Terry v Department of Corrections HC Christchurch CRI 2010-418-1

[2010] NZHC 636

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-418-000001

ROBERT FRANK TERRY

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         23 April 2010

Appearances: Appellant in Person

A M Toohey for Respondent

Judgment:      23 April 2010

JUDGMENT OF FOGARTY J

[1]      Mr Terry has applied for special leave to appeal against a decision of this Court delivered by myself on 10 March last.  In that decision I allowed his appeal against a judgment of Judge R E Neave of the District Court on 21 January last, but, went on to say in paragraph [26], that having set aside the judgment on conviction that being a person who had failed without reasonable excuse to complete required hours of community work I said that the existing sentence of 60 hours community work, which had been imposed by Judge J A McMeeken, remained.

[2]      In his application for special leave to appeal Mr Terry relies on two points. Firstly, he says that I should have followed Thomas J in R v Beazley [1995] 2 NZLR

686, where on just grounds he held Mr Beazley should not have been required to do

the sentence because of delay caused by the Corrections Department and not by him.

TERRY  V DEPARTMENT OF CORRECTIONS HC CHCH CRI 2010-418-000001  23 April 2010

[3]      Mr Terry’s second point is a jurisdiction point that the Court cannot re- impose this sentence, the sentence originally imposed by Judge McMeeken, after this point of time.

[4]      Mr Terry has a third complaint and that is that the sealed orders giving effect to my judgment contained errors meaning then that he did not have to comply with the direction at the end of my judgment of 10 March that he report to the duty probation officer at the Greymouth Community Work Centre no later than 4 pm on Monday, 15 March.  He has invited me to sort this out so that at minimum the sealed order  reflecting  the  judgment  of  10  March  is  correct.    But  that  involves  now changing the start date of the community sentence and he has suggested 1 May.  But that is a Saturday.  There is already a precedent in the Terry family, his late brother, Mr Brian Terry, being required to complete a sentence on a Sunday.  I propose that the duty to report to the duty probation officer will recommence on Monday, 3 May

2010.   Mr Terry you are to report to the duty probation officer at the Greymouth Community Work Centre at 20 Johnston Street, Greymouth, on that date, no later than 4 pm.

[5]      I say that in anticipation of my judgment to decline this application for leave to appeal, having intimated to Mr Terry before delivering this judgment that that was what I was proposing to do.

[6]      Before I can grant leave for any judgment to go to the Court of Appeal in these circumstances I must comply with s 144 of the Summary Proceedings Act

1957, and to that end: be satisfied there is a question of law involved; and the question is one of general or public importance or for any other reason the question ought to be submitted to the Court of Appeal for decision; and that the Court should in the exercise of its discretion grant leave to appeal.

[7]      The argument for the Crown before me on 4 March last did cite the decision of Thomas J in Beazley which held that s 137(4) of the Summary Proceedings Act was mandatory.  Ironically, the Crown was arguing that that decision was no longer applicable given the Sentencing Act 2002 and the requirements of the legislation.  I rejected that argument.

[8]      At the end of the judgment of Thomas J, however, he goes on to say that the jurisdiction  to  make  the  order  required  by  s  137(4)  will  not  be  exercised,  he believing it would be inappropriate and unfair to do so.

[9]      I did not consider this part of Thomas J’s decision.  However, if I had, my reasoning in paragraph [8] of my decision would, I think, probably, have carried the day against exercising this reserve jurisdiction that Thomas J identified.   My recollection is that  I was impressed by the delay as being largely the result of Mr Terry exercising his citizen’s right of appeal and application for leave to appeal and also by the failure of both myself and, on one occasion at least, the Court of Appeal, to apply s 137(4) of the Summary Proceedings Act.

[10]     I am in the position now that Mr Terry is arguing a point, to be taken to the Court of Appeal, which was not considered by me in the High Court.  I do think that there is a question of law involved in the judgment of Thomas J in Beazley.  It is this. If s 137(4) is mandatory, as Thomas J found in his judgment, then is there any inherent jurisdiction in the High Court which enables the High Court not to apply it? Mr Terry argues there is and indeed has invited me to apply it today.

[11]     That is a question of law and secondly, it is a question of law of some general or public importance.  But my concern is that it is not a question clearly arising out of my judgment and in the way the case was argued before me on 4 March.   For these reasons, I think it is more appropriate that the Court of Appeal decide whether or not to grant leave to appeal from my decision rather than I make the decision.

[12]     Accordingly, the application for special leave is dismissed.  Mr Terry, your position now will be that you will be obliged to report to continue your sentence on

3 May.  However, if you apply before then to the Court of Appeal for special leave to appeal, it is my understanding of the law that the sentence will continue to be suspended while that process is in train.

Solicitors:

Raymond Donnelly & Co, Christchurch

cc: Mr R F Terry