STRETCH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 571

STRETCH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 571 [19March 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2020-485-000402[2021] NZHC 571UNDER the Declaratory Judgments Act 1908BETWEEN ALBERT KARL LENIN STRETCHApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 11 March 2021Appearances: D A Ewen for the ApplicantK Laurenson & C P C Wrightson for the RespondentJudgment: 19 March 2021Reissued: 22 March 2021JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 19 March 2021 and re-delivered by me on 22 March 2021in accordance with High Court Rules 2016, r 11.10Solicitors/Counsel:D A Ewen, Barrister, WellingtonCrown Law, WellingtonIntroduction[1] Mr Stretch applies for a declaration that the expiry date for the sentence ofthree years and three months' imprisonment imposed on him by the District Court inWellington on 27 July 2020 for the offence of causing grievous bodily harm withreckless disregard for the safety of others under s 188(2) of the Crimes Act 1961 is23 November 2021.[2] Mr Stretch says the start date for that sentence was 24 August 2018. That isthe date on which the District Court sentenced Mr Stretch to a cumulative term ofseven years and six months' imprisonment for causing grievous bodily harm withintent to do so under s 188(1) of the Crimes Act, conspiracy to supply a class A drug,namely methamphetamine, and attempting to pervert the course of justice.[3] The Court of Appeal subsequently quashed Mr Stretch's conviction for theoffence under s 188(1) of the Crimes Act, substituted a conviction for an offence unders 188(2) of the Crimes Act and remitted the proceeding back to the District Court forsentence on the substituted offence.[4] The question for determination is whether the start date for the sentenceimposed by the District Court for the substituted offence is 27 July 2020, the date theDistrict Court imposed sentence on the substituted offence, or 24 August 2018, thedate of Mr Stretch's original sentence. The determination of that question willdetermine the sentence expiry date as well as the release date of the sentence andMr Stretch's parole eligibility date.[5] For the reasons that follow, I find the start date of the sentence is 24 August2018 and that the expiry date of the sentence is 23 November 2021.Relevant background[6] On 11 July 2018, following a trial by jury before Judge D R W Barry in theDistrict Court in Wellington, Mr Stretch and two others were convicted of offencesunder s 188(1) of the Crimes Act. At about the same time, Mr Stretch pleaded guiltyto conspiring to supply methamphetamine and to attempting to pervert the course ofjustice.District Court imposes initial sentence[7] On 24 August 2018, Judge Barry sentenced Mr Stretch to a cumulative term ofimprisonment of seven years and six months' imprisonment, comprised of six yearsfor the offence under s 188(1) of the Crimes Act, one year for conspiracy to supply aclass A drug, and six months for attempting to pervert the course of justice.Court of Appeal quashes conviction on main charge and substitutes conviction onlesser charge[8] On 29 May 2020, the Court of Appeal allowed an appeal by Mr Stretch againsthis conviction under s 188(1) of the Crimes Act.1 The Court of Appeal was satisfiedthat a miscarriage of justice had occurred as a result of an error in the question trailgiven to the jury.2 The Court of Appeal considered whether it could enter a convictionon a substituted offence in accordance with s 234 of the Criminal Procedure Act 2011(CP Act) and concluded that the preconditions of s 234 of the CP Act were met.3 TheCourt of Appeal quashed the conviction under s 188(1) of the Crimes Act andsubstituted a conviction under s 188(2) of that Act. The Court of Appeal remitted theproceeding back to the District Court for Mr Stretch to be sentenced on the convictionfor the substituted offence.4District Court imposes sentence on substituted charge[9] On 27 July 2020, Judge Barry sentenced Mr Stretch on the substitutedconviction under s 188(2) of the Crimes Act to a term of imprisonment of three yearsand three months.5 In imposing that sentence, Judge Barry noted that the cumulativesentences for conspiring to supply methamphetamine and perverting the course ofjustice were not the subject of the Court of Appeal's decision and remained untouched.The Judge recorded that he saw his task as