The Queen v Michael Phillip Heather
[2001] NZCA 247
•27 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 198/01 |
THE QUEEN
V
MICHAEL PHILLIP HEATHER
| Coram: | Richardson P Heron J Chambers J |
| Written submissions: | M I Sewell for Appellant S P France for Crown |
| Judgment: (On the papers) | 27 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
This appeal against conviction is by consent being dealt with on the papers.
The indictment charged the appellant under s258(1)(a) of the Crimes Act 1961 with receiving various stolen items of a total value exceeding $300. The jury returned a verdict of guilty but only in relation to one item, a black coat, valued at $90. That verdict brought the offending within s258(1)(c) (where the thing received does not exceed $100 in value). The maximum sentence under s258(1)(a) was 7 years imprisonment and under s258(1)(c) it was 3 months imprisonment.
For the reasons he gave on sentencing the trial Judge entered a conviction and discharge. But he did not at any time amend the charge to conform with the verdict of the jury.
Section 258(1)(a) and (c) being separate offences, and s258(1)(c) being an indictable offence, the trial Judge was empowered to and should have amended the indictment to reflect the variance between the charge and the proof (s335) and this court should now do so pursuant to s386 (see R v Koura [1996] 2 NZLR 9 concerning the analogous s227 as to theft). To do so would not raise any sentencing issues given the order made on sentencing.
To reduce the offence to one governed by s258(1)(c) the indictment is amended by substituting for the items of value referred to "a black coat valued at $90" and a verdict of guilty of that offence is substituted for the presently recorded verdict.
Solicitors
Glover Sewell, Christchurch, for appellant
Crown Law Office, Wellington
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