Smaill v Police HC Dunedin CRI 2010-412-16
[2010] NZHC 1424
•5 August 2010
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2010-412-16
BETWEEN AARON ROBERT SMAILL Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 30 July 2010
Counsel: S A Saunderson-Warner and G Ambler for Appellant
R Smith for Respondent
Judgment: 5 August 2010
JUDGMENT OF MILLER J
[1] At the end of the hearing this morning I reopened my judgment of 14 May
2010 and substituted sentences as follows:
• On the lead arson (x2) and burglary (x2) charges, I set aside the sentence of
19 months imprisonment and substituted concurrent sentences of 13 months imprisonment;
•On the other indictable charges tabulated in paragraph [2] of my judgment, I set aside the sentences of 12 months imprisonment and substituted concurrent sentences of 9 months imprisonment;
•The penalty of two months imprisonment on the summary theft charges remained, as did the reparation order.
AARON ROBERT SMAILL V NEW ZEALAND POLICE HC DUN CRI 2010-412-16 5 August 2010
[2] The need to revisit the judgment arose because neither I nor the District Court Judge was made aware of the extent of the appellant’s cooperation with the police. At the time of his sentencing it was believed that all of his co-offenders would plead guilty, but as matters turned out one did not. That offender had not initially been identified at all, and it was through the appellant’s cooperation that he was first identified and subsequently convicted. The matter went to trial and the appellant gave evidence, in which he came up to brief. It is not in dispute that he is entitled to substantial credit for that, but he was not given such credit at sentencing in the District Court or before me on appeal.
[3] The application was initially filed in the District Court in reliance on s 75 of the Summary Proceedings Act 1975, which allows the District Court to revisit a sentence. However, there is no corresponding power vested in the High Court under s 121 of the Summary Proceedings Act, and ss (7) provides that subject to the right of further appeal to the Court of Appeal, the decision of the High Court is final.
[4] The question whether this Court enjoys jurisdiction to reopen a decision has been discussed in several authorities.[1] The preponderance of view in those judgments is that the Court lacks authority to order a rehearing once an appeal has been finally decided.
[1] Tapara v Police (1988) 3 CRNZ 346, Spencer v Police HC Christchurch AP224/94, 19 October 1994 and Dallimore v Ministry of Economic Development HC Auckland CRI 2008-404-26, 22 July 2008.
[5] However, substantially the same issue arose in R v Smith, in the Court of
Appeal.[2] Smith was one of the post-Taito cases. The Court of Appeal held at [36]:
[36] ... . The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.
[2] [2003] 3 NZLR 617.
[6] I accordingly accept that implicit in this Court’s statutory jurisdiction under the Summary Proceedings Act is the power to reopen its decision in exceptional circumstances when required by the interests of justice. The power cannot be exercised so as to undermine the general principle of finality.
[7] The only difficulty in this case is whether I ought instead to give Mr Smaill leave to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act. That section requires that the Court identify a question of law of sufficient importance to warrant the attention of the Court of Appeal. The difficulty, however, is that the real reason for granting leave to appeal would be that of allowing an opportunity to correct the error of fact that occurred at sentencing and on appeal.
[8] It is important to emphasise that this is a clear case of sentencing having proceeded on an error of fact that happens to be very material. It is material because a discount of up to 60 per cent may be available for a guilty plea entered at the earliest opportunity that is coupled with considerable assistance to the police against co-offenders.[3] It is not in dispute that the appropriate discount in Mr Smaill’s case is between 50 to 60 per cent.
[3] R v Hessell at [23].
[9] In my judgment of 14 May I adopted the District Court Judge’s starting point of 30 months, and the increase of three months for personal aggravating factors, but increased by four months the Judge’s discount of 10 months for the guilty plea and other mitigating factors, resulting in an effective sentence of 19 months imprisonment. The other mitigating factors were youth and restrictive bail conditions. Mr Smaill was 18 and I accepted that a small allowance was appropriately made for that; small because his history of previous offending was against him. He had been on bail for some considerable time, subject to a strict curfew, and that was not his choice; he had sought to be sentenced early but the Court insisted that all of the offenders be dealt with together, which resulted in a significant delay. I accept that an allowance of perhaps two months ought to be made for that consideration.
[10] Balancing these factors, I reduced the sentence of 33 months after personal aggravating factors by 17 months for guilty plea and cooperation with the police. I allowed a further three months for restrictive bail conditions and youth, resulting as I have said in an effective sentence of 13 months imprisonment.
Miller J
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Solicitor’s Office, Dunedin for Respondent
0
0
0