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Court of Appeal of New Zealand |
Last Updated: 25 January 2018
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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA30/2011
[2011] NZCA 546 |
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BETWEEN BRYNLEY DAVIES
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 20 July 2011
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Court: O'Regan P, Glazebrook and Wild JJ
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Counsel: R M Gould for the Appellant
A Markham for the Respondent N Levy as counsel assisting the Court |
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Judgment: 3 November 2011 at 11.00 am
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JUDGMENT OF THE COURT
C The minimum
period of imprisonment is quashed.
D The sentences on the other
charges remain in place.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para
No
Introduction [1]
Background [5]
Lead sentence [8]
Minimum period of
imprisonment [15]
Should a
minimum period of imprisonment have been imposed? [16]
Was there jurisdiction to
impose a minimum period? [20]
Mr Davies’ position
if sentenced straight after the offending [21]
The legislative background [22]
Poumako and
Pora [28]
Developments post
Poumako and Pora [32]
Morgan [34]
Mist [40]
Post-Morgan authorities
in this Court [45]
Approach of
Judge Thomas [50]
Comments on Judge
Thomas’ approach [51]
Effect of Morgan
and Mist [55]
Is it a
“heavier” penalty? [61]
Result [63]
Postscript [67]
Introduction
[1] Mr Davies was convicted following a trial in the Wellington District Court of four representative counts of indecency with a girl under 12 years of age and three representative counts of sexual violation by unlawful sexual connection.
[2] The victim was a young relative of Mr Davies’ then partner. The offending was historic in nature and spanned the ten year period from 1982 to 1992, from when the victim was aged about three to 13 years.
[3] The lead charge was one of the sexual violation charges: forced oral sex. Ten years imprisonment was imposed on that charge by Judge Susan Thomas.[1] Seven years concurrent imprisonment was imposed for the two other charges of sexual violation and four years concurrent on the three charges of indecent assault and one of inducing an indecent act. A minimum period of imprisonment, set at half the total sentence (five years), was also imposed.
[4] Mr Davies appeals against the lead sentence and against the imposition of the minimum period of imprisonment.
Background
[5] From a very young age, the victim was regularly allowed to bathe with Mr Davies, where the abuse began. Over the ten year period Mr Davies indecently assaulted the victim by touching her breasts and her genitalia and by inducing her to touch his penis. The earlier offending consisted largely of Mr Davies masturbating himself in the victim’s presence while fondling her indecently. Between 1988 and 1992, Mr Davies sexually violated the victim. There were three representative charges of sexual violation by unlawful sexual connection (one digital and two oral).
[6] The offending has had a profound effect on every part of the victim’s life. It only stopped when, at about 14, the victim told her mother what was happening and she was sent to live with other relatives. The victim decided to make a complaint to the police in 2008 after Mr Davies was arrested for indecently assaulting another girl at the victim’s home. We understand that charges relating to the other incident were withdrawn as the girl was not willing to give evidence.
[7] Mr Davies is aged 54 years. He has previous convictions for assaulting a child (in 1993) and male assaults female (in 1995) for which he was sentenced to terms of supervision. Mr Davies has a significant hearing impediment and also suffers health problems resulting from heavy drug and alcohol consumption.
Lead sentence
[8] Judge Thomas set the starting point for the offending at ten years imprisonment. She did not consider that there were any aggravating features that warranted the imposition of an uplift, nor any mitigating features that could justify a lower sentence. The end sentence was therefore ten years imprisonment.
[9] It is submitted on behalf of Mr Davies that Judge Thomas set the starting point for the offending at too high a level and that she failed to give any discount for mitigating features.
[10] As to starting point, it is accepted by both parties that R v Tutty[2] is the most directly comparable case factually. In Tutty, the appellant was found guilty of seven counts of indecencies in respect of his stepdaughter between 1971–1979 when she was aged between five to 12 years. The abuse began with the appellant touching the complainant’s genitalia while masturbating, but escalated in seriousness to include digital penetration of her genitalia, performing oral sex on her, rubbing his penis against her genitalia, inducing her to hold his penis, and requiring her to perform oral sex on him. Many of the incidents were accompanied by ejaculation. The offending was explained to the complainant as religious and sexual education. It stopped when the appellant was caught in the act by his wife. The appellant in that case had a prior conviction for child sexual offending in 1968 for which he received a fine and probation but had otherwise no convictions. He denied the offending and expressed no remorse. A six year sentence was upheld, although the Court noted it would have been perceived as stern at the time of the offending. There were no mitigating features.
