The Queen v Cruden [2001] NZCA 44; [2001] 2 NZLR 338; (2001) 18 CRNZ 571 (28 March 2001)

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/01

THE QUEEN

V

WARREN JOSEPH CRUDEN

Hearing:	22 March 2001
Coram:	Tipping J Robertson J Young J
Appearances:	R G Glover for Appellant J C Pike for Crown
Judgment:	28 March 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] The appellant pleaded guilty to two charges of attempted burglary. Cumulative sentences of 11 months imprisonment were imposed upon him to be followed by 9 months supervision; a combined total of 31 months. He now appeals against those sentences on the basis that section 47 of the Criminal Justice Act 1985 (the Act) prohibits the imposition of a sentence of supervision to follow a sentence of more than 12 months imprisonment and that, in any event, the total sentence was manifestly excessive.
[2] At about 7.15pm on 26 April 2000 the appellant went to a tourist hostel in Christchurch. He had with him a torch, a screwdriver and two small pocket knives. He used the screwdriver to open a bedroom window. Having climbed halfway through the window he was disturbed by the occupants of the room. The appellant ran off and was located a short distance away by the Police. He told them that he was going into the room to steal money and that the screwdriver was for jemmying windows. The appellant was initially charged with burglary and possession of instruments. He elected trial and was remanded in custody. He remained in custody until 5 October 2000 when, after a jury failed to reach a verdict at his trial, he was remanded on bail for a retrial. It was whilst the appellant was on bail that he committed the second offence.
[3] At about 10pm on 5 November 2000 the appellant drove to a motor lodge and parked in the car park. He climbed the stairs to the second floor of the lodge. He jemmied open a window in one of the units, breaking the latch. He was about to make further attempts to open the window when the occupants of the unit drove into the car park and became aware of his presence. The appellant casually moved away from the window and into the lodge laundry. He was seen to leave the address several minutes later. When spoken to by the Police the appellant said that he had blackouts now and again and could not remember if he had anything to do with the burglary of the motor lodge. On 5 December 2000 the appellant was charged with this further attempted burglary and remanded in custody.
[4] The Crown offered to reduce the original burglary charge to one of attempted burglary and to drop the possession of instruments charge in return for pleas of guilty to both attempted burglaries. The Crown also agreed that the term of imprisonment to be imposed in respect of the first matter should be no longer than the time the appellant had spent in custody on remand. Accordingly the appellant pleaded guilty on indictment to the original charge and guilty summarily in relation to the second charge of attempted burglary.
[5] In light of the arrangement reached, the judge calculated the time the appellant had spent in custody in relation to the first offence as five and a half months. This equated to a sentence of 11 months imprisonment on a time served basis. Accordingly that was the sentence imposed.
[6] In relation to the second offence the judge rejected a submission that the sentence to be imposed should be no longer than the term already served. He considered that, in light of the fact that the appellant had some 45 previous burglary or burglary related convictions, an appropriate sentence for the second charge was one of 20 months imprisonment. The principal aggravating feature was that this offending occurred while the appellant was on bail in respect of the first offence. By way of mitigation the judge noted the appellant’s guilty plea. The mitigating and aggravating matters were considered to be in equal balance and in order to let in a sentence of supervision and to comply with s8A(2) the term of imprisonment was assessed as one of 11 months, to be followed by a term of supervision of 9 months. A condition was also imposed that the appellant undertake psychological treatment as required by the probation officer. The final issue for the sentencing judge was whether the terms of imprisonment should be cumulative or concurrent. The judge determined that the collective effect of the two burglaries, against the background of the appellant’s previous offending, indicated that the terms be cumulative, and he so held.
[7] The appellant submitted that the combination of sentences imposed was beyond the jurisdiction of the Court. It was said that the sentence imposed was one of 22 months imprisonment and that because of section 47(1)(a) of the Act there was no power to impose supervision to follow that term. The sentence was also said to fall foul of section 8A(2), which provides that the total duration of the combined sentences (ie. imprisonment plus supervision) shall not exceed the term of imprisonment that would otherwise have been appropriate. Thus the appellant submitted that the sentence imposed could not be justified because 31 months imprisonment was too long for the two attempted burglaries. We will refer to the Crown's submissions to the extent necessary when considering these issues.
[8] We start by addressing the correct construction of s47 of the Act which states:

47 Cumulative Sentences

[(1) A sentence of supervision—

(a) May be cumulative on a sentence of imprisonment of 12 months or less so long as the term of the sentence of supervision does not exceed 12 months; but

(b) Shall not be cumulative on another sentence of supervision or on a sentence of any other kind.]

