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The Queen v Bell [2007] NZCA 17 (12 February 2007)

Last Updated: 5 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA321/06
[2007] NZCA 17

THE QUEEN

v

GARETH JAMES BELL

Hearing: 12 February 2007

Court: Arnold, Panckhurst and Priestley JJ

Counsel: M J Levett for Appellant
A Markham for Crown

Judgment: 12 February 2007

Reasons: 21 February 2007

JUDGMENT OF THE COURT

The appeal is allowed. The minimum period of imprisonment of three years six months is quashed and a minimum period of imprisonment of two years eight months is substituted.

REASONS OF THE COURT

(Given by Arnold J)

[1] This is an appeal against sentence, specifically, against the imposition of a minimum period of imprisonment of three years, six months.
[2] The appellant entered pleas of guilty to various charges arising out of two series of events. In relation to the first series of events, the appellant pleaded guilty to charges of causing grievous bodily harm with reckless disregard for the safety of another, theft of a motor vehicle, failing to stop following a motor vehicle accident and driving while disqualified. In relation to the second series of events, the appellant entered guilty pleas to a number of offences including driving while disqualified, theft, breach of bail conditions and various offences under the Medicines Act 1981.
[3] As to the first series of offences, Judge Lance QC sentenced the appellant to four years imprisonment on the charge of causing grievous bodily harm, which he treated as the lead offence, and one years imprisonment on each of theft of a vehicle, driving while disqualified and failing to stop. These sentences were to be served concurrently. In relation to the second series of offences, the Judge sentenced the appellant to a term of nine months imprisonment for driving while disqualified, to be served cumulatively with the sentences just mentioned, and dealt with the remaining offences by way of disqualification or conviction and discharge.
[4] The Judge then applied the totality principle to the overall term of four years, nine months resulting from these sentences and reduced the total term to four years, six months. The Judge directed that the appellant serve a minimum period of imprisonment of three years, six months.
[5] The sole ground of appeal is that the minimum period of imprisonment imposed by the Judge was in excess of his jurisdiction. In his written submissions Mr Levett argued that under s 86(1) of the Sentencing Act 2002 a minimum period of imprisonment may be imposed only in respect of a sentence of more than two years. Under s 86(4) the minimum period of imprisonment must not exceed two thirds of the full term of the relevant sentence. In this case, Mr Levett argued, the relevant sentence was the sentence of four years imposed for causing grievous bodily harm. Two thirds of that sentence is two years, eight months, which is to be contrasted with the minimum period of imprisonment of three years, six months imposed by the Judge.
[6] Ms Markham for the Crown accepted that the minimum period of imprisonment imposed by the Judge was in excess of jurisdiction and that the appeal should be allowed on that basis. She referred to the decision of this Court in R v Paniora CA148/03 30 July 2003.
[7] In Paniora the appellant was sentenced to 18 months imprisonment for the offence of being a male did assault a female and to five years, six months for wounding with intent, to be served cumulatively. The Judge fixed a minimum term of imprisonment at two thirds of the full term of seven years. The Court held that the imposition of a minimum period in respect of the whole seven year term was unlawful. This was because the offence of being a male did assault a female was not amenable to the imposition of a minimum period of imprisonment and, in any event, the 18 month term was insufficient to invoke the statutory provisions.
[8] In this latter respect the present case is indistinguishable from Paniora. We agree that the minimum period of imprisonment of three years, six months was wrongly imposed for the reasons given by counsel. Accordingly we allow the appeal.
[9] The order imposing a minimum period of imprisonment of three years, six months is quashed and an order for a minimum period of imprisonment of two years, eight months is substituted.

Solicitors:
Crown Law Office, Wellington

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[1]	This is an appeal against sentence, specifically, against the imposition of a minimum period of imprisonment of three years, six months.
[2]	The appellant entered pleas of guilty to various charges arising out of two series of events. In relation to the first series of events, the appellant pleaded guilty to charges of causing grievous bodily harm with reckless disregard for the safety of another, theft of a motor vehicle, failing to stop following a motor vehicle accident and driving while disqualified. In relation to the second series of events, the appellant entered guilty pleas to a number of offences including driving while disqualified, theft, breach of bail conditions and various offences under the Medicines Act 1981.
[3]	As to the first series of offences, Judge Lance QC sentenced the appellant to four years imprisonment on the charge of causing grievous bodily harm, which he treated as the lead offence, and one years imprisonment on each of theft of a vehicle, driving while disqualified and failing to stop. These sentences were to be served concurrently. In relation to the second series of offences, the Judge sentenced the appellant to a term of nine months imprisonment for driving while disqualified, to be served cumulatively with the sentences just mentioned, and dealt with the remaining offences by way of disqualification or conviction and discharge.
[4]	The Judge then applied the totality principle to the overall term of four years, nine months resulting from these sentences and reduced the total term to four years, six months. The Judge directed that the appellant serve a minimum period of imprisonment of three years, six months.
[5]	The sole ground of appeal is that the minimum period of imprisonment imposed by the Judge was in excess of his jurisdiction. In his written submissions Mr Levett argued that under s 86(1) of the Sentencing Act 2002 a minimum period of imprisonment may be imposed only in respect of a sentence of more than two years. Under s 86(4) the minimum period of imprisonment must not exceed two thirds of the full term of the relevant sentence. In this case, Mr Levett argued, the relevant sentence was the sentence of four years imposed for causing grievous bodily harm. Two thirds of that sentence is two years, eight months, which is to be contrasted with the minimum period of imprisonment of three years, six months imposed by the Judge.
[6]	Ms Markham for the Crown accepted that the minimum period of imprisonment imposed by the Judge was in excess of jurisdiction and that the appeal should be allowed on that basis. She referred to the decision of this Court in R v Paniora CA148/03 30 July 2003.
[7]	In Paniora the appellant was sentenced to 18 months imprisonment for the offence of being a male did assault a female and to five years, six months for wounding with intent, to be served cumulatively. The Judge fixed a minimum term of imprisonment at two thirds of the full term of seven years. The Court held that the imposition of a minimum period in respect of the whole seven year term was unlawful. This was because the offence of being a male did assault a female was not amenable to the imposition of a minimum period of imprisonment and, in any event, the 18 month term was insufficient to invoke the statutory provisions.
[8]	In this latter respect the present case is indistinguishable from Paniora. We agree that the minimum period of imprisonment of three years, six months was wrongly imposed for the reasons given by counsel. Accordingly we allow the appeal.
[9]	The order imposing a minimum period of imprisonment of three years, six months is quashed and an order for a minimum period of imprisonment of two years, eight months is substituted.