Woodward v Police
[2021] NZHC 2367
•10 September 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2021-483-012
[2021] NZHC 2367
BETWEEN SIMON JAMES WOODWARD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 September 2021 Appearances:
On the papers
Judgment:
10 September 2021
JUDGMENT OF GRICE J
(sentence appeal)
Introduction and background
The offending and sentencing
[1] On 23 June 2021 Mr Woodward was sentenced by Judge Carter in the Marton District Court to 25 months’ and two weeks’ imprisonment for six charges, namely: one charge of unlawful possession of a firearm, one charge of unlawful possession of ammunition, one charge of cultivating cannabis, one charge of possessing utensils for methamphetamine, one charge of being unlawfully in a building in Queenstown, and lastly, one charge of unlawfully converting a motor vehicle.1
[2] Mr Woodward had appealed his sentence, with that appeal being set down for 6 October 2021. However, on 19 August 2021, counsel for Mr Woodward filed a
1 Police v Woodward [2021] NZDC 12387.
WOODWARD v NEW ZEALAND POLICE [2021] NZHC 2367 [10 September 2021]
memorandum seeking clarification from the Crown of a factual matter relating to one of Mr Woodward’s charges.
[3] Specifically, in relation to the unlawful possession of a firearm charge, Judge Carter had stated in his sentencing notes that when the police had executed a search warrant on Mr Woodward’s address, they had found an 8 mm starter pistol that had been modified to fire live rounds, and was loaded with four rounds in the chamber.2
[4] Importantly, Judge Carter took this as the lead charge, and adopted a starting point of 20 months’ imprisonment, identifying a range of aggravating features, including the fact that the gun was loaded and that it had four rounds in the chamber:3
The lead offence is the unlawful possession of firearm and there are a number of aggravating features about that. It was an easily accessible pistol under your bed. The pistol was loaded with four rounds in the chamber and the locating of that pistol was accompanied at the same time by locating drugs and ammunition at the same location.
[5] That starting point was adopted by the Judge after having set out a number of comparable cases which related to the possession of unlawful loaded guns.
Counsel identify an issue with the sentencing
[6] In their 19 August 2021 memorandum, counsel for Mr Woodward identified that there was no evidence in the summary of facts for Mr Woodward’s offending which indicated that the pistol was loaded, or had four rounds in the chamber. In fact, counsel submitted that the modification of the starter pistol meant that it could only hold one round in the chamber at a time, and that when the police seized it, it was not in fact loaded.
[7] Counsel requested clarification from the Crown and police as to whether they were still in possession of the pistol, whether it was unloaded at the time it was seized, whether it could or could not hold four rounds, and whether there was any ammunition at Mr Woodward’s address that could actually be used in the pistol.
2 Police v Woodward, above n 1, at [4] & [10].
3 At [10].
[8] Counsel for Mr Woodward sought clarification on this matter before they filed their submissions for the 6 October sentence appeal, as it was their position that if there was a factual error in relation to the pistol, this could have affected the sentencing, particularly given the unlawful possession of a firearm was taken as the lead charge.
[9] The Crown responded on 27 August 2021. Counsel for the Crown stated that upon initial enquiries with police, the facts submitted by counsel for the police at sentencing (which the Judge appeared to rely on) were incorrect. The supervising officer of Mr Woodward’s case file had contacted the police officer who located the pistol, who confirmed that the pistol was not loaded when it was seized. Also, the pistol had been located by police, who had sent it to Wellington for an examination to determine whether it could be loaded at all and whether it could be loaded with any of the ammunition found with the pistol.
[10] The Crown conceded that there had been an error of law that may have resulted in a manifestly excessive sentence. The Crown submitted that the matter should be remitted to the District Court for re-sentencing on the correct factual basis under s 251(2)(c) of the Criminal Procedure Act 2011. According to counsel, remitting the matter to the District Court would allow for the factual issues to be resolved by agreement or by a disputed facts hearing and would also allow for any personal mitigating factors not raised by Mr Woodward’s previous counsel to be considered.
[11] Counsel noted that both the factual issues raised on appeal, and a potential s 27 cultural report for Mr Woodward yet to be filed, fell within the ambit of fresh evidence sought to be adduced on appeal which was governed by r 12B of the Court of Appeal (Criminal) Rules 2001. This would ordinarily be in the form of affidavit evidence which provides new information or rebuts factual findings of the sentencing court.
[12] Counsel also referred to the case of Archer v R, where the Court of Appeal held that an appeal of sentence is not generally the venue for disputed factual matters to be raised, and that where the court is satisfied that the disputed facts process described in s 24 of the Sentencing Act 2002 has been miscarried and that the sentence would be manifestly excessive if the facts alleged by the defendant establish the correct basis
for sentencing, the appeal should be allowed, and the matter remitted for sentence in the lower court.4
[13] Counsel submitted that remittal of the case back to the District Court would be more appropriate and expedient than considering the factual issues by way of a sentence appeal in this Court, and have to wait for affidavit evidence and the process in r 12B of the Court of Appeal (Criminal) Rules 2001 to be carried out.
