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Last Updated: 17 September 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2012-419-000031 [2012] NZHC 1989
BETWEEN JACOB-LEE ADAMS Appellant
AND DEPARTMENT OF CORRECTIONS Respondent
Hearing: 8 August 2012
Appearances: L Wilkins for Appellant
J O'Sullivan for Respondent
Judgment: 10 August 2012
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 10 August 2012 at 9:45am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel/Solicitors:
L J R Wilkins, PO Box 19138, Hamilton 3244 (Appellant) Almao Douch, PO Box 19173, Hamilton 3244 (Respondent)
ADAMS V DEPARTMENT OF CORRECTIONS HC HAM CRI 2012-419-000031 [10 August 2012]
Introduction
[1] The appellant has appealed against a sentence of six weeks imprisonment imposed on him for failing to report for a sentence of community work.
Background
[2] On 18 July 2011, the appellant was sentenced to 175 hours community work after being convicted on two charges of driving with an excess breath alcohol level, a charge of driving while disqualified, and a charge of exceeding the blood alcohol level limit for a person under the age of 20. On 19 July 2011 the appellant was directed to report for community work every Thursday until he had completed the required number of hours. He failed to report on 28 July 2011, and failed to report on a subsequent occasion. The appellant was charged by the Department of Corrections under s 71(1)(a) of the Sentencing Act 2002 with failing to report for community work. At that time, he had completed 30 minutes of the sentence.
[3] The appellant appeared in the District Court at Hamilton on 6 September
2011. He entered a plea of guilty to the charge, but the proceeding was adjourned to allow him to progress his community work sentence. He appeared again on 8
November 2011 and the proceeding was again adjourned to allow him to make further progress with the sentence. At that date, he still had 110 hours to complete on the sentence.
[4] The appellant failed to appear at the next scheduled hearing date, on 11
January 2012. A warrant was issued. The appellant made a voluntary appearance on
18 April 2012, at which time he was convicted and remanded for sentence on 1 June
2012. The Court record notes that a duty lawyer appeared for the appellant. On 1
June 2012 he appeared before Judge Connell and was sentenced to imprisonment for six weeks. Again, the Court record notes the appearance of a duty lawyer for the appellant.
[5] The maximum penalty on conviction for failing to report for community work is imprisonment for up to three months or a fine of up to $1,000. The Judge rejected the recommendation in the pre-sentence report that a sentence of community
detention be imposed, observing that, in confining the appellant to his home address between 10.30 pm and 7.00 am, it would achieve no more than to give the appellant a good night’s sleep. The Judge noted that the appellant had two previous convictions for breaches of community work, and a conviction for two breaches of conditions of a supervision sentence. The Judge concluded that it was appropriate to deal with the present conviction by way of a short term of imprisonment.
[6] The Judge arrived at a sentence of six weeks imprisonment by adopting a starting point of six weeks, then applying an uplift of two weeks on account of the appellant’s two convictions for breaches of community work (in October 2009 and October 2010) and his conviction in January 2010 for breaches of the conditions of a sentence of supervision. The Judge then allowed a discount of two weeks to recognise the appellant’s guilty plea.
Appeal
[7] The grounds of appeal, as set out in the appellant’s notice of appeal, are that the sentence is wrong in fact and in law. In his written submissions Mr Wilkins on behalf of the appellant submitted that the primary basis of the appeal is that the appellant did not have legal representation when he entered his guilty plea on
6 September 2011, and that the imposition of a sentence of imprisonment on 1 June
2012 was therefore in breach of s 30 of the Sentencing Act 2002. The secondary basis of the appeal is that the sentence imposed was manifestly excessive, given the appellant’s relatively brief criminal traffic history, and the pre-sentence report which recommended a sentence of community detention.
Legal representation
Submissions
[8] Section 30 of the Sentencing Act 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 engage 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.
[9] Mr Wilkins referred me to the judgment of MacKenzie J in Hall v R,1 in which a sentence of two months imprisonment on a charge of failing to report for community work was quashed and a sentence of one months home detention imposed in its place. In that case, the appellant, Mr Hall, had seen the duty lawyer on the day he first appeared, and then entered a plea of guilty to the charge through the duty lawyer. He was then remanded for sentencing. When he appeared some two months later for sentencing Mr Hall again saw the duty lawyer, who asked for an adjournment so that Mr Hall could apply for legal aid. The presiding Judge was not willing to defer sentencing.
[10] MacKenzie J held that representation by a duty lawyer was sufficient to meet s 30 of the Sentencing Act only if the defendant was able to make a fully informed
1 Hall v R HC Nelson CRI 2011-442-35, 20 October 2011.
decision to enter a guilty plea, and that being fully informed included receiving advice about the availability of legal aid, and how to obtain it. The information available to the Judge did not indicate that Mr Hall had made a fully informed decision before deciding to plead guilty, this being the stage of the proceedings at which he was “at the risk of conviction” for the purposes of s 30(1) of the Sentencing Act.