[11] The Crown, however, points out that Mr Davies’ offending was of greater duration and the victim was younger than in Tutty. Further, the maximum penalty in Tutty was ten years imprisonment (as against 14 in this case). We accept that this is the case but consider that these factors cannot justify a four year uplift from the sentence imposed in Tutty. We consider the appropriate starting point to be one of eight years.
[12] As to mitigating features, it is submitted on Mr Davies’ behalf that this was not a case involving grooming or manipulation of the victim and the offending was essentially opportunistic, not premeditated. It is submitted to be the product of profound ignorance, rather than of predation. Ms Gould points to Mr Davies’ severe and unaddressed hearing disability and his consequent lack of schooling. She submits that some recognition of Mr Davies’ inadequacy needs to be made, even if the law allows for only small discounts for personal circumstances in a case of this kind.
[13] If indeed Mr Davies was unaware that sexual offending against children was wrong (and we do not accept this) then any credit that may arise from this would be counterbalanced by the need for public protection. Further, we do not accept the submission that the offending was opportunistic as it was regular, started when the victim was very young, continued over a long period, and escalated in seriousness. We agree with Judge Thomas that there were no mitigating features that would affect the sentence.
[14] The end sentence therefore should have been the same as the starting point: eight years.
Minimum period of imprisonment
[15] There are two submissions made on Mr Davies’ behalf with regard to the minimum period of imprisonment:
(a) the imposition of a minimum period of imprisonment was inappropriate in this case; and
(b) there was in any event no jurisdiction to impose a minimum period.
Should a minimum period of imprisonment have been imposed?
[16] Section 86 of the Sentencing Act 2002 (the SA) provides for the imposition of a minimum period of imprisonment in relation to a determinate sentence of imprisonment of two years or more, if the court is satisfied that the normal one-third parole eligibility period is insufficient for any of the purposes of holding the offender accountable, denunciation, deterrence or protection of the community.
[17] The first submission on behalf of Mr Davies is that a minimum period of imprisonment ought not to have been imposed in this case, even if there was jurisdiction to do so. In Ms Gould’s submission, in all the circumstances of this case, the appropriate time for release ought to have been left to the discretion of the Parole Board. She submits that the sentencing purposes of accountability, denunciation and deterrence are properly met by the sentence itself.
[18] Judge Thomas noted the comment in R v AM[3] that a minimum period of imprisonment of at least half would be routine in cases of this kind. Judge Thomas was satisfied that a minimum period of imprisonment was justified in this case because otherwise the normal one-third parole eligibility period would be insufficient to hold Mr Davies accountable for the harm done to the victim, to denounce his conduct, to deter others and to protect the community. This was because of the prolonged sexual offending and the victim’s young age when the offending began.
[19] We agree. We accept the Crown’s submission that this was an appropriate case for a minimum period of imprisonment if jurisdiction existed, as all four purposes in s 86(2) of the Sentencing Act 2002 are engaged.
Was there jurisdiction to impose a minimum period?
[20] The next submission for Mr Davies is that there was no jurisdiction to impose a minimum period of imprisonment. We discuss that submission under the following headings:
(a) Mr Davies’ position if sentenced straight after the offending
(b) The legislative background
(c) Poumako and Pora
(d) Developments post Poumako and Pora
(e) Morgan
(f) Mist
(g) Post-Morgan authorities in this Court
(h) Approach of Judge Thomas
(i) Comments on Judge Thomas’ approach
(j) Effect of Morgan and Mist
(k) Is it a “heavier” penalty?
Mr Davies’ position if sentenced straight after the offending
[21] If Mr Davies had been sentenced immediately following the offending (prior to 1 September 1993) under the Criminal Justice Act 1985 (the CJA), he would not have been eligible for parole,[4] but would have been eligible for remission of sentence after two-thirds of the term of the sentence,[5] subject to the Parole Board’s power to require him to serve the full term of the sentence.[6] The court would have had no power to impose a minimum period of imprisonment.
