Stretch v Chief Executive of the Department of Corrections
[2021] NZHC 571
•19 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2020-485-000402
[2021] NZHC 571
UNDER the Declaratory Judgments Act 1908 BETWEEN
ALBERT KARL LENIN STRETCH
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 11 March 2021 Appearances:
D A Ewen for the Applicant
K Laurenson & C P C Wrightson for the Respondent
Judgment:
19 March 2021
Reissued:
22 March 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 19 March 2021 and re-delivered by me on 22 March 2021 in accordance with High Court Rules 2016, r 11.10
Solicitors/Counsel:
D A Ewen, Barrister, Wellington Crown Law, Wellington
STRETCH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 571 [19
March 2021]
Introduction
[1] Mr Stretch applies for a declaration that the expiry date for the sentence of three years and three months’ imprisonment imposed on him by the District Court in Wellington on 27 July 2020 for the offence of causing grievous bodily harm with reckless disregard for the safety of others under s 188(2) of the Crimes Act 1961 is 23 November 2021.
[2] Mr Stretch says the start date for that sentence was 24 August 2018. That is the date on which the District Court sentenced Mr Stretch to a cumulative term of seven years and six months’ imprisonment for causing grievous bodily harm with intent to do so under s 188(1) of the Crimes Act, conspiracy to supply a class A drug, namely methamphetamine, and attempting to pervert the course of justice.
[3] The Court of Appeal subsequently quashed Mr Stretch’s conviction for the offence under s 188(1) of the Crimes Act, substituted a conviction for an offence under s 188(2) of the Crimes Act and remitted the proceeding back to the District Court for sentence on the substituted offence.
[4] The question for determination is whether the start date for the sentence imposed by the District Court for the substituted offence is 27 July 2020, the date the District Court imposed sentence on the substituted offence, or 24 August 2018, the date of Mr Stretch’s original sentence. The determination of that question will determine the sentence expiry date as well as the release date of the sentence and Mr Stretch’s parole eligibility date.
[5] For the reasons that follow, I find the start date of the sentence is 24 August 2018 and that the expiry date of the sentence is 23 November 2021.
Relevant background
[6] On 11 July 2018, following a trial by jury before Judge D R W Barry in the District Court in Wellington, Mr Stretch and two others were convicted of offences under s 188(1) of the Crimes Act. At about the same time, Mr Stretch pleaded guilty
to conspiring to supply methamphetamine and to attempting to pervert the course of justice.
District Court imposes initial sentence
[7] On 24 August 2018, Judge Barry sentenced Mr Stretch to a cumulative term of imprisonment of seven years and six months’ imprisonment, comprised of six years for the offence under s 188(1) of the Crimes Act, one year for conspiracy to supply a class A drug, and six months for attempting to pervert the course of justice.
Court of Appeal quashes conviction on main charge and substitutes conviction on lesser charge
[8] On 29 May 2020, the Court of Appeal allowed an appeal by Mr Stretch against his conviction under s 188(1) of the Crimes Act.1 The Court of Appeal was satisfied that a miscarriage of justice had occurred as a result of an error in the question trail given to the jury.2 The Court of Appeal considered whether it could enter a conviction on a substituted offence in accordance with s 234 of the Criminal Procedure Act 2011 (CP Act) and concluded that the preconditions of s 234 of the CP Act were met.3 The Court of Appeal quashed the conviction under s 188(1) of the Crimes Act and substituted a conviction under s 188(2) of that Act. The Court of Appeal remitted the proceeding back to the District Court for Mr Stretch to be sentenced on the conviction for the substituted offence.4
District Court imposes sentence on substituted charge
[9] On 27 July 2020, Judge Barry sentenced Mr Stretch on the substituted conviction under s 188(2) of the Crimes Act to a term of imprisonment of three years and three months.5 In imposing that sentence, Judge Barry noted that the cumulative sentences for conspiring to supply methamphetamine and perverting the course of justice were not the subject of the Court of Appeal’s decision and remained untouched. The Judge recorded that he saw his task as being to re-sentence on the substituted
1 Stretch v R [2020] NZCA 195.
2 At [8] – [10].
3 At 12] – [16].
4 At [24].
5 R v Stretch [2020] NZDC 14736.
charge, with the commencement date of that sentence being the date of the original sentencing, 24 August 2018.6 It appears, therefore, that Judge Barry considered that the sentence he imposed on the substituted conviction was cumulative on those other sentences.