[11] Mr Wilkins submitted that the present case is closely analogous with Hall. He submitted that at no time, up until the time the sentence was imposed, was the appellant in this case made aware that a sentence of imprisonment was likely, or even contemplated. He submitted that for that reason the appellant could not be said to have been legally represented at the stage of the proceeding when he was at risk of conviction.
[12] In his oral submissions, Mr Wilkins produced an e-mail from the solicitor who appeared as duty lawyer when the appellant was sentenced on 1 June 2012. In that e-mail the lawyer advised that the appellant had told her that he had previously pleaded guilty to breaching community work. The lawyer obtained a copy of the pre-sentence report, noting that it recommended community detention. When the appellant was called to appear in Court, she advised the presiding Judge that she was only duty lawyer. She said that it became apparent that the pre-sentence recommendation of community detention would not be adopted. She asked for the matter to be stood down to complete a legal aid application, it was not stood down, and the appellant was then sentenced.
[13] Mr Wilkins had spoken to the duty lawyer who appeared when the appellant entered his guilty plea on 6 September 2011, however he had no recollection of the matter and could not, therefore, give evidence of what had occurred. Mr Wilkins submitted that it is usually the case for a charge of breach of community work that a defendant will indicate that a plea of guilty will be entered, and seek an adjournment to enable the sentence to be completed. The guilty plea is then entered at a later date. He submitted that because of that, in practice, the question whether imprisonment is a conceivable outcome will not arise until a much later date. For that reason, he submitted, it is not likely that there would have been any discussion
with the appellant about legal aid, because there would have been no real issue of legal aid being granted at the time. He submitted that what occurred with the appellant was the product of a busy list Court, and a busy duty lawyer, and that it was safest to assume that the appellant had not received full advice as to his right to obtain legal aid, in the event that imprisonment was a possibility.
[14] On behalf of the respondent, the Department of Corrections, Ms O’Sullivan submitted, first, that there is no evidential basis on which the Court could find that the appellant’s sentence was imposed in breach of s 30 of the Sentencing Act. She noted that the Informations, which contain the District Court record, record that the appellant was represented in Court by a duty lawyer at the time he entered his guilty plea on 6 September 2011. She submitted that a duty lawyer can be assumed to have informed the appellant of his rights relating to legal representation, and as to the maximum penalty that could be imposed. She noted that information as to the available penalty is set out in the caption sheet (which sets out the summary of facts) relating to the charge.
[15] Secondly, Ms O’Sullivan submitted that the position of the appellant can be distinguished from that of the appellant in Hall, where the Judge recorded that the duty lawyer at sentencing had sought an adjournment in order to apply for legal aid, and had submitted that he, as duty lawyer, was not able to make adequate submissions for the appellant. Ms O’Sullivan also submitted that I should not, in any event, follow the decision in Hall. She submitted that it was inconsistent with
the judgment of the Supreme Court in Condon v R,2 in which the Court of Appeal
considered s 30 of the Sentencing Act. She submitted that the judgment in Hall had gone beyond the requirements of s 30, as discussed in Condon.
[16] Further, Ms O’Sullivan submitted that to adopt the appellant’s submission would be, in effect, to turn the appellant’s onus on an appeal on its head. Thus, rather than requiring an appellant to establish on appeal that he was not represented, it would require the respondent to satisfy the appellate court that the appellant was represented. Ms O’Sullivan further submitted that to uphold the appellant’s
submission would be to encourage the unsatisfactory situation where a person could
2 Condon v R [2006] NZSC 62; [2007] 1 NZLR 300.
enter a guilty plea, having seen a duty lawyer at Court then, if unhappy with the outcome, seek to “go around again” by appealing on the grounds of not having been represented at the time the guilty plea was entered. Ms O’Sullivan further submitted that even if the approach routinely taken by duty lawyers is to discourage defendants in the position of the appellant from entering a guilty plea at the first appearance, that does not lead automatically to the conclusion that if a guilty plea is entered, it was entered without legal representation.
Discussion
[17] In Condon, the Supreme Court was considering a situation where the appellant, Mr Condon, had been represented by a lawyer, but the lawyer was granted leave to withdraw. The trial proceeded notwithstanding an application by Mr Condon for an adjournment. The Court’s focus was on whether Mr Condon had refused or failed to exercise his rights to a lawyer, or had dismissed his counsel, for the purposes of s 30(2)(d) of the Sentencing Act. However, the general observations made in the course of the judgment as to the requirements of s 30 are of assistance in the present case.
