction
[30] In general, where an offender complains that his or her sentence departs from a sentence indication, leave can be sought to withdraw the guilty plea.6 Leave may be given where the Court is satisfied it is in the interests of justice to do so. This can occur where the sentence imposed does not meet the expectation generated by the sentence indication. Vacation of the guilty plea therefore remedies the potential injustice by returning the defendant to his or her former position.7 However, where much of the sentence has already been served, vacation of the guilty plea is not a realistic option. This is such a case. Mr Rerekura responsibly decided to abandon the appeal against conviction, after I explained his position to him at the hearing.
Appeal against sentence
[31] Section 250(2) of the Criminal Procedure Act 2011 provides the Court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.8 In deciding whether to impose a different sentence, the Court does not substitute its own view for that of the original sentencing Judge.9 Rather, it must be shown that the sentence imposed is manifestly excessive or wrong in principle.10 The focus is on the end result rather than the process by which the sentence was reached. It is the “appropriateness of the final sentence that counts, not how it is made up”.11
Counsel submissions
6 Criminal Procedure Act 2011, s 252.
7 See Nuku v R [2016] NZHC 2255 at [21].
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
10 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, above n 9, at [30]–[35].
11 Hughes v R [2012] NZCA 388 at [29].
Submissions for Mr Rerekura as appellant
[32] Mr Rerekura was assisted throughout the hearing by his McKenzie friend Thomas Cheng, who made submissions on Mr Rerekura’s behalf.
[33] First, Mr Rerekura contends that Judge Glubb failed to exercise his sentencing discretion properly when he imposed a cumulative sentence of seven months’ imprisonment, as follows: (a) failure to examine the appropriateness of a cumulative sentence; (b) failure to consider the impact of the combined sentences under the totality principle; (c) failure to consider whether a concurrent sentence would suffice.
[34] Secondly, Mr Rerekura argues that he had arguable defences to the aggravated assault charge: (a) he had grounds to dispute whether the Police could prove the mens rea element of that charge; and (b) there was double jeopardy because the circumstances supporting the aggravated assault charge flowed from the reckless driving charge. The transcript shows these arguments were alluded to by Mr Eastwood at the sentencing indication stage before Judge Glubb.
[35] Mr Eastwood told the Judge that Mr Rerekura accepted the reckless driving and the failing to stop charges, but was disappointed the police wanted to pursue the aggravated assault charge. The reckless use charge was sufficient to cover circumstances where Mr Rerekura drove off the road onto a grass verge causing a police officer to jump out of the way. Mr Rerekura says he had no intention of running into the police officer.
[36] Mr Rerekura contends that he abandoned the potential defences because after finding himself recalled from parole following the new charges he wanted them resolved early. The sentence he was recalled to serve expired on 23 September 2020 and he did not want to be facing outstanding charges or the prospect of further time in custody at some later date. Hence the attraction of the sentencing indication, which he believed would result in a short sentence that allowed his release before the end of 2020. Thus, the guilty pleas were entered based on a belief he would be out by 2020.
[37] At the sentencing indication hearing, Mr Eastwood alluded to the presence of arguable defences and the willingness to abandon them and enter guilty pleas if a short sentence were to be imposed.
[38] Mr Eastwood also referred to the police reluctance to withdraw the aggravated assault charge. He said that Mr Rerekura wanted the new charges dealt with promptly because he had two months to run of his present sentence, with a release date on 23 September 2020. Mr Eastwood then submitted that if the aggravated assault charge remained live it was relevant that no one was injured. He then asked the Judge if he would give a sentence indication on the aggravated assault charge in this way:
“Give him something like – it may not attract time served because he’s and Mr Mills may be able to help us on this but he’s actually a sentenced prisoner. He may not be getting credit for time spent on remand, would that be correct?”
[39]Mr Eastwood continued:
“He’s been sitting on remand for six months. These matters triggered his remand in custody an application for recall which was successful, but it was this incident that triggered it, but he can get no credit for it. He does have a release date but it’s been a long sentence for him.”
[40] Mr Eastwood then referred to Mr Rerekura having a sterling work record in prison and that work was now available to him in Otorohanga. Mr Eastwood then said:
“So I was going to suggest would your Honour be minded to deal with it by way of four months’ prison. Maybe a starting point of six to eight months and we come around to four months that means he would be out on 21 September and he gets released on 23 September.”
[41] Mr Eastwood went on to reiterate: “There was no assault as such, there was no injury, the officer didn’t suffer injuries either from hitting the vehicle or having to run and fall over”. The police prosecutor contested Mr Rerekura’s explanation regarding the aggravated assault, maintaining that police evidence showed Mr Rerekura made two attempts to drive towards the police officer. However, this statement is not consistent with the summary of facts, which refers to one incident of the vehicle being driven at a police officer.
