R v Te Huia CA327/06 [2006] NZCA 528 (21 December 2006)

Last Updated: 7 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA327/06

THE QUEEN

v

BRIAN EDWARD TE HUIA

Hearing: 21 November 2006

Court: Arnold, Baragwanath and Ronald Young JJ Counsel: D J Allan for Appellant

B J Horsley for Crown

Judgment: 21 December 2006 at 11.30 am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

(Given by Baragwanath J)

[1] On 7 September 2004 the appellant was sentenced by Judge Maclean on nine charges of burglary, four representative charges of fraud and one charge of theft. The total term of four years, nine months imprisonment was made up of

_{four years, six months on the burglary and fraud charges and a further three months}

R V TE HUIA CA CA327/06 21 December 2006

imposed cumulatively on the theft charge. In addition the learned District Court Judge imposed, under s 86 of the Sentencing Act 2002, a minimum term of imprisonment of two years, six months. Although the offending antedated the 2004 amendment to s 86 the Judge applied that section in its amended form.

[2] This appeal is brought to this Court pursuant to s 144 of the Summary Proceedings Act 1957. It relates solely to the imposition of the minimum term of imprisonment. If the appeal succeeds in full the appellant was eligible for parole on 29 August 2005. If it fails completely he is not eligible for such consideration until 27 December 2006. A further option is for this Court to amend the minimum term.

[3] The issues on appeal are:

(a) Whether the Judge erred in law by sentencing the appellant pursuant to s 86 of the Sentencing Act as altered by the Sentencing Amendment Act 2004;

(b) If so, on a fresh consideration pursuant to s 86 as originally enacted was a minimum term of imprisonment appropriate and, if so, what term?

The anti-retrospection provisions

[4] The appeal raises the familiar question of the application of the prohibitions against retrospection contained in the International Convention on Civil and Political Rights 1966 (ICCPR), the New Zealand Bill of Rights Act 1990 (NZBORA) and the Sentencing Act 2002:

ICCPR

Article 15

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a

heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed...

Sentencing Act

6 Penal enactments not to have retrospective effect to disadvantage of offender

(1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

(2) Subsection (1) applies despite any other enactment or rule of law.

NZBORA

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

[5] However the case is complicated by a decision of the Supreme Court which gives an interpretation of s 6 and s 25(g) that is expressed so broadly as to embrace s

86 even though it was never cited or considered. There is therefore an issue of precedent on which this appeal ultimately turns.

Background

[6] The appellant’s appeal to the High Court against his original sentence was heard and determined by Priestley J on 14 December 2004. The appeal was dismissed. On 19 January 2005 the appellant filed an application for leave to appeal to this Court against the imposition of the minimum term of imprisonment. That application remained unserved for a number of months and was not heard by the High Court until 16 December 2005.

[7] On 16 December 2005 Priestley J gave leave to appeal to this Court because of this Court’s decision in R v Chadderton [2004] NZCA 295; (2004) 21 CRNZ 566. That required the

application of the test for imposition of the minimum term of imprisonment contained in the original s 86 rather than in s 86 as amended by the 2004 Act.

[8] There was further delay and the notice of appeal was not filed until about

8 September 2006. On 3 October the Crown filed a memorandum seeking to challenge Chadderton as inconsistent with the subsequent Supreme Court decision in Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1. But because no Full Court could be convened before the appellant’s latest parole eligibility date of

27 December 2006 the case was listed for us as a divisional Court. The Crown submitted that given the imminence of the parole eligibility date and the fact that there is no challenge to the balance of the sentence it is unnecessary for this Court to determine the s 86 issue. We accept Mr Allan’s submission that Mr Te Huia is entitled to a determination of the point, to which we turn.

The s 86 issue

[9] We reproduce s 86 in its original form, underlining passages that were changed in 2004:

86. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section

84(1) of The Parole Act 2002.

(3) For the purposes of this Section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of –

(a) two-thirds of the full term of the sentence; or

(b) 10 years.

(5) For the purposes of Part IV of the Summary Proceedings Act 1957 and Part XIII of the Crimes Act 1961, an order under this section is a sentence.

[10] The 2004 amendment repealed subsection (3) and replaced subsection (2)

with:

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved: (c) deterring the offender or other persons from committing the

^{same or a similar offence:}

(d) protecting the community from the offender.

Subsections (4) and (5) remained unchanged. Material changes are italicised.

Section 86 in this Court – no retrospection

[11] In Chadderton Crown counsel submitted:

[9] ...since the amendment Act contained no transitional provision, unless the new version is regarded as a change of penalty so as to engage retrospectivity concerns, s 5(3) [of the Sentencing Act] applies:

Subject to s 6 [retrospectivity]... this Act applies to offences committed before or after the commencement date.