(2) No sentence of any kind shall be cumulative on a sentence of supervision.

[9] The issue is whether the phrase "a sentence of imprisonment" in ss(1)(a) means literally a single such sentence (which we will call the first view) or whether it means the total length of the sentence or sentences imposed on any one occasion (the second view). The point can be demonstrated by what happened in the present case. The Judge actually passed two distinct sentences, each of 11 months imprisonment with the second cumulative on the first. The sentence of supervision, passed at the same time, was made cumulative on the second sentence which, in itself, was a sentence of less than 12 months. However, in substance the Judge was sentencing the appellant to 22 months imprisonment.
[10] On the first view, the cumulative sentence of 9 months supervision was added to a sentence of 11 months imprisonment and therefore complied with s47(1)(a). On the second view, the sentence of 9 months supervision was added to a sentence of 22 months imprisonment and did not therefore so comply. There is nothing elsewhere in the Act which directly assists in deciding which view is correct. But certain provisions should be noted because they bear on the issue.
[11] Section 8A provides:

8A Limitation On Combined Sentences

(1) No court shall, in respect of any offence, impose on an offender a community-based sentence cumulative on a sentence of imprisonment, if the court ought not to have imposed a sentence of imprisonment at all.

(2) Where a court imposes a community-based sentence cumulative on a sentence of imprisonment, the total duration of the combined sentences shall not exceed the term of imprisonment that would otherwise be appropriate for that offence.

[12] It is clear that the proper sentencing approach in terms of s8A(2) is to determine what total sentence of imprisonment is appropriate for the offending. This is the first step. If the case is one in which a combination of imprisonment and supervision is considered appropriate, the total of the two sentences cannot be longer than the length of imprisonment fixed at the first step; nor logically should it be shorter. Regard must then be had to the provisions of s47(1)(a) in deciding the individual lengths of the sentences of imprisonment and supervision which are appropriate to make up the total. Because neither the sentence of imprisonment nor the sentence of supervision may exceed 12 months, a combination of imprisonment and supervision cannot be used if the total at the first step exceeds 24 months. An otherwise appropriate term of imprisonment should not be artificially reduced so as to let in a sentence of supervision. It must also be borne in mind that in terms of s46, no sentence of supervision may be less than 6 months. Those points are important to s8A(2) itself but it is not easy to see the section as providing any real help in determining the correct construction of s47(1)(a). Section 8A is directed to a different issue.
[13] We turn next to s63(3) of the Act which provides:

63 Effect Of Subsequent Sentences

......

(3) Where an offender who has been sentenced to a community-based sentence cumulative on a sentence of imprisonment is, before commencing or completing the community-based sentence, sentenced to a further period of imprisonment, and the total period to be served under the combined sentences of imprisonment exceeds 12 months, the community-based sentence shall not take effect or shall cease to have effect, as the case may be, and shall be deemed to be cancelled.

......

The approach which Parliament has taken in this respect supports the second view of s47(1)(a). But that support is by no means decisive.

[14] There are matters which point the other way and support the first view. Firstly, there are the literal words of s47(1)(a) and the fact that Parliament chose not to say that a sentence of supervision may be cumulative only on a sentence or sentences totalling 12 months or less: compare the terminology in s73 which deals with cumulative sentences of imprisonment. There is also the fact that the Act appears to regard cumulative sentences as being one sentence solely in the context of and for the purposes of Part 6 of the Act: see s92(2) which deals with calculation of parole eligibility and release dates. That is not, however, a point of any real force because of the confined subject matter with which that section is dealing and the actual mechanics of the s92 calculations.
[15] Counsel did not suggest that assistance could be obtained from any other section in the Act, and we have not been able to obtain any further help from the terms of the Act itself. We note that the same issue arises in s39 which deals with cumulative periodic detention sentences.
[16] We were also informed by counsel that there was no authority on the point at issue. That appears to be the position both in this Court and in the High Court. It is a matter of construing the section in the light of both its words and what can be seen as its policy and purpose. Mr Glover of course contended for the second view. Mr Pike, after canvassing the alternatives, ended up by joining Mr Glover in supporting that view. We consider he was right to do so. Parliament can hardly have intended that in cases involving more than one offence which are dealt with at the same time the issue should turn on how the sentences are arranged. If the first view is taken, it would follow that in the case of two concurrent sentences of 15 months imprisonment, supervision could not be added. But if in exactly the same circumstances the sentences passed were 9 months imprisonment plus 6 months imprisonment, the first view would allow supervision to be added to the 6 month sentence. That would make little practical sense and would open the way for sentences to be arranged artificially so as to allow cumulative supervision in circumstances which were not intended to attract that course.
[17] An extreme example would be a case in which a man was charged with sexual violation by rape and theft. If 9 years were the appropriate sentence of imprisonment overall, and the first view of s47(1)(a) were taken, the Judge could impose 7 years on the rape and 1 year cumulative on the theft, so as to let in a 1 year sentence of supervision to follow the theft sentence. Parliament can hardly have intended to make this approach jurisdictionally possible.
[18] The conclusion which we have reached is supported by the speech of the Minister of Justice on the second reading of the Criminal Justice Law Reform Bill in 1993 when the power to impose supervision, following a sentence of imprisonment was introduced. The Minister said that such a combination could be used only in the case of short sentences of imprisonment. He continued:

