Hall v R HC Nelson CRI-2011-442-35 [2011] NZHC 1445 (20 October 2011)

Last Updated: 11 November 2011

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI-2011-442-35}

SHANON JOHN GEORGE HALL

Appellant

v

THE QUEEN

Respondent

Hearing: 12 October 2011

Counsel: A J Heward for Appellant

M A O'Donoghue for Respondent

Judgment: 20 October 2011 at 4:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 20th day of October 2011.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] The appellant appeals against a sentence of two months imprisonment imposed in the District Court in Nelson on a charge of failing to report for community work. The grounds of the appeal are that no sentence of imprisonment could lawfully be imposed, by virtue of s 30 of the Sentencing Act 2002, because the appellant was not legally represented.

[2] The sequence of events is that the information alleging the offence was issued on 17 June 2011, with a hearing of date 13 July. The appellant appeared on that day

_{and entered a plea of guilty. He apparently saw the duty solicitor and the plea of}

HALL V R HC NEL CRI-2011-442-35 20 October 2011

guilty was entered through the duty solicitor. He was remanded on bail to appear for sentence on 5 September 2011 and a pre-sentence report with home detention and community detention appendices was ordered. A note on the information by the judge records what were apparently comments made by the judge to the appellant at that hearing. The note reads ―NB indicated 1-2 months jail – no attempt to do sentence – BUT might have good excuse therefore CD and CW appropriate‖.

[3] The appellant appeared before a different judge on 5 September for sentence. The duty solicitor saw the appellant, and what occurred is recorded by the sentencing judge in these terms:[1]

Mr Miller is duty solicitor has been good enough to see Mr Hall and he is concerned about Mr Hall‘s situation and has asked that I give consideration to adjourning sentencing so that legal aid can be applied for. Mr Miller‘s concern was that he did not feel that given his role as duty solicitor, he was in the position to be able to make the best case possible on behalf of Mr Hall.

[4] The judge said that he was not prepared to defer the sentencing, and that the need to impose consistent sentences meant that imprisonment was inevitable.

[5] Section 30 of the Sentencing Act 2002 provides:

No sentence of imprisonment to be imposed without opportunity for legal representation

(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2) Subsection (1) does not apply if the court is satisfied that the offender—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires.

(4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—

(a) refuses or fails to apply for legal aid under the Legal

Services Act 2000 or applies for it unsuccessfully; and

(b) refuses or fails to engage counsel by other means.

[6] The requirements of that section were discussed by the Supreme Court in Condon v R.[2] The short point, in this case, is whether the appellant was legally represented at the hearing on 13 July. That was the point at which the appellant was at risk of conviction in terms of s 30(1). That was when the guilty plea was entered and he was convicted. If he was legally represented at that hearing, then s 30 has no application and the sentence of imprisonment was lawfully imposed. If he was not, then, unless s 30(2) applied, s 30(1) prohibited the sentence imposed. The issue is whether representation by the duty solicitor on 13 July met that requirement.

[7] The predecessor of s 30, s 13A of the Criminal Justice Act 1954, inserted in

1975, was considered by the Court of Appeal in R v Long.[3] The Court held that whether a defendant has had legal representation is a question of fact, and the section calls for an interpretation enabling it to be applied in a practical way in busy Courts. The then newly established duty solicitor scheme was discussed. Cooke J said that:[4]

... if a defendant wishes to be represented by the duty solicitor and the latter intimates to the Court that he appears for the defendant, that will normally constitute legal representation for the purposes of s 13A.

[8] The view expressed in R v Long that representation by a duty solicitor will normally suffice must be considered in the light of developments in the criminal

justice system since 1977. In particular, it is necessary to take into account that the rights of persons charged with an offence are now set out in s 24 of the New Zealand Bill of Rights Act 1990, and specifically include the right to consult and instruct a lawyer, and to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.

[9] The current responsibilities of duty lawyers are set out in the Duty Lawyer Service Operational Policy issued by the Ministry of Justice. The responsibilities are described in these terms:[5]

10. Duty lawyers are required to provide services to unrepresented defendants in accordance with the following broad guidance. They deal with:

matters where the defendant wishes to be represented by the duty lawyer, intends to enter a guilty plea and their sentencing can be dealt with on the day

matters where the defendant wishes to be represented by the duty lawyer, intends to enter a not guilty plea and the matter can be dealt with on the day

matters where the defendant wishes to seek a remand without plea to make a legal aid application

bail matters, name and detail suppression orders in accordance with the instructions (see appendices 1 and 2).

