[1] On 14 December 1999 the appellant, Mr Edwards, pleaded guilty in the
Otahuhu District Court to driving whilst disqualified (having
previously been
convicted on five earlier occasions for the same offence), dangerous driving
causing death and six counts of dangerous
driving causing injury. The
prosecution offered no evidence on a further charge of failing to stop after an
accident and Mr Edwards
was discharged under the Crimes Act 1961 s 347 on that
charge.
[2] On 15 February 2000 Mr Edwards was sentenced to two years’
imprisonment on the charge of driving whilst disqualified, four
years’
imprisonment on the charge of dangerous driving causing death and 18 months
imprisonment on the remaining charges of
dangerous driving causing injury.
Whilst the 2 year term was ordered to be concurrent with the 4 year term, the 18
month term was
ordered to be cumulative on the latter. Mr Edwards was
accordingly sentenced to a total of 5½ years imprisonment. He was
also
disqualified from holding or obtaining a motor driver’s licence for 10
years.
[3] Mr Edwards now appeals to this Court against his sentence on the basis that
it was manifestly excessive and greater than a sentence
indication given by the
Court.
[4] During the hearing matters emerged which were not directly raised on the
papers.
[5] Mr O’Driscoll, leading counsel for the appellant, advised that on 2
March 2000 Mr Edwards had pleaded guilty to two further
charges of driving on 10
March and 5 July 1999 whilst disqualified plus a charge of failing to stop for
flashing lights. On the
two counts of driving whilst disqualified he was
imprisoned for 18 months with those terms running concurrently with each other
and
with the terms of imprisonment which are the subject of this appeal. Mr
Edwards has not appealed against that sentence and is now
out of time so to do.
It follows that he will remain in custody irrespective of the result of this
appeal.
[6] Because of concerns expressed by counsel during the hearing of this appeal,
the Court sought copies of the District Court Judge’s
remarks on
sentencing Mr Edwards on 2 March. Those were provided on 31 May and
circulated to counsel who were invited to make further
submissions. Both chose
so to do and, in addition, Mr O’Driscoll filed an affidavit by counsel who
appeared for Mr Edwards
on the 2 March 2000 sentencing.
[7] The relevant portion of the District Court Judge’s remarks on
sentencing on 2 March 2000 reads (pp 2-3) : “I have
regard however to the totality of the sentences imposed upon him by me on the
15th of February when he was sentenced to 4 years
imprisonment for the driving that resulted in the death and a cumulative term of
18
months for the injury suffered by others. It is because of that sentencing
that I do not upon this occasion add a cumulative period
of imprisonment. If
in fact I am found to be wrong and my decision is challenged I record that I
seek that the Crown places this
matter before any Court to say that it was the
totality of the sentencing that persuaded me to make the term of imprisonment
that
I intend to impose upon this occasion concurrent rather than cumulative.
It was not from the point of view of the totality of sentencing
that when one
looks back and accepts that this defendant has been fixed with a very lengthy
term of imprisonment, and one would hope
that he has learned his lesson from
that, that the cumulative term is not required but if in fact that sentence was
altered in any
way in my view the term of imprisonment that I intend to impose
now would be cumulative and not concurrent for the reasons I have
indicated as
to it amounting to a flagrant abuse of his sensitivity to the requirements of
the community and breaches of the Court
orders which have dictated that he
should not drive.”
[8] Although there was some suggestion at the hearing before us that in some way
the 18 month term imposed on Mr Edwards on 2 March
would be reconsidered by the
District Court and made cumulative on the terms of imprisonment which are the
subject of this appeal,
it is tolerably plain – and is accepted by counsel
acting for Mr Edwards on 2 March and Mr O’Driscoll – that all
that
the learned District Court Judge was saying on that occasion was that had he not
sentenced Mr Edwards to a substantial term
of imprisonment on 15 February 2000,
the Judge would have given serious consideration, for the reasons appearing in
other parts of
his remarks, to making the term of imprisonment imposed on Mr
Edwards on 2 March cumulative on the earlier terms but that, in light
of the
substantial term imposed on the earlier occasion, the Judge decided to make the
imprisonment imposed on the later concurrent.
[9] Seen in that light, this was a view which the District Court Judge was
entitled to take. There was nothing untoward in his
approach and that matter
may accordingly be set to one side.
[10] As regards the sentence indication ground of appeal, the sentencing Judge
noted that prior to Mr Edwards entering his pleas
of guilty “there was a
general sentencing indication given and the file is noted that a ball-park
figure of three years was
mentioned but of course that is merely a starting
point to consider the totality of the matter”. The Judge who gave that
indication was not the sentencing Judge.