He submitted:

The primary change effected by the amendment to s 86 is probably [the addition of] s 86(2)(d) which appears to require reassessment of R v Brown [2002] 3 NZLR 670. Brown emphasised that the focus of a s 86 inquiry was the circumstances of the offence; issues of protection of the public were reserved to the Parole Board. That approach no longer seems correct in light of the new s 86(2)(d).

Section 6 is reproduced at [4].

[12] This Court in Chadderton stated:

[14] Despite the powerful justification for a minimum term provided by the facts, we are not attracted to a result that would be supportable only by reliance on the new form of s 86, not in force at the time of the offending. If triggered by s 5(3), s 6 requires the application of the former law. To avoid that result would require us to conclude that although in fact, applying the decision in Moon [CA 366/02 27 February 2003], there would have been no minimum sentence imposed had the Act not been amended, in law it was always open to impose such sentence and so it is now legitimate to do so, despite the need to rely on the new subcl (d). That would infringe the policy of s 6, itself an application of s 25(g) of the New Zealand Bill of Rights Act 1990 discussed in R v Pora [2001] 2 NZLR 37 and in turn echoing Article 15 of the International Covenant on Civil and Political Rights.

[15] Because we are satisfied that the old form of s 86 applies we allow the appeal by setting aside the minimum term imposed by the District Court...

[13] Chadderton was followed by this Court in R v Fisher [2004] NZCA 323; (2004) 21 CRNZ 402; R v Walsh (2005) 21 CRNZ 946; R v Cooper CA32/05 27 May 2005; R v Goldberg CA10/05 4 May 2006 and R v Bryan CA239/05 6 July 2006. Fisher, Cooper, Bryan and Goldberg like Chadderton concerned s 86; Walsh turned on s 103 (minimum non-parole term for murder). R v Bradbury CA342/04 19 June 2006 is to similar effect.

[14] In R v Wilson CA334/05 31 July 2006 this Court cited Chadderton and Fisher and observed that both proceeded on the basis that the retrospective application of the amended criteria would infringe s 25(g) and s 6. The Court also noted that this Court has on several occasions said that fairness requires a modified approach to sentencing in cases involving historic offending. For example, in R v Fissenden CA364/95 21 February 1996 this Court identified (at 2) as a matter of “sentencing principle” that:

... in a case such as the present, where there has been a significant change in the sentencing tariff since the offences were committed, sentencing should be approached on the basis of sentencing principles applicable when the offences were committed. Refer section 25(g) of the New Zealand Bill of Rights Act 1990, and R v Elwin CA290/93 10 August 1994 and R v Carruthers CA401/94 10 April 1995.

However the Court in Wilson commented that the Chadderton line might be inconsistent with the later decision of the Supreme Court in Morgan.

[15] None of those decisions of this Court was cited to or by the Supreme Court in Morgan or in its later decision in R v Mist [2006] 3 NZLR 145 although s 6 of the Sentencing Act and s 25(g) of NZBORA were the subject of decision or discussion in each.

Morgan v Superintendent, Rimutaka Prison: s 90(1)(b) Criminal Justice Act 1985 and s 86(2) Parole Act 2002 - retrospection

[16] In Morgan a prisoner serving a term of imprisonment appealed against dismissal by the High Court of an application for habeas corpus. He had been convicted under s 9 of the Misuse of Drugs Act 1975 of cultivating cannabis in November 2002, an offence which carried a maximum penalty of seven years imprisonment. In January 2003 he was sentenced to a term of three years imprisonment. When he committed the offence s 90(1)(b) of the Criminal Justice Act 1985 provided that offenders subject to a sentence of imprisonment for a term of more than 12 months must be released after the expiry of two-thirds of the sentence subject to conditions and the possibility of recall. By the time Morgan was sentenced s 86(2) of the Parole Act 2002 had come into force. It provided that the release date of a long-term determinate sentence was the sentence expiry date, namely the date on which the offender had served the full term and ceased to be subject to the sentence. The right to apply for parole after serving one-third of the sentence remained. Mr Morgan applied for a writ of habeas corpus, contending that he was entitled to be released after serving two-thirds of his sentence and that thereafter he was unlawfully detained. He argued that the repeal of s 90(1)(b) of the Criminal Justice Act and the enactment of s 86(2) of the Parole Act had the effect of increasing the penalty for the offence by removing the release provisions of the former and that by virtue of s 6 of the Sentencing Act and s 25(g) of NZBORA he had the right to the benefit of the lesser penalty. The application was dismissed by the High Court and by the Court of Appeal. An application for leave to appeal to the Supreme Court was granted but his appeal was dismissed. The Supreme Court held that s 6 and s 25(g) are concerned with variations in the maximum applicable penalty prescribed by law for the generic offence. They are not directed at the particular penalty imposed on an individual offender for the particular offending. A penalty

within the prescribed limit for the offence did not offend the principle expressed by s 6.