[14] In a reply memorandum of 30 August 2021, counsel for Mr Woodward agreed with the Crown that the matter should be remitted back to the District Court for sentencing. Counsel also identified an issue with the methodology used by Judge Carter in sentencing Mr Woodward, as it appeared that he had not properly applied the methodology required in sentencing following the Court of Appeal’s decision in Moses v R,5 namely by trying to “offset” the 25 per cent discount for a guilty plea with the 20 per cent uplift for previous convictions.
Relevant law and analysis
Factual issues raised on appeal
[15] Section 251(2)(c) of the Criminal Procedure Act 2011 provides that the first appeal court, if it allows an appeal, may remit the sentence to the court that imposed it and direct that court to either set aside the sentence and impose another sentence, or vary the sentence.
[16] Under s 24 of the Sentencing Act 2002, where a defendant has pleaded guilty but there are disputed facts affecting aggravating or mitigating factors relevant to sentencing, those aggravating or mitigating facts must be proved in accordance with the requirements in that provision.
[17] Counsel for the respondent helpfully referred to the aforementioned case of Archer v R. In that case, Mr Archer was sentenced to 14 years’ imprisonment on one charge of causing grievous bodily harm with intent to do so and one charge of
4 Archer v R [2017] NZCA 52.
5 Moses v R [2020] NZCA 296.
unlawfully taking a motor vehicle when he entered the victims’ home at night and attacked them. Before sentencing, a disputed facts hearing had not occurred to consider two critical facts not proven: why Mr Archer used weapons against one of the victims and whether he committed a premeditated home invasion. A disputed facts hearing was only called for one factual issue (whether Mr Archer took an axe handle to the house), and this hearing was in fact averted when the Crown conceded the point.
[18] However, at sentencing, the Judge applied those unproven facts as aggravating features of the offending. Mr Archer subsequently appealed the decision on the basis that that the Judge's starting point depended on aggravating features that had neither been proved at trial nor established during a sentencing hearing.
[19] The Court of Appeal found in Mr Archer’s favour. The Court held that the s 24 process was not followed, as those unproven facts were unquestionably influential in the Judge selecting the starting point, and held that the starting point for this reason was manifestly excessive:6
The Judge adopted a 14-year starting point in reliance on facts that had been disputed and could not be taken to have been proved beyond reasonable doubt by the evidence already heard. Mr Archer's account invites scepticism but it could not be discounted without hearing from him, if that was his wish. We accept that if all of the disputed facts fell his way, the end sentence would be manifestly excessive.
[20] The Court declined to adjust the sentence itself, instead holding that under the then s 385 of the Crimes Act 1961 (the very similarly worded predecessor to s 251 of the Criminal Procedure Act 2011), where a court is satisfied both that the s 24 process has miscarried and that the sentence would be manifestly excessive if the facts alleged by the defendant establish the correct basis for sentencing, then it may allow the appeal and remit a sentence to the lower court for re-sentencing.7
[21] Furthermore, in Adams on Criminal Law, the authors have noted that where there has been an error of process (for example judicial reliance on a disputed fact without holding a disputed facts hearing under s 24), the appeal will only be upheld if
6 Archer v R, above n 4, at [22].
7 At [27].
the error has a bearing on whether the sentence was manifestly excessive.8 If the error is material in that determination, the court may adjust the sentence itself, if necessary holding its own sentencing hearing or alternatively, it may remit the case to the sentencing court with the appropriate direction under s 251.9 The “preferred course” is for the sentencing to be reconsidered by the trial court, with the decision whether to hold a s 24 hearing left to that court.10
[22] There does not appear to have been a disputed facts hearing in this case, at least in relation to whether the modified pistol was loaded, whether there was any ammunition at Mr Woodward’s address that could actually be used in the pistol, and whether it was capable of holding four founds in the chamber. The reason for this is unclear. However, the Judge relied on the police submissions and considered those unproven facts (which are now conceded by the respondent to be incorrect) to be aggravating features of the offending. The Judge therefore relied on analogous cases involving loaded guns to set the starting point. The Judge’s reliance on these facts has resulted in a sentence that was manifestly excessive.
[23] It is appropriate to allow the appeal and remit the sentence back to the District Court under s 251(2)(c) for re-sentencing. Any arguments relating to the Judge’s methodology and/or adducing a s 27 report can then be dealt with during that re-sentencing process.
Result
[24] There is a significant factual error in Mr Woodward’s sentencing relating to the unlawful possession of a firearm charge which has led to a manifestly unjust sentence. It appears this was as a result of submissions made at the sentencing, adopted by the Judge in error. A disputed facts hearing, which may have clarified the issue, was not held.
8 Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at SAB5.01, citing Banaba v R [2016] NZCA 122 at [22], [24] and [28]; Wang v R [2016] NZCA 56 at [23]; and French v R [2014] NZCA 297 at [7]–[8].
9 At SAB5.01.
10 See Mowbray v R [2018] NZCA 560 at [41] and Adams on Criminal Law – Sentencing at SA24.10.
[25] Therefore, the appeal is allowed and the matter is remitted back to the District Court for re-sentencing. That order is made accordingly under s 251(2)(c) of the Criminal Procedure Act 2011.
Grice J
Solicitors:
Debbie Goodlet, for the appellant
Wilkinson Smith Lawyers, for the Crown
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