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Stretch v R [2020] NZCA 680 (21 December 2020)
Last Updated: 23 December 2020
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IN THE COURT OF APPEAL OF NEW
ZEALANDI
TE KŌTI PĪRA O AOTEAROA
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BETWEEN
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ALBERT KARL LENIN STRETCH Appellant
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AND
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THE QUEEN Respondent
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Court:
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Cooper, Collins and Simon France JJ
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Counsel:
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D A Ewen and J McVay for Appellant R K Thomson for Respondent
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Judgment: (On the papers)
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21 December 2020 at 2.15 pm
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JUDGMENT OF THE
COURT
(Application for
recall)
The application for
recall is
declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
- [1] In
circumstances we address below, the Crown has applied for recall of this
Court’s judgment on this
appeal.[1]
Background
- [2] Mr Stretch
was sentenced by Judge Barry in the District Court at Wellington on 24 August
2018,[2]
having been convicted of causing grievous bodily harm with intent to do so
(under s 188(1) of the Crimes Act
1961),[3] two charges of conspiring to
supply methamphetamine and one charge of conspiring to pervert the course of
justice.[4] The sentences imposed were
terms of imprisonment for six years, one year and six months respectively.
Judge Barry ordered those
sentences to be served
cumulatively.[5]
- [3] On 29 May
2020 this Court allowed Mr Stretch’s appeal against conviction on the
grievous bodily harm charge.[6] A
conviction for the lesser charge of causing grievous bodily harm with reckless
disregard under s 188(2) of the Crimes Act was
substituted. This Court
remitted sentencing to the District
Court.[7] By then,
Mr Stretch’s 18-month cumulative sentence for the other three charges
had already been served, having expired in
February 2020.
- [4] On 27 July
2020, Judge Barry sentenced Mr Stretch to three years and three months’
imprisonment on the substituted charge,
expressly noting that the cumulative
sentences totalling 18 months’ imprisonment imposed for the other charges
on 24 August
2018 would remain
unchanged.[8] The Judge also
recorded his view that the commencement date of the new sentence would remain
the original sentencing date of 24
August 2018.
[9]
- [5] However, a
dispute subsequently arose about whether the start date of the new sentence
should be 24 August 2018[10] or 27
July 2020.[11] The issue was raised
by Mr Stretch in an application to the High Court for a declaration
determining the sentence expiry date for
the substituted sentence. The
High Court proceeding was adjourned to give counsel the opportunity to address
submissions to this
Court about the implications of s 236 of Criminal
Procedure Act 2011, having regard to the terms on which this Court allowed the
appeal.[12]
- [6] The relevant
part of this Court’s decision reads as
follows:[13]
[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.
- [7] The order
band records, as Order C, that the matter is “remitted to the
District Court for sentencing on that charge”,
which was plainly a
reference to the substituted charge under s 188(2) of the Crimes Act.
Application for recall
- [8] The vehicle
used by counsel to address the issue in this Court is the present application
for recall of this Court’s judgment
of 29 May 2020.
- [9] The Crown
applies for recall on the basis that because Mr Stretch had already completed
his 18-month cumulative sentence imposed
for the drug and conspiring to pervert
the course of justice charges, Judge Barry did not have jurisdiction to impose
the new sentence
on the substituted charge
cumulatively.[14]
- 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.
- [11] In Mr
Stretch’s case, what matters is the “time of sentencing”. We
are of the view that the relevant date
is the date of the second sentencing
decision. Section 83(2) does not differentiate between sentencing and
resentencing, and on
27 July 2020 Mr Stretch was “sentenced”.
On that basis, we agree that s 83(2) of the Sentencing Act applies, and
precluded
Judge Barry from imposing the sentence for the substituted charge
cumulatively on the sentences for the other charges.
- [12] Ms Thomson,
for the Crown, now submits that in the circumstances an order of this Court
under s 236(2)(c) of the Criminal Procedure
Act should have been made when
the conviction appeal was allowed, with a direction that the District Court may
confirm or substitute
any sentence on all charges. She contends recall of this
Court’s judgment is appropriate, because counsel did not draw the
Court’s attention to that provision at the hearing of the appeal.
- [13] Section 236
of the Criminal Procedure Act provides as follows:
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).
