Terry v The Queen

[2010] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/2010
[2010] NZCA 295

BETWEENROBERT FRANK TERRY

Applicant

ANDTHE QUEEN

Respondent

Hearing:6 July 2010

Court:Ellen France, Stevens and Wild JJ

Counsel:Applicant in person

S B Edwards for Respondent

Judgment:14 July 2010 at 10.30 am 

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]        Pursuant to s 144(3) Summary Proceedings Act 1957 the applicant seeks special leave to appeal to this Court on a question of law he says arises from his appeal to the High Court against conviction.[1]  The High Court has already refused leave.[2]  In his application the applicant stated the question of law on which he seeks special leave to appeal thus: whether a High Court has the power, under the law to re-impose a sentence, set aside by a District Court judge?  Having heard from the applicant, we think the question on which he seeks special leave to appeal is more accurately stated:  Have s 137(4) Summary Proceedings Act and s 58 Sentencing Act 2002 operated to nullify the sentence of community work imposed on him by the District Court on 15 February 2008?  Another way the question could be framed is:  Is the direction of the High Court on 10 March 2010 to the applicant about the commencement of his sentence lawful?

Background

[1]      Terry v Department of Corrections HC Greymouth CRI-2010-418-1, 10 March 2010.

[2]      Terry v Department of Corrections HC Christchurch CRI-2010-418-1, 23 April 2010.

[2]        The applicant was sentenced to 60 hours community work in the District Court at Westport on 15 February 2008.[3]  The sentence was imposed after Judge McMeeken found proved a charge of misuse of a telephone under s 112(2)(a) Telecommunications Act 2001.

[3]      Police v Terry DC Westport CRI-2008-409-9, 15 February 2008.

[3]        The applicant unsuccessfully appealed to the High Court against his conviction.[4]  The applicant sought leave from the High Court, and subsequently from this Court, to appeal further against conviction.  Both applications were declined.[5]

[4]      Terry v Police HC Greymouth CRI-2008-418-4, 12 June 2008.

[5]Terry v Police HC Christchurch CRI-2008-418-4, 23 July 2008; R v Terry [2008] NZCA 506.

[4]        The applicant’s sentence commenced on the day it was imposed (s 75(1) Sentencing Act), but ceased to run when the notice of appeal was filed.[6] 

[6]      Section 124(3A) Summary Proceedings Act.

[5]        On 8 May 2009 the Department of Corrections laid two informations against the applicant, one alleging an offence under s 71(1)(a) Sentencing Act, the second an offence under s 71(1)(d).  The first charge was that the applicant had failed to report to begin his sentence, the second that he had failed without reasonable excuse to complete his sentence.

[6]        After another defended hearing, the District Court at Greymouth dismissed the failing to report charge but convicted the applicant on the failing to complete the sentence charge.  The reason for the different results was that Judge Neave found the Department had not proved that it had notified the applicant of his reporting obligation, whereas the applicant was obliged to complete his sentence regardless.  Judge Neave cancelled the original sentence of community work and imposed an identical sentence of 60 hours community work.[7]  In doing that the Judge observed it “simply re-imposes the original sentence”, which was not strictly correct.

[7]      Probation Department v Terry DC Greymouth CRI 2009-018-528, 21 January 2010.

[7]        The applicant again appealed.  Fogarty J held the applicant could not be convicted of failing to complete his sentence if there was no proof that he had been notified of a requirement to commence serving it.[8]  Fogarty J then said this:

[26]       Having [set] aside the judgment on conviction I now also go on to set aside the judgment on sentencing.  The existing sentence of 60 hours remains.  The fact that it has not been completed within six months pursuant to s 58 does not nullify the sentence.

[27]       Mr Terry is to report to the duty probation officer at Greymouth Community Work Centre, 20 Johnston Street, Greymouth, no later than 4 pm on Monday, 15 March 2010, and as directed at any other time during the sentence for the purpose of monitoring the sentence.

[8]      Terry v Department of Corrections HC Greymouth CRI 2010-418-1, 10 March 2010.

Applicant’s submissions and our decision on them

[8]        As we have indicated, the applicant applied to the High Court for leave to appeal to this Court on two grounds.  The first ground was that Fogarty J should have followed R v Beazley.[9]  In Beazley Thomas J exercised what Fogarty J termed a “reserve jurisdiction” not to direct in terms of s 137(4) that a sentence be served, as Fogarty J had done in the two paragraphs we have set out in [7].  The applicant’s second point was that the High Court lacked jurisdiction to reimpose, after the lapse of time that had occurred, the sentence originally imposed by Judge McMeeken on 15 February 2008. 

[9]      R v Beazley [1995] 2 NZLR 686 (HC).

[9]        Fogarty J did not consider Beazley gave rise to any question of law of general or public importance arising out of his judgment.  He pointed out the applicant had not invited him to follow Beazley.  The only reference to the case had been by the Crown which had submitted that Beazley no longer applied given the requirements of the Sentencing Act (an argument Fogarty J rejected).

[10]       Although Fogarty J says nothing about the second, jurisdictional point, we assume he did not regard it as an appropriate one for the granting of leave, since he dismissed the application.

[11]       Fogarty J ended that leave judgment by directing the applicant to report “to continue” his sentence on 3 May 2010 (we understand he has not yet served any of it).

