Smylie-Mullaly v Police

[2022] NZHC 1474

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-95

[2022] NZHC 1474

BETWEEN

DANIEL PHILIP SMYLIE-MULLALY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 June 2022
Appearances:	B Holstein for Appellant L Fiennes for Respondent
Judgment:	22 June 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 22 June 2022 at Registrar/Deputy Registrar

Date:

SMYLIE-MULLALY v NEW ZEALAND POLICE [2022] NZHC 1474 [22 June 2022]

[1]    Daniel Smylie-Mullaly appeals against a sentence of 10 months’ imprisonment imposed on a charge of theft of a motor vehicle.1

[2]    The Crown has responsibly recognised that the sentence was imposed in error and the appeal should be allowed. I agree, and this judgment will accordingly be brief.

Two sentences intended to work together

[3]    On 20 January 2022, Mr Smylie-Mullaly was sentenced to eight months’ imprisonment on charges of breaching release conditions and unlawfully taking a motor vehicle (the first sentence).2

[4]    On 4 May 2022, Mr Smylie-Mullaly was sentenced to 10 months’ imprisonment on the theft charge (the second sentence).

The error

[5]    In imposing the second sentence, the Judge concluded that the total period of imprisonment Mr Smylie-Mullaly should serve would be 10 months’ imprisonment, that is an additional two months beyond the term of the first sentence. The assumption in the Judge’s decision on the second sentence was that the start date of the second sentence would be 20 January 2022, being the same date as the start date of the first sentence.

[6]    There is in fact no provision under the Sentencing Act 2002 to back-date the start of a custodial sentence. Whereas, with backdating, Mr Smylie-Mullaly would have been released around 20 June 2022 (a little over one month in addition to the first sentence) the release date on the second sentence is now 2 October 2022. In other words, Mr Smylie-Mullaly’s time spent in custody increases by approximately 3.5 months beyond the period intended by the Judge.

1      Police v Smylie-Mullaly [2022] NZDC 7967.

2      Police v Smylie-Mullaly [2022] NZDC 817.

The statutory scheme

[7]    Section 250 Criminal Procedure Act 2011 sets out how a first appeal court must determine a sentence appeal. Section 250 (2) provides that the first appeal court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[8]    The Court of Appeal has recognised that s 250 applies where a sentencing judgment intrinsically demonstrates an error.3 The error must be material in the sense either that the sentence is clearly excessive or an error in the sentencing process requires a reassessment of the sentence.4 The appellate court in those circumstances will then form its own view of the appropriate sentence.5

Discussion

[9]    As counsel have agreed in their submissions, the appropriate sentence to be imposed on Mr Smylie-Mullaly on the second sentence, and that intended by the Judge, was a sentence of two months’ imprisonment, commencing 4 May 2022, imposed cumulatively upon the first sentence.

Order

[10]I order:

(a)the appeal is allowed;

(b)the sentence of 10 months’ imprisonment imposed on 4 May 2022 is quashed; and

3      R v Shipton [2007] 2 NZLR 218 (CA) at [139]; Tutakangahau v R [2014] NZCA 279 at [30].

4      Tutakangahau v R, above n 3, at [30].

5      Shipton v R, above n 3, at [140]; Tutakangahau v R, above n 3, at [30].

(c)on the charge of theft under ss 219 and 223 Crimes Act 1961, Mr Smylie-Mullaly is sentenced instead to two months’ imprisonment, cumulative upon the sentence of eight months’ imprisonment imposed on 20 January 2022.

Osborne J

Solicitors:

Public Defence Service, Christchurch

Raymond, Donnelly & Co, Christchurch