R v Mist: s 75 Criminal Justice Act – no retrospection

[17] In R v Mist the appellant had been convicted when aged 21 of a series of sexual offences committed before he attained that age. The Crown applied for a sentence of preventive detention but the High Court held that a sentence of preventive detention could not be imposed. The Court of Appeal allowed the Crown’s appeal and Mr Mist appealed to the Supreme Court. The Supreme Court noted that s 75 of the Criminal Justice Act allows the imposition of a sentence of preventive detention only on persons “not less than 21 years of age”. When read together with the prohibition in s 4(2) of that Act on imposing a sentence that the Court could not have imposed on the offender at the time of the commission of the offence and s 25(g) of NZBORA, s 75 was to be read as referring to the date of the commission of the offence and not to the date of conviction. It held that the appellant could not be sentenced to preventive detention.

Discussion

[18] Certainly, as Mr Horsley submitted in arguing that this Court is bound to apply to s 86 the reasoning in Morgan on s 86(2) of the Parole Act, the language used in that case is capable of application here. Blanchard J, with whose judgment Gault J agreed, stated at [77] that:

The natural reading of s 25(g)... is that “penalty” means the maximum penalty which a Court could have imposed under the previous sentencing regime.

Blanchard J said that s 6 of the Sentencing Act similarly referred to the maximum penalty applicable to the offence (at [79]).

[19] Tipping J stated at [87]:

The normal and natural meaning of the composite expression “an offence in respect of which the penalty has been varied” (emphasis added) conveys the

idea that between the commission of the offence and sentencing for it, Parliament has varied the maximum penalty to which the offender is liable for that kind of offence. The section is directed at individual kinds of offending in respect of which there has been a change in the maximum penalty that can be imposed. That change may increase or reduce the severity of what can be imposed.

Henry J expressed agreement with the judgments of Blanchard and Tipping JJ. Elias CJ dissented.

[20] The determination of s 86(2) of the Parole Act is of course definitive. But the change to s 86 of the Sentencing Act was not argued. Nor was it mentioned in the judgments.

[21] The issue is the more difficult because the more recent decision in Mist is difficult to reconcile with Morgan. In Mist the Supreme Court did not hesitate to reject the Crown’s argument (reported as formulated by counsel for the appellant) that the prohibition concerns raising the maximum penalty for the offence, not the individual accused becoming eligible for a higher sentence by passing out of one group and into another.

[22] Elias CJ and Keith J held at [5] that the former s 4(2) of the Criminal Justice Act (now replaced by s 6 of the Sentencing Act) required that an offender have been over the age of 21 years at the time of the offending to be eligible for the sentence of preventive detention under s 75. That subsection provided:

...notwithstanding any other enactment or rule of law to the contrary, no court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender's consent.

They considered that the same result was required by s 4(1) of the

Criminal Justice Act, s 6 of the Sentencing Act and s 25(g) of NZBORA (at [5]).

[23] Gault J, who had been a member of the majority in Morgan, decided in Mist that s 4(2) can be read as preventing a Court from imposing on an individual offender a particular sentence that it could not have imposed had that offender

presented for sentencing immediately upon the commission of the offence. He cited article 15 of the ICCPR:

Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed

and said that it “plainly is capable of being read as relating to a particular sentence as well as to applicable maximum sentences for specific criminal offences” (at [62]). Gault J based his judgment on the language of s 4(2) and expressly reserved his view on the question of the application of s 4(1) or s 6 to a case such as that of Mr Mist (at [64]).

[24] Blanchard and Tipping JJ also observed (at [85]) that s 4(2) focused sharply on the particular offender. The subsection was designed to prevent the Court from imposing a sentence on an offender which it could not have imposed on that offender at the time of the commission of the offence. They expressly left open the question whether the law as stated in s 4 had been changed by s 6 (at [108] – [112]).

[25] The Supreme Court has not determined that the supersession of s 4(2) by the Sentencing Act, which was essentially declaratory of existing law, has made for greater retrospection of the criminal law.

[26] While NZBORA has application to the Department of Corrections as well as to the courts, it is of especial importance that in exercising their constitutional sentencing function the courts are seen to conform with the common law presumption against retrospective construction. The strength of that presumption is seen in the recent English decision Stellato v The Secretary of State for the Home Department [2006] EWCA Civ 1639 at 15.

