The Queen v Namana

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 561/99

THE QUEEN

CARLOS NAMANA

Hearing:	3 April 2000
Coram:	Richardson P Gault J Henry J Thomas J Keith J
Appearances:	J C Pike for Appellant
P G Mabey for Respondent
Judgment:	3 April 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

Although the Crown appealed against a decision of Nicholson J given on 20 October 1999, its appeal, as will become apparent, was effectively against the judgment of Anderson J delivered on 16 December 1999. His judgment completed the sentencing process.
The respondent, Mr Namana, pleaded guilty to a charge of murder on 20 October 1999. The Crown Solicitor indicated to the sentencing Judge, Nicholson J, that he wished to make an application for a minimum non-parole order and requested that sentencing be deferred to enable the application to be heard and determined at the same time as the sentence was imposed. Nicholson J declined to defer the imposition of the mandatory sentence for murder, however, holding that the question of a minimum non-parole period could be dealt with at a later date.
The matter finally came before Anderson J on 16 December last year. Mr Mabey, who appeared for Mr Namana, contended that the Court did not have jurisdiction pursuant to s 80 of the Criminal Justice Act 1985, and this submission was accepted by the learned Judge.
Section 80(1), which is the pertinent subsection, reads as follows:
(1) Subject to subsections (2) and (3) of this section, if a Court sentences an offender to an indeterminate sentence, it may also order –
(a)In the case of murder, upon application made within 14 days after the date of the delivery of the verdict; and
(b)In any other case, at the same time as it sentences the offender–
That the offender serve a minimum period of imprisonment of more than 10 years.
Anderson J held that the Court did not have jurisdiction to make an order pursuant to s 80 because subs (1)(a) was not available in so far as there had been no verdict, and subs (1)(b) was not available as the sentence had long since passed and the sentencing process was defunct. He adjourned the application under s 80 for mention at a callover on 9 February of this year in order to “keep the matter tracked depending on what may happen in the interim”.
The question in issue in this appeal, therefore, is whether the phrase “at the same time as it sentences the offender” in s 80(1)(b) is to be interpreted strictly so as to mean that the indeterminate sentence and the application under s 80 are to be dealt with on the same date or as part of the one sentencing process. We have little hesitation in adopting the latter construction.
In our view, the paragraph refers to the Court’s function of imposing the indeterminate sentence authorised or required by statute and making, if warranted, an order that the offender serve a minimum non-parole period. The imposition of the indeterminate sentence and the making of any such order may be separated in time but remain the sentence imposed by the Court. Such a separation in time may be necessary or desirable for any number of reasons. First and foremost, of course, the Crown may not be in a position to proceed with an application for a minimum non-parole period immediately following a plea of guilty, defence counsel may desire more time to prepare his or her case to resist such an order, or the Court may wish to have further evidence or material put before it before reaching a determination. In such circumstances, the just and sensible course, and the course which we believe Parliament will have contemplated when enacting the provision, will be to adjourn the hearing of the application for further consideration at a later date. But, we would reiterate, the fact that the determination of the application is deferred will not mean that it is not part of the sentencing process by which the offender is both sentenced to an indeterminate sentence and, if required in terms of the statute, directed to serve a minimum non-parole period of imprisonment.
Mr Mabey, who appeared for Mr Namana, readily conceded that the only argument he could advance in support of the contrary interpretation is that the words “at the same time” should be read literally. The strict temporal construction for which he contended, however, would in the context of the section read as a whole be both overly-literal and unduly technical. The objective of the provision must be to ensure that when the offender is sentenced both the indeterminate sentence and any order directing a minimum parole period is dealt with by the sentencing Judge in respect of the same offence.
Nor could Mr Mabey suggest any policy reason why the Court should be obliged to both impose the indeterminate sentence and determine an application under s 80 on the same day. Indeed, there are strong policy grounds for accepting that an adjournment following the imposition of the indeterminate sentence should be permissible. As already mentioned, in many cases it will be desirable, if the Court is to do justice, for it to have further material before it before determining whether the offender, in addition to the indeterminate sentence, should also be imprisoned for a minimum period of imprisonment.
Taking the view, therefore, that the words “at the same time” in s 80(1)(b) refer to the sentencing process and do not preclude an adjournment, no question of the Court lacking jurisdiction arises. In arriving at the opposite conclusion, Anderson J did not, it seems, focus on the fact that the Crown’s application for an order under s 80 had been made and had then been adjourned by Nicholson J. The sentencing process was not “defunct”. Different considerations may arise where no application is made at the time of sentencing. In the present case, however, the application had been adjourned, and it was open to Anderson J to proceed to consider and determine that application.
Consequently, leave to appeal is granted and the appeal is allowed. The application pursuant to s 80 is remitted back to the High Court for determination. We expect that, as is ordinarily the case, the application will be dealt with by the Judge who imposed the indeterminate sentence.

Solicitors

Crown Law Office, Wellington for Appellant

[2000] NZCA 259

3 April 2000