Valentine v Police

[2016] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000116 [2016] NZHC 400

BETWEEN

TONY DEXTER VALENTINE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 March 2016
Appearances:	N Hansen for Appellant S E Burdes for Respondent
Judgment:	10 March 2016

JUDGMENT OF GENDALL J

Background

[1]      On  17  June  2015,  the  appellant  was  sentenced  in  the  District  Court  to

14 months’ imprisonment on one charge of drinking with excess breath alcohol third or subsequent offence.1   While the appellant was serving his prison term, on 29 July

2015,  he  was  again  called  up  before  Judge  Garland  in  the  District  Court  on sentencing for five charges of obtaining a pecuniary advantage by deception and one charge of theft.2    He was sentenced to a further nine months’ imprisonment, to be served cumulatively on the 14 month term.

[2]      The appellant now appeals against this nine months’ imprisonment sentence for the obtaining pecuniary advantage and theft charges on the basis that it is manifestly excessive in light of a change in circumstances related to  a medical condition he has.  The appellant contends that had the Judge in the District Court

considered his ill health and his need for significant back surgery, then either a

1      R v Valentine [2015] NZDC 11097.

2      R v Valentine [2015] NZDC 14785.

VALENTINE v NEW ZEALAND POLICE [2016] NZHC 400 [10 March 2016]

sentence of home detention would have been deemed appropriate, or, this second sentence would have been imposed concurrently and not cumulatively.

Jurisdiction

[3]      The appellant is able to appeal the sentence imposed as of right.3   This Court, as first appeal Court,4  will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.5    In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act

1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6

Appeal out of time

[4]      The present appeal was filed by the appellant on 19 November 2015, almost four months after this sentence was imposed.  This is far in excess of the 20 working days allowed for the appellant to exercise his right of appeal against sentence.7

However, r 8.5 of the Criminal Procedure Rules states that “a notice that is given out of time must be treated as if it contains an application for extension of time.”8

[5]      In this case, the Court has been guided by the Crown to relevant authorities relating  to  the  grant  of  leave  for  appeals  out  of  time.9    Having  considered submissions on this aspect, I am prepared to grant leave on the basis that there are potential merits to the proposed appeal and to grant leave here would avoid any possible or potential miscarriage of justice.  Furthermore, as I see it, granting leave would  not  unduly  prejudice  the  Crown  in  any  real  way.     Leave  is  granted

accordingly.

3      Criminal Procedure Act 2011, s 244.

4      Section 247.

5      Section 250.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

7      Criminal Procedure Act 2011, s 248.

8      Criminal Procedure Rules 2012, r 8,8.

9      Mikus v R [2011] NZCA 298 at [26].

Appeal to adduce further evidence

[6]      For  this  appeal  the  appellant  endeavoured  to  introduce  in  evidence  an affidavit  by  Mr  Michael  Thwaites,  a  prison  doctor,  as  to  his  present  medical condition.  Of course leave to do so is required.

[7]      Under s 335(2)(c) of the Criminal Procedure Act 2011, an appeal court may receive evidence if it thinks it necessary or expedient in the interest of justice.  In the present appeal, given that the respondent has little objection to the introduction of this  additional  evidence,  I  exercise  my  discretion  to  receive  this  evidence  of Mr Thwaites as to the appellant’s current medical condition.   Leave is granted for this purpose.

Substantive submissions

[8]      Ms Hansen, counsel for the appellant in this appeal, submits that at the time of both the first and second sentencing here, Judge Garland failed to consider the appellant’s medical condition.  Ms Hansen maintains that had the Court considered the appellant’s ill health,  either a sentence of home detention  would have been imposed, or, on the second sentencing, a concurrent rather than cumulative sentence would have been deemed more appropriate.

[9]      In terms of evidence available at the time of sentencing, counsel however does point out references made in the “Provision of Advice to Courts” report (PAC report).   Under the “Income, Work Skills and Education” subheading, the report stated:

Tony Valentine informed that he is in receipt of accidence compensation due to a back injury. He stated that he is awaiting an MRI scan to investigate the injury further and that he is using medication for pain relief.

