SMYLIE-MULLALY v NEW ZEALAND POLICE [2022] NZHC 1474

SMYLIE-MULLALY v NEW ZEALAND POLICE [2022] NZHC 1474 [22 June 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-95[2022] NZHC 1474BETWEEN DANIEL PHILIP SMYLIE-MULLALYAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2022Appearances: B Holstein for AppellantL Fiennes for RespondentJudgment: 22 June 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 22 June 2022 atRegistrar/Deputy RegistrarDate:[1] Daniel Smylie-Mullaly appeals against a sentence of 10 months' imprisonmentimposed on a charge of theft of a motor vehicle.1[2] The Crown has responsibly recognised that the sentence was imposed in errorand the appeal should be allowed. I agree, and this judgment will accordingly be brief.Two sentences intended to work together[3] On 20 January 2022, Mr Smylie-Mullaly was sentenced to eight months'imprisonment on charges of breaching release conditions and unlawfully taking amotor vehicle (the first sentence).2[4] On 4 May 2022, Mr Smylie-Mullaly was sentenced to 10 months'imprisonment on the theft charge (the second sentence).The error[5] In imposing the second sentence, the Judge concluded that the total period ofimprisonment Mr Smylie-Mullaly should serve would be 10 months' imprisonment,that is an additional two months beyond the term of the first sentence. The assumptionin the Judge's decision on the second sentence was that the start date of the secondsentence would be 20 January 2022, being the same date as the start date of the firstsentence.[6] There is in fact no provision under the Sentencing Act 2002 to back-date thestart of a custodial sentence. Whereas, with backdating, Mr Smylie-Mullaly wouldhave been released around 20 June 2022 (a little over one month in addition to the firstsentence) the release date on the second sentence is now 2 October 2022. In otherwords, Mr Smylie-Mullaly's time spent in custody increases by approximately 3.5months beyond the period intended by the Judge.1 Police v Smylie-Mullaly [2022] NZDC 7967.2 Police v Smylie-Mullaly [2022] NZDC 817.The statutory scheme[7] Section 250 Criminal Procedure Act 2011 sets out how a first appeal court mustdetermine a sentence appeal. Section 250 (2) provides that the first appeal court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[8] The Court of Appeal has recognised that s 250 applies where a sentencingjudgment intrinsically demonstrates an error.3 The error must be material in the senseeither that the sentence is clearly excessive or an error in the sentencing processrequires a reassessment of the sentence.4 The appellate court in those circumstanceswill then form its own view of the appropriate sentence.5Discussion[9] As counsel have agreed in their submissions, the appropriate sentence to beimposed on Mr Smylie-Mullaly on the second sentence, and that intended by theJudge, was a sentence of two months' imprisonment, commencing 4 May 2022,imposed cumulatively upon the first sentence.Order[10] I order:(a) the appeal is allowed;(b) the sentence of 10 months' imprisonment imposed on 4 May 2022 isquashed; and3 R v Shipton [2007] 2 NZLR 218 (CA) at [139]; Tutakangahau v R [2014] NZCA 279 at [30].4 Tutakangahau v R, above n 3, at [30].5 Shipton v R, above n 3, at [140]; Tutakangahau v R, above n 3, at [30].(c) on the charge of theft under ss 219 and 223 Crimes Act 1961, MrSmylie-Mullaly is sentenced instead to two months' imprisonment,cumulative upon the sentence of eight months' imprisonment imposedon 20 January 2022.Osborne JSolicitors:Public Defence Service, ChristchurchRaymond, Donnelly & Co, Christchurch