The Queen v Leighton Kenneth Hoe
[2001] NZCA 70
•2 April 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA453/00 |
THE QUEEN
V
LEIGHTON KENNETH HOE
| Hearing: | 22 March 2001 |
| Coram: | Thomas J Blanchard J McGrath J |
| Appearances: | D B Mathias for Appellant S P France for Crown |
| Judgment: | 2 April 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
In concluding its judgment delivered in December 1998 in R v Webber [1999] 1 NZLR 656 this Court said (at 662):
Before parting with the case we record our continuing strong concern that unnecessarily complex and confusing procedural provisions of the criminal legislation are causing difficulties for those engaged in the busy work of the criminal Courts. We recommend very early legislative consideration
There has as yet been no legislative response although the problems to which we were referring have been recently addressed by the Law Commission in its Study Paper No 7, Simplification of Criminal Procedure Legislation (January 2001). Regrettably, this appeal requires us again to venture into the legislative morass.
The issue concerns the sentencing power of a trial Judge (a District Court Judge holding a warrant under s28B of the District Courts Act 1947 commonly known as a jury warrant) when sentencing someone convicted after pleading guilty under s153A of the Summary Proceedings Act 1957 before or during the preliminary hearing in respect of an indictable offence triable summarily described in the First Schedule to the 1957 Act. In terms of s28F(4) of the District Courts Act, if the District Court accepts jurisdiction in such a case a trial Judge may sentence the person to imprisonment not exceeding “the maximum term prescribed by law”.
It is convenient at this point to set out s28F of the District Courts Act 1947:
28F. Maximum sentences
(1) This subsection applies to any case where—
(a) A person is found guilty on indictment in a District Court; or
(b) A person who has been committed to a District Court for trial, or whose trial has been transferred to a District Court by order made under section 168AA(2) of the Summary Proceedings Act 1957, pleads guilty—
(i) Under section 321 of the Crimes Act 1961, at any time before the commencement of the trial; or
(ii) Under section 356 of that Act, either when called upon to plead or subsequently during the trial.
(2) In any case to which subsection (1) of this section applies, the Court may sentence the person to imprisonment or a fine or both, not exceeding,—
(a) In the case of imprisonment, the maximum term prescribed by law; or
(b) In the case of a fine, the maximum amount prescribed by law or, if no maximum amount is so prescribed, $10,000.
(3) This subsection applies to any case where—
(a) A person pleads guilty under section 153A or section 168 of the Summary Proceedings Act 1957, before or during the preliminary hearing, to—
(i) Any indictable offence triable summarily described in section 6(2) of that Act; or
(ii) Any indictable offence triable summarily described in the First Schedule to that Act; or
(iii) Any offence for which the accused elects trial by jury under section 66 of that Act; or
(iv) Any indictable offence referred to in Part 1 of Schedule IA to this Act; or
(v) Any indictable offence referred to in Part 2 of Schedule IA to this Act; and
(b) The Court accepts jurisdiction.
(4) In any case to which subsection (3) of this section applies,—
(a) Any trial Judge may sentence the person to imprisonment or a fine or both, not exceeding,—
(i) In the case of imprisonment, the maximum term prescribed by law; or
(ii) In the case of a fine, the maximum amount prescribed by law or, if no maximum amount is so prescribed, $10,000:
(b) Any Judge who is not a trial Judge may sentence the person to imprisonment or a fine or both, not exceeding the maximum term or amount prescribed by section 7 of the Summary Proceedings Act 1957.
The expression “the maximum term prescribed by law” presents no difficulty where the law prescribes only one maximum term for the offence, but what does the phrase mean in relation to the offence of cultivating cannabis under s9 of the Misuse of Drugs Act 1975? Cultivation of a prohibited plant is an indictable offence triable summarily and is described in the First Schedule to the 1957 Act. But there are alternative maximum terms. If the offender is convicted on indictment the maximum term for the offence is seven years (s9(2) of the Misuse of Drugs Act); but where the person is “summarily convicted,” s9(3) says that the District Court “may sentence him to a term not exceeding two years or a fine not exceeding $2,000 or both.” This Court in R v McLeod [1988] 2 NZLR 65 determined that when a District Court Judge accepts jurisdiction (under s28F(3)(b)) after a plea of guilty before the offender is committed for trial – at which stage no indictment is in existence – that person has been summarily convicted, not convicted on indictment.
