Swan v Police

[2013] NZHC 881

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-20 [2013] NZHC 881

AARON SWAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2013

Appearances: G Tyrrell for the Appellant

D Orchard for the Respondent

Judgment:      24 April 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of the District Court (Judge Farish), sentencing the appellant to 17 months imprisonment, after he had entered pleas of guilty to two charges; one of burglary and one of using an altered document, which was a prescription. The appellant is a drug addict.

[2]      One of the points taken on appeal by Mr Tyrrell is that there had been a sentence indication, and Mr Tyrrell’s interpretation as counsel engaged in that was that the Judge had substantively agreed that the second charge of using an altered document would be sentenced concurrently.

[3]      After the sentence indication, whether formal or informal, the appellant did not answer bail, which disappointed the Judge and confirmed, in her opinion, that he

SWAN V NEW ZEALAND POLICE HC CHCH CRI-2013-409-20 [24 April 2013]

was a drug addict whose habit was so strong he would do anything to be released, and anything to get drugs. That appeared to affect her sentencing.

[4]      The Criminal Procedure Act 2011 has provisions relating to sentencing indications, which became law in March of last year, I am told.  There are two issues of fact relating to the application of that Act to these facts, which I cannot reliably decide on the material before me.  One is whether or not this was a formal sentence indication, conducted according to the provisions of the Criminal Procedure Act, and secondly, whether or not I, as a Judge on appeal, can apply s 116(2)(b) and decide whether or not the failure to answer bail materially affects the basis on which the sentencing indication was given, if indeed it was a sentence indication, to which that section is applying.  I am most reluctant to make a judgment on both issues.  More particularly because, in the exchange between Mr Tyrrell and the Judge, when discussing the alternative charge of altering the prescription, he did use the word probably, in the context of probably concurrent.  He took the Judge’s answer of “I agree” as substantively confirming that.

[5]      When dealing with interpreting the spoken word and the emphasis used by the participants in the conversation, I am not in a position to make a judgment call on that point.

[6]      For these reasons, unusually,  I have decided the proper approach to this appeal is to allow it in part, by directing that it be reconsidered by the same Judge, Judge Farish, who will be able to then directly respond and resolve the issues as to sentence indication which have been raised by Mr Tyrrell in this appeal.  For clarity, the whole question of sentencing is to be re-heard and reconsidered by Judge Farish.

Solicitors:

Weston Ward and Lascelles, Christchurch

Raymond Donnelly & Co, Christchurch