R v Jamieson [2012] NZHC 2895 (5 November 2012)

Last Updated: 9 November 2012

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-019-7493 [2012] NZHC 2895

THE QUEEN

v

ALAN JOHN JAMIESON

Counsel: AJ Gordon for Crown

PV McGuire for Prisoner

Judgment: 5 November 2012

_{SUPPLEMENTARY SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Gordon Pilditch, P O Box 740, Rotorua 3040 for the Crown

PV McGuire, P O Box 2060, Rotorua 3040 for the Prisoner

R V ALAN JOHN JAMIESON HC ROT CRI-2011-019-7493 [5 November 2012]

[1] On 31 October I sentenced Mr Jamieson to five years imprisonment, cumulative on a sentence of eight years imprisonment imposed on 9 September

2005. It has since come to my notice that I could not impose the sentence cumulatively. Mr Jamieson had been released on parole and had not been recalled to complete the balance of his sentence. Accordingly, s 83(2) of the Sentencing Act

2002 applies. It provides:

Despite subsection (1), 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.

[2] As Mr Jamieson is no longer detained under the earlier sentence, the sentence of five years imprisonment could not be imposed cumulatively.

[3] Where a sentence is passed that could not by law be passed, s 372 of the Crimes Act 1961 permits the sentencing judge to pass such sentence as ought to have been passed. Counsel are agreed that the appropriate sentence remains one of five years imprisonment and that the reasons for imposing a cumulative sentence of five years imprisonment apply equally to a stand-alone sentence of five years. Counsel also have no objection to Mr Jamieson being resentenced without the need for a formal appearance. In the circumstances, I consider this is appropriate.

[4] Accordingly, the condition that the sentence of five years imprisonment is to be served cumulatively is deleted. In all other respects, the sentence stands.