If a trial Judge is consequently limited to imposing a maximum sentence of two years, then in a case deserving a longer sentence, it will be necessary for the trial Judge to decline jurisdiction and commit the offender for sentencing in the High Court, where s3(c) and (d) of the Crimes Act 1961 deem the offender to have been convicted on indictment:
3. Meaning of “convicted on indictment”
For the purposes of this Act, a person shall be deemed to be convicted on indictment if—
(a) He pleads guilty on indictment; or
(b) He is found guilty on indictment; or
(c) He is committed to the High Court for sentence under section 44 or section 153A or section 168 of the Summary Proceedings Act 1957; or
(d)After having been committed for trial, he pleads guilty under section 321 of this Act.
Para (c) is the only part of this definition extending to a conviction before committal for trial but obviously it does not apply unless there is a committal for sentence to the High Court.
Mr Hoe pleaded guilty pursuant to s153A before any preliminary hearing. It was accepted on his behalf that his offending could merit a sentence longer than two years. The issue of the jurisdiction of a trial Judge was raised. Kerr DCJ stated a question for the High Court in these terms:
Was I correct in ruling that where the defendant pleaded guilty to an indictably laid charge of cultivating cannabis under s9(1) of the Misuse of Drugs Act 1975 and pleaded guilty pursuant to s153A of the Summary Proceedings Act 1957 prior to depositions, if I had elected to sentence him in the District Court under s28F of the District Courts Act 1947 he would have been summarily convicted and the maximum term of imprisonment prescribed by law would have been two years rather than seven years?
In a reserved judgment in the High Court at Auckland on 7 December 2000 Robertson J answered this question in the affirmative. He refused leave to appeal to this Court. Mr Hoe now seeks that leave.
Robertson J noted that the critical issues in the case arise under subs(3) and (4). He referred to s153A(6):
153A Defendant may plead guilty before or during preliminary hearing
(6) If the defendant pleads guilty, then, subject to section 66(6) of this Act,—
(a) Where—
(i) The offence is an indictable offence referred to in section 6(2) of this Act; or
(ii) The offence is an indictable offence described in any of the enactments referred to in the First Schedule to this Act; or
(iii) The defendant elected under section 66 of this Act to be tried by a jury; or
(iv) The offence is an indictable offence referred to in Part 1 of Schedule IA to the District Courts Act 1947; or
(v) The offence is an indictable offence referred to in Part 2 of Schedule IA to the District Courts Act 1947,—
the Court shall record the plea and adjourn the proceedings for the sentencing of the defendant in accordance with section 28F of the District Courts Act 1947, and section 47 of this Act and section 50 of the Bail Act 2000 shall apply on every such adjournment; or
(b) In any other case, the Court shall commit the defendant to the High Court for sentence.
Mr Hoe’s offence came within s153A(6)(a) because of (a)(ii) - it was an indictable offence as described in the First Schedule to the Act.
After referring to McLeod and Webber, Robertson J summed up the position as follows:
In the present case Mr Hoe pleaded guilty under s153A to an indictable offence triable summarily as listed in the first schedule of the Summary Proceedings Act 1957. The District Court Judge recorded the plea and adjourned the proceedings for sentencing in accordance with s28F of the District Courts Act 1947. The Judge at this point had two choices: he could either decline to sentence Mr Hoe and commit him to the High Court for sentencing under s28G of the District Courts Act or he could accept jurisdiction and sentence him to the maximum prescribed by law which in this instance is two years under s9(3) of the Misuse of Drugs Act.
If the District Court Judge chooses the first option Mr Hoe will have been convicted on indictment. If he chooses the second option Mr Hoe will have been summarily convicted. The District Court Judge’s choice will be determined by whether or not he considers Mr Hoe is liable for a sentence greater than the two years. If he considers his offending warrants more than two years imprisonment he must commit him to the High Court for sentencing otherwise he will accept jurisdiction and sentence him in the District Court.