- [14] In this
case, the quashed grievous bodily harm charge would be offence A; the drug
and conspiring to pervert the course of justice
charges offence B. Ms
Thomson submits that if this Court remitted all four charges to the District
Court under s 236(2)(c), with a direction that the
District Court may
confirm or substitute any sentence allowed by law on all charges, the District
Court would be able to “re-impose
the cumulative sentences” as had
been intended. All three sentences would then run from the original sentencing
date in August
2018 under s 79(1) of the Parole Act 2002 and could be
calculated as a single cumulative sentence.
- [15] Ms Thomson
argues that unless that course is followed there would be
“no route” for the District Court to reconsider
its sentencing
decision on the drug and conspiring to pervert the course of justice offences.
A Crown appeal against the second
sentencing decision would now be out of time
and would not permit the sentencing Court to reconsider the sentences for
conspiring
to supply methamphetamine and to pervert the course of justice.
- [16] Mr Ewen,
counsel for Mr Stretch, neither opposes nor supports the recall application, but
contends that this Court should not
recall its judgment and remit
the matter to the District Court without a hearing, as the issues raised
are novel and s 236 of the
Criminal Procedure Act is not a straightforward
re-enactment of s 386 of the Crimes Act.
Analysis
- [17] In Uhrle
v R, the Supreme Court indicated that the test for recall in the criminal
jurisdiction was to be governed by the same principles that
apply to recall in
the civil jurisdiction.[16] Those
principles were set out in Saxmere Company Ltd v Wool Board Disestablishment
Company Ltd (No 2),[17] applying
Horowhenua County v Nash
(No 2):[18]
[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.
- [18] The
category on which the recall application is premised here is category two;
namely that counsel did not draw the Court’s
attention to s 236(2)(c) of
the Criminal Procedure Act.
- [19] We are
satisfied in the circumstances of this case that there is no proper basis for
recall, for the reasons that follow.
- [20] First, and
axiomatically, the recall jurisdiction is for the purpose of correcting error in
the judgment to be recalled. As
this Court recently observed in Lyon v R,
once a judgment has been entered in the Court’s permanent record,
which is the case here, “the court is confined to doing
what it must to
remedy an injustice occasioned by its exercise of its statutory powers in the
recalled judgment.”[19] We
are not satisfied there was any error in this Court’s approach. If there
has been error, it was in the sentencing exercise
that subsequently took place
in the District Court when the Judge assumed that the 24 August 2018 start date
would apply.
- [21] Second,
whatever the implications in the criminal context of the civil jurisdiction rule
that recall must be prior to a judgment
or order being
“perfected”,[20] here
the resentencing has taken place in the District Court. We cannot see a proper
basis for contemplating recall when the District
Court has in fact acted on this
Court’s judgment. The focus must then be on what the District Court has
done. Unless that
Court has made some error, its decision must
stand.
- 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.
- [23] In
addition, the Crown’s application appears to contemplate, at least
theoretically, that s 236(2)(c) could be used to
reopen the sentences for the
other offending, where the sentences for those offences have already been
served. That seems wrong
in principle. The sentences had in fact already
expired when the conviction appeal was heard in this Court. In the
circumstances
it is difficult to see how they could be treated as susceptible to
any order by this Court whether at the time the conviction appeal
was
heard, or subsequently. And there would clearly be an issue with s 26(2)
of the New Zealand Bill of Rights Act 1990 were there
an attempt to re-examine
sentences already served.[22]
- [24] In these
circumstances we consider that the argument for recall based on s 236(2)(c)
of the Criminal Procedure Act is not tenable.
The circumstances do not fit
within the circumscribed basis on which this Court will entertain recall of its
judgments.
- [25] There may
be other means of rectifying the unfortunate circumstances that have arisen.
Because they might result in further
litigation in this Court it is not
appropriate for us to address them in detail or express any concluded view. But
one possibility
that might be considered is whether the District Court might be
able to take corrective action under s 180 of the Criminal Procedure
Act,
on the basis that the Judge resentenced wrongly assuming that the original start
date would apply. That would involve Mr Stretch
being sentenced again, and the
sentencing judge having to take into account the period of time he had served on
the sentence for
the quashed
conviction.[23] A second
possibility would be to seek leave to appeal out of time against the
sentence.
- [26] But for the
reasons we have given the application for recall is declined.
Result
- [27] The
application for recall is declined.
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).
- [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].
- [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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