Sullivan v R - [2011] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

CA799/2010
[2011] NZCA 366

BETWEEN LUANA TEAWHINA SULLIVAN
Appellant

AND THE QUEEN
Respondent

Hearing: 13 July 2011

Court: Randerson, Potter and Ronald Young JJ

Counsel: A Snell for Appellant
A Markham for Respondent

Judgment: 3 August 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

AThe concurrent sentences of 10 years and two months’ imprisonment on the two counts of wounding with intent to cause grievous bodily harm are quashed.
BSentencing on these two counts is remitted to the District Court to re-sentence the appellant in terms of the direction in [37] of this judgment. All other sentences imposed on the appellant remain undisturbed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction and the appeal grounds

The appellant says her sentence of ten years and two months’ imprisonment imposed by Judge Adeane in the District Court[1] was manifestly excessive because it failed to reflect her lesser involvement in the offending. She says counsel representing her at sentencing wrongly failed to seek a disputed facts hearing so that her lesser involvement could have been established. The sentencing Judge thereby wrongly sentenced her on a summary of facts which she partially disputed.
[1] R v Sullivan DC Napier CRI-2010-020-268, 29 October 2010.
The appellant pleaded guilty two days before trial to the following charges:
(a)       theft (6 January 2010);
(b)       burglary (7 January 2010);
(c)       theft (7 January 2010);
(d)wounding with intent to cause grievous bodily harm (7 January 2010);
(e)       kidnapping (8 January 2010);
(f)       kidnapping (8 January 2010);
(g)wounding with intent to cause grievous bodily harm (8 January 2010);
(h)       theft (8 January 2010);
(i)        assault with a weapon (13 January 2010); and
(j)        assault with a weapon (13 January 2010).
The appellant was charged with two others, Ms Haddon and Mr Williams. Mr Williams pleaded guilty at an early stage. He was sentenced in the District Court to nine and a half years’ imprisonment reduced on appeal by this Court to eight years’ imprisonment.[2]
[2] Williams v R [2010] NZCA 304.
The appellant had originally also faced two charges of threatening to kill and three further charges of assault with a weapon on which she was discharged upon her pleas of guilty. Her sentence of ten years and two months’ imprisonment commenced with a starting point of 12 years from which 15 per cent was deducted.
To support this appeal new counsel was instructed. Ms Sullivan signed a waiver of privilege. In an unorthodox approach, counsel for the appellant filed an affidavit by Ms Sullivan’s previous counsel, Mr Malik, detailing the circumstances under which she came to plead guilty and sentencing counsel’s instructions as to the appellant’s involvement in the offending.[3] However, the Crown has now had an opportunity to obtain a further affidavit from Mr Malik. As a result we now have a full report of the circumstances which gave rise to the sentencing.
[3] Court of Appeal (Criminal) Rules 2001, r 12A.
After hearing this appeal,…

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 Sullivan v R

Details

AGLC: Sullivan v R [2011] NZCA 366
Case: [2011] NZCA 366
Decision Date: 3 August 2011

CaseChat Overview and Summary

The case of Sullivan v R involved the appellant, who was found guilty of a crime and subsequently sentenced by the court. The appellant disputed the extent of their involvement in the offence, which was detailed in the prosecution's summary of facts, and argued that the sentence should reflect a lesser degree of culpability. The primary legal issue before the court was whether the trial judge was required to indicate the weight and significance of the disputed facts regarding the appellant's involvement in the offence, as per section 24 of the Sentencing Act. Specifically, the court had to determine if the trial judge erred in proceeding to sentence the appellant based on the prosecution-prepared summary of facts without first addressing the disputed facts as required by the statute.

The court found that the trial judge did not comply with section 24(2)(a) of the Sentencing Act, which mandates that the court indicate to the parties the weight and significance of any disputed facts relevant to sentencing. By not doing so, the trial judge did not properly consider the appellant's argument regarding their lesser involvement in the offence. The court held that it was therefore improper for the judge to proceed with sentencing based on the prosecution's summary of facts without first addressing the disputed facts. This failure constituted a procedural error that potentially impacted the fairness and accuracy of the sentencing process.

The court's decision highlighted the importance of adhering to statutory requirements concerning the handling of disputed facts at sentencing. It underscored that the trial judge must ensure all relevant disputed facts are properly considered and weighted before proceeding with sentencing. The error in this case led to the conclusion that the sentencing process was flawed, and the case was remitted for reconsideration of the sentence with proper regard to the disputed facts. The court's ruling reinforced the need for strict compliance with legislative mandates to ensure the integrity of the judicial process.

Orders

Orders of the court

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Background

Background to the litigation

Section 24 of the Sentencing Act sets out the circumstances under which a disputed facts hearing can appropriately be held. It provides:24 Proof of facts (1) In determining a sentence or other disposition of the case, a court— (a)may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and (b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt. (2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,— (a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case: (b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial: (c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false: (d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence: (e)either party may cross-examine any witness called by the other party. (3) For the purposes of this section,— aggravating fact means any fact that— (a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and (b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact means any fact that— (a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and (b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. At sentencing it was clear that the prosecution and defence had quite different descriptions of the appellant’s involvement in the offending. The summary of facts was not presented to the Judge as an agreed summary. Counsel for the appellant made it clear to the Judge that the appellant claimed substantially less involvement in the offending than the prosecution summary identified. Although counsel for the appellant, Mr Malik, should have triggered the s 24 process, he did not do so. It was clear from counsel submissions, however, that there were important disputed facts about the appellant’s involvement. We consider it was the Judge’s obligation pursuant to s 24(2)(a) to indicate what weight the Judge would attach to the dispute about the extent of the appellant’s involvement in the offending and its significance to sentencing. However, this was not done. It was, therefore, not open to the Judge in terms of s 24 to proceed to sentence the appellant on the basis of the prosecution-prepared summary of facts. The Judge was in error when he did so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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