Te Aho v R
[2013] NZCA 47
•7 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA464/2012 [2013] NZCA 47 |
| BETWEEN GEORGE RATU TE AHO |
| AND THE QUEEN |
| Hearing: 14 February 2013 |
| Court: White, Simon France and Asher JJ |
| Counsel: A J S Snell for Appellant |
| Judgment: 7 March 2013 at 3.00 pm |
JUDGMENT OF THE COURT
A Order extending time for filing appeal granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
Mr Te Aho applies for an extension of time for filing his appeal and challenges the sentence imposed upon him in the Napier District Court. He appeals on the ground that the period he would have to serve in prison for his offending is more than it should be, because he will not be credited for all the time he spent in custody on remand prior to sentence.
Mr Te Aho, who was 48 at the time of his offending, was in a relationship with the female complainant. She was some 18 years his junior.
On 17 November 2010, following an argument, he forced her to go with him on a motorbike and in a car. There were a series of assaults on her involving verbal abuse and threats, hair pulling, a hard punch and pinching. He drove her to premises in Napier where he had organised a person to have sex with her while he listened on the phone. The complainant alerted the manager of the premises, complaining about what was happening, and the Police were called. The Police arrived just as Mr Te Aho was leaving. As a result of the events of the day, the female complainant had received grazes to the left side of her head and cuts to her right hamstring area.
The following morning, knowing that the Police had been called, Mr Te Aho sent text messages to the manager who had called the Police, threatening him and his establishment.
Mr Te Aho was charged with unlawfully detaining a person with her consent obtained by duress and with intent to cause her to have sexual connection with another, male assaults female, and threatening to do grievous bodily harm. He was in due course remanded in custody. While in custody, he engaged in what was described by the sentencing Judge as a “persistent campaign” of pursuing persons to give evidence for him that would assist him in the pending court proceedings.[1] Following extensive contact with the female complainant and other potential witnesses designed to ensure that evidence was presented to the Police that would secure his discharge or acquittal, there were indeed affidavits filed from the complainant and other Police witnesses containing information that was entirely different from that which they had originally supplied to the Police. He was charged subsequently with willfully attempting to pervert the course of justice.
[1]R v Te Aho DC Napier CRI-2011-016-405, 1 May 2012 at [6].
Mr Te Aho has an extensive record. It runs to 15 pages of convictions. There are numerous convictions from 1978 down to the present time for dishonesty offences, and since 1981 there are numerous assaults. A good number of the assaults are male assaults female. Judge Rea in his decision recorded that Mr Te Aho had been sentenced to 18 separate sentences of imprisonment.[2] Mr Te Aho did not show any clear remorse. The Judge commented that he was satisfied Mr Te Aho had single-mindedly endeavoured to derail the court system, and considered that his conduct was a moderately bad case of attempting to pervert the course of justice.
[2]At [11].
Mr Te Aho was sentenced on 1 May 2012 in what was described by the Judge as a sensible compromise.[3] He was discharged on the count of unlawfully detaining to cause sexual connection. He entered pleas of guilty on the other three counts. Both counsel and the Judge agreed that the lead charge was perverting the course of justice. The Judge fixed a starting point of two and a half years’ imprisonment. He considered that the other offences, threatening and assault, could be adequately reflected by an uplift of six months. There was a further six months added for Mr Te Aho’s bad record. The end sentence was therefore three and a half years’ imprisonment. This was reduced by six months to reflect the late plea of guilty. The end result was that Mr Te Aho was sentenced to three years’ imprisonment on the perverting the course of justice and threatening to do grievous bodily harm counts. He was sentenced to one year imprisonment on the male assaults female count. Each sentence was to be served concurrently.
[3]At [1].
Mr Snell for the appellant made it clear to us that he accepted the reasoning of Judge Rea and the sentence decision could not be criticised. However, some time after the sentence had been imposed, Mr Snell became aware of how the Department of Corrections would calculate Mr Te Aho’s remand time and the attribution of that time to the sentence imposed. This led to this application for an extension of time to appeal.
