The Queen v Gemmell [2000] NZCA 7; [2000] 1 NZLR 695; (2000) 17 CRNZ 608 (4 February 2000)

Last Updated: 9 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA519.99

THE QUEEN

V

DAVID TE HIANGA GEMMELL

Hearing:	1 February 2000
Coram:	Gault J Keith J Tipping J
Appearances:	D M Madsen for Appellant C L Mander for Crown
Reasons:	4 February 2000

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] This conviction and sentence appeal arose from pleas of guilty entered after a judicial sentence indication and the imposition of sentences more severe than had been indicated. At the end of the hearing we allowed the appeal, set aside the convictions and remitted the matter to the District Court. We now give our reasons.
[2] The appellant was committed for trial on indictment on four counts of breach of a protection order, one of threatening to kill and two of attempting to dissuade witnesses from giving evidence in a criminal matter. The Crown case presented at the preliminary hearing, at which the two complainants were cross-examined, was that the protected person under the protection order was the appellant’s former de facto partner. There were four incidents on which the charges were based. In the first the appellant approached the car in which his former partner was sitting. The second incident related to the following day when he visited her home. He tried to persuade her not to give evidence against him in relation to a charge of breach of the protection order to be heard later that day. He threatened to slit the throat of her new partner. He then tried to persuade another person at the address not to give evidence, offering his car in return. The third incident occurred several days later when the appellant again went to his former partner’s home, spoke to her and took four of their children against her will. The fourth incident related to the appellant telephoning his partner approximately one month later to inquire whether she was going to give evidence against him.
[3] On 8 October 1999, while at the Whangarei District Court in connection with a pre-trial matter (it is not clear whether it was a callover or severance application) the appellant, who had been in custody since his arrest on 3 May 1999 asked his counsel to seek an indication from the Judge of his likely sentence should he plead guilty. What occurred is recorded in the Judge’s subsequent sentencing remarks as follows:

When Mr Gemmell appeared at callover on 8 October, in accordance with the practice now adopted in the Northern region, a sentencing indication was sought and given by me of 9 to 12 months imprisonment, cumulative upon the sentence presently being served by Mr Gemmell of two months imprisonment for breach of a Protection Order, that earlier sentence having been imposed on 30 September 1999, (although on the information before the Court today there is no indication as to when the offence date for that sentence was). That indication was given and accepted subject to a pre-sentence report and to an updated victim impact statement and to submissions from both defence and Crown counsel as to tariff authorities, particularly in relation to the charges of attempting to dissuade witnesses from giving evidence.

[4] The appellant, who has made two affidavits filed in this Court, referred in the second to the Judge’s account and said he did not recall the Judge using “those words”.
[5] Counsel who represented the appellant at the time also made two affidavits (privilege having been waived) but did not offer any comment on the Judge’s record. The Crown Solicitor’s file note merely records:

[Defence counsel] has matter recalled – requests status indication. [Judge] indicated 9 months but subject to submissions. Arraigned. Pleads guilty all counts.

It seems clear, however, that nothing the Judge had said constrained Crown counsel at the subsequent sentencing from presenting submissions to the effect that the indicated 9 – 12 months sentence was inadequate.

[6] The appellant stated in his first affidavit:

After receiving the Judge’s sentence indication I had a brief conversation with [counsel], again in the holding cells, as I considered whether or not to change my plea based upon the sentence indication. At that time I believed that I would receive a sentence of not less than 9 months and not more than 12 months.

I have read the sentencing notes of [the Judge] where he said that the indication of 9 to 12 months was subject to receiving submissions from both defence and Crown Counsel as to tariff authorities. I did not recall the Judge using those words. All that really stuck in my mind was the indication of 9 to 12 months. I am not familiar with the words “tariff authorities”. At no time did [counsel] tell me what that meant or say anything to me as to there being a possibility that my sentence could go higher than 12 months.

When I made my decision to plead guilty I thought I was getting 9 months minimum and 12 months maximum. I had no idea that the sentence could go higher than that. I spoke with [counsel] about the Judge’s sentencing indication for only 2 or 3 minutes.

I was able to work out for myself that if I received a sentence of between 9 and 12 months that I would likely be released from prison before the date even scheduled for my trial to commence [on 1 December]. All that [counsel] really said about it was that he advised me to plead guilty as I wouldn't get an opportunity like this to get another sentence indication of 9 to 12 months and this was the best deal I was likely to get.

There was nothing that [counsel] said or did on the 8th October to suggest to me that he was hesitant about me pleading guilty or that there was any prospect of me receiving a sentence of greater than 12 months.

[7] His then counsel advised his instructing solicitors:

At the callover, I discussed with Mr Gemmell his response to the charges and in the course of this he asked that I seek a sentence indication in the event of a guilty plea. I advised him that he could expect something in the order of two to two and a half years, to which his response was to seek the indication. This was obtained in accordance with your letter and this was followed by his plea. Accordingly, it has to be said that he was aware of the range but clearly, in view of the indication, he had hoped that given the mitigating factors including his very considerable efforts towards rehabilitation, the sentence might be in accordance with the indication, as was done, for example by the Court of Appeal in Clutterbuck.