[42] Thirdly, the uplift for the reckless driving charge was said to be excessive because this charge carries a maximum sentence of three months’ imprisonment. The
offence of failing to stop when followed by red/blue flashing lights does not carry a prison sentence.
[43] Fourthly, Mr Rerekura argued that based on his understanding that he would be released in late 2020, he waived his right to a pre-sentence report. This meant the Judge was without the assistance of a pre-sentence report, which prejudiced Mr Rerekura because the relevant sentencing considerations identified in Zhang v R regarding totality, social, cultural and economic background were not before the Judge and therefore not able to be considered in sentencing.
[44] In summary, it was submitted for Mr Rerekura that the sentence was imposed without proper exercise of judicial sentencing discretion. It was apparent from the circumstances of the sentence indication and the sentencing, that an error of law occurred. Whether the sentence was to run concurrently, and the effect of a cumulative sentence were not properly considered. The interests of justice require that these factors are now considered afresh. It was also said that much of Mr Rerekura’s case last year was dealt with during the Covid period, when there were no prison visits and it was difficult for prisoners to have legal contact with their lawyers.
[45] In relation to whether Mr Rerekura’s offending qualified for cumulative sentences under the Sentencing Act, it was said for Mr Rerekura that an approach should not be followed simply because that was the way things are typically done, it was important to deal with sentencings on a case-by-case basis, not at ‘one size fits all’ basis. In this regard, Mr Rerekura relied on statements from the Court of Appeal in Zhang v R.
Submissions for the New Zealand Police as respondent
[46] The respondent submitted that Judge Glubb had no choice but to impose a cumulative sentence. By operation of law, only a cumulative sentence was possible. Here the respondent referred to s 84 of the Sentencing Act and relevant authorities, which show the Courts have consistently held that cumulative sentences are appropriate where two or more sets of offences are unrelated or comprise different
forms of criminality.12 Here the offences comprising the first and second sentences were distinct, separate events which were different in nature. The facts comprising the first and second sentences were not a connected series of offences and were separated by a period of approximately eight years. Accordingly, it would have been contrary to sentencing principles to impose sentences concurrent with the earlier sentences.
[47] There was violence with the aggravated assault. Further, the Judge recognised the impact of the recall order by making an allowance of three months which, in the circumstances, was lenient. The sentence would otherwise have been ten months’ imprisonment.
[48] The imposition of a cumulative sentence was stated in open court during the sentencing indication phase and at a time before Mr Rerekura had entered his guilty pleas. Here, if there was a misunderstanding about the effect of the sentence it was between Mr Rerekura and Mr Eastwood.
[49] Regarding the effect of the seven month sentence, the respondent responsibly and fairly accepted that Mr Rerekura was labouring under a mistake that may have been caused by Mr Eastwood, and which was partly due to the speedy nature of the sentencing process in this case, including the waiver of the pre-sentence report.
[50] As to the arguments about the adverse impact on Mr Rerekura’s release dates, s 88 of the Parole Act provides that release dates are to be undertaken by the Chief Executive of the Department of Corrections. Under the Act, it is not for the court to concern itself with attempting to calculate release dates and the time that would actually be served on a sentence of imprisonment. In practical terms, it would be too complex to expect Judges to engage in calculating release dates.
12 R v Wallace [1983] NZLR 758 (CA); R v Smith CA 261/97, 27 August 1997; R v Rewa CA 367/88, 20 April 1989; R v Bunning CA 37804, 6 April 2005; Hughes v R [2012] NZCA 388; R v Dobbs HC Hamilton CRI 2009-085-7829, 16 July 2010; O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302; Maihi v Police [2016] NZCA 205; Waitohi v R [2014] NZCA 614; Awatere v Police [2015] NZHC 1374.
[51] The respondent accepted that if Mr Rerekura had pleaded guilty sometime after 23 September 2020, once the sentence for the EBA charge had expired, there would have been no possibility of a cumulative sentence. It was also accepted that as no trial date had been set at 21 July 2020 it would have been open to him to maintain his guilty pleas until after 23 September 2020 and then seek a sentencing indication. Whether he could have achieved a more favourable outcome by deferring the entry of guilty pleas and sentence until after the expiry of the other sentence, is a matter of speculation. Further, the fact a more favourable outcome may have been achieved does not make the present sentence an error of law.
[52] However, the respondent maintained there was strong evidence to support the police case against Mr Rerekura: he was the sole occupant of the vehicle and found seated in the driver’s seat; there were witnesses to his driving; there was traffic camera footage; and he made partial admissions to Police.
[53] The sentences imposed were not manifestly excessive. The respondent relied on Haereroa v R where a starting point of two years six months’ imprisonment was imposed on a charge of aggravated assault where the offender had pushed a staff member of a store who had tried to stop the offender from leaving with stolen goods.13 The seven months’ imprisonment was well within the range of available sentences.
[54]Accordingly, there was no miscarriage of justice.
