Stretch v The Queen - [2020] NZCA 680

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA571/2018
[2020] NZCA 680

BETWEEN	ALBERT KARL LENIN STRETCH Appellant
AND	THE QUEEN Respondent

Court:	Cooper, Collins and Simon France JJ
Counsel:	D A Ewen and J McVay for Appellant R K Thomson for Respondent
Judgment: (On the papers)	21 December 2020 at 2.15 pm

JUDGMENT OF THE COURT
(Application for recall)

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

In circumstances we address below, the Crown has applied for recall of this Court’s judgment on this appeal.[1]

Background

[1]Stretch v R [2020] NZCA 195 [Court of Appeal judgment].

Mr Stretch was sentenced by Judge Barry in the District Court at Wellington on 24 August 2018,[2] having been convicted of causing grievous bodily harm with intent to do so (under s 188(1) of the Crimes Act 1961),[3] two charges of conspiring to supply methamphetamine and one charge of conspiring to pervert the course of justice.[4] The sentences imposed were terms of imprisonment for six years, one year and six months respectively. Judge Barry ordered those sentences to be served cumulatively.[5]
[2]R v Haddon [2018] NZDC 18109.
[3]Mr Stretch was charged as a party under s 66(2) of the Crimes Act 1961.
[4]Misuse of Drugs Act 1975, s 6(2A); and Crimes Act, s 116..
[5]R v Haddon, above n 2, at [40].
On 29 May 2020 this Court allowed Mr Stretch’s appeal against conviction on the grievous bodily harm charge.[6] A conviction for the lesser charge of causing grievous bodily harm with reckless disregard under s 188(2) of the Crimes Act was substituted. This Court remitted sentencing to the District Court.[7] By then, Mr Stretch’s 18-month cumulative sentence for the other three charges had already been served, having expired in February 2020.
[6]Court of Appeal judgment, above n 1.
[7]At [24].
On 27 July 2020, Judge Barry sentenced Mr Stretch to three years and three months’ imprisonment on the substituted charge, expressly noting that the cumulative sentences totalling 18 months’ imprisonment imposed for the other charges on 24 August 2018 would remain unchanged.[8] The Judge also recorded his view that the commencement date of the new sentence would remain the original sentencing date of 24 August 2018. [9]
[8]R v Stretch [2020] NZDC 14736 at [6].
[9]At [9].
However, a dispute subsequently arose about whether the start date of the new sentence should be 24 August 2018[10] or 27 July 2020.[11] The issue was raised by Mr Stretch in an application to the High Court for a declaration determining the sentence expiry date for the substituted sentence. The High Court proceeding was adjourned to give counsel the opportunity to address submissions to this Court about the implications of s 236 of Criminal Procedure Act 2011, having regard to the terms on which this Court allowed the appeal.[12]
[10]Parole Act 2002, s 79(1).
[11]Section 76.
[12]Stretch v Chief Executive of the Department of Corrections CIV-2020-485-402,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stretch v The Queen

Details

AGLC: Stretch v The Queen [2020] NZCA 680
Case: [2020] NZCA 680
Decision Date: 21 December 2020 at 2.15 pm

CaseChat Overview and Summary

Albert Karl Lenin Stretch appealed against his conviction for causing grievous bodily harm with intent to do so, as well as two charges of conspiring to supply methamphetamine and one charge of conspiring to pervert the course of justice. The District Court sentenced him to terms of imprisonment, which were to be served cumulatively. The Court of Appeal allowed Stretch's appeal against conviction on the grievous bodily harm charge and substituted a conviction for the lesser charge of causing grievous bodily harm with reckless disregard. The Court remitted sentencing to the District Court. Stretch's 18-month cumulative sentence for the other three charges had already been served. When resentencing Stretch, Judge Barry imposed a sentence of three years and three months' imprisonment on the substituted charge and noted that the cumulative sentences for the other charges would remain unchanged. Stretch argued that the start date of the new sentence should be 27 July 2020 rather than 24 August 2018. The Crown applied for recall of the Court of Appeal's judgment on the basis that Judge Barry did not have jurisdiction to impose the new sentence cumulatively because Stretch had already completed his 18-month cumulative sentence imposed for the drug and conspiring to pervert the course of justice charges. The Court of Appeal declined the application for recall. The Court held that there was no proper basis for recall because there was no error in its approach, the resentencing had taken place in the District Court, and there must be doubt as to whether s 236(2)(c) of the Criminal Procedure Act applied in the present circumstances. The Court suggested that the District Court might be able to take corrective action under s 180 of the Criminal Procedure Act, or that Stretch might seek leave to appeal out of time against the sentence.

