The Queen v Morgan

[2004] NZCA 136

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/04

THE QUEEN

v

SUSAN CLARE MORGAN

Hearing:29 June 2004

Coram:Chambers J
Gendall J
Potter J

Appearances:  D G A Reece for Appellant

A Markham for Crown

Judgment:6 July 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Issue

[1]       The issue on this appeal is:  can a defendant who has applied under s100 of the Sentencing Act 2002 for a deferment of the start of his or her sentence of imprisonment but been refused appeal against that refusal? 

Discussion

[2]       On 21 May this year, Susan Morgan, the appellant, appeared in the Auckland District Court for sentence on one count of arson.  Judge Lockhart QC sentenced her to 18 months’ imprisonment.  He granted her leave to apply for home detention.  Ms Morgan’s counsel, Mr Reece, immediately applied for a deferment of the start date of her sentence of imprisonment under s100 of the Sentencing Act.  Judge Lockhart refused to defer the start date.  Ms Morgan has appealed against his refusal to defer the start date.  She has not appealed against her sentence of imprisonment.

[3]       The Crown took the point that there is no right of appeal against a refusal to defer the start date.  Mr Reece submitted that there was.  He submitted that the refusal to defer was an order not to defer and therefore it was a “sentence” for the purpose of Part XIII of the Crimes Act 1961.  By virtue of s379 of that Act, “sentence” includes any order of the Court made on conviction.  Accordingly, Mr Reece submitted that Ms Morgan had a right of appeal under s383(1)(d) of the Crimes Act, which subsection gives any person convicted on indictment a right to appeal to this court against “the sentence passed on the conviction”. 

[4]       Ms Markham, for the Crown, submitted that Mr Reece’s argument was wrong and that there was no ability to appeal against the refusal of the deferment.  We accept her submissions and are satisfied that there is no right of appeal against a sentencing judge’s refusal to defer the start of a sentence of imprisonment. 

[5]       We think it is clear that Parliament did not intend there to be a right of appeal.  In saying that, we take into account the following considerations.

[6]       First, s97 of the Sentencing Act is the section which provides that a sentencing judge may in certain circumstances grant an offender leave to apply to the New Zealand Parole Board for home detention.  Subsection (4) provides that, where the section applies, the court must either make an order granting leave or make an order declining to grant leave.  Section 98 then provides that, for the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under s97(4) is a sentence.  Part 4 of the Summary Proceedings Act is the part which deals with appeals from the District Court in its summary jurisdiction.  Part 13 of the Crimes Act is the equivalent part dealing with appeals in the case of indictable offences.  The point of s98 is to make it clear that an order under s97(4) is “a sentence” so that there can be no doubt about the ability to appeal if either the Crown or the offender is dissatisfied with the s97(4) decision.  There are other examples in the Act where Parliament has made clear that there are rights of appeal:  see, for example, ss73, 105 and 116.  It is noteworthy that there is no such provision specifying that a decision to defer or not to defer is a sentence for the purposes of Part 4 of the Summary Proceedings Act or Part 13 of the Crimes Act.  We agree with Ms Markham that such omission is very significant, especially in light of the other considerations which we shall mention.

[7]       Secondly, s100(4)(b) is inconsistent with any parliamentary intention that there be a right of appeal.  That subsection reads as follows: 

Despite subsection (1), no court may defer the start date of a sentence of imprisonment if - …

(b) the sentence of imprisonment is imposed in substitution for a sentence of imprisonment that has been quashed or set aside. 

[8]       It is clear that, had Ms Morgan or the Solicitor-General appealed against the sentence imposed by Judge Lockhart and had we been minded to allow the appeal, substituting either a shorter or longer term of imprisonment, this court would not have had power to defer the start date of the substituted term of imprisonment.  It would be odd in the extreme if we had no jurisdiction to defer the start date in those circumstances but did have jurisdiction to defer if the appeal against sentence were unsuccessful or if no appeal against the sentence of imprisonment were brought (as here).  What would be the logic of providing a right of appeal in those limited circumstances?  Mr Reece could not provide a rationale for such a fortuitous grant of appeal rights. 