being to re-sentence on the substituted1 Stretch v R [2020] NZCA 195.2 At [8] – [10].3 At 12] – [16].4 At [24].5 R v Stretch [2020] NZDC 14736.charge, with the commencement date of that sentence being the date of the originalsentencing, 24 August 2018.6 It appears, therefore, that Judge Barry considered thatthe sentence he imposed on the substituted conviction was cumulative on those othersentences.Mr Stretch files application[10] On 10 August 2020, Mr Stretch filed his current application. The applicationstated that:(a) Mr Stretch's position was that the Court of Appeal severed what hadbeen a notional single sentence of seven years and six months'imprisonment and all that remained, in respect of the charges to whichMr Stretch had pleaded guilty, was a notional single sentence of 18months which commenced on 24 August 2018 and expired upon theCourt of Appeal's decision;(b) The Crown's position was that the sentence of 18 months in respect ofthe charges to which Mr Stretch had pleaded guilty was cumulative onthe sentence imposed by Judge Barry on 27 July 2020, making a singlenotional sentence of four years and six months' imprisonment.High Court hearing of application adjourned by consent[11] On 24 September 2020, Mr Stretch's application was part heard before Cull J.In her minute of 25 September 2020, Cull J recorded that the oral argument before herfocused on the consequences of the Court of Appeal's decision where the Court hadproceeded under s 234 of the CP Act to quash Mr Stretch's conviction on the chargeunder s 188(1) of the Crimes Act and to substitute a conviction under s 188(2). TheJudge said, however, that the issue of s 236 of the CP Act had been raised in argumentas possibly the more relevant provision, and that provision had not been raised with oraddressed by the Court of Appeal.76 At [2].7 Section 236 of the Criminal Procedure Act provides:(1) This section applies if—[12] By consent, Cull J adjourned the proceeding to enable counsel to file amemorandum with the Court of Appeal to address the point.[13] The Crown subsequently applied to the Court of Appeal, asking it to recall itsdecision.Court of Appeal declines to recall earlier judgment[14] On 21 December 2020, the Court of Appeal declined the application for recall.8[15] The Court of Appeal agreed that s 83(2) of the Sentencing Act 20029 appliedto Mr Stretch's situation and precluded Judge Barry from imposing the new sentenceon the substituted charge cumulatively on the sentences for the drugs and pervertingthe course of justice charges. The Court said its view was that the relevant date ofMr Stretch's sentencing on the substituted charge was 27 July 2020, the date JudgeBarry imposed sentence on that charge.10[16] The Court of Appeal was satisfied there was no proper basis for recall and thatthere had been no error in its approach. It said:11(a) a first appeal court allows a convicted person's appeal againstconviction for one offence (offence A); and(b) the sentencing court took the sentence it imposed for offence A intoaccount in imposing sentence for a conviction for a different offence(offence B) and the convicted person remains convicted of offenceB.(2) The first appeal court may—(a) confirm the trial court's sentence for offence B; or(b) substitute any sentence that is allowed by law; or(c) remit the proceeding to the court that imposed the sentence foroffence B and direct that court to take any action of a kind describedin paragraph (a) or (b).8 Stretch v R [2020] NZCA 680.9 Section 83(2) of the Sentencing Act provides: a court may not impose a sentence of imprisonment cumulatively on another sentence ofimprisonment if, at the time of sentencing, the offender is subject to a sentence of imprisonmentbut, having commenced serving the sentence, is no longer detained under it.10 Stretch v R, above n 8, at [11].11 At [20].If there has been error, it was in the sentencing exercise that subsequently tookplace in the District Court when the Judge assumed that the 24 August 2018start date would apply.