The legislative background
[22] The starting point is the transitional provision, s 152 of the SA, which provides:
- Section 86 not to apply to offender convicted of offence committed before commencement date except for serious violent offender
(1) Except as provided in subsection (2), nothing in section 86 applies to an offender who is sentenced on or after the commencement date for an offence committed before that date.
(2) If an offender is sentenced on or after the commencement date for an offence committed before that date that is a serious violent offence as defined in section 2 of the Criminal Justice Act 1985, section 86 applies.
[23] The definition of “serious violent offence” in s 2 of the CJA includes the offence of sexual violation. Therefore s 152 purports to give s 86 of the SA retrospective effect and to enable minimum periods of imprisonment to be imposed for offending that pre-dates the SA, provided it meets the definition of “serious violent offence”.
[24] Section 152, however, must be read in light of s 6 of the SA, which provides:
- 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) Subjection (1) applies despite any other enactment or rule of law.
[25] To the same effect is s 25(g) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) which provides that everyone charged with an offence has, in relation to the determination of the charge:
...
(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: ...
[26] In R v Brown[7] this Court confirmed the retrospective operation of s 86 of the SA. A minimum period of imprisonment was imposed for offending that pre-dated the SA by some 12 months, but which fell within the definition of “serious violent offence”. The minimum period of imprisonment was not precluded by s 6 because, under s 80(4) of the CJA, which was in force when the offence was committed, a minimum sentence (in fact a longer minimum sentence) could have been imposed for a serious violent offence.[8]
[27] At the time of Mr Davies’ offending, however, minimum periods of imprisonment did not exist. Nor did the definition of “serious violent offence”. Both of those concepts were introduced with effect from 1 September 1993 by the Criminal Justice Amendment Act 1993. It is notable that, under the transitional provisions of that Amendment Act, a Court was precluded from imposing a minimum period of imprisonment in respect of offending that took place before 1 September 1993.[9]
Poumako and Pora
[28] The cases of R v Poumako[10] and R v Pora[11] dealt with the effect of the “home invasion” amendments passed in 1999[12] and in particular the purportedly retrospective transitional provision in s 2(4) of the Criminal Justice Amendment Act (No 2) 1999.[13] For these purposes it suffices to say that, in both Poumako and Pora, this Court endorsed the Crown’s concession that the mandatory 13 year minimum period of imprisonment was a penalty for the purposes of s 25(g) of the Bill of Rights and the predecessor to s 6 of the SA, s 4(2) of the CJA.[14]
[29] In Pora the Court unanimously rejected that the amendment applied retrospectively without temporal limit. Three judges (Elias CJ, Tipping and Thomas JJ) were prepared to allow the appeal on the basis that the amendment had no retrospective effect at all. They considered that the principle against retrospectivity (enshrined in s 4(2) of the CJA) had primacy over the 1999 transitional provision.[15] The intent and meaning of the two provisions were equally clear but irreconcilable.[16]
[30] The majority (Gault, Keith and McGrath JJ, with Richardson P concurring) allowed the appeal on the basis that the amendment did not apply to offences committed before 1 September 1993 (that is, before the power to impose minimum periods of imprisonment was conferred).[17] This result was supported by the language of the transitional provision itself (which referred to the “making of any order under that section”),[18] by the fact that s 80 had no retrospective application when originally enacted,[19] and by general principle and s 6 of the Bill of Rights.[20]
[31] Gault, Keith and McGrath JJ went on to reject the proposition that the amendment had no retrospective effect at all,[21] but noted that the issue “[did] not have to be resolved”.[22] Richardson P did not express a final conclusion on this point.[23]
Developments post Poumako and Pora
[32] In light of Pora and Poumako, in January 2003 the Deputy Solicitor-General issued a directive to Crown solicitors advising them not to seek minimum periods of imprisonment for pre-September 1993 offending.
[33] A subsequent decision of this Court, R v B,[24] confirmed the correctness of this approach. The Court noted:[25]
Counsel at the hearing in this Court were agreed that there was no power to impose a minimum sentence in respect of offences committed in the early 1980s when that power did not exist ...
We, too, agree. The minimum sentence is a penalty. To impose it would be in breach of the principle prohibiting retrospective application of criminal penalties to the detriment of the offender; see s 6 of the Sentencing Act and s 25(g) of the Bill of Rights and for the earlier period s 43B of the Criminal Justice Act 1954 as enacted in 1980.