The issue
Mr Te Aho was remanded in custody on the threatening and assault charges on 6 December 2010. The conduct that led to the attempting to pervert the course of justice charge took place in the weeks that followed, while he was in custody. He was charged on that count on 29 March 2011. He appeared on the attempting to pervert the course of justice charge on 5 April 2011, and was remanded in custody on all charges. The sentencing took place over a year later on 1 May 2012. This meant that Mr Te Aho had spent 113 days in custody from 6 December 2010 to 29 March 2011 on the threatening and assault charges. He then spent 399 days in remand custody on all charges, being those for which he had been previously remanded, as well as the new charge of attempting to pervert the course of justice.
Section 90 of the Parole Act 2002 (the Act) sets out how the period spent in pre-sentence detention by a prisoner is deemed to be time served. At s 90(2)(b) it is stated that the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.
Applying that section, the Department of Corrections determined that while the 113 day period could be deducted from the assault charges, it could not be deducted from the sentence for the perverting the course of justice charge. That is because the 113 days did not relate to the perversion of justice charge, but rather the assault charges. Since the end sentence on the perversion of justice charge was three years’ imprisonment, which included a six month uplift for the assault charges taking into account totality, only the 399 days served in relation to that perversion of justice charge since 29 March 2011 could be deducted, and not the earlier 113 days.
This calculation meant that Mr Te Aho’s parole eligibility date was 19 December 2012 and his final release date 28 March 2014. It is common ground that if the 113 days was deducted from his sentence, the parole eligibility date and final release date would each be 113 days earlier. Therefore, it is accepted by both the appellant and respondent that if Mr Te Aho serves his full term, the time he would have spent continuously in prison will have been three years and 113 days. The concern is heightened from Mr Te Aho’s perspective by his belief that he is unlikely to be released on parole so he will suffer the full effect of the “extra” 113 days.
When this became apparent to him, Mr Snell filed a memorandum with the District Court proposing that Mr Te Aho could be re-sentenced in a different way to ensure that the full time he spent on remand, including his remand for the assault charges, would be taken into account in assessing his release date. In that memorandum, Mr Snell relied on s 372 of the Crimes Act 1961 as giving jurisdiction for such a re-sentence. He argued that Mr Te Aho had suffered a miscarriage of justice.
In a reserved decision on 24 July 2012, Judge Rea declined Mr Snell’s application.[4] The Judge considered that he had no jurisdiction to revisit the sentence under s 372 of the Crimes Act 1961.
[4]R v Te Aho DC Napier CRI-2011-016-405, 24 July 2012.
In this appeal, for which an extension of time is required, Mr Snell does not challenge Judge Rea’s decision declining to re-sentence Mr Te Aho using s 372. He accepts that he cannot rely on s 372. Rather, he seeks to appeal the original sentence imposed on 1 May 2012. He submits that a miscarriage of justice occurred inadvertently in the sentencing exercise, because it was framed in a manner that precluded Mr Te Aho from having the original 113 days on remand credited against his sentence. Mr Snell submitted that under s 385(3) of the Crimes Act 1961 the Court of Appeal should vary the sentence in a way that would result in Mr Te Aho being credited for all of the time he had spent in custody, including the 113 days.
In pursuit of this, Mr Snell put forward two options that varied the sentences imposed in a way that would ensure the 113 days could be deducted by the Department of Corrections. His first suggested option involved imposing a sentence of 18 months’ imprisonment on the attempting to pervert the course of justice charge, and a cumulative sentence of 12 months’ imprisonment on the threatening to do grievous bodily harm charge with a concurrent sentence of 12 months’ imprisonment for the male assaults female charge. The effect of this would be that s 90(2)(b) of the Act could be applied to the 12 month sentence of imprisonment on the threatening to do grievous bodily harm charge, so that no more than three years would be served. The other option was reducing the three year sentence by three to four months, which would have the effect of allowing for the uncredited 113 days, and then imposing a concurrent sentence of three years’ imprisonment on the threatening to do grievous bodily harm charge.