[18] The Supreme Court observed that the requirement under s 30 is for a defendant to be represented by a lawyer in court. The Supreme Court said:3
Subject to subs (2), as expanded upon in subs (4), [section 30] forbids the imposition of a sentence of imprisonment unless a lawyer was present on behalf of a convicted person on the entry of the guilty plea or at the trial.
[19] In the course of its discussion in Condon, the Supreme Court referred to the judgment of the Court of Appeal in R v Long,4 decided under s 13A of the Criminal Justice Act 1954, a predecessor to s 30 of the second Sentencing Act, and in similar terms. In that case Cooke J said:5
... 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 section 13A.
3 At [23].
4 R v Long [1977] 1 NZLR 169 (CA).
5 At 174.
[20] In Hall, MacKenzie J said that the view expressed in Long had to be considered in the light of developments in the criminal justice system, and in particular in the light of the provisions of s 24 of the New Zealand Bill of Rights Act
1990, as to the right to consult and instruct a lawyer, and to receive legal assistance. His Honour referred to the responsibilities of duty lawyers, as set out in the “Duty Lawyer Service Operational Policy” (the operational policy) issued by the Ministry of Justice.6 The responsibilities of duty lawyers are set out as follows:7
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 the 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
6 Ministry of Justice Duty Lawyer Service: Operational Policy (Ministry of Justice, Wellington,
2011).
7 At 10 and 11.
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 Court; 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
[21] MacKenzie J went on to say in Hall:8
[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 section 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 section 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 section 30.
[22] His Honour concluded that in the case before him, the information available did not indicate that the appellant made a “fully informed decision” to proceed with advice only from the duty lawyer.
[23] Following the hearing, Ms O’Sullivan provided the Court with a copy of the
judgment of the Court of Appeal, on an appeal brought by the Department of
Corrections against the judgment of MacKenzie J in Hall.9 The Court of Appeal
8 Hall, above n 1, at [10] – [11].
9 Department of Corrections v Hall [2012] NZCA 309.
accepted a submission on behalf of Mr Hall that it had no jurisdiction to entertain the appeal, and dismissed the appeal.
[24] However, the Court made observations as to the meaning of “legal representation” for the purposes of s 30(1) of the Sentencing Act. The Court said:10
[35] This Court held in Long that the question whether an offender is legally represented in terms of s 30(1) of the Sentencing Act at the stage of the proceedings when he or she is at risk of conviction, is essentially a question of fact. When an offender seeks to overturn a conviction on appeal on the grounds that he or she was not legally represented at the material stage, it is incumbent upon the appellant to raise some evidential basis for that assertion. If a proper evidential foundation is raised, then it falls to the Crown or other informant to show there was legal representation in terms of the section at the relevant time.
[36] Here, Mr Hall did not provide any affidavit as to the circumstances in which the plea was entered nor the advice he received. The note recorded on the information at the time the guilty plea was entered does not, to our mind, raise a sufficient evidential foundation for the proposition that Mr Hall was not legally represented at that time or that he was not fully informed of his rights including those set out in s 30(2)(a) and (b) of the Sentencing Act. Nor was there any evidence before the Court about whether Mr Hall had the opportunity to exercise those rights (s 30(2)(c)).
[37] While the role of the duty lawyer is undoubtedly limited by the Duty Lawyer Service Operational Policy, we do not think it can be concluded that a duty lawyer would never be in a position to represent a defendant who wishes to plead guilty to an offence carrying the prospect of imprisonment. Indeed, Mr Lithgow did not submit otherwise.
[38] As a general rule, compliance with the requirements of s 30 should be well capable of being addressed by the good sense of the duty lawyer and the presiding judge. If compliance with s 30 becomes an issue on appeal, appropriate evidence of what actually happened will usually be necessary unless the relevant facts are clear on the face of the record. Where the facts are unclear, affidavit evidence from the defendant may be needed and, if necessary, from the duty lawyer. That did not happen in this case.
[25] The Court concluded, at [40]:
[40] Nothing we have said in this judgment should be taken as suggesting that the decision of this Court in Long is no longer good law. If a case arises with a proper evidential foundation, there is no reason why the continuing application of that decision may not be revisited on another occasion. That could be achieved in a variety of ways by either party, depending on the circumstances. The most straightforward way would be to raise the issue in an appeal against conviction or sentence where the outcome is challenged.
10 At [35] – [38].
Other available remedies could include an application for judicial review from a District Court decision or a case stated appeal under s 107 of the SPA.
[26] While I accept that the concept of “legal representation” where a defendant is represented by a duty lawyer, incorporates the matters set out in the operational policy, the judgment in Hall should not, in my view, be read as reversing the usual onus on an appellant to satisfy the appellate court that there was an error in the judgment appealed from. In an appeal based on a claimed breach of s 30 the onus is on the appellant to establish that he was “not legally represented at the stage of the proceedings at which [the appellant] was at risk of conviction”. In the present case, there is no such evidence, either from the appellant, or from the duty lawyer through whom the guilty plea was entered.