Morgan
[34] However, the Supreme Court’s subsequent decision in Morgan v Superintendent, Rimutaka Prison[26] arguably cast doubt on the previously accepted position that the imposition of a minimum period of imprisonment is a “penalty” for the purposes of s 25(g) of the Bill of Rights and s 6 of the SA. In Morgan, the majority of the Supreme Court held that “penalty” refers to the maximum applicable penalty prescribed for a generic offence.
[35] In Morgan, a prisoner serving a three year sentence for cultivating cannabis made an application for a writ of habeas corpus on the grounds that, under the provisions of the CJA in force at the time his offence was committed, he would have been eligible for final release after two-thirds of his sentence. Because he was sentenced after the Parole Act 2002 came into force, he was required to serve the full term of his sentence (unless granted parole). It was argued that this was a variation in penalty for the purposes of s 25(g) of the Bill of Rights and s 6 of the SA, and that he was entitled to be released in terms of the earlier regime.
[36] In the Supreme Court, the majority (Gault, Blanchard, Tipping and Henry JJ) held that “penalty” for the purposes of ss 25(g) and 6 refers to the prescribed maximum for the generic offence. “Penalty” did not refer to the particular sentence for a particular offender, which could not be varied between the commission of the offence and sentencing.[27]
[37] Tipping J, however, accepted that a “penalty” is not restricted to the statutory maximum (which in Mr Morgan’s case was seven years for cultivating cannabis) but extends to the “effective maximum”. This incorporates the entitlement to final release after two-thirds under the CJA.[28] In Mr Morgan’s case, the “effective maximum” was two-thirds of seven years, or four years and eight months. Because Mr Morgan was sentenced to three years, even if he was required to serve the full term of that sentence, this would still be within the “effective maximum” and accordingly ss 25(g) and 6 were not engaged.[29]
[38] Blanchard and Henry JJ preferred not to express a concluded view on the “effective maximum” approach,[30] although Henry J’s judgment expresses a number of reservations (including that it would undermine the traditional “sentence versus administration” distinction). Gault J expressed general agreement with the reasons of Blanchard and Henry JJ,[31] but went further and concluded that the entitlement to final release after two-thirds under the CJA did not form part of the “penalty”.[32] We accept the Crown’s submission that this means that Gault J rejected the “effective maximum” approach.
[39] In dissent, Elias CJ considered that both parole eligibility and release entitlements are part of the “penalty”. A “penalty” refers to the effective penalty that a particular offender would expect to receive if sentenced at the time of the offence.[33] As Mr Morgan had served two-thirds of his three year sentence, he was entitled to immediate release.
Mist
[40] Five months later these issues were revisited by the Supreme Court in R v Mist.[34] The issue in that case was whether the offender qualified for a sentence of preventive detention in circumstances where he was under the age of 21 years at the time of committing the relevant offences, but aged 21 years at the date of sentence. By virtue of a transitional provision in the SA,[35] a sentence of preventive detention may only be imposed in relation to offending committed prior to the commencement of the SA if the offender would have qualified for such a sentence under s 75 of the CJA. Section 75 applied to “any person who is not less than 21 years of age” without specifying whether the person’s age should be assessed at the date of the offending, or at conviction and/or sentence.
[41] The Court unanimously concluded that s 75, when read together with s 4(2) of the CJA,[36] required an offender’s age to be assessed at the date of the offending.[37] The Crown had argued (relying on Morgan) that s 4 of the CJA, like s 6 of the SA, was restricted to changes to the maximum penalty for the generic offence, and did not take into account “individual” matters such as the offender’s age.
