Solicitor-General v Crawford
[2020] NZHC 2809
•27 October 2020
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2020-476-000017
CRI-2020-476-000003 [2020] NZHC 2809
BETWEEN SOLICITOR-GENERAL
Appellant
AND
BRENT WAYNE CRAWFORD
Respondent
Hearing: 23 October 2020 Appearances:
A R McRae for the Appellant
J A M Black for the Respondent
Judgment:
27 October 2020
JUDGMENT OF NATION J
[1] With leave of the Solicitor-General, the Police appealed against sentences imposed on Mr Crawford on 17 March 2020.
[2] On 19 December 2019, Judge Maze decided the appropriate sentence for seven burglary charges was 17 months’ imprisonment.1 The burglaries involved the theft of various tools including petrol powered tools from seven South Canterbury primary schools between 25 March 2019 and 27 March 2019. Judge Maze also remitted outstanding fines and enforcement fees of over $7,000. On account of those unpaid fines and the burglaries, Judge Maze ultimately imposed a sentence of nine months’ home detention.
1 R v Crawford [2019] NZDC 26002.
SOLICITOR-GENERAL v CRAWFORD [2020] NZHC 2809 [27 October 2020]
[3] Mr Crawford was subject to that home detention sentence from 19 December 2019 to 6 January 2020. He was in custody between 6 January 2020 and 17 March 2020 after he removed his bracelet when serving the sentence of home detention and left the address where he had been required to serve his sentence. With his breach of the home detention sentence, the Department of Corrections asked for him to be resentenced on the burglary charges. He also had to be sentenced on new charges of assault and breaching conditions of home detention.
[4] On 17 March 2020, a recently appointed District Court Judge decided Mr Crawford did not require any further sentence because he had been held in custody for two months and 11 days waiting for matters to be dealt with.
[5]All the Judge said on sentencing was:2
[1] I have sentenced you to imprisonment for four months which I do realise that you are going to be released quite quickly.
[2] I have taken into consideration the fact that the offending was at the lower end of the scale. It was a common assault which had obviously been reduced and it was effectively a push, but tread carefully and please do not come back to Court again.
[6] With the way Mr Crawford was sentenced on 17 March 2020, he was subject to home detention for less than one month, when he had been required to serve home detention for nine months. He was in custody for two and a half months after he breached home detention. Mr Crawford had to be paroled after serving one-half of the sentence of four months’ imprisonment.3 He was credited with the time he had been held in custody before sentencing. This meant he was released from his four months prison sentence the day the sentence was imposed. He was thus in prison for two and a half months when a Judge had earlier determined his burglary offending would have required a prison sentence of 17 months.
[7] The Solicitor-General’s notice of appeal was filed on 16 April 2020. No doubt in part because of the disruption to court administration caused by the COVID-19 lockdown, the appeal first came before the High Court on 2 June 2020 but, at that time,
2 Police v Crawford [2020] NZDC 4893.
3 Pursuant to Parole Act 2002, s 82(1)
the hearing could not proceed because Mr Crawford had not been served with notice of the appeal. A hearing of the appeal was ultimately scheduled for 10 September 2020 but the appeal could not proceed then because steps had to be taken to ensure Mr Crawford had legal representation on the hearing of the appeal. There was clearly a risk that the Solicitor-General’s appeal might be successful and, as a result, Mr Crawford could receive a sentence of imprisonment.
[8] Mr Black, counsel of Timaru, was assigned to represent Mr Crawford on legal aid. The appeal was scheduled for hearing on 23 October 2020.
[9] Prior to the hearing of the appeal, Mr Black filed a submission drawing the Crown and the Court’s attention to s 249 Criminal Procedure Act 2011:
249 Appeal by prosecutor treated as abandoned if not heard before sentence completed
(1) Every appeal under this subpart by the prosecutor against a sentence of imprisonment that is not heard before the date on which the person convicted has completed serving that sentence lapses on that date.
(2) The manager of any prison from which the defendant is released must, if he or she has knowledge of the appeal, notify the Registrar of the appeal court that the defendant has been released.
(3) The appeal must be treated as having been abandoned under section 337.
[10] In applying s 249, the Court had to first determine when Mr Crawford had completed “serving” the sentence that was under appeal. Was it when the sentence expired or when he was released on parole, although still subject to the sentence?
[11] The Parole Act 2002 provides guidance as to the release date of sentence and the sentence expiry date:4
release date means, in relation to a determinate sentence of imprisonment, the date on which the offender who is subject to the sentence ceases to be liable to be recalled to continue serving that sentence in a prison.
…
sentence expiry date means the date on which the offender who is subject to the sentence has served its full term and therefore ceases to be subject to it
4 See Parole Act, s 4(1).
…
82 Sentence expiry date
(1)The sentence expiry date of a determinate sentence is the date that is reached when the offender who is subject to the sentence has served the full term of the sentence.
(2)The sentence expiry date of a notional single sentence is the sentence expiry date of the last sentence in the series of sentences that forms the notional single sentence.
(3)An indeterminate sentence has no sentence expiry date.
…
86 Release date of sentence
(1)The release date of a short-term sentence (including a short-term notional single sentence) is the date on which the offender who is subject to the sentence has served half of it.
(1A) Subsection (1) does not apply to a short-term sentence in respect of which an order has been made under section 86C(4)(b) of the Sentencing Act 2002, and the release date of such a sentence is its sentence expiry date.
(2)The release date of a long-term determinate sentence (including a long- term notional single sentence) is its sentence expiry date.
(3)An indeterminate sentence has no release date.
[12] These provisions show the statutory release date and the sentence expiry date for short-term sentences are distinct.
[13] The release date of a short-term sentence is the date on which the offender has served half the sentence.5 The offender “ceases to be liable to be recalled to continue serving that sentence in a prison.”6 While the offender cannot be recalled, the sentence is still operative. Mr Crawford had been in custody for almost two months and two weeks when he was sentenced on 17 March 2020. The statutory release date had been reached, being half of the term of the four month sentence imposed.7 The release date for Mr Crawford’s sentence was 17 March 2020.
5 Section 86(1).
6 Section 4, definition of “release date”. Emphasis added.
7 Section 86(1).
[14] Mr Crawford’s sentence was a determinate sentence, being a fixed term of four months imprisonment.8 Accordingly, his sentence end date, being the full term of the sentence, was 18 July 2020.
[15] Therefore, when the Solicitor-General lodged the appeal on 16 April 2020, Mr Crawford’s sentence was still operative, despite his statutory release date having been reached.
[16] When the appeal was brought on for hearing on 23 October 2020, there was some uncertainty as to whether Mr Crawford had been resentenced in the District Court on the burglary charges and whether he had been sentenced on the breach of home detention charge. The Judge had however signed a note on the Court record of the charges that were before the District Court. She had recorded that, on the resentencing for the burglary charges and the breach of home detention charge, Mr Crawford had been sentenced to four months’ imprisonment. She had expressly referred to the assault charge in imposing the sentence of four months’ imprisonment.
[17] It was thus clear that, on all matters, Mr Crawford had been sentenced to four months’ imprisonment. He had completed serving that sentence before the appeal was heard so the Solicitor-General’s appeal lapsed on 18 July 2020. The High Court thus had no jurisdiction to hear the appeal. As Mr McRae for the Solicitor-General accepted, the Court had no option but to dismiss the appeal.
[18]The Solicitor-General’s appeal is dismissed.
Solicitors:
Gresson Dorman & Co., Timaru J A M Black, Barrister, Timaru.
8 See Parole Act 2002, s 4 “determinate sentence means a sentence of imprisonment for a fixed term”
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