That is because the Courts are not in a position at the time of sentencing to be able to predict what a particular offender's circumstances, attitudes, and behaviour will be, once he or she has completed a long sentence.

[19] We would have reached the same conclusion without reference to the Minister's remarks but they simply confirm that Parliament was intending supervision to be possible after a sentence or sentences totalling no more than 12 months. Hence the second view is the correct one. The expression "a sentence of imprisonment" in s47(1)(a) means the total nominal length of any sentence or sentences imposed on any one sentencing occasion. To read the phrase in that way is to treat the singular expression "a sentence" as including the plural concept of sentences. To do so is a permissible approach unless the context points in the other direction: see s33 of the Interpretation Act 1999. Here, if anything, the context supports that reading. We do not see the use of the indefinite article in the expression "a sentence of imprisonment" as precluding the reading which we consider accords with what Parliament had in mind.
[20] In the present case the relevant length of the sentences imposed was 22 months. The sentence of 9 months supervision was therefore imposed without jurisdiction. We must therefore address how best to make the necessary consequential adjustments to the sentences imposed. Despite the appellant's very bad record, particularly for burglary, and the fact that he committed the second offence while on bail, we consider the total of 31 months adopted by the Judge was too long. It must have pre-supposed a starting point before crediting the appellant's pleas of guilty of at least 3 years. While the appellant is obviously a major problem for society, which deserves to be protected from his activities, we do not consider the starting point should have been higher than 30 months.
[21] In the light of the Crown's stance below that there would be utility in combining supervision with imprisonment, Mr Pike accepted that he should adhere to that approach in this Court. This was an appropriate stance for the Crown to take. After giving credit for the pleas, we consider a total term of 24 months would be appropriate. That is the assessment to be made at the first step referred to in paragraph [11] above. Rather than adopt some form of cumulative approach to reflect the offending on bail, we have factored that dimension into the 24 month assessment. We therefore consider that the best course is to pass concurrent sentences of exactly the same kind and combination on each charge.
[22] Had it been possible we would have preferred the combination of 15 months imprisonment plus 9 months supervision. That would have preserved the Judge's perception that 9 months was the appropriate length of supervision. But a sentence of 15 months imprisonment would have precluded the addition of supervision. We also consider it appropriate to say that in part the Judge seems to have been led down the wrong path by his natural wish to accommodate the agreement between the parties that in return for his pleas the appellant should not receive a sentence for the first offence longer, on a time to be served basis, than the time he had already spent in remand custody. This appears to have constrained the Judge to pass a sentence of 11 months on the first charge. The details are referred to in paras [4] and [5] above. In spite of that apparent constraint, the proper course was to decide what length of sentence was appropriate for the offending as a whole. If necessary and appropriate, an adjustment could always have been made to that assessment to reflect what the parties had agreed.
[23] The appeal is allowed. The sentences imposed in the District Court are quashed. In their place the appellant is sentenced to 12 months imprisonment to be followed by 12 months supervision on each charge, those terms to run concurrently. The supervision sentences are to be subject to the same special condition concerning psychological treatment as was imposed in the District Court.
[24] We add that in the light of the combination of sentences imposed and the effect of time already served, home detention would not be appropriate and leave to apply is declined. Nor would it be appropriate to suspend the sentences of imprisonment.
[25] We conclude by saying that it was common ground this Court had no jurisdiction in relation to the sentences imposed on the second charge. That charge was dealt with summarily and only the High Court has jurisdiction on appeal in such circumstances. This is yet another example of the problems which the present statutory regime can create. The only sensible solution is for the same three Judges who constituted the Court of Appeal to sit as High Court Judges for the purpose of dealing with the appeal from the sentences imposed on the second charge. We will proceed accordingly, and issue a separate judgment as a judgment of the High Court allowing that appeal with the same effect as this present judgment.

Solicitors
Glover Sewell, Christchurch, for Appellant
Crown Law Office, Wellington