[42] This submission was rejected: in distinguishing Morgan, the judgment of Blanchard and Tipping JJ relied on the different wording contained in the two subsections in s 4 of the CJA. Section 4(1) was seen as the equivalent to s 6 (and as relating to the generic offence), whereas s 4(2) was seen as having a “sharper focus” on the particular offender, and was not reproduced as part of s 6 of the SA.[38]
[43] Two Judges in Mist, Elias CJ and Keith J, held that the same result (that is, an offender’s age is determined at the date of the offending) was dictated by s 4(1) of the CJA, s 6 of the SA and s 25(g) of the Bill of Rights.[39] They concluded that the more recent provisions were not of more limited effect than s 4 of the CJA.[40] Further, the provisions also focus on the particular offender and do not apply only to the general state of the law.[41] As such, they protect an offender whose “circumstances” change after the date of the offending so as to render him or her liable to a heavier penalty. They also considered that s 4(1) of the CJA and s 6 of the SA are not restricted to alterations or variations brought about by Parliament but may also be triggered by judicial clarification and development.[42]
[44] In an addendum to their judgment prepared after reading Keith J’s draft, Blanchard and Tipping JJ acknowledged the “force” of the view that s 6 should not be given a narrower meaning than s 4 of the CJA, but chose to leave that issue open,[43] as well as the related question whether ss 4(1) and 6 are confined to legislative change.[44] They noted that in reality there were two statutory maximum penalties in Mr Mist’s case: 20 years imprisonment for sexual violation for persons under 21, and preventive detention for those 21 or older. Thus if s 6 achieved the full reach of s 4 of the CJA, this would not be inconsistent with Morgan, as the maximum penalty would have been altered in Mr Mist’s case in the sense that there was an alteration in Mr Mist’s age rendering him liable to the greater of the two maxima. They saw the issue in relation to s 4(1) as the meaning and compass of the concept of “alteration” of a penalty and not the meaning of “penalty” as such.[45]
Post-Morgan authorities in this Court
[45] In R v W, this Court held, applying Morgan, that retrospective application of sentencing guideline judgments does not offend s 6 of the SA or s 25(g) of the Bill of Rights.[46] Such guidelines do not constitute a variation in the maximum penalty for a generic offence, and they are also judicial, rather than legislative acts.
[46] The Court also observed,[47] obiter, that Morgan cast doubt upon earlier authority of this Court that had held that s 6 of the SA and s 25(g) of the Bill of Rights were engaged by the retrospective application of amendments to the legislative criteria for minimum periods of imprisonment (R v Chadderton)[48] and home detention (R v Fisher).[49]
[47] An application for leave to appeal to the Supreme Court was dismissed, but on the basis that the issue was moot in that case, not because the point was not considered to be arguable.[50]
[48] In R v Te Huia[51] at issue before a Divisional Court was the retrospective application of amendments to the minimum period of imprisonment criteria in s 86 of the SA. The Court noted the difficulties occasioned by the apparent breadth of the ratio in Morgan in circumstances where Chadderton had not been cited or considered.[52] It also noted that Morgan was difficult to reconcile with Mist.[53] However, although the Court considered that there was much to be said for the Chadderton approach “in terms of fundamental fairness”, it considered itself bound by Morgan and concluded that ss 6 of the SA and 25(g) of the Bill of Rights were not engaged.[54]
[49] In R v S[55] a minimum period of imprisonment imposed for pre-1993 offending was quashed on the merits, and the Court expressly left open the question of jurisdiction.[56]
Approach of Judge Thomas
[50] Judge Thomas referred to the legislative history and to Morgan and Te Huia. She then said that she was satisfied there was jurisdiction to impose a minimum period of imprisonment because:
(a) A minimum period of imprisonment does not constitute an increase in the maximum applicable penalty prescribed by law for the offence in respect of which Mr Davies was to be sentenced.
(b) Had Mr Davies been sentenced prior to 1 September 1993 he would have been eligible for remission of the sentence after expiry of two-thirds.
(c) Sexual violation is a serious violent offence as defined. Section 152 of the SA refers to the CJA by way of the definition of serious violent offending. It is the definition which is the relevant consideration and it matters not that the definition came into effect after 1 September 1993.
(d) Offences prior to 1993 required the offender to serve at least two-thirds of their sentence. If no minimum period of imprisonment was imposed on Mr Davies, he would be eligible for release at one-third of his sentence, a position he would not have been in either before 1993 or between 1993 and 2002. In other words, Mr Davies would receive a significant benefit due to the time lapse between the offending and the trial.
