BOYD v NEW ZEALAND POLICE [2023] NZHC 2363

BOYD v NEW ZEALAND POLICE [2023] NZHC 2363 [28 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000326[2023] NZHC 2363BETWEEN BRANDON RALPH BOYDAppellantAND NEW ZEALAND POLICERespondentHearing: 28 August 2023Appearances: H Barakat and M J English for AppellantM Nash for RespondentJudgment: 28 August 2023ORAL JUDGMENT OF VENNING JAppeal against sentenceSolicitors: Crown Solicitor, AucklandPublic Defence Service, Waitakere[1] Brandon Boyd pleaded guilty to charges of driving while disqualified (x2);driving in a dangerous manner (x2); resisting Police; assault on a person in a familyrelationship; and intentional damage. On 20 June 2023 Judge J M Jelaš sentenced MrBoyd to 16 months' intensive supervision and 100 hours' community work.1 She alsodisqualified him from driving for one year and one day. The Judge remitted $4,000 ofoutstanding fines (the initial sentence).[2] Later that same day Mr Boyd was recalled before the Judge as it had emergedthat he was being held in custody on new allegations of family harm offending againstthe same complainant as the assault charge.[3] The Judge considered the earlier sentencing hearing had proceeded in errorbecause, as Mr Boyd was in custody the community based sentence was wronglyimposed. The Judge relied on s 180 of the Criminal Procedure Act 2011 (CPA) to re-sentence Mr Boyd. Judge Jelaš sentenced Mr Boyd to seven months' imprisonment.2She again disqualified him for one year and one day and confirmed the remission ofthe outstanding fines of $4,000 (the replacement sentence).[4] Mr Boyd appeals against the replacement sentence.Grounds of appeal[5] In support of the appeal on behalf of Mr Boyd, Ms Barakat submits thesentence of imprisonment was manifestly excessive and, in particular:(a) the Judge incorrectly found she could not sentence Mr Boyd tointensive supervision and community work while he was in custody onother charges; and(b) the least restrictive sentence in the appropriate circumstances was notapplied as leave to apply for home detention under s 80I of theSentencing Act 2002 was not considered.1 New Zealand Police v Boyd [2023] NZDC 13180.2 New Zealand Police v Boyd [2023] NZDC 12544.The District Court decision[6] The Judge adopted a starting point on the assault charge of six months'imprisonment. She considered an uplift for the driving while disqualified charges offour months' imprisonment and a further one month for the additional drivingoffending to be appropriate which led to a nominal starting point of sentence of 11months' imprisonment. The Judge then applied a 30 per cent credit for Mr Boyd'sguilty pleas, his completion of the Right Track Programme and substantial completionof the Man Alive Programme. She also took into account the time Mr Boyd had spenton electronically monitored bail.[7] Ultimately the Judge imposed a sentence of six months', two weeks'imprisonment on the charge of assault on a person in a family relationship with furtherconcurrent periods of imprisonment for the charges of resisting a police officer, wilfuldamage, and the driving charges. The Judge however imposed an additional andcumulative term of two weeks' imprisonment in lieu of remitting the fines totalling$4,000 which brought the total period of imprisonment to seven months. The Judgeimposed as release conditions the conditions she had previously indicated for theintensive supervision for a period of six months from the sentence end date.The appeal[8] The appeal raises a short point. Primarily the issue is whether the Judge wascorrect to invoke s 180 of the CPA. Section 180(1) of the CPA provides:(1) If any sentence is one that could not by law be imposed, or if the courtdoes not impose a sentence that is required by law to be imposed, thecourt may impose a new sentence—(a) on the application of either of the parties or, as providedin section 181, the chief executive of the Department ofCorrections; or(b) on its own motion.[9] The Police submit that the Judge was able to rely on s 180, CPA as the originalsentence was erroneous because, as the appellant was in custody the sentence couldnot by law be imposed as it was impossible for Mr Boyd to practically serve it.[10] Counsel for Police, Ms Nash, referred to s 54E of the Sentencing Act whichprovides that an offender sentenced to intensive supervision is subject to both standardconditions in s 54F and any special conditions imposed by the Court under ss 54G or54I. The standard condition in s 54F(1)(a) is expressed in the following terms:(a) the offender must report in person to a probation officer in theprobation area in which the offender resides as soon as practicable andnot later than 72 hours after the sentence is imposed unless the startdate of the sentence has been deferred under section 20A(2)(b), inwhich case the offender must report not later than 72 hours after thatdate: [11] Mr Boyd did not meet the criteria in s 20A(2)(b) for the sentence to be deferredso the initial sentence made Mr Boyd subject to a mandatory condition that he reportto a probation