Mr Stretch files application
[10] On 10 August 2020, Mr Stretch filed his current application. The application stated that:
(a)Mr Stretch’s position was that the Court of Appeal severed what had been a notional single sentence of seven years and six months’ imprisonment and all that remained, in respect of the charges to which Mr Stretch had pleaded guilty, was a notional single sentence of 18 months which commenced on 24 August 2018 and expired upon the Court of Appeal’s decision;
(b)The Crown’s position was that the sentence of 18 months in respect of the charges to which Mr Stretch had pleaded guilty was cumulative on the sentence imposed by Judge Barry on 27 July 2020, making a single notional sentence of four years and six months’ imprisonment.
High Court hearing of application adjourned by consent
[11] On 24 September 2020, Mr Stretch’s application was part heard before Cull J. In her minute of 25 September 2020, Cull J recorded that the oral argument before her focused on the consequences of the Court of Appeal’s decision where the Court had proceeded under s 234 of the CP Act to quash Mr Stretch’s conviction on the charge under s 188(1) of the Crimes Act and to substitute a conviction under s 188(2). The Judge said, however, that the issue of s 236 of the CP Act had been raised in argument as possibly the more relevant provision, and that provision had not been raised with or addressed by the Court of Appeal.7
6 At [2].
7 Section 236 of the Criminal Procedure Act provides:
(1)This section applies if—
[12] By consent, Cull J adjourned the proceeding to enable counsel to file a memorandum with the Court of Appeal to address the point.
[13] The Crown subsequently applied to the Court of Appeal, asking it to recall its decision.
Court of Appeal declines to recall earlier judgment
[14]On 21 December 2020, the Court of Appeal declined the application for recall.8
[15] The Court of Appeal agreed that s 83(2) of the Sentencing Act 20029 applied to Mr Stretch’s situation and precluded Judge Barry from imposing the new sentence on the substituted charge cumulatively on the sentences for the drugs and perverting the course of justice charges. The Court said its view was that the relevant date of Mr Stretch’s sentencing on the substituted charge was 27 July 2020, the date Judge Barry imposed sentence on that charge.10
[16] The Court of Appeal was satisfied there was no proper basis for recall and that there had been no error in its approach. It said:11
(a)a first appeal court allows a convicted person’s appeal against conviction for one offence (offence A); and
(b)the sentencing court took the sentence it imposed for offence A into account in imposing sentence for a conviction for a different offence (offence B) and the convicted person remains convicted of offence B.
(2)The first appeal court may—
(a)confirm the trial court’s sentence for offence B; or
(b)substitute any sentence that is allowed by law; or
(c)remit the proceeding to the court that imposed the sentence for offence B and direct that court to take any action of a kind described in paragraph (a) or (b).
8 Stretch v R [2020] NZCA 680.
9 Section 83(2) of the Sentencing Act provides:
… a court may not impose a sentence of imprisonment cumulatively on another sentence of imprisonment if, at the time of sentencing, the offender is subject to a sentence of imprisonment but, having commenced serving the sentence, is no longer detained under it.
10 Stretch v R, above n 8, at [11].
11 At [20].
If there has been error, it was in the sentencing exercise that subsequently took place in the District Court when the Judge assumed that the 24 August 2018 start date would apply.
[17] The Court of Appeal also said it could not see a proper basis for recalling its decision when the District Court had acted on its judgment and that, unless the District Court had made some error, its decision must stand.12 The Court also doubted that s 236 of the CP Act applied.13
[18] The Court of Appeal said there might be other ways of rectifying “the unfortunate circumstances” that had arisen, such as corrective action under s 180 of the CP Act or Mr Stretch seeking leave to appeal out of time against the sentence imposed by Judge Barry.14
Implications of Court of Appeal’s decision
[19] Following the Court of Appeal’s decision, the Crown no longer argues that the sentence imposed by Judge Barry on 27 July 2020 was cumulative on the sentences imposed for conspiracy to supply drugs and attempting to pervert the course of justice.
[20] As a consequence, the start date for the sentence imposed by Judge Barry determines whether the expiry date for Mr Stretch’s term of imprisonment is 23 November 2021, as Mr Stretch argues, or 26 October 2023.
High Court application resumed
[21] In the event, neither course suggested by the Court of Appeal for rectification was taken.
[22] In these circumstances, counsel for Mr Stretch and the Crown agreed it was appropriate for the hearing of Mr Stretch’s application to be resumed.