Comments on Judge Thomas’ approach
[51] As noted above, Judge Thomas held that, although a minimum period of imprisonment under s 86 is a penalty, it is not a “heavier” penalty because at the time of the offending Mr Davies would have been required to serve two-thirds in any event.[57] The same approach was taken by the sentencing Judge in R v B,[58] and was subsequently rejected by this Court.[59]
[52] We accept the Crown’s submission that the two-thirds rule under the old regime was not a “penalty” prescribed by law but was part of the administrative regime governing sentenced prisoners.[60] We also accept the submission that to conclude otherwise would have obvious repercussions in other cases and would be difficult to reconcile with Morgan, where parole and release entitlements were not treated as part of the penalty (subject to the potential “effective maximum” qualifications left open in that case).
[53] We also accept the Crown’s submission that ss 6 and 25(g) are not concerned with changes to sentence administration. This is supported by the fact that the right applies only until the point of sentence.[61] It would be anomalous if, by invoking the right, offenders were able to escape the application of a new parole/release regime introduced prior to sentencing, but not a new parole/release regime introduced, for example, the day after sentencing.
[54] Judge Thomas also considered her approach to be mandated by Morgan (and Te Huia). We now move to a consideration of whether that is so.
Effect of Morgan and Mist
[55] We accept the Crown’s submission that the issue of whether a minimum period of imprisonment constitutes a penalty was not before the Supreme Court in Morgan and cannot be taken to have been determined in that case. It follows that we consider this Court in Te Huia to have wrongly decided that the effect of Morgan was to require the Court to hold that s 6 of the SA and s 25(g) of the Bill of Rights were not engaged by amendments to the criteria for imposing a minimum period of imprisonment. Pora and Poumako were not impliedly overruled. Although the majority’s reasons do not contain a detailed discussion of Pora and Poumako, they were mentioned and it does not appear that those decisions were regarded as being inconsistent with Morgan.[62]
[56] The Crown accepts that the unanimous view of the Court in Pora and Poumako that the imposition of a mandatory minimum period of imprisonment for murder constitutes a “penalty” is difficult to assail or to distinguish from the present case. A minimum period of imprisonment is imposed by the sentencing Judge as part of the sentence. It is imposed for punitive (and, since 7 July 2004, protective) reasons. It is appealable, separately, as a sentence.[63]
[57] The discussion of the “effective maximum” issue in Morgan makes it plain that the scope of “penalty” is not necessarily limited to the statutory maximum. If “penalty” means only “statutory maximum” then there would be no room for argument that in Mr Morgan’s case it might have meant the “effective maximum”, but the issue was deliberately left open.
[58] The judgment of Blanchard J in Morgan also appears to assume that confiscation of assets derived from criminal offending may constitute a “penalty”.[64] He also notes that it is “at least arguable” that an increase in the prescribed statutory minimum period of imprisonment for murder would engage s 25(g).[65]
[59] Further, the Supreme Court in Mist rejected the argument that, applying Morgan, s 4 of the CJA (like s 6 of the SA) was restricted to changes to the maximum penalty for the generic offence. Whilst the Supreme Court relied on the wording of s 4(2) of the CJA, which was not reproduced as part of s 6 of the SA, the Supreme Court did not express a concluded opinion on whether the supersession of s 4(2) by s 6 made for greater retrospection of the criminal law. Elias CJ and Keith J did not consider that s 6 was of more limited effect than s 4,[66] and whilst Gault, Blanchard and Tipping JJ deliberately left this question open, obiter remarks made by Blanchard and Tipping JJ in Morgan[67] also suggest that s 6 is not substantively different from s 4.
[60] The effect of the above is that a minimum period of imprisonment is a discrete penalty. This means that s 6 of the SA and s 25(g) of the Bill of Rights are engaged. Applying Pora and Poumako, s 152’s retrospective effect is limited to offending committed after 1 September 1993.
Is it a “heavier” penalty?
[61] The Crown submits, however, that the imposition of a minimum period of imprisonment may not be a heavier penalty. It submits that the issue turns on whether:
(a) the minimum period of imprisonment is to be regarded as a discrete penalty (in which case, as there is no power to impose a minimum period of imprisonment prior to 1993, it seems to follow that the minimum period of imprisonment is a heavier penalty); or
(b) the minimum period of imprisonment can be considered together with the term of imprisonment imposed, and properly compared with the notional maximum period of imprisonment (14 years).