Discussion
[55] This case presents what Mr Cheng described as a plethora of complexities. It raises concerns about: (a) sentencing indications which do not meet with the offender’s expectations at the time the sentencing indication was given; (b) the extent to which a sentencing Judge should consider whether to impose a concurrent or cumulative sentence and in particular have regard to the sentence release dates and expiry dates for either concurrent or cumulative sentences; (c) how to discount time served on recall from parole and the quantum of that discount; (d) the risks associated with a speedy approach to the sentencing process; and finally (e) whether any errors
13 Haereroa v R [2020] NZCA 169.
associated with those concerns may vitiate the sentencing process to the extent that warrants this Court looking at a sentencing afresh. Before considering these valid concerns I consider it helpful to assess whether the seven month sentence Mr Rerekura received is manifestly excessive.
Whether sentence is manifestly excessive
[56] The sentence was imposed a few days after the Court of Appeal’s decision in Moses v R was released. This proximity may explain why the judge adopted a pre- Moses approach to the sentence structure.14 The same approach, figure, and end sentence were applied in the sentence indication and the sentencing. First, the Judge adopted a starting point of 10 months’ imprisonment, which in the circumstances was generous to Mr Rerekura. Whilst he may have had good grounds to challenge the mens rea element of the aggravated assault charge, once he pleaded guilty to the charge, absent a disputed-facts hearing, he had to be sentenced according to the summary of facts. Those facts were that Mr Rerekura intentionally drove his vehicle at a police officer who was part of a police team trying to prevent him from fleeing a police pursuit. The police prosecutor had suggested a 12 month starting point, which in my view was available.
[57] The Judge uplifted the starting point by two months to take account of the reckless driving and failing to stop. The latter charge does not support a prison sentence. Mr Rerekura argues that the two month uplift for reckless driving was excessive given an overlap between that offence and the aggravated assault. I do not agree. The summary of facts discloses incidents of reckless driving that sit outside the driving supporting the aggravated assault charge. Accordingly, there was no double jeopardy here.
[58] The Judge then uplifted the sentence by one month to take account of previous convictions, which the Judge described as generous given Mr Rerekura’s criminal history. I agree.
14 Moses v R [2020] NZCA 296; this judgment was delivered on 15 July 2020.
[59] The Judge gave a 20 per cent discount for the guilty plea. Mr Eastwood had sought a 25 per cent discount. No reasons are given for the 20 per cent discount. Generally, appellate courts are reluctant to interfere with discounts for guilty pleas because a sentencing Judge may be more familiar with the process leading up to the guilty plea. Here, the District Court Record of Hearing first records Mr Rerekura appearing with counsel (Mr Eastwood) on 30 March 2020. There was a brief appearance before Judge Glubb on 20 April 2020. A not guilty plea was entered before Judge Tremewan on 4 May 2020, and Mr Rerekura then appeared before Judge Glubb at the sentencing indication hearing on 21 July 2020. In these circumstances, I doubt Judge Glubb was better informed than I am on how to view the entry of the guilty pleas. However, for the present I shall work with the 20 per cent discount.
[60] The result was a sentence of 10.4 months’ imprisonment. The Judge then turned to consider the appropriate discount due for the time Mr Rerekura had spent on recall from parole following the recent offending. The Judge realised that the Parole Act does not provide for the Chief Executive of Corrections to give any credit for this time spent in custody. The Judge referred to authorities where in such circumstances Judges had given a “two thirds allowance” and applied this approach. The Judge identified the relevant time spent in detention as “some five months it seems” which led him to give a discount of three months and so bring the sentence down to an end sentence of seven months’ imprisonment. This is where I consider the Judge went astray.
Whether concurrent sentences properly considered
[61] When the Judge set out the proposed sentencing approach in the sentencing indication he had not yet identified whether the sentence would be cumulative or concurrent. This only occurred after the formal part of the indication hearing was over,in response to Mr Eastwood’s query. However, the Judge needed to have identified this matter before he proceeded to work through the various stages of the proposed sentencing process.
[62] A concurrent sentence would take effect from the date of sentence, which was to be that day, and therefore the time spent in detention would necessarily run from
the date of recall from parole (26 February 2020) to the day of sentencing (21 July 2020), which was approximately five months. Accordingly, had the Judge given a concurrent sentence the allowance he gave for time spent on recall from parole was appropriate and in line with authorities.15
[63] However, a cumulative sentence does not take effect until the present sentence has run its course, which here was not until 23 September 2020. Given the Judge had allowed a two thirds discount for time spent in custody following recall and before sentence for the new offending, this period would necessarily have been from 26 February 2020 to 23 September 2020, which is approximately seven months. The purpose of the two thirds discount was to recognise that - but for the recent offending
- Mr Rerekura would have been on parole after 26 February 2020 rather than serving the balance of the 2012 sentences. The discount was a way of avoiding a double jeopardy in penalty. Here the overall effect of the sentence structure the Judge adopted meant that Mr Rerekura was effectively being detained in prison for 14 months: (a) the seven months between date of recall and the sentence expiry date of 23 September 2020; and (b) the seven months that ran from the sentence expiry date to 23 April 2021.
