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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2300
Decision Date: 22 September 2015

CaseChat Overview and Summary

Cameron Sayer, the appellant, has appealed against both his conviction and the sentence imposed on him by the Manukau District Court. Sayer pleaded guilty to two charges of burglary. The original sentencing judge, Judge Lovell-Smith, indicated a sentence of community work and supervision, which Sayer accepted. However, sentencing was delayed and a different judge, Judge Sharp, ultimately sentenced Sayer to a term of imprisonment. Sayer now appeals, arguing that he should have been given the opportunity to withdraw his guilty pleas before a different sentence was imposed. He seeks to have his conviction quashed or, alternatively, have the sentence quashed and the matter remitted back to the District Court.

The legal issue before the court was whether Sayer was entitled to withdraw his guilty pleas in light of the different sentence imposed by Judge Sharp, in accordance with section 115(2) of the relevant legislation. This section provides that a defendant must be granted leave to withdraw a guilty plea if a different judicial officer proposes to impose a different sentence from that indicated. The court had to determine if Sayer was given the opportunity to withdraw his pleas and if the sentence imposed by Judge Sharp was of a different type or a greater quantum than the sentence indicated by Judge Lovell-Smith.

Moore J held that the sentence imposed by Judge Sharp was indeed of a different type to the one indicated by Judge Lovell-Smith. Moreover, contrary to section 115(2), Sayer was not given the opportunity to vacate his guilty plea. The court quashed Sayer's convictions and remitted the matter back to the District Court, in line with the usual outcome in such cases, as noted in Te Namu v Police. The court did not make directions under section 251(2) of the Act, as the Crown had argued against it.

Sayer's convictions were quashed, and the matter was remitted back to the Manukau District Court. Sayer was remanded on bail to the Manukau District Court on the same terms and conditions as previously imposed.

Orders