[62] We accept Ms Levy’s submission that the addition of a minimum period of imprisonment to a sentence is a variation which increases the burden of the sentence and thus the analysis at [60] is the correct one. As she submits, a penalty of the maximum of 14 years imprisonment is easily identifiable as a lesser sentence than 14 years with a five year minimum period of imprisonment. For the same reason, a sentence of 10 years with a five year minimum period of imprisonment is a greater penalty than 10 years with no minimum period of imprisonment, and potentially a greater penalty than 14 years with no minimum period of imprisonment.
Result
[63] The appeal is allowed.
[64] The sentence of ten years imprisonment for the lead charge is quashed and replaced by a sentence of eight years imprisonment.
[65] The minimum period of imprisonment is quashed.
[66] The sentences on the other charges remain in place.
Postscript
[67] The Court records its appreciation to Ms Levy for acting as counsel assisting the Court. Indeed, the Court was greatly assisted by the submissions of all counsel in this case.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] R v Davies DC
Wellington CRI-2008-091-4958, 23 April
2010.
[2] R v Tutty [1998]
3 NZLR 165 (CA).
[3] R v AM
(CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [156].
[4] Criminal Justice Act 1985,
s 93(2A) (inserted on 1 August 1987 by the Criminal Justice Amendment Act
(No 3) 1987).
[5] Criminal
Justice Act 1985, s 80(1).
[6] Criminal Justice Act 1985,
s 107A (inserted on 16 July 1987 by the Criminal Justice Amendment Act (No
2) 1987).
[7] R v Brown
[2002] NZCA 243; [2002] 3 NZLR 670 (CA).
[8] At [3]. Section 80(4) of the Criminal Justice Act 1985 was inserted on 1 September 1993 by the Criminal Justice Amendment Act 1993.
[9] Criminal Justice Amendment Act 1993, s 56(1). Section 56(1) provided “No court shall, on the conviction of an offender for any offence, impose on that offender –– ... (b) A minimum period of imprisonment, –– that it could not have imposed on the offender at the time of the commission of the offence”.
[10] R v Poumako [2000] NZCA 69; [2000] 2
NZLR 695 (CA).
[11] R v
Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA).
[12] On 2 July 1999, the Crimes (Home Invasion) Amendment Act 1999 came into force, providing for increased maximum sentences in home invasion cases. On 17 July 1999, the Criminal Justice Amendment Act (No 2) 1999 came into force, providing for a mandatory 13 year minimum period of imprisonment for offences of murder involving home invasion.
[13] That section provided that s 80 of the Criminal Justice Act 1985 (the provision relating to the imposition of minimum periods of imprisonment) was to apply in respect of the making of any order under the section on or after the date of commencement, even if the offence was committed before that date.
[14] See R v Poumako at
[24] and [33] per Richardson P, Gault and Keith JJ, at [54] per Henry J and at
[75] per Thomas J; R v Pora at [82] per Gault, Keith and McGrath JJ
(Richardson P concurring), at [15] per Elias CJ and Tipping J and at [154] per
Thomas J.
[15] At [49] per Elias
CJ and Tipping J and at [171] per Thomas
J.
[16] At [3] per Elias CJ and
Tipping J and at [127] per Thomas J.
[17] At [62] per Gault, Keith
and McGrath JJ and at [59] per Richardson P. Elias CJ, Tipping and Thomas JJ
accepted that, if the amendment
was to be given retrospective effect, the
retrospectivity should be limited to 1 September 1993: at [57] per Elias CJ and
Tipping
J and at [173] per Thomas
J.
[18] Refer to n 13
above.
[19] Refer to [27] above.
[20] At [89]–[90] per
Gault, Keith and McGrath JJ. Section 6 of the New Zealand Bill of Rights Act
1990 provides that wherever
an enactment can be given a meaning that is
consistent with the rights and freedoms contained in the Bill of Rights, that
meaning
must be preferred to any other
meaning.
[21] At
[100]–[116] per Gault, Keith and McGrath
JJ.
[22] At [86] per Gault,
Keith and McGrath JJ.
[23] At
[60] per Richardson P.
[24] R
v B CA398/02, 7 April
2003.
[25] At
[11]–[12].
[26] Morgan
v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.
[27] See at [29]–[31] per Gault J, at [57] and [77] per Blanchard J, at [86]–[87] per Tipping J and at [112]–[113] per Henry J.