[17] The Court of Appeal also said it could not see a proper basis for recalling itsdecision when the District Court had acted on its judgment and that, unless the DistrictCourt had made some error, its decision must stand.12 The Court also doubted thats 236 of the CP Act applied.13[18] The Court of Appeal said there might be other ways of rectifying "theunfortunate circumstances" that had arisen, such as corrective action under s 180 ofthe CP Act or Mr Stretch seeking leave to appeal out of time against the sentenceimposed by Judge Barry.14Implications of Court of Appeal's decision[19] Following the Court of Appeal's decision, the Crown no longer argues that thesentence imposed by Judge Barry on 27 July 2020 was cumulative on the sentencesimposed for conspiracy to supply drugs and attempting to pervert the course of justice.[20] As a consequence, the start date for the sentence imposed by Judge Barrydetermines whether the expiry date for Mr Stretch's term of imprisonment is23 November 2021, as Mr Stretch argues, or 26 October 2023.High Court application resumed[21] In the event, neither course suggested by the Court of Appeal for rectificationwas taken.[22] In these circumstances, counsel for Mr Stretch and the Crown agreed it wasappropriate for the hearing of Mr Stretch's application to be resumed.[23] As recorded in Fitzgerald J's minute of 9 February 2021, because Cull J wasin a lengthy criminal trial and because there was some urgency attached to completing12 At [21].13 At [22] – [23].14 At [25].the proceeding, the hearing of Mr Stretch's application was set down for hearingbefore any judge on the first available date in March 2021.[24] It fell to me to hear the application on 11 March 2021.Question for determination[25] Mr Ewen, counsel for Mr Stretch, and Ms Laurenson, Crown counsel, agreethat the only question for determination is the commencement date of the sentenceimposed by Judge Barry on the conviction substituted by the Court of Appeal.[26] Counsel also agree that the two possible options are 24 August 2018, the dateof the original sentence imposed by Judge Barry, or 27 July 2020, the date Judge Barryimposed sentence following conviction on the substituted offence.Relevant statutory provisions[27] Counsel agree that the question for determination turns on the interpretationand application of ss 76 and 79 of the Parole Act 2002. Counsel also refer to s 251 ofthe CP Act and its predecessor provision, s 385(3)(b)(i) of the Crimes Act.[28] I agree that ss 76(1) and 79 of the Parole Act are relevant. For the reasons thatfollow, I also consider that ss 229, 232, 233 and 234 of the CP Act, which were notaddressed by Mr Ewen or Ms Laurenson, are also relevant, as well as the formerss 385(2) and 386(2) of the Crimes Act. None of these provisions was raised with ordiscussed by the Court of Appeal in its recall decision.Parole Act[29] Sections 76 and 79 of the Parole Act provide:76 General rules about start date of sentence of imprisonment(1) The start date of a sentence of imprisonment imposed after thecommencement date is the date on which the sentence is imposed,except as otherwise provided in sections 77 to 81.(2) ...79 Start date if later sentence replaces original sentence(1) The start date of a sentence that is substituted for a sentence that wasquashed or otherwise set aside on appeal (the original sentence) isthe start date of the original sentence.(2) If a sentence (the original sentence) ceases to apply because theconviction to which it relates is quashed and a retrial ordered, and if asentence of imprisonment is imposed following the retrial, the startdate of the later sentence is the start date of the original sentence.(3) Criminal Procedure Act[30] Appeals against conviction are deal with in pt 6, sub-pt 3 of the CP Act.[31] Sections 229, 232, 233 and 234 of that sub-part provide:229 Right of appeal against conviction(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the conviction.(2) 232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) 233 Orders, etc, on successful first appeal(1) This section applies if a first appeal court allows a first appeal underthis subpart.(2) The court must set aside the conviction.(3) The court must also—(a) direct that a judgment of acquittal be entered; or(b) direct that a new trial be held; or(c) exercise the powers under section 234; or(d) exercise the powers under section 235(2); or(e) make any other order it considers justice requires.(4) The court may also exercise the powers under section 236.234 Conviction and sentence for different offence may be substituted(1) Subsection (2) applies if a person was found guilty at trial of anoffence (offence A) and the first appeal court allows the convictedperson's appeal against conviction for that offence.