[8] In his second affidavit he added:

... but, I cannot dispute that after the indication the appellant may have been left with the impression that if there was a guilty plea there was no “tariff” requiring a sentence exceeding 12 months.

[9] The position therefore seems to have been that the Judge expressly qualified his sentence indication as subject to reports and submissions and that the appellant was present when he did so. But there is nothing to contradict the appellant’s claim that he understood any variation would be within the indicated range. His counsel did not advise him that the indication was, in effect, meaningless nor that his decision to plead guilty in order to obtain early release rested on quicksand.
[10] In the event, on 29 October, after considering a pre-sentence report, a victim impact statement and the submissions of counsel, the Judge imposed concurrent sentences of two years imprisonment on each count.
[11] For the appellant it was submitted that it amounts to a miscarriage of justice to induce a guilty plea with an indicated sentence range of 9 – 12 months and then, without offering the appellant an opportunity to seek leave to set aside the guilty plea, to impose a sentence of two years.
[12] We agree.
[13] The matter of judicial sentence indications presents difficulties. In principle it seems inappropriate for matters of sentence to have any judicial consideration prior to conviction and without the aid of essential pre-sentence and victim impact reports. Any indication given in such circumstances must be so qualified as to be no real indication at all and certainly no reliable basis on which to plead. It is, of course, the role of counsel to advise (inter alia) on possible sentence implications when assisting an accused in deciding how to plead.
[14] At the same time it is to be acknowledged that there is an established practice in the District Court in its summary jurisdiction of conducting status hearings at which sentence indications are given at the request of defendants in accordance with guidelines agreed among the police, the Auckland District Law Society and the District Court judiciary. This is said to have been working well to the satisfaction of all parties.
[15] In the trial jurisdiction we were told of the practice at the District Court at Auckland described in the following note published in Northern Law News, issue No 45, 3 December 1999:

Sentence indications.

Sentence indications may be given by the presiding judge at first callover if requested. Such indications will be entirely without prejudice. If sentence indications are to be sought, then it is advisable to contact the Crown Solicitor’s office (Richard Marchant or Christine Gordon) before callover so the Crown attitude can be indicated at callover. The Crown is not permitted to consent to the imposition of any particular sentence. Crown counsel cannot bind the Solicitor General on questions of the appropriateness of any penalty, but may indicate whether a sentence indication is within the appropriate range. In certain circumstances it may also be appropriate to write to the court prior to callover indicating that a sentence indication will be requested so that the judge is also prepared. It is not always possible for a sentence indication to be given at callover, particularly if there has been no prior indication that it will be sought. For any matters that require a depth of consideration, fixtures are now being allocated at 9.15 am. Judge Lance QC and Judge Lockhart QC are available most mornings at 9 am if there is any requirement to discuss trial issues, including sentence indications. Requests can be made through the Criminal Registry. The contact persons are Josie Turei and Chris Laga’aia.

[16] The practice presumably was employed prior to the publication of this notice and appears to be the one the Judge followed in the present case, though prior notice to the Crown and to the court had not been given. The Crown Solicitor at Whangarei in his report stated:

As at October 1999 it was the practice of my office at Callovers when sentencing indications were sought by Defence Counsel to provide the Court with a Summary of Facts and at the consent of the accused to provide the Court with a previous Conviction History (if any) of the accused. At that time the Crown made no comment whatsoever on sentencing issues raised.

Since that time, as a result of discussions with other Crown Solicitors and in particular with the office of the Crown Solicitor at Auckland, if called upon by the Judge I will indicate what the Crown perceives as the appropriate penalty, i.e. imprisonment or not imprisonment. I do not make any comment as to the length of any term. In my experience some Judges give relatively finite expressions as to the term but most limit themselves to saying that it is imprisonment or not.

[17] We have been informed that the Criminal Practice Committee is to be asked to consider formulating a procedure to provide for prior sentence indications in indictable cases to assist accused in deciding on pleas while ensuring that their rights are not compromised. That will not be an easy task: see e.g. R v Turner [1970] 2 QB 321, R v Reece and others CA74-78/95, judgment 22 May 1995, Archbold 4-78 to 4-81, Hall’s Sentencing App I.2.11. But we do not wish to either condone or condemn a practice the details of which are not before us and so confine ourselves to the particular circumstances of this case.
[18] We are satisfied that so great was the departure from the prior indication that the sentencing Judge should not have imposed the sentence without considering whether or not to give an opportunity for review of the guilty plea. Nor should counsel have allowed the sentencing to conclude as it did without ascertaining whether the plea would be maintained and, if necessary, intervening on behalf of the prisoner.
[19] In the circumstances, the risk of injustice is inescapable and we consider it unnecessary to examine the merits of the defences said to have been abandoned and the challenge to the victim impact statement.
[20] The preferable course which we adopted was to allow the appeal, set aside the convictions and remit the matter to the District Court for the appellant to have the opportunity to plead again. He now faces the same dilemma since he has a release date of 23 or 24 February and the Crown also will need to consider whether, in that light, the matter should proceed in any event.

Solicitors

Gifford Devine & Partners, Hastings, for Appellant
Crown Solicitor, Wellington