The Queen v Hadley [2003] NZCA 6; [2003] 2 NZLR 88; (2003) 20 CRNZ 10 (19 February 2003)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/02

THE QUEEN

V

RAYMOND HADLEY

Hearing:	5 February 2003
Coram:	Gault P Tipping J Anderson J
Appearances:	W C Pyke for Appellant B J Horsley for Crown
Judgment:	19 February 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] The appellant, Raymond Hadley, was found guilty by a jury in the District Court at Hamilton of various sexual offences against his daughter. The offending took place in late 2000 and early 2001. He was sentenced on 16 July 2002 to a total of eight years imprisonment, made up of the following concurrent terms: eight years for attempted sexual violation by rape; six years on each of two convictions for sexual violation by digital penetration; three years on a representative charge of indecent assault; and two years on each of two charges of attempting to induce an indecent act.
[2] The Judge imposed a minimum term order of five years imprisonment under s86 of the Sentencing Act 2002 in relation to the eight year sentence for attempted rape. It is common ground that he had no power to do so. In essence the reason is that the offence of attempted rape was not a specified serious violent offence under the Criminal Justice Act 1985 which was in force at the time of the offending. Hence the case did not fulfil the requirements for a s86 order set out in s152(2) of the Sentencing Act. The primary question on this appeal is whether, as the Crown contends, this Court has the power to impose a substitute minimum term order under s86 in relation to the sentences of six years imposed for the two offences of sexual violation by digital penetration, which do qualify for such an order under s152(2).
[3] Mr Pyke argued that as the appeal was in effect directed solely to the minimum term aspect of the eight year sentence, the other sentences were not in issue in this Court and thus all the Court could do was to quash the invalidly imposed s86 order in relation to the eight year sentence. The Court could not, in his submission, impose a similar order (albeit necessarily limited to four years) in relation to the six year sentences. Mr Horsley argued that s385(3) of the Crimes Act 1961, which is the principal foundation for this Court’s powers on a sentence appeal, was wide enough and flexible enough in its reach to permit the course for which the Crown was contending.
[4] Section 385(3) of the Crimes Act is in these terms:

385 Determination of appeals in ordinary cases

(3) On any appeal against sentence the Court of Appeal, if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been passed or vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; and in any other case the Court shall dismiss the appeal.

[5] The issue which arises concerns the compass of the word “sentence” in s385(3). The subsection uses the word “sentence” several times and in one place uses the expression “the sentence or any part of it”. Mr Hadley’s notice of appeal can be read as putting in issue all the sentences imposed on him and not just the s86 order associated with the eight year term. We prefer, however, to consider the matter on a more general basis. Mr Horsley relied in particular on the cases of R v Jeffries [1992] 1 NZLR 134; (1991) 7 CRNZ 655, and R v Collie [1997] 3 NZLR 653. In each of these cases this Court held that if several sentences had been imposed as part of a package, an appellant could not seek to isolate one element of the package, attack it alone and, if some flaw were shown in it, claim that the Court had no jurisdiction to examine and adjust any other element of the total sentencing package. For example, if in a case of multiple offending a lead sentence is imposed on a particular charge at a higher level than that charge viewed alone might justify, an appellant cannot, by attacking that sentence alone, impose blinkers on the Court preventing it from taking into account the multiple circumstances in which the lead sentence came to be imposed. That is the effect of Jeffries by necessary converse reasoning: see R v Williams (CA257/01, 6 August 2002).
[6] In Collie the appellant had been convicted on 16 sexual charges. He was sentenced to an effective total term of 16 years imprisonment, made up of cumulative terms of nine and seven years imprisonment. Following a reference to this Court by the Governor-General, three of the convictions relating to one complainant were quashed. One of the convictions quashed happened to be the one pursuant to which the nine year sentence had been imposed. The remaining sentences did not properly reflect the totality of the established offending. The Crown relied on s386(1) of the Crimes Act for the proposition that this Court had thereunder power to increase the remaining sentences, notwithstanding that there was no appeal directed specifically to them. This Court held at 664-665 that it had such power:

In this country, where sentences have been imposed following convictions on several counts it is commonplace that there may be more than one appropriate mode of constructing the effective sentence. Sentences may be imposed cumulatively, or the sentence on a particular count may reflect the total culpability. Whatever method is adopted, if subsequently there is a successful appeal resulting in the quashing of one or more convictions and the appended sentences, the sentence or sentences remaining may then no longer appropriately reflect the needs of the case, and may require adjustment, whether up or down. The Court will not necessarily have before it a sentence appeal providing an appropriate vehicle for the adjustment. Where there is none s 386(1) construed in a fair, large and liberal way provides the necessary machinery.

[7] Section 386(1), upon which the Court relied in Collie, provides:

386 Powers of Court of Appeal in special cases

(1) If on any appeal under section 383 of this Act it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted.

[8] The present case is not of course within s386(1) but the flexible approach which the Court took in Collie, when read with the similar approach in Jeffries, reinforces the conclusion to which we would in any event have come, that when s385(3) of the Crimes Act uses the words “sentence” or “part of a sentence” Parliament must have intended to allow this Court to adopt an approach which is sufficiently flexible to accommodate what the Crown submits we should do here. It is conventional and usually necessary in sentencing appeals for the Appellate Court to put itself in the position of the sentencing Judge. If some aspect of two or more sentences imposed on a single occasion is found defective, it would be wholly unrealistic to take the view that the sentencing Judge’s original intention could not be achieved, if appropriate and to the extent possible, by a re-arrangement of the ingredients of the total effective sentence. The rationale for this conclusion is that an appeal against one sentence necessarily puts in issue all related sentences.
[9] We cannot therefore accept Mr Pyke’s argument that only the eight year sentence and its associated minimum term order were in issue in this case. The other sentences, and specifically those of six years, are clearly related to the eight year sentence and hence necessarily came in issue on an appeal directed only to an ingredient of the eight year term. The necessary relationship is exemplified by the way in which the sentencing Judge actually imposed the sentences in this case. He said:

The sentence will be imposed in this way.

• Count 2, attempted sexual violation by rape – you are sentenced to eight years imprisonment of which you will serve a minimum period of 5 years.
• Counts 3 and 4, sexual violation by digital penetration – six years imprisonment.
• Count 5, a representative count of indecent assault – three years imprisonment.
• Counts 6 and 7, attempting to induce an indecent act – two years imprisonment.

[10] This Court therefore has jurisdiction to make a minimum term order in relation to the six year sentences. As that order cannot be longer than two-thirds of the length of the term to which it applies (ie. four years), Mr Hadley in any event must receive a one year deduction from the minimum term period intended by the sentencing Judge. Mr Pyke in his written submissions argued that there should be no s86 order at all, or alternatively one of less than four years. Understandably these submissions were not pressed orally. This was clearly a case for a s86 order, the offending being sufficiently serious in terms of that section. We would have upheld the five year minimum if there had been jurisdiction to impose it. There is no basis whatever for reducing the substitute term below four years.
[11] For these reasons the appeal is allowed as follows. The five year minimum period imposed in respect of the eight year sentence is quashed. In its place we impose a four year minimum period in respect of each of the two concurrent terms of six years imprisonment.

Solicitors
Crown Law Office, Wellington