11. The responsibilities of duty lawyers dealing with the above matters include:

obtaining information from the Court and the Police or other prosecuting agency

explaining the nature and seriousness of a charge

advising the defendant whether they have a defence to a charge providing information about the range of sentences that the

court may impose for a charge

advising unrepresented defendants about plea, the possibility of a remand without plea, and the right to elect to be tried by a jury

explaining what happens after a defendant pleads guilty/not guilty to a Charge

advising defendants on how to apply for legal aid and assisting defendants to complete legal aid applications (see also

‗Applications for legal aid‘ below)

advising unrepresented defendants about bail, and often applying for bail on behalf of the defendant (specific instructions on bail matters are found in Appendix 1 for duty lawyers at Auckland area courts; and Appendix 2 for duty lawyers at all other courts)

applying for remand on behalf of the defendant

_{presenting sentencing submissions on behalf of a defendant}

[10] It is not to be expected that a duty solicitor could, in the limited time available for a consultation, take instructions in the level of detail that might be necessary for the giving of meaningful advice as to whether a plea should be entered, in a matter sufficiently serious that a sentence of imprisonment may be in contemplation. The responsibilities described in paragraph 10 of the operational policy suggests that legal advice sufficient for the entry of a plea should be confined to less serious matters where sentencing on the spot would be appropriate.

[11] I consider that, in general terms, there should be a fully informed decision by the defendant to proceed with advice only from a duty solicitor, before the defendant can properly be said to have been legally represented by the duty solicitor. To be a fully informed decision, there should be advice from the duty solicitor about the availability of legal aid and how to apply for it, in a manner analogous to s 30(2). If a defendant elects to proceed with representation by the duty solicitor after having been informed of his rights, then legal representation by the duty solicitor will normally meet the s 30(1) requirement. If there is not a fully informed decision by the defendant to proceed with representation by the duty solicitor, there is no general rule that representation by a duty solicitor will meet the requirement of s 30.

[12] In this case, the information available does not indicate that the appellant made a fully informed decision to proceed with advice only from the duty solicitor. The sequence of events on the sentencing date is relevant. There is no specific requirement that the appellant be legally represented at sentencing. The trigger point for s 30 is the point of conviction, not the point of sentencing. Application was made at sentencing for an adjournment so that counsel could be obtained. That indicates

that, in the view of the duty solicitor on that day, some time for legal advice, which might have useful input into the sentencing process, was appropriate. The fact that that view was then taken by the duty solicitor suggests that the matter was not so straight forward that a decision to proceed without fuller advice than could be provided by the duty solicitor should be attributed to the appellant at the earlier stage.

[13] It is clear from the judge‘s note on 13 July recorded at [2], that imprisonment was not seen by that judge as inevitable. It is also clear from the sentencing judge‘s comments noted at [3] that the duty solicitor did not feel able to represent the applicant adequately at sentencing.

[14] For these reasons, I consider that it is not safe to assume that the decision to enter the guilty plea based only on advice from the duty solicitor on 13 July was a fully informed one. The consequence is that the appellant cannot be held to have been legally represented on that day.

[15] Under s 30(3), I must either quash the sentence and impose any other lawful sentence, or quash the conviction and direct a new hearing, or make any other order that justice requires. I consider that a new hearing is not justified, and that the better course is to resentence. The appellant‘s record of compliance with community based sentences is poor. I do not consider either community work or community detention to be appropriate. A home detention appendix was obtained, with a suitable address. That is the sentence I consider should be imposed.

[16] The appeal is allowed. The sentence of imprisonment is quashed and a sentence of one month home detention is imposed, on the following conditions:

(1) To reside within the monitoring boundaries of 60 Washington Road, Nelson and not to move address without the prior written approval of a Probation Officer for the duration of the sentence.

(2) To undertake an alcohol and drug assessment, counselling or treatment as recommended and as directed by a Probation Officer.

[17] The appellant is presently on bail. The sentence is to commence as soon as the necessary arrangements, and electronic monitoring installation, can be carried out.

“A D MacKenzie J”

Solicitors: Crown Solicitor for Respondent

Legal City, Nelson, for Appellant

---

[1] Department of Corrections v Hall DC Nelson CRI-2011-042-002195, 5 September 2011 at [2].
[2] _{Condon v R [2006] NZSC 62; [2007] 1 NZLR 30 (SC).}
[3] _{R v Long [1977] 1 NZLR 169 (CA).}
[4] At 174.

[5] Ministry of Justice Duty Lawyer Service: Operational Policy (Ministry of Justice, Wellington,

2011).