[23] As recorded in Fitzgerald J’s minute of 9 February 2021, because Cull J was in a lengthy criminal trial and because there was some urgency attached to completing
12 At [21].
13 At [22] – [23].
14 At [25].
the proceeding, the hearing of Mr Stretch’s application was set down for hearing before any judge on the first available date in March 2021.
[24]It fell to me to hear the application on 11 March 2021.
Question for determination
[25] Mr Ewen, counsel for Mr Stretch, and Ms Laurenson, Crown counsel, agree that the only question for determination is the commencement date of the sentence imposed by Judge Barry on the conviction substituted by the Court of Appeal.
[26] Counsel also agree that the two possible options are 24 August 2018, the date of the original sentence imposed by Judge Barry, or 27 July 2020, the date Judge Barry imposed sentence following conviction on the substituted offence.
Relevant statutory provisions
[27] Counsel agree that the question for determination turns on the interpretation and application of ss 76 and 79 of the Parole Act 2002. Counsel also refer to s 251 of the CP Act and its predecessor provision, s 385(3)(b)(i) of the Crimes Act.
[28] I agree that ss 76(1) and 79 of the Parole Act are relevant. For the reasons that follow, I also consider that ss 229, 232, 233 and 234 of the CP Act, which were not addressed by Mr Ewen or Ms Laurenson, are also relevant, as well as the former ss 385(2) and 386(2) of the Crimes Act. None of these provisions was raised with or discussed by the Court of Appeal in its recall decision.
Parole Act
[29]Sections 76 and 79 of the Parole Act provide:
76 General rules about start date of sentence of imprisonment
(1) The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 77 to 81.
(2) ...
79 Start date if later sentence replaces original sentence
(1)The start date of a sentence that is substituted for a sentence that was quashed or otherwise set aside on appeal (the original sentence) is the start date of the original sentence.
(2)If a sentence (the original sentence) ceases to apply because the conviction to which it relates is quashed and a retrial ordered, and if a sentence of imprisonment is imposed following the retrial, the start date of the later sentence is the start date of the original sentence.
(3) …
Criminal Procedure Act
[30]Appeals against conviction are deal with in pt 6, sub-pt 3 of the CP Act.
[31]Sections 229, 232, 233 and 234 of that sub-part provide:
229 Right of appeal against conviction
(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.
(2) …
232First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) …
233Orders, etc, on successful first appeal
(1)This section applies if a first appeal court allows a first appeal under this subpart.
(2)The court must set aside the conviction.
(3)The court must also—
(a)direct that a judgment of acquittal be entered; or
(b)direct that a new trial be held; or
(c)exercise the powers under section 234; or
(d)exercise the powers under section 235(2); or
(e)make any other order it considers justice requires.
(4)The court may also exercise the powers under section 236.
234Conviction and sentence for different offence may be substituted
(1)Subsection (2) applies if a person was found guilty at trial of an offence (offence A) and the first appeal court allows the convicted person’s appeal against conviction for that offence.
(2)The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—
(a)the person could have been found guilty, at the person’s trial for offence A, of offence B; and
(b)the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.
(3) ...
(4) …
(5)On making a direction under subsection (2) or (4), the first appeal court may—
(a)impose a sentence for offence B (whether more or less severe) that is allowed by law; or
(b)remit the proceeding to the court that imposed the sentence for offence A and direct that court to take the action described in paragraph (a).
[32] As noted above, counsel refer to s 251(2) of the CP Act, which sets out the actions an appeal court may take when upholding an appeal against sentence, as relevant. However, s 251 is in pt 6, sub-pt 4 of the CP Act and applies only to appeals under that sub-part, that is, appeals against sentence. That is clear from s 251(1) which provides:
(1)This section applies if a first appeal court allows an appeal under this subpart.
[33]For that reason, I do not consider s 251(2) applicable to Mr Stretch’s situation.
Former sections of Crimes Act
[34] Prior to the enactment of the CP Act, Part 13 of the Crimes Act dealt with appeals, including appeals against conviction.
Sections 385 and 386 of the Crimes Act provided:
Determination of appeals in ordinary cases
(1AA) This subsection applies to—
(a)an appeal to the Supreme Court or the Court of Appeal against conviction:
(b)…
(1)On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it
considers that no substantial miscarriage of justice has actually occurred.