[28] The entitlement was not
absolute, however, but subject to exceptions including in the case of prison
disciplinary offending, and
– in the case of certain offences only –
the ability of the Parole Board to require an offender to serve the full
term.
[29] At [103]–[107]
per Tipping J.
[30] See at [79] per
Blanchard J and at [113] and [115] per
Henry J.
[31] At [28] per
Gault J.
[32] At [31] per Gault
J.
[33] At [22] and [25] per Elias
CJ.
[34] R v Mist [2005]
NZSC 77, [2006] 3 NZLR 145.
[35]
Sentencing Act 2002, s 153.
[36] Section 4 of the Criminal Justice Act 1985 provided (in relevant part):
Penal enactments not to have retrospective effect to disadvantage of offender
(1) Notwithstanding any other enactment or rule of law to the contrary, where the maximum term of imprisonment or the maximum fine that may be imposed under any enactment on an offender for a particular offence is altered between the time when the offender commits the offence and the time when sentence is to be passed, the maximum term of imprisonment or the maximum fine that may be imposed on the offender for the offence shall be either —
(a) The maximum term or the maximum fine that could have been imposed at the time of the offence, where that maximum has subsequently been increased; or
(b) The maximum term or the maximum fine that can be imposed on the day on which sentence is to be passed, where that maximum is less than that prescribed at the time of the offence.
(2) Without limiting subsection (1) of this section, except as provided in sections 152(1) and 155(1) of this Act but notwithstanding any other enactment or rule of law to the contrary, no court shall have the 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. ...
[37] See at [5] per Elias CJ and Keith J, at [61]–[62] per Gault J and at [87]–[88] and [107] per Blanchard and Tipping JJ.
[38] At [110]. We note, however,
as pointed out by the Crown that Tipping J in Morgan at
[88]–[89] had said that s 6 of the Sentencing Act 2002 was not
substantively different from s 4 of the Criminal Justice
Act 1985, and that
Blanchard J in Morgan at [53]–[56] had said that s 4 of
the Criminal Justice Act 1985 was introduced to give effect to art 15(1) of
the International
Covenant on Civil and Political Rights, and that there was no
reason to suppose that s 6 of the Sentencing Act 2002 is any different
from
art 15(1).
[39] At
[5].
[40] At
[18].
[41] At [21] and [23].
[42] At
[43].
[43] At
[108]–[112].
[44] At [109]. Gault J likewise
left these issues open: at
[64].
[45] At [109] and
[111].
[46] R v W (2006)
23 CRNZ 531 (CA) at [27].
[47]
At [36].
[48] R v Chadderton
[2004] NZCA 295; (2004) 21 CRNZ 566 (CA).
[49]
R v Fisher [2004] NZCA 323; (2004) 21 CRNZ 402
(CA).
[50] W v R [2006]
NZSC 88.
[51] R v Te Huia
CA327/06, 21 December
2006.
[52] At [5], [15] and
[20].
[53] At [21].
[54] At
[34].
[55] R v S [2009]
NZCA 315.
[56] At
[31].
[57] Refer to [50](b) and (d)
above.
[58] R v B HC New
Plymouth T20-01, 15 November
2002.
[59] R v B
CA398/02, 7 April 2003 (for the reasons set out at [33] above).
[60] We also note that this is consistent with European Court of Human Rights jurisprudence. See Welch v United Kingdom [1995] ECHR 4; (1995) 20 EHRR 247 (ECHR) and Kafkaris v Cyprus (21906/04) Grand Chamber, ECHR 12 February 2008.
[61] Both ss 6 and 25(g)
state that the offender’s right to the benefit of the lesser penalty
applies “if convicted of an
offence in respect of which the penalty has
been varied between the commission of the offence and
sentencing”.
[62] Refer to
Morgan at [101] per Tipping J and at [114] per
Henry J.
[63] Sentencing
Act 2002, s 86(5).
[64]
Morgan at [78] per Blanchard J, citing Welch v United
Kingdom [1995] ECHR 4; (1995) 20 EHRR 247 (ECHR).
[65] At [73], citing a decision
of the Ontario Court of Appeal in R v Logan (1986) 51 CR (3d)
326.
[66] R v Mist at
[18] per Elias CJ and Keith
J.
[67] Morgan at
[53]–[56] per Blanchard J and at [88]–[89] per Tipping J.
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