C v R

JurisdictionNew Zealand
JudgeCooke J
Judgment Date20 February 2020
Neutral Citation[2020] NZHC 225
Date20 February 2020
Docket NumberCRI-2019-485-000086
CourtHigh Court
Between
C
Appellant
and
The Queen
Respondent

[2020] NZHC 225

Cooke J

CRI-2019-485-000086

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Criminal — appeal against conviction for sexual offending — appellant originally found unfit to stand trial but subsequently convicted — whether charges were implicitly dismissed in the processes surrounding a determination that a person was not fit to stand trial how — whether fitness to plead was implicitly reconsidered — how time spent on remand should be factored into the sentencing process — Criminal Procedure (Mentally Impaired Persons) Act 2003 — Evidence Act 2006

Appearances:

D A Ewen for the Appellant

C Ure for the Respondent

JUDGMENT OF Cooke J
Table of Contents

Procedural history

[4]

Relevant law

[10]

The pre-sentence detention

[12]

Balemi v R

[18]

Not new “proceedings”

[23]

Are new charges required?

[25]

Are there adverse practical considerations?

[39]

Is fitness to plead implicitly reconsidered?

[43]

Disposal of present appeals

[47]

1

This appeal raises important issues concerning the interpretation and application of certain provisions in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) when a person is initially found unfit to face criminal charges, but whose mental health later improves to the point that they can properly face such charges.

2

The appellant has pleaded guilty to charges of sexual violation by rape and sexual violation by unlawful sexual connection. He has been sentenced to two years, nine months' imprisonment. 1 In determining that sentence Judge Davidson accepted the advice provided by the Department of Corrections, and the views of the parties before him, that time the appellant had earlier spent on remand would not be taken into account in determining the appellant's release date under s s 90 and 91 of the Parole Act 2002. This was because this time spent on remand was in relation to a first set of charges he had faced on this offending which had been treated as finally determined as a consequence of a finding that he was not fit to stand trial. When he was later found to be fit to stand trial new charges were filed, and it was said that time spent on remand would not operate as time served. The Judge accordingly sought to adjust the sentence he would otherwise have given in an attempt to take into account this remand period.

3

The appellant now appeals both his conviction, and his sentence. He appeals his conviction on the basis that the advice provided to the Judge was erroneous, and that he should have been convicted on the first set of charges, and the second set of charges were duplicitous. He appeals his sentence on the basis that the Judge's credit for the remand period was wrong in law, and inadequate.

Procedural history
4

In November 2017 the appellant was first charged with sexual violation by rape and sexual violation by unlawful sexual connection (the first set of charges). He was remanded in custody on 7 November 2017.

5

Procedures were then triggered under the Act given the appellant's mental health. By minute dated 30 November 2018 Judge Morris found the appellant was unfit to stand trial pursuant to s 8A of the Act. The Judge also found that on the balance of probabilities the evidence against the appellant was sufficient to establish that he

caused the act forming the basis of the offences. 2 The Judge then ordered a psychiatric report to determine the most suitable method of dealing with the appellant under s 23 of the Act. In the interim the Judge ordered the appellant to be remanded in hospital. 3
6

The s 23 psychiatric report was completed on 14 January 2019. It recorded the appellant had suffered from paranoid schizophrenia complicated by substance abuse. 4 It also noted that his mental health had improved following his remand in hospital and was now “in one of the best states of mental health he had experienced in his adult life”. The report writer concluded the appellant was no longer suffering from a mental disorder for the purposes of the Act. Accordingly Judge Walsh determined it was appropriate to make an order pursuant to s 25(1)(d) of the Act for his immediate release. 5 Judge Walsh did not consider whether the proceedings should be stayed pursuant to s 27 of the Act.

7

Immediately upon his release the appellant was arrested and charged again on 16 January 2019 with sexual violation by rape and sexual violation by unlawful sexual connection (the second set of charges). New charging documents were filed in the District Court. Those charges were “mirror” or “replacement” charges for the first set of charges. The appellant was remanded in custody.

8

On 12 June 2019 the appellant applied for a permanent stay of proceedings so that he could then plead to the first set of charges. After considering the observations of the Court of Appeal in Balemi v R 6 Judge Davidson dismissed the application. He said: 7

[21] I am entirely satisfied that the earlier charges came to an end on 15 January 2019 when Judge Walsh made the immediate release order under s 25(1)(d) of the Act. Because the continuation of those charges in some form was not stayed, in my view there is no impediment, bar, or barrier to them being re-laid, as indeed they were.

[22] More than that, this was done so in the full knowledge of the applicant's counsel, not only because of the inherent seriousness of the charges in themselves, but to combat the problems identified in R v K and E v I of the

court's inability to place a defendant subject to an immediate release order under any form of control or supervision.
9

A sentencing indication was given on 26 March 2019 of four years, three months' imprisonment. Guilty pleas were entered. The appellant was sentenced on 18 September 2019. 8 The sentencing addressed the significance of the 14–15 month period of pre-sentence detention served prior to the second set of charges being filed. The Judge determined it was appropriate for a downward adjustment. From the sentencing indication of four years three months, an end sentence of two years, nine months' imprisonment was given.

Relevant law
10

An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied a miscarriage of justice has occurred for any reason.

11

An appeal against sentence is governed by s 244 of the Criminal Procedure Act. Under s 250, the appeal court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached. 9

The pre-sentence detention
12

It is now common ground that the advice provided to the District Court Judge by the Department for Corrections, which was followed by the parties before the Court, is erroneous. As a consequence of the error, the Judge's approach at sentencing was inconsistent with s 82 of the Sentencing Act 2002 which provides:

82 Pre-sentence detention must not be taken into account in determining length of sentence

In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.

13

It would only be appropriate for the Judge to take into account the detention on remand if it were not able to be taken into account under s 90 of the Parole Act 2002 when determining the length of time the defendant had served in prison. Under that section pre-sentence detention is automatically taken into account. Pre-sentence detention is defined under s 91 in the following way:

91 Meaning of pre-sentence detention

(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

  • (a) any charge on which the person was eventually convicted; or

  • (b) any other charge on which the person was originally arrested; or

  • (c) any charge that the person faced at any time between his or her arrest and before conviction.

14

The meaning and effect of these provisions were considered by the Supreme Court in Booth v R. 10 Here the majority held: 11

[24] In summary, the s 91(1) definition of pre-sentence detention relates to detention 12 during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment. The entirety of that period is deducted from each sentence or sentences of imprisonment imposed in terms of s 90(1). This applies whether the sentence of imprisonment relates to a single charge or more than one, whether or not the sentence of imprisonment relates to the charge for which a person was originally arrested, whether or not sentences are imposed cumulatively or concurrently and whether or not the sentences

are imposed at the same time or subsequently as long as any charges for which the sentence or sentences of imprisonment relate were faced after arrest and before conviction. 13
15

The only limitation identified by the Supreme Court is that credit is given for detention “as long as it was faced during the proceedings leading to conviction or pending sentence”. 14 Adams notes that pre-sentence detention “encompasses any detention that occurs at any stage during the proceedings leading to the conviction or sentence of the person,...

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