[64] Here, the application of a two thirds discount for time spent in custody following recall from parole should have been calculated over a period of seven months, which comes to 4.6 months’ imprisonment. When this is subtracted from 10.4 months’ imprisonment the result is an end sentence of 5.8 months. 16 A prison sentence of 7 months is approximately 21 per cent greater than a sentence of 5.8 months. This makes the end sentence Mr Rerekura received manifestly excessive, and warrants this Court looking at the sentencing exercise afresh. However, in deference to the arguments Mr Rerekura made, I propose to consider them before completing the sentencing exercise. Further, they will help inform me as to how to complete that exercise. This is particularly relevant when it comes to the decision about whether to impose concurrent or cumulative sentences.
15 Thomas v R [2020] NZCA 257 at [21] and the authorities cited therein.
16 I have applied the arithmetical result of deducting two thirds from a sentence of 10.4 months. In Tukuafau v R [2015] NZCA 251 at [13] the Court of Appeal allowed an allowance of five months from the full seven months that was spent in custody following recall from parole. Had I followed that approach the sentence would be further reduced to 5.4 months which is more likely to be rounded down to five months’ imprisonment. This shows the sentence imposed by the Judge to be more excessive.
[65] For Mr Rerekura, the release date for a seven month sentence would be markedly different if the sentence was concurrent rather than cumulative. This is because of the way the Parole Act treats those sentences.
[66] With concurrent sentences the sentence generally commences on the day it is imposed, which means that had Mr Rerekura’s sentence been concurrent with the EBA sentence the sentence of seventh months’ imprisonment would have run from 21 July 2020.17 Further, a sentence of this length is within s 4 of the Parole Act’s definition of a short sentence of imprisonment, which means that under s 86(1) the release date is the date on which the offender has served half of the sentence. Under s 4 of the Parole Act, the “release date” is the date an offender ceases to be liable to be recalled to serve that sentence. Accordingly, with a short-term sentence of imprisonment, once an offender has served half the sentence he or she is automatically released and cannot be recalled to serve the balance of the sentence. However, for a seven month sentence of imprisonment time spent in prison would have been no longer than three and a half months, which would have seen Mr Rerekura released some time in mid-October 2020.
[67]With cumulative sentences the Parole Act provides that:
75 Cumulative sentences form notional single sentence
(1) If, after the commencement date, an offender is sentenced to a sentence of imprisonment (a later sentence) that is directed to be served cumulatively on another sentence (an earlier sentence), the later sentence and the earlier sentence form a notional single sentence for the purpose of determining—
(a) whether the offender is subject to a long-term sentence or a short term sentence; and
(b) the non-parole period to apply when determining the offender’s parole eligibility date; and
(c) the release date to apply when determining the offender’s statutory release date.
(2) If the earlier sentence is part of a series of cumulative sentences, then all the sentences (including any pre-cd sentences) in that series, along with the
17 Section 76 of the Parole Act provides the general requirement that sentences start on the day they are imposed. The section is subject to ss 77 to 81, none of which would have applied had Mr Rerekura received sentences that were concurrent on his existing sentence.
later sentence, form a notional single sentence for the purpose described in subsection (1).
(3) Every sentence (including any pre-cd sentences) in a series of cumulative sentences links to the next one in the series at its sentence expiry date.
(4) Every notional single sentence is deemed to be a sentence that is imposed on or after the commencement date, even if it contains a pre-cd sentence.
(emphasis added).
[68] Under s 77 of the Parole Act, the start date of a notional single sentence is the start date of the first sentence in the series of sentences that forms the notional single sentence.
[69] The effect of ss 75 and 77 on the present case is that the seven month sentence of imprisonment joined onto the entire series of sentences that Potter J imposed on 8 March 2012. This meant the seven month sentence could not be a short term sentence of imprisonment for the purposes of s 86, and therefore could not attract the automatic early release.
[70] Given the significant difference between the two forms of sentence, I consider their effect in terms of eligibility for release was a relevant consideration that Judge Glubb should have considered. It is difficult to know why he imposed a cumulative sentence rather than a concurrent sentence because he did not give reasons for doing so. Were it not for Mr Eastwood’s query after the sentencing indication hearing had ended, the form of the sentence may not have been known until the sentence was delivered.
[71] Section 31 of the Sentencing Act 2002 requires a sentencing Judge to give reasons, with whatever level of particularity is appropriate to the particular case. Given the difference in consequences for Mr Rerekura, I consider that some reasons were required to explain why a cumulative rather than concurrent sentence was imposed. This was a legal error on the part of the Judge. Had it not been for Mr Eastwood’s inquiry, the prospect of a cumulative sentence may not have become known to Mr Rerekura until he was sentenced.