(2) The first appeal court may direct that a judgment of conviction for adifferent offence (offence B), including an offence that the trial courtcould, in accordance with section 136(1), have substituted for offenceA, be entered if satisfied that—(a) the person could have been found guilty, at the person's trialfor offence A, of offence B; and(b) the trial judge or the jury, as required, must have been satisfiedof facts that prove the person guilty of offence B.(3) ...(4) (5) On making a direction under subsection (2) or (4), the first appealcourt may—(a) impose a sentence for offence B (whether more or less severe)that is allowed by law; or(b) remit the proceeding to the court that imposed the sentencefor offence A and direct that court to take the action describedin paragraph (a).[32] As noted above, counsel refer to s 251(2) of the CP Act, which sets out theactions an appeal court may take when upholding an appeal against sentence, asrelevant. However, s 251 is in pt 6, sub-pt 4 of the CP Act and applies only to appealsunder that sub-part, that is, appeals against sentence. That is clear from s 251(1) whichprovides:(1) This section applies if a first appeal court allows an appeal under thissubpart.[33] For that reason, I do not consider s 251(2) applicable to Mr Stretch's situation.Former sections of Crimes Act[34] Prior to the enactment of the CP Act, Part 13 of the Crimes Act dealt withappeals, including appeals against conviction.[35] Sections 385 and 386 of the Crimes Act provided:385 Determination of appeals in ordinary cases(1AA) This subsection applies to—(a) an appeal to the Supreme Court or the Court of Appealagainst conviction:(b) (1) On any appeal to which subsection (1AA) applies, the Court of Appealor the Supreme Court must allow the appeal if it is of opinion—(a) That the verdict of the jury should be set aside on the ground thatit is unreasonable or cannot be supported having regard to theevidence; or(b) That the judgment of the Court before which the appellant wasconvicted should be set aside on the ground of a wrong decisionon any question of law; or(c) That on any ground there was a miscarriage of justice; or(d) That the trial was a nullity—and in any other case shall dismiss the appeal:Provided that the Court of Appeal or the Supreme Court may,notwithstanding that it is of opinion that the point raised in the appealmight be decided in favour of the appellant, dismiss the appeal if itconsiders that no substantial miscarriage of justice has actuallyoccurred.(2) Subject to the special provisions of this Part of this Act, the Court ofAppeal or the Supreme Court must, if it allows an appeal to whichsubsection (1AA) applies, quash the conviction and in its discretiondirect a judgment and verdict of acquittal to be entered, or direct anew trial, or make such other order as justice requires.(2A) 386 Powers of appellate courts in special cases(1) (2) Where an appellant has been convicted of an offence and the jury could onthe indictment have found him guilty of some other offence, and on thefinding of the jury it appears to the Court of Appeal or the Supreme Court thatthe jury must have been satisfied of facts which proved him guilty of thatother offence, the Court may, instead of allowing or dismissing the appeal,substitute for the verdict found by the jury a verdict of guilty of that otheroffence, and pass such sentence in substitution for the sentence passed as maybe warranted in law for that other offence, not being a sentence of greaterseverity.Submissions of parties[36] Mr Ewen submits that s 79 of the Parole Act governs Mr Stretch's situation sothat the start date of the sentence imposed by Judge Barry on 27 July 2020 is 24 August2018, the date on which Mr Stretch was originally sentenced. Mr Ewen says any otherresult would be inconsistent with the legislative purpose of s 79 as reflected in s 79(2).That subsection provides that where a defendant is convicted and sentenced and thatconviction is quashed, a new trial is held and a new sentence imposed, the start dateof the new sentence is the start date of the original sentence. Mr Ewen it would beanomalous for a different outcome to result because an appeal court decided to foregoa new trial and imposed a substituted conviction itself.[37] Ms Laurenson says the Department of Corrections does not advocate for aparticular interpretation of the relevant legislation but notes that the recent remarks ofthe Court of Appeal on the application for recall suggest a different commencementdate from that put forward by Mr Stretch.