The legal issues before the Court were whether the Crown's application for recall of the Court of Appeal's judgment was tenable, and whether s 236(2)(c) of the Criminal Procedure Act applied in the present circumstances. The Court held that the application for recall was not tenable because there was no error in its approach, the resentencing had taken place in the District Court, and there must be doubt as to whether s 236(2)(c) applied in the present circumstances. The Court also held that the Crown's argument based on s 236(2)(c) of the Criminal Procedure Act was not tenable because the circumstances did not fit within the circumscribed basis on which this Court will entertain recall of its judgments. The Court suggested that the District Court might be able to take corrective action under s 180 of the Criminal Procedure Act, or that Stretch might seek leave to appeal out of time against the sentence. The Court held that the Crown's application for recall was not tenable, and that the circumstances did not fit within the circumscribed basis on which this Court will entertain recall of its judgments.

The Court declined the Crown's application for recall of the Court of Appeal's judgment. The Court held that there was no proper basis for recall, for the reasons that follow. First, and axiomatically, the recall jurisdiction is for the purpose of correcting error in the judgment to be recalled. The Court was not satisfied there was any error in its approach. 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. Second, whatever the implications in the criminal context of the civil jurisdiction rule that recall must be prior to a judgment or order being "perfected", here the resentencing has taken place in the District Court. The Court could not see a proper basis for contemplating recall when the District Court has in fact acted on this Court's judgment. The focus must then be on what the District Court has done. Unless that Court has made some error, its decision must stand. Third, there must be doubt as to whether s 236(2)(c) applies in the present circumstances. The section is apparently intended to apply to a situation where the sentence for offence B may not be appropriate if divorced from offence A, for which the conviction has been quashed. The current situation, where s 236(2)(c) is said to be necessary to allow the lower court to impose a cumulative sentence, has not previously arisen. Its application is awkward, especially in circumstances where the Judge has resentenced expressly on the basis that he did not want to disturb the sentences imposed on the other offences. In addition, the Crown's application appears to contemplate, at least theoretically, that s 236(2)(c) could be used to reopen the sentences for the other offending, where the sentences for those offences have already been served. That seems wrong in principle. The sentences had in fact already expired when the conviction appeal was heard in this Court. In the circumstances it is difficult to see how they could be treated as susceptible to any order by this Court whether at the time the conviction appeal was heard, or subsequently. And there would clearly be an issue with s 26(2) of the New Zealand Bill of Rights Act 1990 were there an attempt to re-examine sentences already served. In these circumstances the Court considered that the argument for recall based on s 236(2)(c) of the Criminal Procedure Act was not tenable. The circumstances did not fit within the circumscribed basis on which this Court will entertain recall of its judgments. There may be other means of rectifying the unfortunate circumstances that have arisen. Because they might result in further litigation in this Court it is not appropriate for the Court to address them in detail or express any concluded view. But one possibility that might be considered is whether the District Court might be able to take corrective action under s 180 of the Criminal Procedure Act, on the basis that the Judge resentenced wrongly assuming that the original start date would apply. That would involve Stretch being sentenced again, and the sentencing judge having to take into account the period of time he had served on the sentence for the quashed conviction. A second possibility would be to seek leave to appeal out of time against the sentence. But for the reasons the Court had given the application for recall was declined.

Orders