[9]       Thirdly, a right of appeal is inconsistent with ss76 and 78 of the Parole Act 2002.  If a sentencing judge refused to defer the start date of a sentence of imprisonment, then the start date of that sentence is the date on which the sentence was imposed:  see s101(1) of the Sentencing Act and s76(1) of the Parole Act.  Neither the Sentencing Act nor the Parole Act makes any provision for what would happen if an appellate court were to reverse a sentencing judge’s decision not to defer.  By virtue of s100(3) of the Sentencing Act and s78 of the Parole Act, the start date of the sentence of imprisonment would be the date on which the offender was taken into custody after the expiry of the period specified by the court.  That leaves us in the position of conflicting start dates, which the legislation does not deal with.  Secondly, the Parole Act makes no provision for how one would count the days served in prison prior to the offender’s temporary release by the appellate court.  The fact that these potential problems are left unresolved by the legislation suggests strongly that Parliament did not intend a s100 decision to be appealable.  The fact that the sentence had already commenced was seen as decisive, in jurisdictional terms, in this court’s decision in R v Monkman CA445/02 3 March 2003 at [12].  See too the discussion by Venning J in Ake v New Zealand Police HC TGA CRN3070011038 9 July 2003 at [11] – [14] and Salmon J in Keelan v Department of Work and Income HC GIS CRI 2003-4165 12 September 2003 at [9].  We agree with Their Honours’ reasoning.

[10]     Fourthly, the absence of an appeal right is not surprising.  The decision whether or not to defer is highly discretionary and the effect on the offender is limited.  The maximum deferment is two months, and potentially less in the case of a deferment where the offender has been given leave to apply for home detention:  see s100(2).  If there were a right of appeal against a refusal to defer, then almost inevitably the offender will apply for bail so as to preserve the efficacy of his or her appeal right.  Almost inevitably bail would have to be granted; otherwise the right to appeal against the refusal to defer would be rendered nugatory.  (Indeed, that is exactly what happened in the present case.  Ms Morgan was granted bail so that her purported appeal right was not rendered nugatory.)  Unless this court grants priority, the offender would then effectively get the deferment by a side-wind.  It would be, as Ms Markham described it, “a de facto ‘deferment’ which undermines the legislative scheme”.  That has effectively happened in the present case, as Ms Morgan’s application for home detention is due to be heard in the week of 12 July.  Despite this court’s giving her purported appeal priority, she will effectively have spent most of the period pending the hearing of her application for home detention on bail.  Her position is not much different from what it would have been had Judge Lockhart decided to defer. 

[11]     If there were an appeal right, it would behove any offender refused deferment to appeal that refusal, as effectively they could achieve the desired deferment by means of bail pending the hearing of their appeal.  One can see that Parliament would not have wanted such a result, particularly given the significant resource implications for appellate courts.  Parliament would have balanced that against the comparatively small disadvantage suffered by an offender “wrongly” refused a deferral.  Such an offender does not serve any longer period of imprisonment.  Some additional days may be served at the start but they are counterbalanced by the earlier finish date.  In other words, there are no policy grounds for giving a strained interpretation of the legislation; on the contrary, policy considerations support there being no right of appeal against a decision to defer. 

[12]     Ms Markham referred us to the Parole (Extended Supervision) and Sentencing Amendment Bill currently before Parliament.  The Bill, if passed, will amend s100 of the Sentencing Act.  The amendment will put beyond any doubt the fact that there is no right of appeal against a refusal to defer.  The Government, in the explanatory note to the Bill, refers to this particular amendment as one of clarification.  That is to say, the Government did not consider that it was amending the law.  The need for clarification has no doubt arisen because some courts have considered appeals from refusals to defer, the lack of jurisdiction having been overlooked.  In so far as it is appropriate to consider the Bill, it supports the decision to which we have independently come as to the meaning of the current legislation. 

[13]     It remains to consider Mr Reece’s submission that a refusal to defer is an “order of the Court made on conviction” and hence “a sentence” for the purpose of s379 of the Crimes Act.  We do not consider that a failure to exercise the power conferred on the sentencing judge by s100(1) is equivalent to the making of an order.  The wording of s100(1) is in stark contrast to the wording in s97(4) to which we have earlier referred.  Not only does s97(4) use the word “order”, which s100(1) does not, but also s97(4) specifically refers to “an order…declining to grant leave”.  In our view, a refusal to defer is not a “sentence” as defined in s379 of the Crimes Act.

Result

[14]     We dismiss Ms Morgan’s purported appeal on the ground of lack of jurisdiction.  She had no right of appeal.

[15]     Ms Morgan, as we have indicated, is currently on bail.  She must surrender to the Registrar of the District Court at Auckland (criminal desk) by no later than 10am on the day following this judgment.  We have not been asked to consider how the time she has been on bail should be counted for the purposes of the period of imprisonment to which she was sentenced.  We accordingly express no opinion on that topic. 

Solicitors:
Crown Law Office, Wellington