[27] I do not accept Mr Wilkins’ submission that I should assume that the duty lawyer did not meet his obligations, as set out in the operational policy. Rather, I accept Ms O’Sullivan’s submission that a court is entitled to assume, in the absence of any evidence to the contrary, that those obligations have been complied with. It is not for the respondent, in the absence of any evidence that the obligations have not been complied with, to attempt to satisfy the appellate court that they were.
[28] In the present case, in the absence of any evidence that the appellant was not provided with sufficient advice and information before entering his guilty plea, I am not able to conclude that there has been a breach of s 30 of the Sentencing Act. This ground of appeal is dismissed.
Was the sentence manifestly excessive?
Submission
[29] Mr Wilkins submitted, as his second appeal point, that the imposition of a sentence of imprisonment was manifestly excessive. He acknowledged that the appellant had been generally non-compliant with community-based sentences, but submitted that he had committed only low level offending, and had never previously received a sentence more serious than community work or supervision. He submitted that a sentence of community detention, which was rejected by the Judge,
would have been an appropriate punitive sanction, in that it would curtail the appellant’s liberty in a significant fashion, and would meet the requirement under the Sentencing Act to impose the least restrictive outcome that is appropriate in the circumstances. Mr Wilkins also submitted that the Judge erred in not considering home detention before imposing imprisonment.
[30] Mr Wilkins, in his oral submissions, accepted that, if this Court concluded that a sentence of imprisonment was appropriately imposed, a sentence of six weeks was within the available range. Further, he accepted that the Judge was not obliged to sentence in accordance with the hierarchy of sentencing. However, he reiterated his challenge to imprisonment being imposed, when the Judge did not consider home detention.
[31] Ms O’Sullivan submitted that the sentence of imprisonment was available to the Judge, and the sentence imposed was within the available range. She referred me to three appellate decisions concerning sentencing for breaches of community work.11 It is not necessary to discuss these, given Mr Wilkins’ acknowledgement that if the Judge did not err in imposing imprisonment, the actual sentence could not be challenged.
[32] Ms O’Sullivan also submitted that the Judge was required to impose “the least restrictive sentence that was appropriate in the circumstances”. She submitted that determining which particular sentence met that requirement required the Judge to consider all the facts and circumstances of the case, and the offender. She submitted that the Judge in the present case could have had no confidence that the appellant would comply with any non-custodial sentence, given his earlier non- compliance with such sentences. She also noted that the sentence of imprisonment was imposed in circumstances where the remaining hours of community work were cancelled.
[33] Finally, Ms O’Sullivan submitted that there is no presumption that sentences
will be imposed in the order of the hierarchy of sentences set out in the Sentencing
Act. She cited the comments of Venning J in Miru v Police,12 and of MacKenzie J in Ngaata v Police,13 in support of that submission. Again, in the light of Mr Wilkins’ acknowledgement that the Judge was not obliged to impose the “next sentence up on the hierarchy of sentences”, it is not necessary to consider that submission further.
Discussion
[34] In the light of the appellant’s attitude to the sentence of community work, I accept that sentencing may not have been an easy exercise. The pre-sentence report indicated that the appellant was assessed as at a high risk of re-offending. It also records that the appellant was aware of the consequences of not reporting for community work, and showed little or no remorse for his actions. He was not motivated to change his behaviour. The appellant was recorded as saying in his interview for the report that he was being “stood over” by other people in the community work party. However, there is no evidence that he ever reported any concerns to the community work supervisor; rather, he made a conscious decision not to attend for work. In doing so he showed a complete disregard for the sentence, and this was the third occasion on which he had done so. Further, he had a previous conviction for breaches of supervision orders.
[35] The Judge was thus confronted with a recommendation for community detention, but along with that, with a defendant who showed little or no remorse and was not motivated to change his offending behaviour regarding community-based sentences. There was nothing that would indicate to the sentencing Judge that the appellant would comply with the conditions of a community-based sentence.
[36] I accept Ms O’Sullivan’s submission that it was within the Judge’s discretion to impose a sentence of imprisonment, and it is for the appellant to satisfy the appellate court that the Judge erred in the exercise of is discretion. In the light of the appellant’s previous convictions for breach of sentences of community work and
supervision, and his failure to comply with the later sentence of community work, I
12 Miru v Police, HC Whangarei CRI 2011-488-10, 11 April 2011 at [15].
13 Ngaata v Police, HC Wellington CRI 2010-485-73, 27 August 2010 at [6].
am not satisfied that the Judge erred in concluding that a sentence of imprisonment was the appropriate sentence for the appellant.
[37] Accordingly, the second ground of appeal is also dismissed.
Result
[38] The appellant’s appeal against sentence is dismissed, and he must complete the sentence of imprisonment.
Andrews J
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