Mr Snell in his submissions relied on a line of cases where sentencing courts have taken cognisance of what would otherwise be described as pre-sentence detention, where difficulties have arisen in the context of an offender being recalled to prison while on parole because of a second offence, and then being sentenced on that later offence. The courts in sentencing have been prepared to take into account time spent in prison after recall and before sentencing, because that time falls outside of the statutory definition of “pre-sentence detention” that may be administratively taken into account.[5] He argued that in the absence of the Court’s intervention there was the risk that the appellant would become the victim of a miscarriage of justice.
[5]R v Repia CA12/95, 26 May 1995; R v Beri CA91/96, 25 September 1996; R v Afu CA360/96, 22 October 1996; R v Harvey CA89/01, 19 June 2001 and R v Paul CA409/05, 26 April 2006.
Mr Lillico for the Crown submitted that there was in fact nothing unjust about Mr Te Aho’s sentence. He submitted that the recall cases were distinguishable as there was less of a risk of double counting in the present type of case because both the original offending and the subsequent offending were dealt with by the Court at the same time.
Analysis
The statutory scheme in relation to sentencing places the obligation for calculating and taking into account for parole and release purposes time spent by a prisoner who is on remand on the persons in charge of the relevant place of detention and not sentencing Judges. Subpart 3 of the Parole Act relates to sentence calculations. Section 92 is headed “Procedure for recording length of pre-sentence detention”. The person who is in charge of a prison must keep a record of the date when the person is admitted, and the total period during which the person is subsequently detained before sentence, whether on the original charge or any other charge.[6] After sentencing, the person in charge of the place of detention must supply the offender with a copy of the record and the offender may dispute its accuracy or review it.[7] A person in charge of a place of detention must, if there is an application for review, carry out a review and notify the offender of the outcome.[8] If the offender is dissatisfied with the outcome of the review, he or she may appeal the review to the court that imposed the sentence.[9]
[6]Parole Act 2002, s 92(1).
[7]Section 92(2).
[8]Section 92(3).
[9]Section 92(4).
Section 90(1) provides that the period spent in pre-sentence detention is deemed to be time served. When an offender is subject to a concurrent sentence, the amount of pre-sentence detention applicable to each sentence must be determined and s 90(2)(b) provides:
the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.
There is therefore a regime in the Act which covers the calculation of sentence and the deduction of the time spent in pre-sentence detention. It provides explicitly that deductions for the period of pre-sentence detention are limited to the sentence for an offence to which that detention related. The calculation is the responsibility of the person in charge of the prison and not the court. There is no suggestion that the calculation made in Mr Te Aho’s case misapplies the provisions of subpart 3 of the Act.
That has not always been the position. Prior to 2002 there was no exact equivalent to s 90(2)(b). However, in Taylor v Superintendent of Auckland Prison, applying the provisions of s 81(1) of the Criminal Justice Act 1985, this Court held that where a prisoner was already subject to custodial remand and was subsequently charged with a second unrelated offence, the remand credit to be attributed to the second unrelated offence ran from the time when the person was charged with the second offence.[10] That position is now explicitly provided for in s 90(2)(b).
[10]Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA).
Reinforcing the statutory scheme of the Parole Act, s 82 of the Sentencing Act 2002 provides that pre-sentence detention is not a matter to be taken into account by the sentencing court:
82 Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
Section 82 was preceded by s 81(2) of the Criminal Justice Act 1985, which from 1 October 1985 to 31 August 1993 required the sentencing court not to take into account any time spent on remand in sentencing, but instead to specify that period on the warrant of commitment. The Judge would, therefore, state the time on remand that could be considered as time served for the purpose of determining an offender’s parole or release date.
The Criminal Justice Act was amended in 1993 to move the responsibility for calculating time spent on remand from the sentencing court to the Superintendent of the penal institution in which the prisoner was remanded.[11] The amendment placed with the Superintendent the responsibility for specifying the period spent on remand on the warrant of commitment. Thus, the responsibility for considering the time spent on remand in calculating parole and release date has been removed entirely from sentencing Judges and placed with the prisons.
[11]Criminal Justice Amendment Act 1993, s 40(1).