[12]       We deal first with the Beazley point, although it was not mentioned by the applicant, whose focus was wholly on the jurisdictional point.  For two reasons, we are satisfied that Fogarty J was correct to refuse leave to appeal on the Beazley point.  First, as Fogarty J pointed out, the applicant had not, on the hearing of the appeal on 4 March 2010, invited him to follow Beazley.  The Judge observed:[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.

[10] At [10].

[13]       Secondly, even if the applicant had invited Fogarty J to follow Beazley, and not give a direction under s 137(4), the Judge indicated that he probably would not have exercised that “reserve jurisdiction”.  That was because Thomas J considered “None of this inordinate delay [23 months] has been of Mr Beazley’s making”,[11] whereas Fogarty J “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”.[12]  For those two reasons, no question of law arose out of the High Court’s 10 March 2010 judgment.

[11]      At 690.

[12] At [9].

[14]       We turn to the second, jurisdictional point.  First, in framing his proposed question of law, the applicant was wrong to state that Fogarty J “reimposed a sentence set aside by a District Court Judge”.  What Fogarty J did was to recognise that the course of events meant that the sentence originally imposed by Judge McMeeken on 15 February 2008 remained in force.  That is correct, and in his submissions to us the applicant acknowledged that.  He accepted that the sentence of 60 hours community work originally imposed on him “still remains”.

[15]       The applicant’s point was that he was not able to complete that sentence within six months of the Court of Appeal dismissing his leave application on 28 November 2008, because the Court of Appeal did not give him the required direction.  That submission sought to invoke s 58(1) Sentencing Act and s 137(4) Summary Proceedings Act.  These provide:

58          Length of sentence of community work

(1) If the court imposes a sentence of community work of 100 hours or less, that sentence must be served within 6 months of the date that it commences under section 75, 75A, or 76.

137        Resumption of sentence or order on determination of appeal

...

(4)Where the defendant has been sentenced to community work and subsection (1) or subsection (2) or subsection (3) of this section applies, the Court that determines the appeal or, as the case may require, the District Court Judge to whom the certificate is submitted shall, in addition to specifying the date on which the sentence resumes, specify the date and time at which the defendant is required to report to the community work centre on the first occasion after the resumption of the sentence.

[16]       Section 59 Sentencing Act is also relevant.  It provides:

59          Offender must report to probation officer

An offender who is subject to a sentence of community work must report in person to a probation officer in the probation area in which the offender resides—

(a)as soon as practicable, and not later than 72 hours, after the sentence is imposed; and

(b)as directed at any other time during the sentence for the purpose of monitoring the sentence.

[17]       Although the applicant cast his submission in different ways, the nub of it was that “the authorities” cannot come along three years later (it is actually a good deal less than that) and order him now to serve the sentence of community work.  We do not accept that submission.  Assuming s 137(4) has not been overtaken by s 59 Sentencing Act, we do not accept that any omission of this Court, in its 28 November 2008 judgment, to give a s 137(4) direction meant that no such direction could thereafter be given.  The applicant did not point us to any authority supporting that.  Assuming s 137(4) rather than s 59 applied, the only consequence of any omission would have been that the applicant did not need to start serving his sentence until a s 137(4) direction was given.  We have referred to “any omission”, because we do not necessarily accept that a s 137(4) direction was required in this Court’s 28 November 2008 judgment.  That judgment dismissed Mr Terry’s application for leave to appeal.  Section 124(3A) Summary Proceedings Act therefore did not apply to it, as it only stops a sentence of community work running from “the day notice of appeal is filed”.  The applicant needed leave to appeal and did not get it.  Consistent with that, s 137(4) applies to “the Court that determines the appeal”.  This interpretation is supported by contrasting s 124(3A) with s 399(3) Crimes Act 1961, which applies to an appeal against a sentence of community work imposed following conviction upon an indictment.  Section 399(3) provides:

Where on any conviction to which any appeal relates the Court has sentenced the accused to supervision, intensive supervision, community detention, or home detention, the term of the sentence shall cease to run on the day on which notice of appeal or of application for leave to appeal is given.

[18]       Secondly, the applicant misconceives the effect of s 58(1).  It imposes a time obligation on an offender.  Its aim is to prevent a person in the applicant’s position from serving his sentence over, for example, 10 years.  It does not render the sentence unenforceable by “the authorities”, if it is not completed within six months of its commencement.  If that were its effect, it would represent an incentive to offenders not to complete their sentences in a timely way.  Parliament did not intend to provide such an incentive.

[19]       To summarise, we reject that the combined effect of s 137(4) Summary Proceedings Act and s 58 Sentencing Act is as contended for by the applicant.  We do not accept that any of this gives rise to a question of law warranting substantive consideration by this Court.  Accordingly, special leave to appeal to this Court is declined and the application is dismissed.

[20]       For the reasons we have explained, we do not think s 137(4) Summary Proceedings Act applies here, and s 59 Sentencing Act anyway now covers the position.  However, out of an abundance of caution, in terms of s 137(4) Summary Proceedings Act, we direct that the applicant is to report to the duty Probation Officer at Greymouth Community Work Centre, 20 Johnston Street, Greymouth, no later than 4pm on Monday 16 August 2010, and as otherwise directed during the sentence.  This reporting date recognises that the applicant has, pending, an application for leave to appeal to the Supreme Court.

Solicitors:

Crown Law Office, Wellington for Respondent