[72] The respondent submitted the imposition of a cumulative sentence was required by operation of law; in which case no reasons would be required. However, I reject that submission. It is not consistent with the language of the Sentencing Act. Section 83 says that cumulative sentences may be imposed. Section 84 provides guidance on the imposition of cumulative and concurrent sentences. Whilst s 84 provides that cumulative sentences are “generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences” this language allows room for choice. It does not mandate the imposition of cumulative sentences. This discretion is further bolstered by s 85 which requires a Court to consider the totality of the offending. Section 85(2) further provides that if cumulative sentences are imposed they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[73] Some of the matters I have outlined were recognised in Faulkner v R where the Court of Appeal changed a cumulative sentence of three years and eight months’ imprisonment to a concurrent sentence of the same term because a cumulative term had a disproportionate impact on the offender.18 In this case, the form of sentence imposed generated nine months’ difference between potential release dates:19
Overall, we think that a concurrent rather than a cumulative sentence is fair, being more proportionate to the offending. It would mean that Mr Faulkner is not immediately eligible for parole, but on the other hand he would have to be released from prison after the expiry of three years and eight months from the date of sentence on 11 September 2015. This is approximately nine months before he would have to be released if the sentence imposed was cumulative.
[74]The Court of Appeal found that s 84:
…envisages an offender being sentenced for offences at the same time, rather than almost seven and a half years after an earlier sentence to which a sentence for fresh offending is made cumulative.
[75] In the present case, sentences for offending in February 2021 were being attached to almost completed sentences imposed on 12 March 2012 for earlier
18 Faulkner v R [2016] NZCA 315 at [18].
19 Above n 18, at [21].
offending (on the day of sentencing, 21 July 2020, Mr Rerekura was two months away from completing his current sentence on 23 September 2020).
[76] The respondent relied on several authorities regarding cumulative sentences. However, these were distinguishable because none came close to the factual scenarios in Mr Rerekura’s case or in Faulkner.20 Further, the circumstances in which a sentence may be imposed are fact dependant.21
Whether the totality principle considered
[77] The need to have regard to totality when considering whether to impose concurrent or cumulative sentences was referred to in Hughes v R22 and in Faulkner.23 In Faulkner, the sentencing Judge failed to stand back and consider whether the total period of 25 years and 11 months’ imprisonment, arising out of cumulatively imposed sentences, was wholly out of proportion to the gravity of the offending, as required by s 85(2) of the Sentencing Act.
[78] Here there is nothing to suggest that, once he decided on a cumulative sentence of seven months’ imprisonment, Judge Glubb stood back and assessed whether the overall total period of 10 years and 1 month’s imprisonment (being nine years and six months’ imprisonment plus seven months’ imprisonment) was wholly out of proportion to the gravity of the overall offending. In Opetaia v R, there were two series of sentences, and the second was made cumulative on the first. The Judge who imposed the second series of sentences failed to consider the effect of the second series of sentences in combination with the first series. The Court of Appeal found that assessing whether the overall effect of the end sentence was “proportionate or disproportionate to the gravity of Ms Opetaia’s overall offending” was a necessary step in the sentencing process.24 The failure to do so was sufficient to warrant the Court of Appeal in Opetaia to embark on the sentencing afresh.
20 Some of the authorities pre-date the Sentencing Act and the Parole Act. In these cases, there is no distinction made between short-term concurrent sentences and cumulative sentences of the same length that are excluded from being short-term sentences of imprisonment.
21 Hughes v R, above n 11, at [36].
22 Above at [27] and [28]; although this was said in relation to multiple offending it is equally applicable to other circumstances where cumulative sentences are being considered.
23 Faulkner v R, above n 17, at [23].
24 Opetaia v R [2013] NZCA 434 at [32].
[79] Failure to assess the overall effective sentence is present here. The Judge never identified the length of the earlier series of sentences or the sum of those sentences once the seven months he proposed was added to them. In accordance with Opetaia, this is enough to warrant the sentences being set aside and fresh sentences imposed.
Whether the effects of short-term sentences considered
[80] After stating the sentence would be cumulative on the “present sentence”, which is as far as the Judge went to identify the earlier sentences, the Judge declined to grant leave to covert the sentence he was to impose to one of home detention.
I do not grant leave to convert. It is a short term of imprisonment and it is one that I have a discretion in appropriate circumstances to do so. I look to the need for denunciation, deterrence and the need to hold you accountable and also protect the community. I am simply not satisfied in the circumstances that a conversion of this sentence is appropriate, and I would decline.
[81] This indicates the Judge was mistaken as to the legal effect of the sentence he was imposing. He believed it qualified as a short-term sentence under s 86 of the Parole Act, which enabled him to impose home detention or grant leave to Mr Rerekura to apply for home detention once the earlier sentence had been completed.25 This also indicates that the Judge believed that Mr Rerekura would only serve half the term of the seven month sentence.