R v McLeod concerned convictions for selling cannabis under s6 of the Misuse of Drugs Act. Under that section the maximum sentence upon conviction on indictment is eight years. Subs(3), dealing with the sentencing of a person who is summarily convicted, is in the same terms as s9(3) save that the sentence is not to exceed one year or a fine of more than $1,000 (but not both). (It may seem extraordinary that under s9, a higher term can be imposed in the District Court on conviction summarily than can be imposed on such conviction under s6, yet the maximum term for conviction on indictment for cultivation of a prohibited plant is seven years.)
In the principal judgment in McLeod Somers J referred to the definition of “summary conviction” in s4 of the Acts Interpretation Act 1924. Allowing for updating of judges’ titles, the definition was the same as that now found in s29 of the Interpretation Act 1999, namely “a conviction by a District Court Judge or by 1 or more Justices of the Peace in accordance with the Summary Proceedings Act 1957”. Somers J said that there was no context in the Misuse of Drugs Act inconsistent with this meaning and nothing to exclude or restrict it.
After dealing with the meaning of the expressions “conviction” and “convicted on an indictment” and concluding that the latter in s6 of the Misuse of Drugs Act must import the provisions of s3 of the Crimes Act, the Judge said that Mr McLeod’s case did not fall within s3, and that s3 exhausted the possible modes of conviction on indictment. Mr McLeod’s conviction must therefore have been summary and accordingly the maximum term was one year. He expressed the view that the manner in which the District Court deals with the case, by accepting jurisdiction under s28F or by declining to sentence and committing the accused to the High Court, characterises the conviction. If the District Court Judge had declined to sentence Mr McLeod and committed him to the High Court for sentence he would have been convicted upon indictment. In R v Webber this Court, in dealing with questions arising about that procedure, confirmed the view of Somers J.
Mr Mathias urged us to distinguish McLeod, pointing out that it was decided when s28F was in a different form. He said that it is anomalous if a trial Judge is empowered by subs(1) and (2) to sentence up to the maximum term for a conviction on indictment if the offender is found guilty at trial in the District Court or if the offender pleads guilty after committal for trial, but that the same Judge is limited under subs(4) to sentencing to the lesser term if the conviction happens to occur at an earlier stage of the prosecution process. We agree. It is entirely anomalous, but the provisions with which we are concerned are replete with anomalies and the particular anomaly in this case arises not from the timing of the conviction but from its nature.
Nor do we consider that McLeod can be distinguished. It is true that the earlier version of s28F, which contained only two subsections, differs from the present section. It now makes allowance for the two types of District Court Judge – trial Judges and others – and for the middle-banding procedure. But the basic structure of the former section is repeated. Subsection (1) was concerned with sentencing after conviction on indictment and subs(2) with summary conviction. The division between the two subsections therefore related to the type of conviction; the powers of the sentencing Judge depended upon that. The same division is apparent in the present s28F. The introduction of separate reference to trial Judges in subs(4) is to allow for the fact that they can sentence a person summarily convicted to a term of more than seven years where that does not exceed the maximum term which can be imposed in respect of a summary conviction. Unfortunately, s9 of the Misuse of Drugs Act imposes a maximum term for a conviction on that basis of two years only (plus a fine).
The issue therefore remains as it did in McLeod. Is a conviction upon a plea of guilty before committal for trial a summary conviction? For the reasons given in McLeod, and in agreement with Robertson J, we think it is. We reject Mr Mathias’s argument that a sentence of a maximum term exceeding five years cannot be a sentence on summary conviction because s7 of the Summary Proceedings Act says that where any person is summarily convicted a District Court may sentence that person to a maximum of five years imprisonment. Parliament has chosen in another provision (s28F(4)) to increase the sentencing jurisdiction of trial Judges. The length of the maximum sentence specified by Parliament does not determine the nature of the conviction. Nor do we accept counsel’s ingenious submission that the form of words endorsed on an information whereby an offender makes his or her request to plead guilty under s153A can be treated as a type of indictment. It clearly is nothing more than what it purports to be, namely a signification of a desire to plead guilty.
Inconvenient though the consequences may be, nothing has been put forward which would justify the Court in departing from its decision in McLeod.
Leave to appeal is granted but the appeal is dismissed.
Solicitors
Crown Law Office
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