Frewer v R [2012] NZCA 187 (14 May 2012)

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Frewer v R [2012] NZCA 187 (14 May 2012)

Last Updated: 27 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/2011 [2012] NZCA 187

BETWEEN MATTHEW FREWER Applicant

AND THE QUEEN Respondent

Court: Stevens, Ronald Young and Andrews JJ

Counsel: P J Kaye for Applicant M J Lillico for Respondent

Judgment: 14 May 2012 at 11.45 am

(On the papers)

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] This is an application that the Court reconsider its earlier decision allowing the applicant’s appeal in part only: [2012] NZCA 29. We treat it as an application for recall.

Background

[2] The applicant appealed against a sentence of eight years and nine months imprisonment with a minimum period of imprisonment of four years and three months imposed in the High Court. The sentencing was carried out by Venning J after the applicant had pleaded guilty to three counts of supplying the Class B controlled drug MDMA.[1] The appeal was based on four grounds. The first was the correctness of the initial starting point. The second was whether a sufficient discount was given for time spent on electronically monitored (EM) bail. The third was the level of discount for the guilty pleas. The final issue concerned the imposition of a minimum period of imprisonment.
[3] This Court considered the four grounds and dismissed the applicant’s arguments in all but the second, namely, the failure to make an allowance for time on EM bail. With respect to this ground we held as follows:

[16] Given the lack of certainty as to whether an allowance for time on EM bail was in fact given, we need to ensure that the appellant is not disadvantaged. We therefore consider it appropriate to make an additional allowance to take account of the possibility that no specific allowance was in fact made. We would therefore, as invited to do by Mr Kaye, make an additional allowance of two months imprisonment.

[17] As we propose to make no further adjustment, that would give a final sentence of imprisonment of eight years and seven months. We will also make a consequential adjustment to the minimum period of imprisonment as described below.

[4] We add by way of clarification that the appeal was allowed on this ground on the basis that the applicant had established that the sentence imposed in the High Court was wrong in principle.[2]
[5] On the ground relating to the level of discount for the guilty pleas, this Court stated:

[18] Mr Kaye submitted that the discount of 15 months for the guilty pleas was insufficient. Mr Kaye pointed to various factors that resulted in the guilty pleas being delayed including an outstanding challenge to the legality of the search warrants. This application was twice adjourned and counsel put the delay at the feet of the Crown. Mr Kaye submitted that a full evaluation of the circumstances would have resulted in a greater discount being applied by the Judge.

[19] We disagree. By any standard a plea of guilty entered one week before trial is aptly seen as late. We note that the case against the appellant was viewed by the Judge as being “overwhelming”.[3] It is clear that any factors relating to the delayed pre-trial applications were taken into account by the Judge. Had he not done so, the discount for the guilty pleas would have been much lower.

[6] That ground of appeal therefore failed.

The recall application

[7] For the applicant Mr Kaye has filed a memorandum dealing with the manner in which the judgment dealt with the discount for the guilty pleas. Mr Kaye has drawn our attention to what we said when describing the approach taken by the Judge on this point in the High Court. We stated by way of summary in the appeal judgment:

[7] Venning J then dealt with the early guilty pleas. As the guilty pleas were entered a week or so prior to trial, the Judge allowed a discount of 15 months (that is, 12 and a half per cent).

[8] The figure of 12 and a half per cent was calculated (as is appropriate) after making the allowance of 18 months for mitigating factors from the starting point of 11 years and six months (or 138 months). What Venning J had said in the High Court was as follows:

[22] Taking into account as much as I can those positive personal features, remorse and your circumstances, I apply a reduction of 18 months. The remaining factor is the credit for your guilty plea. The Supreme Court have made it clear in R v Hessell[4] that the extent of the discount for a guilty plea is discretionary, but even when entered at an early stage should not exceed 25 per cent. Your guilty plea was not entered at the earliest possible stage. It was entered just over a week or so before trial. The circumstances of it have been explained to the Court. I accept that while you had an unresolved challenge to the search warrants, on the basis of the evidence the Crown case against you was overwhelming. However, I take into account the explanation for the timing of the entry of the plea and accept that a discount of between 10 and 15 per cent is appropriate.

[9] It is apparent that the calculation of the percentage was not made by the Judge, other than indicating that the 15 months was “between 10 and 15 per cent”.
[10] But Mr Kaye submitted that with respect to a sentence of 11 and a half years (or 138 months) a discount of 15 months is in fact 10.87 per cent not 12 and a half per cent. In fact 12 and a half per cent of 11 and a half years is 17.25 months. This results in a difference of two months and one week to the applicant’s sentence. The implication is that the sentence should be further reduced by this amount.
[11] The respondent opposes the application for recall.

The scope of the Court’s power to recall

[12] This Court’s power to reopen a decision was discussed in R v Smith.[5] In that case Elias CJ, delivering the judgment of the Court, noted that the Court has the jurisdiction conferred by statute. Further, Elias CJ observed that there was no statutory power to rehear appeals finally disposed of by judgment, [6] “at least once the judgment has been perfected by entry on the Criminal Register of the Court (R v Nakhla (No 2))”.[7]
[13] In Smith the Court also stated that the Court’s inherent or implied power to regulate its procedure and practice went further than simply enabling the Court to correct slips or omissions in a judgment and allowed reopening of cases in some circumstances. The Chief Justice concluded that this Court had:[8]

...[I]nherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.

[14] In R v Palmer[9] William Young P considered that in light of Smith the jurisdiction of this Court to reopen a case which had been the subject of a final judgment depended on the Court being satisfied that:[10]

• (a) There was a “fundamental error in procedure”;
• (b) There is no alternative remedy available; and
• (c) A substantial miscarriage of justice would result if the error is not corrected.

Our evaluation

[15] We are satisfied that this is not a case in which we should revisit our earlier decision. There are no exceptional circumstances giving rise to a need to reconsider the appeal in the interests of justice. As submitted by the respondent, and as is clear from [8] above, there was no mathematical error made by the Court when summarising what the High Court Judge had done. The discount given for the plea of guilty was correctly stated as being 15 months. Fifteen months is in fact 12.5 per cent of the provisional sentence of 120 months reached after deducting the 18 month discount for mitigating factors from the starting point of eleven years six months.
[16] It is axiomatic that any guilty plea discount has to be calculated in relation to the time determined after applying any discount already allowed for positive mitigating factors.[11]
[17] In any event, even if the percentage figure had been 10.87 per cent for the guilty plea awarded by the High Court, this Court’s decision would have been the same. This is because a discount of 10.87 per cent is still a more than adequate discount for a guilty plea entered one week before trial on an “overwhelming” Crown case. The applicant would have had no basis for arguing that the sentence imposed was manifestly excessive.

Disposition

[18] For the reasons given, the application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Frewer HC Auckland CRI-2009-404-384, 24 June 2011.
[2] Applying the test laid down in this Court in The King v Brooks [1950] NZLR 658 (CA) at 660.

[3] At [22].
[4] R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
[5] R v Smith [2003] 3 NZLR 617 (CA).
[6] At [28].
[7] R v Nakhla (No 2) [1974] 1 NZLR 453 (CA).
[8] At [36].
[9] R v Palmer [2007] NZCA 350.
[10] At [8].

[11] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72]–[73]; R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [59]–[60].