[10]     The report then goes on to mention the inability of the appellant to finish his previous sentences of community service.  It points out that the imposition of these sentences has not deterred the appellant from further offending.

[11]     In Judge Garland’s original 17 June 2015 sentencing notes, there was brief mention of the defendant’s ill health and in particular, at [6] and [9], his back injury.

The  only real  discussion  by the  Judge  was  in  his  summary of  factors  that  the appellant’s counsel maintained should be taken into account for considering home detention, including at [9], “[the appellant’s] personal circumstance, in particular, [the appellant’s] back injury which may require surgery at some time in the future”.

[12]     The respondent suggests, however, that this is a case in which the appellant’s ill health only started deteriorating significantly after the sentencing.  The appellant in fact had back surgery for his disc prolapse to remove the disc on 18 November

2015 and he maintains now that since that time he has been in more pain than before he had surgery.  In circumstances of this kind, the appellant’s recourse is not to an appeal against sentence but an administrative application to the Parole Board under the Parole Act 2002 or the Corrections Act 2004.

Discussion

[13]     I do not accept that at the time of sentencing, the defendant was suffering from a substantial medical condition, known to Judge Garland as the sentencing Judge, that required his ill health to be taken into account as a major mitigating factor.   This is the first time, as I understand it, that significant evidence is being adduced about the appellant’s deteriorating back pain.  While the PAC report briefly mentioned the appellant’s previous back injuries, as I see it, these were comments made in passing when discussing the appellant’s income and ACC compensation.  In the absence of any medical evidence with regard to the appellant’s back injury, it was proper for the Judge to give little weight to the defendant’s brief submission.

[14]     It is clear the Court is required to consider a defendant’s ill health if it was apparent  at  the  time  of  sentencing.10      However,  where  there  is  no  significant evidence of ill health at the time of sentencing, the Court cannot be said to have erred in sentencing.

[15]     In Poi v R, to which both counsel referred me in submissions, the defendant was victim to a serious assault after sentencing, being beaten up by prison inmates.11

As a consequence of that serious assault, Mr Poi suffered traumatic brain injuries and

10     R v Luce [2007] NZCA 476 at [24].

11     Poi v R [2015] NZCA 300.

at the time of appeal, was in a coma.   The Court of Appeal refused to intervene, however,  because  there  was  an  absence  of  error  at  the  time  of sentencing  that warranted the Court interfering with the sentence under s 250(2) of the Criminal Procedure Act 2011.  The Court of Appeal held that the appropriate response was an administrative  one,  under  s  25(1)  and  41(1)(b)  of  the  Parole  Act  2002  or  s

62(2)(a)(ii) of the Corrections Act 2004.

[16]     I  agree  that,  in  circumstances  where  the  appellant’s  health  condition deteriorates after sentencing, the appropriate response is not one to lodge an appeal against that sentence.   Instead, as I see it, the proper recourse may involve, for example, filing  an application under s 25 of the Parole Act  2002 to notify the chairperson of the appellant’s declining health.12   Once an application is lodged, the Chairperson may, under s 41 of the Parole Act 2002, refer the offender to the Parole Board for consideration  of compassionate release.   A ground  for compassionate release under s 41(1)(b) is if the offender is seriously ill and unlikely to recover.13

[17]     In the alternative, an offender could also apply under s 62 of the Corrections Act 2004 for temporary release from custody due to grounds relating to what is described as compassionate or humane treatment of the prisoner.14

Result

[18]     For all the reasons outlined above, therefore:

(a)       Leave is granted to bring this appeal out of time.

12     Parole Act 2002, s 25.

13     Parole Act 2002, s 41(1)(b).

14     Corrections Act 2004, s 62(2)(a)(ii).

(b)      Leave     is     granted     to     adduce     the     fresh     evidence     of

Mr Michael Thwaites.

(c)       The appeal against sentence is dismissed.

...................................................

Gendall J

Solicitors:

Nicola Hansen, Christchurch

Raymond Donnelly & Co, Christchurch