officer within 72 hours but that was effectively impossible for him todo given his custodial status. Ms Nash for the Police, submitted that in thosecircumstances the intensive supervision sentence could not, by law, be imposed.Analysis[12] The circumstances in which s 180 CPA applies are limited. The equivalentsection under the Crimes Act 1961 was s 372. Section 372(1) provided that "if anysentence is one that could not by law be passed, or if the Judge does not pass a sentencethat is required by law to be passed, either party may apply to the Judge to pass aproper sentence". The only difference in wording in the operative part of the section,s 372, and the current section 180, is the use of "court" and "imposed" as opposed to"Judge" and "passed" in the former section.[13] Section 372 was considered by the Court of Appeal in R v Shepherd.3 In thatcase the Court confirmed that s 372 conferred a "closely limited jurisdiction on thesentencing Judge",4 and that the section was "directed to sentencings which on theirface require correction because they are beyond the jurisdiction of the Court or theyfail to record the mandatory sentence for the particular offence".5 In Shepherd thesentencing Judge had failed to give Mr Shepherd proper credit for the time in remand3 R v Shepherd [1990] 3 NZLR 39 (CA).4 At 40.5 At 41.which was then applicable so there was an error in the process by which the endsentence was reached. But the section could not be invoked as the sentence was stillwithin the statutory maximum. The Court had acted within its jurisdiction even thoughin error.[14] While the Police accept the cases of R v Wai-Poi,6 and Singh v New ZealandPolice,7 which applied s 180 were different from the present, as there does not appearto be a clear statutory provision providing the appellant could not be sentenced to anon-custodial sentence, Ms Nash emphasised in her written submissions the practicalsituation was that the sentence of supervision could not be imposed.[15] In my judgment the wording of s 180, CPA is clear. Its meaning is moreconstrained than the approach taken by the Police in submission. The second part ofs 180 does not apply. There is no statutory requirement to impose a particularsentence. Nor can it be said the sentence of supervision could not "by law" beimposed. Section 180 would only apply in this case if there was an express provisionof the Sentencing Act which prevented the imposition of the sentence of supervision.Section 54F does not go that far.[16] The initial sentence of supervision was open to the District Court Judge. Therewas a remedy, or remedies, for the practical situation that existed as a consequence ofMr Boyd's custodial status on the sentence of supervision. Apart from the issue ofbail, Mr Boyd could have alternatively applied under s 54K of the Sentencing Act, orindeed a probation officer could have applied under s 54K of the Sentencing Act foran order under subs (3) of s 54K on the ground Mr Boyd was unable to comply withthe conditions of the sentence. Section 54K(3) provides:(3) On an application under subsection (1) or (2), the court may, if it issatisfied that the grounds on which the application is based have beenestablished,—(a) remit, suspend, or vary any special conditions imposed by thecourt, or impose additional special conditions:(b) cancel the sentence:6 R v Wai-Poi [2018] NZHC 964.7 Singh v New Zealand Police [2022] NZHC 679.(c) cancel the sentence and substitute any other sentence(including another sentence of intensive supervision) thatcould have been imposed on the offender at the time when theoffender was convicted of the offence for which the sentencewas imposed.[17] However, the section only refers to an application by the defendant or aprobation officer. Neither Mr Boyd nor a probation officer had made such anapplication, which is perhaps, not surprising given the timing. There was nojurisdiction however for the Judge to act on her own initiative to effectively invokes 54K.[18] As the Judge was wrong in my judgment to invoke s 180 as the jurisdiction forthe application of s 180 did not exist, the replacement sentence imposed must be setaside. In the circumstances it is unnecessary to consider the alternative submissionsmade on Mr Boyd's behalf in relation to s 80I.Result[19] The appeal is allowed. The sentence of imprisonment imposed by Judge Jelašis quashed.[20] As discussed with counsel there is a practical issue that arises because Iunderstood from counsel that Mr Boyd has effectively served most of, if not all of, thesentence imposed, although of course he is on bail for other charges as well.[21] In the circumstances, I consider the appropriate course of action is to remit theissue of sentencing on the charges referred to, to the District Court under s 251, CPAfor that Court to impose whatever sentence might be appropriate in the circumstancesthat can be put before it on behalf of Mr Boyd and the Police. As noted, Mr Boyd iscurrently before that Court in any event in relation to other charges.__________________________Venning J