[82] The legal effects of short-term sentences of imprisonment are generally well known. The way in which a single notional term of imprisonment arises from a series of cumulative sentences may be less well known. In any event, the Judge did not have the necessary information before him to determine the length of the single notional term of imprisonment that would follow for Mr Rerekura if a cumulative seven month sentence were imposed. The length of the present sentences to which the new sentences would attach, and how those sentences were structured, was never identified for the Judge. It is not clear to me if he had Potter J’s sentencing notes before him. Further, he did not have the benefit of a pre-sentence report. This was waived by Mr Rerekura so that he could be sentenced the same day the sentencing indication was
25 Section 80K of the Sentencing Act permits an offender who is serving a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under s 801 of the Sentencing Act to apply at any time to the Court.
given. This means the Judge was not able to give proper consideration to the imposition of a cumulative sentence. Put another way, he did not have the necessary information to inform him of a relevant consideration to the imposition of a cumulative sentence.
Whether defendant understood effect of the sentence
[83] There is a further concern which relates to the circumstances in which the sentencing indication was accepted. Mr Rerekura has less than ten minutes between learning the sentence was cumulative (just before 2.54pm) and accepting the indication (just after 3.02pm). The Judge directed that the sentencing indication was to expire that day. Accordingly, Mr Rerekura had to decide whether to accept it or not in circumstances where he was receiving legal advice by telephone and inside a very limited time frame. The respondent accepts that Mr Rerekura misunderstood the effective length of the sentence. I have already expressed the view that neither Mr Eastwood nor the Judge understood the practical effect of the length of sentence. Given the minimal period of time between the sentencing indication being given and its acceptance, I am not surprised its overall effect was not realised. The overall effect was substantially different from what everyone in the Court room believed it to be. In Nuku v R Mander J said:
The danger that arises when a sentence does not match that indicated is that because a defendant’s expectations have not been met the plea has been entered on a false or mistaken premise. In order to meet that expectation it is necessary for an appellate Court to provide the appellant with the opportunity to vacate his or her plea in order to remedy the error and purge the potential injustice arising from the faulty process.
[84] I consider Mr Rerekura’s circumstances fit within that framework. They differ in that before the pleas were entered he had heard the sentences would be cumulative, but that was in circumstances where he did not understand what the effect of that would be; his counsel never advised him of that effect and the statements of the Judge during the sentencing indication did nothing to disabuse Mr Rerekura of his misunderstanding. In such circumstances, had he known much earlier what the overall effect of the seven month sentence would be, and applied for leave to vacate his guilty pleas, I consider such leave would have been forthcoming. It is now too late to remedy his situation by vacating the guilty pleas. However, the errors relevant to the entry of
the guilty pleas are material as they have resulted in him receiving a disproportionate sentence. Accordingly, they provide a separate basis for allowing the appeal.26
Whether a pre-sentence report should have been obtained
[85] Finally, there is the adverse effect of the sentencing proceeding without a pre- sentence report. Mr Rerekura waived the requirement to obtain a pre-sentence report because he thought he was receiving no more than a three and a half to fourmonthssentence of imprisonment. Had a pre-sentence report been obtained, the circumstance of the earlier offending and the structure of his present sentences would have been before the Judge. Either the report writer would have addressed the issue of a notional single sentence or the means to recognise its relevance in this case would have been before Mr Eastwood and the Judge. There was no need to rush the sentencing. The availability of a pre-sentence report may have been enough to allow the error in the sentencing indication to be identified before sentence was passed on Mr Rerekura.
[86] The waiver of a pre-sentence report had another adverse impact on Mr Rerekura. It meant that his personal circumstances and the reasons for the February 2020 offending were not before the Judge. Accordingly, it is not possible to know if the offending was the result of defiant, recalcitrant, recidivist behaviour or the foolish response of someone who had just been released on parole from a long sentence of imprisonment (eight years and 11 months), was stupid enough to drive while under a disqualification from driving and who then panicked because he feared loss of liberty and so compounded his trouble by fleeing from the police. Other possibilities may also exist. Without hearing Mr Rerekura’s explanation for how he came to be driving that day it is difficult to place the offending in context.
[87] Mr Rerekura is Maori. His criminal history shows social welfare supervision at the age of 15 years, corrective training at the age of 16 years and shortly thereafter adult imprisonment. This history is consistent with the social background and detrimental consequences recognised by this Court in Solicitor-General v Heta and
26 See Nahu v Police [2015] NZHC 54, where the imposition of a one-month sentence which unknowingly resulted in the appellant no longer serving a sentence of short duration, was a basis for the appeal being allowed.
