Sipa v R

Case [2006] NZSC 52 19 July 2006

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3 NZLR

R v Edwards (Note)

349

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NOTE
R v Edwards
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

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
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
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.
[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
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
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
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
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.

Details

AGLC: Sipa v R [2006] NZSC 52
Case: [2006] NZSC 52
Decision Date: 19 July 2006

CaseChat Overview and Summary

In Sipa v R, the appellants challenged the decisions of the Court of Appeal, which had upheld their convictions and sentences. The Supreme Court of New Zealand reviewed the appeals to determine whether the Court of Appeal had correctly exercised its discretion in not offering the appellants the chance to appeal against their convictions and change their pleas. The appellants' legal representatives initially indicated they might seek to change their pleas if successful in their appeals; however, they later withdrew from pursuing the appeals, leading to their dismissal. The Supreme Court emphasized that in future appeals against sentences following a sentence indication, the respondent should provide an affidavit confirming their reliance on the sentence indication and their intention to seek a change of plea if the appeal is successful. This ensures that the Court has a clear understanding of the respondent's position and prevents futile appeals.

The court considered the practice of adjusting sentences upon a successful appeal by no more than the minimum necessary to remove the element of manifest inadequacy. The court noted that this practice would not influence the level of sentence if the matter is remitted to the sentencing court, and a guilty plea is re-entered. This aspect was relevant as the Court of Appeal had determined that the starting point for sentencing should have been around five years, and it was challenging to see how a discount of more than 20 percent could be appropriate for a guilty plea. The court's ruling underscores the importance of providing clear instructions and affidavits in appeals to ensure that the court's time is not wasted on proceedings that may not lead to substantive changes in the outcome.

Orders