Nevertheless, we accept that on limited occasions the Court can consider the effect of pre-sentence detention in assessing appropriate sentencing outcomes. For instance, if the time spent on remand has had a disproportionately severe effect on the offender for health reasons, that may be a concern.[12] It is also clear that when a prisoner offends while on parole, and is recalled, that to prevent double counting the time spent on remand can be taken into account in the sentencing process.[13] However, this line of authority is of little assistance in the present appeal, as s 82 of the Sentencing Act 2002 and its predecessors did not apply in those cases because the offender had been held as a consequence of recall, and not on the basis of pre-sentence detention.
[12]R v Lavea [2007] NZCA 421; R v Ogaz [2007] NZCA 45; R v Pomana [2007] NZCA 138.
[13]R v Beri CA91/96, 25 September 1996 at 5; R v Lilley CA395/97, 20 November 1997 at 2 and Vernon v R [2010] NZCA 308 at [14]–[16].
We also note that this is not the only type of case where credit is not given for time spent in custody on remand. There is no provision in our system of criminal justice to compensate a person who has been remanded in custody and then acquitted. Credit is not given for time spent in custody when the offender is not convicted of the offence that led to that remand, but is convicted of another different offence.[14]
[14]R v Goldberg CA10/05, 4 May 2006 at [61]–[69] and Goldberg v R [2006] NZSC 58.
The fact that the end sentence imposed by Judge Rea did not take into account the 113 days spent by the appellant on remand did no more than reflect what was required by s 82. We do not consider that just because s 90(2)(b) of the Act and the 113 days were not drawn to the attention of Judge Rea an error has been made. The task of sentencing could become considerably more difficult if Judges ignored s 82 and carried out the sort of exercise that is now urged on us. The Court would be asked to anticipate the decision as to the calculation of parole by the persons in charge of the relevant place of detention. Such considerations could unduly complicate the sentencing process. This is demonstrated by the solutions now proposed by Mr Snell. He suggests that an artificial sentencing process be undertaken whereby the actual sentences imposed would be considerably different from those actually warranted for the offending. The sentence would be tailored around the days spent on remand, directly contrary to s 82.
We also consider it helpful to place this appeal in the context of this Court’s role as an appellate court in respect of a sentencing. Section 385 of the Crimes Act 1961 provides:
385 Determination of appeals in ordinary cases
...
(3)On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must—
(a) dismiss the appeal; or
(b) if it thinks that a different sentence should have been passed,—
(i)quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed; or
(ii)vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(c) remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.
The broad statement “… if it thinks that a different outcome should have been passed …” can be contrasted with the more prescribed appellate jurisdiction of the High Court on a sentence appeal, set out at s 121(3)(b) of the Summary Proceedings Act 1957. That section provides that the High Court may quash or vary a sentence if it is “clearly excessive”. We agree with the comment in Adams on Criminal Law that although the discretion to intervene under s 385(3) appears to be unfettered in comparison to s 121(3)(b), no real difference in approach has resulted.[15] This Court does not lightly quash a sentence of imprisonment, and in the absence of a material error in the sentencing process which requires a re-assessment of the sentence, or a clearly excessive sentence, will not intervene. The evaluation is not in the general terms of whether there has been a “miscarriage of justice” as has been submitted. The test is more specific. As was stated in R v Radich, it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances.[16]
[15]Bruce Robertson (ed) Adams on Criminal Law – Sentencing (looseleaf ed, Brookers) at [SAB14].
[16]R v Radich [1954] NZLR 86 (CA) at 87 and R v Jeffries [1992] 1 NZLR 134 (CA) at 137.
This sentence does not require change under any of those grounds. Judge Rea’s sentencing process was transparent and principled. Mr Snell rightly offered no criticism of it, accepting that the sentence imposed was fair, save for the issue he now raises. The sentence can be regarded as generous to Mr Te Aho, as the starting point was no more than in the middle of the available range. A more significant uplift for Mr Te Aho’s appalling record could well have been applied. He was given a significant credit for a very late change of plea to guilty.
In the end we can see no basis on which this Court can properly intervene. The sentencing exercise carried out by Judge Rea was orthodox. The parole consequences are, through the Act, the domain of the persons in charge of prisons.
The Crown did not oppose Mr Te Aho’s application for an order extending time for filing his appeal, which is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent.
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