[27] The Supreme Court has adopted different applications of the anti-retrospection provisions according to the particular context. That result bears out the maxim that decisions are to be read secundum subjectam materiam: decisions, including interpretation of statutes, are not to be made by a blind application of precedent but according to the requirements of the particular context. In Morgan, which concerned the treatment of a sentenced prisoner by the

Department of Corrections, the anti-retrospection provisions were distinguished; in Mist, which concerned what regime the sentencing court should adopt, those provisions were applied.

[28] It is thus arguable that had the present context been seen as of particular relevance in either Morgan or Mist the line of cases from Chadderton would have been cited. It is further arguable that had the Supreme Court intended to overrule the line of decisions of this Court the argument would have extended more widely; it is unlikely that the Supreme Court would have imposed upon Mr Morgan as a layman the task of arguing such vital issues.

[29] The process of construction of anti-retrospection provisions may well require working through different contexts in a manner that leads in some cases to apply and in others to distinguish them. We are conscious that in Morgan Blanchard J referred to the decision of the Ontario Court of Appeal in R v Logan (1986) 51 CR (3d) 326. In that case a provision prescribing a maximum non-parole period of 20 years for those sentenced to life imprisonment was changed to prescribe a fixed period of

25 years. The Judge noted that the Court held that the application of that increase in respect of an earlier offence was inconsistent with s 11(i) of the Canadian Charter of Rights and Freedoms, which gives a person charged with an offence the right to the benefit of the lesser punishment where the punishment has been varied between the commission of the offence and sentencing. The Judge said at [73]:

It is at least arguable that if such a change were to occur in this country there would be the same inconsistency with s 25(g) in the case of a prior offender being sentenced after the change.

Some support for this approach is found in the judgments in R v Poumako [2000]

2 NZLR 695 (CA) and R v Pora [2001] 2 NZLR 37 (CA). However, it is not immediately apparent how this outcome is possible if s 25(g) is interpreted as referring simply to the maximum penalty applicable to the particular offence.

[30] There was not cited to the Supreme Court the decision of the Supreme Court of Canada in R v Johnson [2003] 2 SCR 357; (2003) 230 DLR (4^th) 296, which is cited in Hogg Constitutional Law of Canada (Loose-leaf edition) at [48-10] as the leading decision on the Canadian equivalent to s 25(g), ie s 11(i) of the Charter of

Rights. (The decision has subsequently been cited in Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [23.9.26] under the topic of s 25(g) and variation of penalty (see also [23.9.17]).) The reasoning of that decision is complementary to that of this Court in Chadderton. The Supreme Court of Canada said:

[41] As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time the offence allegedly was committed. The Charter aside, the four respondents convicted of offences committed prior to the 1997 amendments are properly sentenced under the former regime. However, s. 11(i) of the Charter provides that any person charged with an offence has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”.

[31] The present case involves a modification or amendment by statute to the criteria relevant to the fixing of a minimum period of imprisonment. In some cases the application of the amended criteria will produce a higher minimum period of imprisonment than would have applied under the pre-amendment provision.

[32] However, it is plain that the construction of s 25(g) at [77] and [87] was part of the ratio decidendi of Morgan. So too was the construction of s 6: see Blanchard J at [51], [56], [77] and [79]; Tipping J at [85]-[88]; and Henry J at [110] and [112].

[33] That being so, this Court is bound by such construction. In Korner v Witkowitzer [1950] 2 KB 128 at 158 Denning LJ stated that it would not be right to treat "one of the links in the chain of reasoning" leading to the conclusion in the previous case as a mere obiter dictum. Cross and Harris Precedent in English Law (4ed 1991) at 75 cite with approval the statement of Schreiner JA in Pretoria City Council v Levison 1949 (3) SA 405 at 417:

the reasons in the judgment... do constitute the ratio decidendi... provided... that they were necessary for the decision, not in the sense that it could not have been reached along other lines, but in the sense that along the lines actually followed in the judgment the result would have been different but for the reasons.

[34] On the interpretation adopted by the Supreme Court in Morgan, s 6 of the Sentencing Act and s 25(g) of NZBORA are not engaged by such an amendment as it does not involve an increase in the maximum penalty for the offence. Accordingly, although there is much to be said for the previous approach of this Court in terms of fundamental fairness, we consider that, on the authority of Morgan, the Judge was obliged to apply the amended version of s 86(2).

[35] The appeal must therefore be dismissed. The second issue, as to the effect of a fresh consideration pursuant to s 86 as originally enacted, does not therefore arise.

Solicitors:

Crown Law Office, Wellington