Zhang v R.27 In Carr v R, the Court of Appeal rejected the Crown’s arguments that matters raised in the s 27 report for Mr Carr were too far in the past to be relevant to the conduct for which he was now to be held accountable, or that social and cultural factors that explain offending are less relevant when they pertain to earlier periods of a defendant’s life. Instead, the Court found:28
… it is clear that [Mr Carr’s] early life has contributed to the course his life subsequently took. … Recognition of a causal linkage between matters relied on in a s 27 report and the offending does not require the Court to be satisfied the matters are the proximate cause of the offending.
[88] Accordingly, here a pre-sentence report may have triggered the need for a s 27 report and the potential for Mr Rerekura to receive sentence discounts for the same type of factors that were recognised in Heta, Zhang and Carr. The waiver of the pre- sentence report, based on the mistaken belief the sentence would only be for a short term with a release before the end of 2020, led to Mr Rerekura foregoing the opportunity of gaining the benefit of an additional mitigation discount. This circumstance compounds the errors that occurred at the hearing on 21 July 2020.
[89] For all the above reasons, I am satisfied the sentence the Judge imposed contained legal errors that adversely impacted on the sentence outcome in a material way and led to a sentence that was wrong in principle. The sentence is also manifestly excessive. Accordingly, I am satisfied it should be set aside and the sentencing exercise re-done.
Sentencing calculation
[90] Aggravated assault carries a maximum sentence of three years’ imprisonment. The summary of facts is consistent with Mr Rerekura driving intentionally at the police officer. This cannot be disputed. Here, there was no harm to the police officer, but the experience would have been frightening. Police officers should not be placed at such risk. I consider a starting point of 12 months, which is one third of the maximum sentence, is appropriate. I would uplift that by 2 months to take account of the reckless driving, which the summary of facts shows to have placed others at risk and to be
27 Solicitor-General v Heta [2019] 2 NZLR 241; Zhang v R [2019] 3 NZLR 648 at [155] to [162].
28 Carr v R [2020] NZCA357 at [63] to [65].
standalone offending from the aggravated assault. That brings the starting point to 14 months.
[91] Under Moses v R, the aggravating and mitigating factors are taken from the starting point. I would give Mr Rerekura a guilty plea discount of 25 per cent. Whilst I am approaching the sentencing on the aggravated assault charge as involving intentional conduct, when it comes to assessing the appropriate level of discount for a guilty plea it is relevant that Mr Rerekura had an arguable defence concerning mens rea. The respondent referred to the strength of the police case, but the factors he identified go to proof of other aspects of the case and not mens rea. No evidence was drawn to my attention relevant to proof of that element of the charge. In terms of inferences to be drawn from the circumstances to prove mens rea, on one view the circumstances were consistent with Mr Rerekura losing control of the vehicle when he swerved to avoid the police spikes. Driving in the direction of the police officer was therefore arguably reckless rather than intentional. On 21 July 2020, Mr Rerekura gave up this defence. There was no exchange with a reduction from the aggravated assault charge; it they remained the same.
[92] In Faulkner, the Court of Appeal refused to interfere with the guilty plea discount. However, in that case the guilty pleas were offered two weeks before trial and after alternative charges were substituted for the original charges. Here, Mr Rerekura gave up an arguable defence, and pleaded guilty two months after he had entered his not guilty pleas, in circumstances where no trial date was set for 2020, and the charges were not altered. In such circumstances I consider he deserves a 25 per cent discount. Under Moses, that is calculated from the starting point of 14 months’ imprisonment, which comes to 3.5 months.
[93] Under Moses, aggravating factors relevant to the offender are also calculated from the starting point.29 Such factors include uplifts for criminal history and for offending while on parole.
29 Gray v R [2020] NZCA 548.
[94] In Sililoto v R, the Court of Appeal cited authorities for making allowance for prior convictions and time spent in custody on recall from parole. 30 The Court noted that further complications would arise if a sentencing Judge also had to consider whether cumulative or concurrent sentences should be imposed.31 Mr Sililoto was in custody for two years following recall from parole. The Court settled on an approach which applied a two thirds discount. Its approach was first to apply an uplift of six months to the starting point to reflect Mr Sililoto’s offending while on parole (being
6.7 per cent of a starting point of seven years and six months) and then to give a two thirds reduction (18 months) to remove any element of double punishment.
[95] Regarding Mr Rerekura’s criminal history, the aggravated assault charge is less serious than the earlier family violence assaults, and there is no previous history of reckless driving. In Thomas v R, the Court of Appeal considered that a 22 per cent uplift on the starting point to reflect previous convictions and recall from parole was excessive. Vernon v R and Waterworth v R, where similar uplifts were applied, were distinguished on the grounds they were given for previous convictions for similar offending.32 Here, the aggravated assault is less serious than the earlier family violence assaults, which resulted in actual injury and charges higher up the hierarchy of violent offending. There is one prior conviction for failing to stop, which does not attract a prison sentence. Accordingly, something less than a 22 per cent uplift (being three months) is required.33 I consider in these circumstances that a two month uplift adequately reflects prior offending and the fact the present offending occurred while on parole. This amounts to a 14 per cent uplift.