[38] Counsel agree that the Court of Appeal's observations about the start date forthe sentence were obiter dicta and not binding on this Court, although Ms Laurensonsubmits that those observations should be regarded as persuasive.[39] Ms Laurenson says s 79 of the Parole Act is not an exact fit with the facts ofthis case and that it is open to the Court to conclude that the original sentence imposedby Judge Barry was neither "quashed" nor "otherwise set aside" when the Court ofAppeal quashed Mr Stretch's original conviction. If that is so, s 79 does not applyand, in accordance with s 76(1), the start date for the sentence imposed by Judge Barryon the substituted conviction entered by the Court of Appeal would be 27 July 2020.However, Ms Laurenson acknowledges that, if that is the result, it would leave anunusual gap in the legislation.Analysis[40] Section 76 of the Parole Act provides that the usual start date for a sentence isthe date it was imposed, unless ss 77 to 81 provide otherwise. Counsel agree that s 79provides the only possible basis in this case for departing from s 76.[41] The central question is whether Mr Stretch's situation is covered by s 79(1)and, in particular, whether Mr Stretch's original sentence was "quashed or otherwiseset aside" when the Court of Appeal quashed his conviction under s 188(1) of theCrimes Act. In that regard, I consider that the phrase "quashed or otherwise set aside"is intended to include situations where a sentence is directly quashed or set aside byorder of an appeal court and where a sentence is set aside as a necessary consequenceof an order of an appeal court, even if not quashed or set side directly.[42] In allowing Mr Stretch's appeal, quashing Mr Stretch's conviction unders 188(1) of the Crimes Act, substituting a conviction under s 188(2) of the Crimes Act,and remitting the proceeding back to the District Court for sentencing on thesubstituted conviction, the Court of Appeal was acting in accordance with ss 232(2),233(3)(c) and 234 of the CP Act, in particular s 234(2) and (5)(b). I do not consideranything turns on the fact that the Court of Appeal used the term "quash" when itallowed Mr Stretch's appeal against conviction as opposed to "set aside", the termused in s 233(2) of the CP Act. In the context, the terms mean the same thing.[43] None of the sections in pt 6, sub-pt 4 of the CP Act addresses directly whathappens to a sentence when the conviction on which it is based is "set aside" inaccordance with s 233(2). Clearly the sentence is no longer operative. The obviousinference to be drawn is that when a conviction is set aside (or quashed), the sentencebased on that conviction is also set aside, even if that is not stated explicitly.Accordingly, when the Court of Appeal allowed Mr Stretch's appeal and quashed hisconviction under s 188(1) of the Crimes Act, by necessary implication, it also set asidethe original sentence.[44] I am reinforced in that conclusion by the provisions that applied prior to theenactment of the CP Act.[45] Prior to the CP Act, s 385(2) of the Crimes Act provided that, subject to the"special provisions" of pt 13 of the Crimes Act, if the Court of Appeal allowed anappeal against conviction, it was required to quash the conviction and, at its discretion,direct a verdict of acquittal or direct a new trial or make such other order as justicerequired.[46] There is no definition of the term "special provisions". I am satisfied, however,that the term must refer to s 386 which is headed "Powers of appellate courts in specialcases". Section 386(2) applied where the Court of Appeal decided not to order a retrialbut to find the defendant guilty of an alternative offence to that on which a jury hadfound the defendant guilty.[47] In such circumstances, and unlike the CP Act, s 386(2) did not require that theappeal be allowed and the earlier conviction quashed or set aside. Rather, the sectionpermitted the Court, instead of allowing or dismissing the appeal, to substitute a guiltyverdict on the alternative offence and to pass "such sentence in substitution" for thesentence passed on the earlier guilty verdict.