Sipa v R

[2006] NZSC 52

3 NZLR

R v Edwards (Note)

349

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1. NOTE

   R v Edwards

2. Supreme Court of New Zealand   [2006] NZSC 52

   14 June; 19 July 2006

   Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

Criminal  practice  and procedure  – Sentence – Appeals – Following sentence

1. indication  – Affıdavits required  by appellate  Court.

   The judgment of the Court was delivered by

   BLANCHARD J. [Paragraphs [1] – [4] are omitted from this report. See [2006] 3 NZLR 180 (CA) for background facts.]

   [5]      The ground approved for the appeals to this Court, in terms of R  29 of

2. the Supreme Court Rules 2004 (SR 2004/199), was whether, before allowing the   Solicitor-General’s    appeals,   the   Court   of   Appeal   should,   in   the circumstances  of the present cases, have expressly  offered the appellants  the opportunity to appeal against their convictions, and thereby to seek their setting aside and the remission of the cases to the District Court for reconsideration of

3. their  pleas.  This  Court  anticipated   that  Mr  Starling,   appearing   for  both appellants, would have definite instructions from his clients on the question of whether they would indeed wish to change their pleas. The Court was therefore surprised to be told at the opening of the hearing on 14  June that counsel had no instructions on the question.

4. [6]      The Court was concerned that it might be a pointless exercise to hear the appeals and determine them as sought by the appellants, only to find that the appellants  again pleaded guilty when the matter was returned  to the District Court. We therefore indicated that we would not proceed to hear the appeals unless  and until the Court  received  affidavits  from the appellants  indicating

5. that, if successful, they would enter pleas of not guilty to the charges.

   [7]      Affidavits   have  now  been  received   from  both  appellants.   Having

   received further advice, they do not wish to proceed with their appeals. They are accordingly dismissed.

   [8]      A Court hearing an appeal by the Solicitor-General  against a sentence

6. given after a sentence indication should in future be provided with an affidavit from the respondent: (a) attesting to his or her reliance upon the sentence indication in electing to enter a plea of guilty; and (b) confirming that, if the Court considers the sentence should be increased, he or she would seek to have the conviction quashed and the matter remitted to the sentencing Court for the

7. guilty plea to be vacated and a plea of not guilty entered.

   [9]      Upon a successful appeal by the Solicitor-General a sentence is adjusted

   by  no  more  than  the  minimum  extent  necessary  to  remove  the  element  of manifest inadequacy. Those advising a respondent  should appreciate that this practice will not influence the level of sentence imposed if, after a conviction

8. is set aside and the matter remitted to the sentencing Court, there is a further

350

Supreme Court of New Zealand

[2006]

change  of mind  and a plea of guilty  is again  entered.  That could  have had significance in the present case, where the Court of Appeal was of the view that the starting point for sentencing was properly in the region of five years, and that it was difficult to see how a discount of more than 20  per  cent could have

been appropriate for a guilty plea.  5

Appeals dismissed.