Stretch v The Queen
[2020] NZCA 680
•21 December 2020 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA571/2018 [2020] NZCA 680 |
| BETWEEN | ALBERT KARL LENIN STRETCH |
| AND | THE QUEEN |
| Court: | Cooper, Collins and Simon France JJ |
Counsel: | D A Ewen and J McVay for Appellant |
Judgment: | 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, 25 September 2020 (Minute of Cull J) at [7]–[8].
The relevant part of this Court’s decision reads as follows:[13]
[24] We are satisfied in the circumstances of the case that the appropriate approach is to allow the appeal, quash the conviction under s 188(1) of the Crimes Act, and substitute a conviction under s 188(2). The parties were agreed that if the Court were to follow this approach, sentencing should be remitted to the District Court, and we will order accordingly.
[13]Court of Appeal judgment, above n 1.
The order band records, as Order C, that the matter is “remitted to the District Court for sentencing on that charge”, which was plainly a reference to the substituted charge under s 188(2) of the Crimes Act.
Application for recall
The vehicle used by counsel to address the issue in this Court is the present application for recall of this Court’s judgment of 29 May 2020.
The Crown applies for recall on the basis that because Mr Stretch had already completed his 18-month cumulative sentence imposed for the drug and conspiring to pervert the course of justice charges, Judge Barry did not have jurisdiction to impose the new sentence on the substituted charge cumulatively.[14]
[14]Sentencing Act 2002, s 83(2).
Section 83(2) of the Sentencing Act 2002 provides that 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.[15] Clearly the same must apply if the sentence has already been completed.
[15]See for example Whichman v R [2018] NZCA 519 at [14] and [23].
In Mr Stretch’s case, what matters is the “time of sentencing”. We are of the view that the relevant date is the date of the second sentencing decision. Section 83(2) does not differentiate between sentencing and resentencing, and on 27 July 2020 Mr Stretch was “sentenced”. On that basis, we agree that s 83(2) of the Sentencing Act applies, and precluded Judge Barry from imposing the sentence for the substituted charge cumulatively on the sentences for the other charges.
Ms Thomson, for the Crown, now submits that in the circumstances an order of this Court under s 236(2)(c) of the Criminal Procedure Act should have been made when the conviction appeal was allowed, with a direction that the District Court may confirm or substitute any sentence on all charges. She contends recall of this Court’s judgment is appropriate, because counsel did not draw the Court’s attention to that provision at the hearing of the appeal.
Section 236 of the Criminal Procedure Act provides as follows:
236 Confirmation or substitution of sentence for another offence
(1) This section applies if—
(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).
In this case, the quashed grievous bodily harm charge would be offence A; the drug and conspiring to pervert the course of justice charges offence B. Ms Thomson submits that if this Court remitted all four charges to the District Court under s 236(2)(c), with a direction that the District Court may confirm or substitute any sentence allowed by law on all charges, the District Court would be able to “re-impose the cumulative sentences” as had been intended. All three sentences would then run from the original sentencing date in August 2018 under s 79(1) of the Parole Act 2002 and could be calculated as a single cumulative sentence.
Ms Thomson argues that unless that course is followed there would be “no route” for the District Court to reconsider its sentencing decision on the drug and conspiring to pervert the course of justice offences. A Crown appeal against the second sentencing decision would now be out of time and would not permit the sentencing Court to reconsider the sentences for conspiring to supply methamphetamine and to pervert the course of justice.
Mr Ewen, counsel for Mr Stretch, neither opposes nor supports the recall application, but contends that this Court should not recall its judgment and remit the matter to the District Court without a hearing, as the issues raised are novel and s 236 of the Criminal Procedure Act is not a straightforward re-enactment of s 386 of the Crimes Act.
Analysis
In Uhrle v R, the Supreme Court indicated that the test for recall in the criminal jurisdiction was to be governed by the same principles that apply to recall in the civil jurisdiction.[16] Those principles were set out in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2),[17] applying Horowhenua County v Nash (No 2):[18]
[F]irst, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[16]Uhrle v R [2020] NZSC 62 at [25].
[17]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
[18]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The category on which the recall application is premised here is category two; namely that counsel did not draw the Court’s attention to s 236(2)(c) of the Criminal Procedure Act.
We are satisfied in the circumstances of this case that there is 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. As this Court recently observed in Lyon v R, once a judgment has been entered in the Court’s permanent record, which is the case here, “the court is confined to doing what it must to remedy an injustice occasioned by its exercise of its statutory powers in the recalled judgment.”[19] We are not satisfied there was any error in this Court’s 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.
[19]Lyon v R [2020] NZCA 430 at [17].
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”,[20] here the resentencing has taken place in the District Court. We cannot 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.
[20]See Rabson v Gallagher [2012] NZCA 237, [2014] NZAR 30 at [3].
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.[21] 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.
[21]See for example Sharpe v R [2020] NZCA 475, in which Mr Sharpe’s appeal against a conviction for aggravated burglary was allowed. Because that was the lead charge for the purposes of sentencing and was taken into account in the imposition of other sentences, those sentences were increased from 12 months to two years and two months’ imprisonment at [36]–[38].
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.[22]
[22]Section 26(2) of the New Zealand Bill of Rights Act 1990 provides, amongst other things, that no one who had been finally convicted of an offence shall be punished for it again.
In these circumstances we consider that the argument for recall based on s 236(2)(c) of the Criminal Procedure Act is not tenable. The circumstances do 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 us 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 Mr 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.[23] A second possibility would be to seek leave to appeal out of time against the sentence.
[23]That period would not be pre-sentence detention for the purposes of section 82 of the Sentencing Act 2002.
But for the reasons we have given the application for recall is declined.
Result
The application for recall is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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