[48] Under s 386(2), the Court of Appeal did not have the option of remitting theproceeding back to the original court for sentence. It had to impose itself the sentenceon the substituted guilty verdict. However, it is clear from s 386(2) that the sentenceimposed by the Court of Appeal was "in substitution" for the original sentence. Thatmeant that s 79(1) of the Parole Act applied to such a new sentence. It was a sentence"substituted" for a sentence that had been "otherwise set aside" by the Court of Appealwhen it substituted a guilty verdict on the alterative offence in place of the originalverdict and passed the new sentence in substitution for the original sentence.[49] In summary, prior to the enactment of the CP Act, where, on appeal, a newsentence was imposed after a verdict of guilty, and thus a conviction, had been enteredfor a substituted offence in place of the original offence on which the defendant hadbeen found guilty and convicted, the start date for the new sentence was the start dateof the original sentence.[50] No change was made to s 79 following the enactment of the CP Act, despitethe changes in terminology used in s 234 of the CP Act as compared with s 386(2) ofthe Crimes Act which it replaced. I am satisfied, however, that, in enacting ss 233 and234 of the CP Act, which require an appeal court to allow an appeal against convictionand to set aside the conviction if satisfied that one of the circumstances in s 232(2) hasbeen made out, even if it decides to substitute a conviction on another offence, therewas no intention to change the basic concept in s 79 of the Parole Act. That conceptis that the start date for any sentence on a substituted offence is the start date of theoriginal sentence.[51] Section 234(5)(a) reinforces that conclusion. It provides that, when imposinga sentence on the substituted charge, an appeal court may: impose a sentence for offence B (whether more or less severe) that isallowed by law,[52] Offence B is the substituted offence, in accordance with the introductory wordsof s 234(2). While not expressed directly, the words in parentheses clearly mean"whether more or less severe than the sentence imposed for offence A", the originaloffence. It is implicit, therefore, that the sentence imposed for offence B is insubstitution for the sentence for offence A.[53] On that construction, the sentence imposed on Mr Stretch for the offence unders 188(2) of the Crimes Act (offence B) was substituted for the sentence for the offenceunder s 188(1) of the Crimes Act (offence A) which, in terms of s 79(1) of the ParoleAct, was "otherwise set aside" by the Court of Appeal when it allowed Mr Stretches'appeal and quashed his conviction.[54] For all these reasons, I am satisfied that s 79(1) of the Parole Act applies.Mr Stretch's original sentence was set aside when the Court of Appeal allowed hisappeal and quashed his conviction under s 188(1) of the Crimes Act. As aconsequence, the start date for the sentence imposed by Judge Barry on the substitutedconviction under s 188(2) of the Crimes Act is the date of the original sentence,24 August 2018.Declaration[55] Accordingly, I make the following declaration:(a) The start date for the sentence of imprisonment imposed on Mr Stretchby the District Court on 27 July 2020 for an offence under s 188(2) ofthe Crimes Act 1961 is 24 August 2018; and(b) The expiry date for that sentence is 23 November 2021.Costs[56] Mr Ewen advises that Mr Stretch in on legal aid and seeks the costs of theproceeding on a 2B basis or on the legal aid scale.[57] Ms Laurenson submits that costs should lie where they fall because theDepartment of Corrections has largely not opposed Mr Stretch's application and thatit was necessary for the matter to come to Court because of the apparent conflictbetween the relevant law and the decisions of the District Court and Court of Appeal.[58] Given the history of this proceeding and the consequences of the decisionsought, I am satisfied that it was appropriate to seek a judicial determination of thestart date for Mr Stretch's sentence. However, I do not consider that Mr Stretch or thelegal aid fund should bear the costs of determining that question, which has asignificant public good component, notwithstanding Mr Stretch's personal interest inthe outcome.[59] For these reasons, I direct that the Department of Corrections pay Mr Stretch'scosts on a 2B basis.[60] I encourage counsel to resolve costs without the need for further interventionby the Court. If they are not able to do so, they may file memoranda of no more thanfour pages.______________________G J van Bohemen J