(2)Subject to the special provisions of this Part of this Act, the Court of Appeal or the Supreme Court must, if it allows an appeal to which subsection (1AA) applies, quash the conviction and in its discretion direct a judgment and verdict of acquittal to be entered, or direct a new trial, or make such other order as justice requires.
(2A) …
386Powers of appellate courts in special cases
(1) …
(2)Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal or the Supreme Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity.
Submissions of parties
[36] Mr Ewen submits that s 79 of the Parole Act governs Mr Stretch’s situation so that the start date of the sentence imposed by Judge Barry on 27 July 2020 is 24 August 2018, the date on which Mr Stretch was originally sentenced. Mr Ewen says any other result would be inconsistent with the legislative purpose of s 79 as reflected in s 79(2). That subsection provides that where a defendant is convicted and sentenced and that conviction is quashed, a new trial is held and a new sentence imposed, the start date of the new sentence is the start date of the original sentence. Mr Ewen it would be anomalous for a different outcome to result because an appeal court decided to forego a new trial and imposed a substituted conviction itself.
[37] Ms Laurenson says the Department of Corrections does not advocate for a particular interpretation of the relevant legislation but notes that the recent remarks of the Court of Appeal on the application for recall suggest a different commencement date from that put forward by Mr Stretch.
[38] Counsel agree that the Court of Appeal’s observations about the start date for the sentence were obiter dicta and not binding on this Court, although Ms Laurenson submits that those observations should be regarded as persuasive.
[39] Ms Laurenson says s 79 of the Parole Act is not an exact fit with the facts of this case and that it is open to the Court to conclude that the original sentence imposed by Judge Barry was neither “quashed” nor “otherwise set aside” when the Court of Appeal quashed Mr Stretch’s original conviction. If that is so, s 79 does not apply and, in accordance with s 76(1), the start date for the sentence imposed by Judge Barry on the substituted conviction entered by the Court of Appeal would be 27 July 2020. However, Ms Laurenson acknowledges that, if that is the result, it would leave an unusual gap in the legislation.
Analysis
[40] Section 76 of the Parole Act provides that the usual start date for a sentence is the date it was imposed, unless ss 77 to 81 provide otherwise. Counsel agree that s 79 provides the only possible basis in this case for departing from s 76.
[41] The central question is whether Mr Stretch’s situation is covered by s 79(1) and, in particular, whether Mr Stretch’s original sentence was “quashed or otherwise set aside” when the Court of Appeal quashed his conviction under s 188(1) of the Crimes Act. In that regard, I consider that the phrase “quashed or otherwise set aside” is intended to include situations where a sentence is directly quashed or set aside by order of an appeal court and where a sentence is set aside as a necessary consequence of an order of an appeal court, even if not quashed or set side directly.
[42] In allowing Mr Stretch’s appeal, quashing Mr Stretch’s conviction under s 188(1) of the Crimes Act, substituting a conviction under s 188(2) of the Crimes Act, and remitting the proceeding back to the District Court for sentencing on the substituted conviction, the Court of Appeal was acting in accordance with ss 232(2), 233(3)(c) and 234 of the CP Act, in particular s 234(2) and (5)(b). I do not consider anything turns on the fact that the Court of Appeal used the term “quash” when it allowed Mr Stretch’s appeal against conviction as opposed to “set aside”, the term used in s 233(2) of the CP Act. In the context, the terms mean the same thing.
[43] None of the sections in pt 6, sub-pt 4 of the CP Act addresses directly what happens to a sentence when the conviction on which it is based is “set aside” in accordance with s 233(2). Clearly the sentence is no longer operative. The obvious inference to be drawn is that when a conviction is set aside (or quashed), the sentence based on that conviction is also set aside, even if that is not stated explicitly. Accordingly, when the Court of Appeal allowed Mr Stretch’s appeal and quashed his conviction under s 188(1) of the Crimes Act, by necessary implication, it also set aside the original sentence.
[44] I am reinforced in that conclusion by the provisions that applied prior to the enactment of the CP Act.
[45] Prior to the CP Act, s 385(2) of the Crimes Act provided that, subject to the “special provisions” of pt 13 of the Crimes Act, if the Court of Appeal allowed an appeal against conviction, it was required to quash the conviction and, at its discretion, direct a verdict of acquittal or direct a new trial or make such other order as justice required.
[46] There is no definition of the term “special provisions”. I am satisfied, however, that the term must refer to s 386 which is headed “Powers of appellate courts in special cases”. Section 386(2) applied where the Court of Appeal decided not to order a retrial but to find the defendant guilty of an alternative offence to that on which a jury had found the defendant guilty.
