R V ZACKARY ARYCHUK AND ANOR HC AK CRI 2009-404-14786 [2009] NZHC 1227 (10 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CRI 2009-404-14786
                                                                  CRI 2009-404-16465



                                    THE QUEEN



                                            v



                             ZACKARY ARYCHUK
                            JUSTIN
NATHANIEL POE



Hearing:       11 September 2009

Counsel:       K Cato for Crown
               G Newell for Accused

Judgment:
     10 September 2009


                       JUDGMENT OF SIMON FRANCE J



[1]    Mr Poe and Mr Arychuk pleaded guilty, prior
to depositions, to one charge
on importing methamphetamine.         The District Court Judge remanded them in
custody and sent the
file to the High Court for sentencing. It is common ground that
this was an administrative transferral rather than a declining of
jurisdiction.


[2]    Mr Newell queries the jurisdiction of this Court to sentence the prisoners. He
submits that since the change
to give the District Court jurisdiction over class A
offending, the sentencing ought to be in the District Court.




R V ZACKARY
ARYCHUK AND ANOR HC AK CRI 2009-404-14786 10 September 2009

[3]    I adjourned sentencing to consider the point. Subsequently I
was provided
with a minute of Wylie J where his Honour in a different case concluded jurisdiction
lay with the District Court unless
and until declined. I am with respect satisfied that
is correct, and take the opportunity to briefly set out the reason.


[4]  
 Pleas to indictable offences may be entered prior to committal under ss 160
and 161 of the Summary Proceedings Act 1957.       
     What happens then turns on
whether the offence is listed in Part 2 of Schedule 1A of the District Courts
Act 1947. Those offences
are triable only in the High Court. Equally, persons who
plead to such offences must be committed to the High Court for sentence.


[5]    If the offence is not listed in Part 2 of Schedule 1A, the Court is to either
immediately sentence, or adjourn the matter
to be dealt with under s 28F of the
District Courts Act 1947. Section 28G gives the District Court the right to decline
jurisdiction,
in which case the matter is to be transferred to the High Court.


[6]    If the District Court keeps the case, a trial Judge may
sentence to the
maximum prescribed by law (s 28F(4)(a)(i). A District Court Judge who is not a
trial Judge is limited to the figures
set out in s 7 of the Summary Proceedings
Act 1957.


[7]    As of 18 July 2008, s 6 of the Misuse of Drugs Act 1957 was moved from
Part 2 of Schedule 1A, to Part 1B. It therefore is governed by s 161(3)(a)(ii) of the
Summary Proceedings Act 1957, and sentencing
is to occur in the District Court
unless that Court declines jurisdiction.


[8]    It follows that Mr Arychuk and Mr Poe should
be sentenced in the District
Court unless the Court declined jurisdiction. The committal appeared to occur
immediately upon the plea
being entered which suggests it was administrative rather
than a 28F decision. (I do not say by this it is never possible to immediately
decline
jurisdiction, just that in the present case the issue does not appear to be addressed.)

[9]     The prisoners request sentencing
in the District Court. Since that is the Court
of jurisdiction, I transfer the sentencing back. The matter should come before a jury
warranted Judge.




                                                              ________________________
                    
                                                     Simon France J

Solicitors:
K Cato, Meredith Connell, PO Box 2213, Auckland,
email: [e-mail]
G Newell, Barrister, PO Box 105 444, Auckland, email: [e-mail]