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Stretch v R [2020] NZCA 680 (21 December 2020)

Last Updated: 23 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA571/2018
[2020] NZCA 680



BETWEEN

ALBERT KARL LENIN STRETCH
Appellant


AND

THE QUEEN
Respondent

Court:

Cooper, Collins and Simon France JJ

Counsel:

D A Ewen and J McVay for Appellant
R K Thomson for Respondent

Judgment:
(On the papers)

21 December 2020 at 2.15 pm


JUDGMENT OF THE COURT
(Application for recall)

The application for recall is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Background

[24] We are satisfied in the circumstances of the case that the appropriate approach is to allow the appeal, quash the conviction under s 188(1) of the Crimes Act, and substitute a conviction under s 188(2). The parties were agreed that if the Court were to follow this approach, sentencing should be remitted to the District Court, and we will order accordingly.

Application for recall

  1. Section 83(2) of the Sentencing Act 2002 provides that a court may not impose a sentence of imprisonment cumulatively on another sentence of imprisonment if, at the time of sentencing, the offender is subject to a sentence of imprisonment but, having commenced serving the sentence, is no longer detained under it.[15] Clearly the same must apply if the sentence has already been completed.

236 Confirmation or substitution of sentence for another offence

(1) This section applies if—

(a) a first appeal court allows a convicted person’s appeal against conviction for one offence (offence A); and

(b) the sentencing court took the sentence it imposed for offence A into account in imposing sentence for a conviction for a different offence (offence B) and the convicted person remains convicted of offence B.

(2) The first appeal court may—

(a) confirm the trial court’s sentence for offence B; or

(b) substitute any sentence that is allowed by law; or

(c) remit the proceeding to the court that imposed the sentence for offence B and direct that court to take any action of a kind described in paragraph (a) or (b).

Analysis

[F]irst, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

  1. Third, there must be doubt as to whether s 236(2)(c) applies in the present circumstances. The section is apparently intended to apply to a situation where the sentence for offence B may not be appropriate if divorced from offence A, for which the conviction has been quashed.[21] The current situation, where s 236(2)(c) is said to be necessary to allow the lower court to impose a cumulative sentence, has not previously arisen. Its application is awkward, especially in circumstances where the Judge has resentenced expressly on the basis that he did not want to disturb the sentences imposed on the other offences.

Result


Solicitors:
Crown Law Office, Wellington for Respondent


[1] Stretch v R [2020] NZCA 195 [Court of Appeal judgment].

[2] R v Haddon [2018] NZDC 18109.

[3] Mr Stretch was charged as a party under s 66(2) of the Crimes Act 1961.

[4] Misuse of Drugs Act 1975, s 6(2A); and Crimes Act, s 116..

[5] R v Haddon, above n 2, at [40].

[6] Court of Appeal judgment, above n 1.

[7] At [24].

[8] R v Stretch [2020] NZDC 14736 at [6].

[9] At [9].

[10] Parole Act 2002, s 79(1).

[11] Section 76.

[12] Stretch v Chief Executive of the Department of Corrections CIV-2020-485-402, 25 September 2020 (Minute of Cull J) at [7]–[8].

[13] Court of Appeal judgment, above n 1.

[14] Sentencing Act 2002, s 83(2).

  1. [15] See for example Whichman v R [2018] NZCA 519 at [14] and [23].

[16] Uhrle v R [2020] NZSC 62 at [25].

[17] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

[18] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

[19] Lyon v R [2020] NZCA 430 at [17].

[20] See Rabson v Gallagher [2012] NZCA 237, [2014] NZAR 30 at [3].

  1. [21] See for example Sharpe v R [2020] NZCA 475, in which Mr Sharpe’s appeal against a conviction for aggravated burglary was allowed. Because that was the lead charge for the purposes of sentencing and was taken into account in the imposition of other sentences, those sentences were increased from 12 months to two years and two months’ imprisonment at [36]–[38].

[22] Section 26(2) of the New Zealand Bill of Rights Act 1990 provides, amongst other things, that no one who had been finally convicted of an offence shall be punished for it again.

[23] That period would not be pre-sentence detention for the purposes of section 82 of the Sentencing Act 2002.


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