[47] In such circumstances, and unlike the CP Act, s 386(2) did not require that the appeal be allowed and the earlier conviction quashed or set aside. Rather, the section permitted the Court, instead of allowing or dismissing the appeal, to substitute a guilty verdict on the alternative offence and to pass “such sentence in substitution” for the sentence passed on the earlier guilty verdict.
[48] Under s 386(2), the Court of Appeal did not have the option of remitting the proceeding back to the original court for sentence. It had to impose itself the sentence on the substituted guilty verdict. However, it is clear from s 386(2) that the sentence imposed by the Court of Appeal was “in substitution” for the original sentence. That
meant that s 79(1) of the Parole Act applied to such a new sentence. It was a sentence “substituted” for a sentence that had been “otherwise set aside” by the Court of Appeal when it substituted a guilty verdict on the alterative offence in place of the original verdict and passed the new sentence in substitution for the original sentence.
[49] In summary, prior to the enactment of the CP Act, where, on appeal, a new sentence was imposed after a verdict of guilty, and thus a conviction, had been entered for a substituted offence in place of the original offence on which the defendant had been found guilty and convicted, the start date for the new sentence was the start date of the original sentence.
[50] No change was made to s 79 following the enactment of the CP Act, despite the changes in terminology used in s 234 of the CP Act as compared with s 386(2) of the Crimes Act which it replaced. I am satisfied, however, that, in enacting ss 233 and 234 of the CP Act, which require an appeal court to allow an appeal against conviction and to set aside the conviction if satisfied that one of the circumstances in s 232(2) has been made out, even if it decides to substitute a conviction on another offence, there was no intention to change the basic concept in s 79 of the Parole Act. That concept is that the start date for any sentence on a substituted offence is the start date of the original sentence.
[51] Section 234(5)(a) reinforces that conclusion. It provides that, when imposing a sentence on the substituted charge, an appeal court may:
… impose a sentence for offence B (whether more or less severe) that is allowed by law,
[52] Offence B is the substituted offence, in accordance with the introductory words of s 234(2). While not expressed directly, the words in parentheses clearly mean “whether more or less severe than the sentence imposed for offence A”, the original offence. It is implicit, therefore, that the sentence imposed for offence B is in substitution for the sentence for offence A.
[53] On that construction, the sentence imposed on Mr Stretch for the offence under s 188(2) of the Crimes Act (offence B) was substituted for the sentence for the offence
under s 188(1) of the Crimes Act (offence A) which, in terms of s 79(1) of the Parole Act, was “otherwise set aside” by the Court of Appeal when it allowed Mr Stretches’ appeal and quashed his conviction.
[54] For all these reasons, I am satisfied that s 79(1) of the Parole Act applies. Mr Stretch’s original sentence was set aside when the Court of Appeal allowed his appeal and quashed his conviction under s 188(1) of the Crimes Act. As a consequence, the start date for the sentence imposed by Judge Barry on the substituted conviction under s 188(2) of the Crimes Act is the date of the original sentence, 24 August 2018.
Declaration
[55]Accordingly, I make the following declaration:
(a)The start date for the sentence of imprisonment imposed on Mr Stretch by the District Court on 27 July 2020 for an offence under s 188(2) of the Crimes Act 1961 is 24 August 2018; and
(b)The expiry date for that sentence is 23 November 2021.
Costs
[56] Mr Ewen advises that Mr Stretch in on legal aid and seeks the costs of the proceeding on a 2B basis or on the legal aid scale.
[57] Ms Laurenson submits that costs should lie where they fall because the Department of Corrections has largely not opposed Mr Stretch’s application and that it was necessary for the matter to come to Court because of the apparent conflict between the relevant law and the decisions of the District Court and Court of Appeal.
[58] Given the history of this proceeding and the consequences of the decision sought, I am satisfied that it was appropriate to seek a judicial determination of the start date for Mr Stretch’s sentence. However, I do not consider that Mr Stretch or the legal aid fund should bear the costs of determining that question, which has a
significant public good component, notwithstanding Mr Stretch’s personal interest in the outcome.
[59] For these reasons, I direct that the Department of Corrections pay Mr Stretch’s costs on a 2B basis.
[60] I encourage counsel to resolve costs without the need for further intervention by the Court. If they are not able to do so, they may file memoranda of no more than four pages.
G J van Bohemen J
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