Terry v Department of Corrections HC Greymouth CRI-2011-418-004

[2011] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-004

BETWEEN  ROBERT FRANK TERRY Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         22 August 2011

Counsel:         Appellant (In person)

M Zintl for Respondent

Judgment:      29 August 2011

JUDGMENT OF MILLER J

[1]      Mr Terry appeals his conviction, on 14 April 2011, for failing to report for community work on 26 August 2010.   He maintains that he was not required to appear, for he had a latent appeal outstanding and a sentence of community work is suspended until such time as appeals have been exhausted.

[2]      The matter has a long history which I can survey briefly.  A sentence of 60 hours community work was imposed in February 2008 for a breach of the Telecommunications Act 1987.   The original conviction was appealed.   Although Mr Terry maintains that he enjoyed success, he did so only in the sense that on 10

March 2010 Fogarty J set aside a District Court decision of 21 January 2010 to cancel the earlier sentence of community work and substitute a sentence of 60 hours for failing without reasonable excuse to complete the original sentence.  Fogarty J made it clear that the original sentence remained, and had not been nullified by the

passage of time as Mr Terry prosecuted his appeals.

ROBERT FRANK TERRY V DEPARTMENT OF CORRECTIONS HC GRY CRI-2011-418-004 29 August

2011

[3]      On 23 April 2010 Fogarty J refused leave to appeal to the Court of Appeal and directed that Mr Terry report to continue his sentence on a specified date, 3 May

2010.

[4]      Mr Terry sought leave to appeal in the Court of Appeal, without success. The leave application was dismissed on 14 July 2010.  For the avoidance of doubt the Court of Appeal directed that Mr Terry report to the Duty Probation Officer at Greymouth no later than 4.00 pm on 16 August 2010, and otherwise as directed during the sentence.

[5]      While his application for leave was pending in the Court of Appeal Mr Terry also sought to mount a “leapfrog” appeal to the Supreme Court under s 144A of the Summary Proceedings Act 1957.   His application for leave was dismissed in a judgment delivered on 16 July 2010.

[6]      It is not in dispute that pursuant to the orders made by the Court of Appeal

Mr  Terry  was  subsequently  required  to  report  to  the  Reefton  Police  Station  at

8.45 am on 26 August 2010 to accompany a community work party.  He chose not to.

[7]      His argument before me was that he had a latent further appeal pending, in that by letter of 3 February 2011 a case officer at the Supreme Court wrote to him advising that he might reapply to that Court but would need to set out reasons why the Court should rehear his application.   He contended that his submissions are already held by that Court, and it is simply a matter of him reactivating his appeal in the exercise of his rights as a citizen.  I understood him to maintain that it sufficed that he might have sought a rehearing as at 26 August 2010, although he had not in fact done so.

[8]      Mr Zintl accepted that were an actual appeal pending to the Supreme Court the sentence of community work would have been suspended such that Mr Terry could not have been required to report on 26 August 2010.   However, it is incontrovertible that as at that date no further appeal had been filed.  It is still the case that no further appeal has been filed.   The Supreme Court characterised the

earlier  application  as  a  means  of  circumventing  a  jurisdictional  bar  on  appeals against a refusal of leave by the Court of Appeal.  The possibility, if such it can be described, that, if asked, the Supreme Court would decide to entertain a rehearing of the leave application and allow a leapfrog appeal cannot suffice to stay the sentence. Under s 124(3A) of the Summary Proceedings Act 1957 it is the filing of a notice of appeal that suspends the sentence.

[9]      That being so, I agree with the Judge that Mr Terry had no reasonable excuse for his failure to attend community work on 26 August 2010.   He was properly convicted and discharged.

[10]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Christchurch for Respondent