Sayer v Police

[2015] NZHC 2300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000232 [2015] NZHC 2300

BETWEEN

CAMERON SAYER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 September 2015
Appearances:	Mark Edgar on instructions from Victor Heather for the Appellant Luke Radich for the Respondent
Judgment:	22 September 2015

[ORAL] JUDGMENT OF MOORE J [Appeal against sentence]

SAYER v NEW ZEALAND POLICE [2015] NZHC 2300 [22 September 2015]

Introduction

[1]      Cameron  Sayer  pleaded  guilty  to  two  charges  of  burglary  following  a sentence indication of community work and supervision.  He accepted the indication but sentencing was delayed.  He was then sentenced by a different Judge to a short term of imprisonment.

[2]      Mr Sayer now appeals his conviction and sentence on the basis he ought to have been offered the opportunity to withdraw his pleas of guilty before a sentence different to that earlier indicated was imposed.   He seeks to have his conviction quashed or, alternatively, have the sentence quashed and the matter remitted back to the District Court.

Background

[3]      Mr Sayer faced two charges of burglary arising out of separate events in January 2015.  He entered pleas of not guilty in the Manukau District Court and was remanded to a Case Review Hearing.

[4]      At the Case Review Hearing he sought a sentence indication.  Judge Lovell- Smith gave an indication of community work and supervision and observed that the sentence was likely to be influenced by Mr Sayer’s commitment to undertaking his outstanding hours of community work. The matter was adjourned.

[5]      Mr Sayer next appeared before a different Judge who adjourned the case for a restorative justice meeting to be convened.  It seems that the victim or victims to the offending were not prepared to participate in the restorative justice process.

[6]      Mr Sayer then appeared for sentence before Judge David Sharp.  It appears that Judge Sharp was unaware of Judge Lovell-Smith’s earlier indication.  This was entirely understandable given the following matters:

(a)      Judge Lovell-Smith’s note, which recorded the sentence she had indicated, would not have been obvious.  The Court record does not include the details of the sentence indicated.  The charge sheet has a

handwritten note which reads “S-CW & Sup” which is presumably shorthand for Sentence-Community Work & Supervision.   Such  a note would have been perfectly adequate as an aid memoir for Judge Lovell-Smith had she, as is the usual practice, been the sentencing Judge.   However,  because the matter was  listed by the Court  for sentence before Judge Sharp it is entirely explicable he would not have appreciated a sentence indication had been given.

(b)Mr Heather, for Mr Sayer, has frankly and properly acknowledged he overlooked drawing Judge Sharp’s attention to Judge Lovell-Smith’s indication.

(c)      The pre-sentence report erroneously stated that no sentence indication had been provided.    The pre-sentence report recommended imprisonment.

[7]      But  for  the  earlier  indication,  Judge  Sharp’s  sentence  of  nine  months’

imprisonment was plainly within his sentencing discretion.

The law

[8]      The Court must grant leave to a defendant to withdraw a plea of guilty where a  different  judicial  officer  proposes  to  impose  a  different  sentence  from  that indicated.  Section 115(2) relevantly provides:

“115    Plea of guilty may be withdrawn by leave of court

(1)       …

(2)      The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

(a)       …

(b)       the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.”

Submissions

[9]      Mr Edgar submits that by reason of the operation of s 115 Mr Sayer was not provided the opportunity to vacate his pleas of guilty.   He submits the sentence indication generated an expectation in reliance on which Mr Sayer pleaded guilty.

[10]     Mr Edgar  submits that  Mr Sayer’s  conviction  and/or sentence should  be quashed and the matter remitted back to the Manukau District Court.

[11]     He also submits this Court should order the District Court to make directions in terms of s 251(2)(a) or (b) of the Act, namely to set aside the sentence and impose another sentence or vary the sentence or vary any part of the sentence.

[12]     Mr Radich, for the Crown, accepts that it is appropriate for the sentence to be quashed but does not accept it would be appropriate for the Court to make the directions sought by the appellant under s 251 of the Act.  He submits that the proper course would be to remit the matter back to the District Court for sentencing because the contents of the pre-sentence report, which was prepared after Judge Lovell-Smith gave her sentencing indication, makes it likely that in the event of convictions the sentence which Mr Sayer would receive would be more severe than that indicated by Judge Lovell-Smith.

Decision

[13]     In the circumstances and for the reasons set out above I am satisfied that the sentence imposed by Judge Sharp was of a different type to the one indicated by Judge Lovell-Smith.  Furthermore, it is apparent that contrary to s 115(2) Mr Sayer was not given an opportunity to vacate his guilty plea.

[14]     The  notice  of  appeal  records  this  is  an  appeal  against  conviction  and sentence.   It is thus open to me to quash either the convictions or the sentence.   I agree with the comments of Courtney J in Te Namu v Police that the regular outcome

in such cases should be that the conviction is quashed and the matter remitted back.1

1      Te Namu v Police [2013] NZHC 3443 at [10].

I propose to adopt that course.   It will then be for Mr Sayer to decide whether he wishes to plead guilty or not guilty to these charges.

[15]     I am not prepared to make directions in terms of s 251(2)(a) and (b) of the

Act for the reasons relied on by the Crown.

Result

[16]     The convictions are quashed.

[17]     The matter is remitted back to the District Court.

[18]     Mr Sayer is remanded on bail to the Manukau District Court at 10:00am on

Monday, 19 October 2015, being a nominal date on the same terms and conditions as previously imposed.

Moore J

Solicitors:

Mr Heather, Auckland

Crown Solicitor, Manukau