[96] When the discount of 3.5 months is set off against the uplift of two months, the balance comes to a deduction of 1.5 months. This reduces the starting point to 12.5 months. However, there remains the discount for time spent on recall from parole. In Moses, the Court of Appeal described the two-step methodology to be adopted in sentencing and then said that:34
30 Sililoto v R [2016] NZC 328.
31 At [39].
32 Vernon v R [2010] NZCA 308; Waterworth v R [2012] NZCA 58.
33 Here a 22 per cent uplift would be three months.
34 Moses v R, above n 14, at [48].
This methodology does not preclude credit for some mitigating factors being assessed by reference to what would otherwise be the end sentence (that is the product of step 2) where that is appropriate. For example, credit for time spent on electronically monitored bail is commonly calculated in that way.
(emphasis added)
[97] I consider that time spent on recall from parole has some resemblance to the calculation required for time spent on EM bail and for this reason I propose to deal with it now. I consider the two thirds discount applied in Sililotto v R and Thomas v R to be appropriate.
[98]Because I propose to adopt a concurrent sentence, this discount works out at
3.3 months (being two thirds of the time from 26 February to 21 July 2020). When
3.3 months are subtracted from 12.5 months the result is 9.2 months, which I round down to nine months. I am satisfied that a concurrent sentence of nine months’ imprisonment is the appropriate sentence.
Conclusion
[99] I consider a concurrent sentence is appropriate because it takes account of the fact that as at 21 July 2020 Mr Rerekura had almost completed his earlier sentence. If he had delayed entering guilty pleas until after 23 September 2020 the sentence would have been concurrent. The difference between 21 July and 25 September is insignificant and therefore unlikely to have altered the guilty plea discount I have allowed. The practical effect of the earlier series of sentences expiring on 23 September 2020 is that until the question of bail for the February 2020 offending was considered Mr Rerekura would have remained in custody until his next Court appearance. A sentence of nine months imposed on 25 September 2020 would qualify as a short-term sentence for which he would only serve half the term. Four and a half months from 25 September 2020 comes to 25 January 2021. Thus, Mr Rerekura could have achieved a shorter sentence had he delayed his guilty plea by two months. This is an outcome which illustrates how disproportionate the cumulative sentence he received is.
[100] I do not see how the discrepancies I have identified above could be fixed by recourse to the totality principle. Further, the application of that principle works best
when it is applied to multiple offending for which an offender is being sentenced at the one time.35 Trying to assess totality adjustments between the March 2012 and July 2020 sentences is an impossible task. TBecause I am unable to adjust the earlier sentences, I would need to heavily discount the present sentences. In accordance with the reasoning in Faulkner, I consider that where there is a large gap in time between the two groups of sentences and the earlier group has almost expired it is best to take a fresh approach to the later offending by imposing concurrent sentences.
[101] The general expectation is that cumulative and concurrent sentences should result in a similar overall time spent in detention. However, the Parole Act treats sentences of imprisonment of under 24 months and single notional sentences of imprisonment differently. In my view, this makes it necessary to consider this outcome in a sentencing process like the present. The respondent argued that sentence release dates should not be considered by a sentencing Judge, particularly because they can be complex and require careful calculation. However, the necessary considerations in this case do not involve calculation of release dates. All they require is knowledge of the operation of the law under ss 74, 77 and 86 of the Parole Act.
[102] The respondent drew my attention to R v Smith where the Court of Appeal allowed a Solicitor-General’s appeal against the imposition of a concurrent sentence of eight months when the offender was already serving a sentence of 12 months’ imprisonment.36 However, in that case the eight month sentence was going to be subsumed into the 12 month sentence, thus rendering the eight month sentence practically ineffective.37 It is understandable that the Court of Appeal considered cumulative sentences to be more appropriate in that case. The circumstances are quite different from the present case. What R v Smith also shows is that the appropriateness of using cumulative or concurrent sentences will turn on the specific circumstances of the index case.
35 Faulkner v R at [22].
36 R v Smith CA 261/97, 27 August 1997.
37 Above at 4; the Court of Appeal referred to an overall sentence of 12 months’ imprisonment falling far short of an appropriate response to offences of fraud and serious violence.
Result
[103]Leave to appeal against sentence out of time is granted.
[104]The appeal against sentence is allowed.
[105] The sentence of seven months’ imprisonment cumulative on CRN 10068000382 is set aside. In its place Mr Rerekura is sentenced to a concurrent sentence of nine months’ imprisonment. The sentence takes effect from 21 July 2020 and runs concurrently with any other sentence that was alive at that date.
[106] Because a concurrent sentence of nine months’ imprisonment is a short term sentence of imprisonment under s 86 of the Parole Act, Mr Rerekura is entitled to be released following service of half the term of this sentence.
Duffy J
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