[11] In R v Gemmell [2000] 1 NZLR 695, this Court commented on the
difficulties inherent in the giving of indications by District Court Judges of
possible
sentences when those indications are given prior to conviction, without
full submissions by both counsel and, at times, without the
aid of other
essential material such as pre-sentence reports and victim impact statements.
In Gemmell this Court adopted the course of allowing the appeal, setting
aside the convictions and remitting the matter to the District Court
for the
appellant to have the opportunity to plead again. The Court took the view that
a miscarriage of justice may occur when
a guilty plea is entered following an
indicated sentence range but a sentence is later imposed which is considerably
in excess of
the indicated range and is imposed without offering the appellant
an opportunity to seek leave to set aside the guilty plea (see
paras 11 and 12 p
698).
[12] In this case, Mr Raftery, counsel for the Crown, responsibly accepted that
the comments made in Gemmell apply to this case as well. Mr Raftery
therefore submitted that it would be appropriate for this Court to treat Mr
Edwards’
appeal as one against conviction and adopt the course followed in
Gemmell.
[13] We agree with Mr Raftery’s submissions. We have borne in mind
Mr O’Driscoll’s submissions that to adopt
the course followed
in Gemmell could work a practical injustice to Mr Edwards, partly because
of the 18 month term of imprisonment imposed on him on 2 March but
also mainly
he submitted that Mr Edwards will have little practical option but again to
enter pleas of guilty, either with or without
a sentence indication. Mr
O’Driscoll submitted that Mr Edwards was likely to follow that course
because if he elected to
plead not guilty there would then be the impact on the
victims, whose reports make what the District Court Judge described as
“chilling”
reading, and Mr Edwards would face any further sentencing
without a discount in the event that he was convicted. A further guilty
plea,
counsel submitted, was therefore likely to follow. If it did, he submitted, it
would denote Mr Edwards’ acceptance
of responsibility for the driving
which gave rise to these charges. Notwithstanding that the procedure would
duplicate what has
gone before, Mr O’Driscoll resisted the suggestion
that this Court should direct that no further sentence indication be sought
or
given. He argued, paradoxically, that such would deprive the appellant of an
opportunity which should be available to him.
[14] Although the District Court may regard sentencing indications as a useful
means of keeping up with the volume of work, this
appeal graphically illustrates
the difficulties which can arise out of the sentence indication regime currently
applying to indictable
charges in the District Court. As this case
demonstrates, a different Judge may have markedly different views as to the
appropriate
sentence to be imposed once he is in full possession of all the
relevant material and has had the advantage of full submissions.
Furthermore,
the citation from the Judge’s remarks on sentencing shows that some Judges
appear to regard an indicated sentence
as no more than a “starting
point” before consideration is given to the extent to which aggravating
and mitigating factors
should be taken into account. Others presumably regard a
sentence indication as something which should not be departed from save
in
unusual circumstances; were it otherwise the indication would be more
misleading than helpful. Notwithstanding the practical
advantages there must
be serious doubt about the wisdom of the Judges who are not fully informed of
all relevant sentencing considerations
involving themselves in a sentence
indication process. That process is likely to be relied on by accused persons
in determining
their plea; and as this case illustrates, may do little to serve
the interests of justice from any perspective.
[15] Contrary to Mr O’Driscoll’s submissions, we regard the
observations on the sentence indication procedure appearing
in Gemmell as
being of general application and not confined to the facts of that case.
[16] It is for these reasons that we accept the Crown’s stance. We
accordingly treat Mr Edwards’ appeal against sentence
as an appeal against
conviction. We allow the appeal, set aside the convictions and remit the
matter to the District Court for
Mr Edwards to have the opportunity to plead
again. To allay some of the concerns expressed on the appellant’s behalf
–
particularly those relating to the 18 month sentence imposed on 2 March
– we direct :
- [a] That Mr
Edwards’ case come before the District Court at Otahuhu for arraignment as
soon as practicably possible after the
delivery of this judgment.
- [b] That if Mr
Edwards again enters pleas of guilty on the charges which are the subject of
this appeal, he should be entitled to
an appropriate discount for those pleas
without the history of this case to date and what has been said hitherto
affecting what is
regarded as the proper sentence.
[17] For the sake of completeness, we suggest that it would be preferable, in
the interests of fairness, for none of the District
Court Judges formerly
involved in this matter to be involved in dealing with Mr Edwards’ case
from this point onwards.
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