ARCHER v R [2017] NZCA 52

ARCHER v R [2017] NZCA 52 [8 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA154/2016[2017] NZCA 52BETWEEN DOUGLAS JAMES ARCHERAppellantAND THE QUEENRespondentHearing: 13 February 2017Court: Miller, Mallon and Peters JJCounsel: P B McMenamin for AppellantM J Lillico and C J Hurd for RespondentJudgment: 8 March 2017 at 11.00 amJUDGMENT OF THE COURTA. Application for extension of time to file notice of appeal granted.B. The appeal against sentence is allowed.C. The sentence is not quashed. The proceeding is remitted back to the District Court to hold a sentencing hearing and either confirm the sentence or pass another.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Introduction[1] Mr Archer appeals his sentence of 14 years imprisonment on two charges of causing grievous bodily harm with intent to do so and one of unlawfully taking a motor vehicle. The victims were his mother, June Geary, and stepfather, Arthur Eaton.The record[2] Mr Archer pleaded guilty to the two grievous bodily harm counts on 28 August 2014. The pleas were entered toward the close of the Crown case at trial, after a ruling that admissions he made to a police officer were admissible. (He pleaded guilty to the third charge at the commencement of the trial.) In the result, the evidence was left in an incomplete state. Mrs Geary had given evidence and the statement of Mr Eaton, who died before trial, had been adduced, but the admissions were not in evidence, scene evidence from the police had not been called, and Mr Archer had not been put to his election.[3] The trial judge, Judge Garland, sentenced Mr Archer on 16 December 2015. The facts found were as follows: the victims were aged 80 and 72 years; Mr Archer had been trespassed from their home on 12 February 2013; at about 1.00 am on Friday 1 March he entered the home while they were asleep; Mrs Geary got out of bed to go to the bathroom then entered the kitchen where he struck her on the head from behind with an object, likely an axe handle; she was struck numerous times about the head and abused verbally, Mr Archer not desisting until she pretended to be unconscious; he went to the bedroom where Mr Eaton lay in bed, taking with him the axe handle, scissors and a Stanley knife; Mr Eaton was hit a number of times about the head with the axe handle, stabbed with the scissors and cut about the face with the knife; Mr Eaton was able to seize the scissors and tried to cover himself with a duvet; Mr Archer stopped and demanded money and Mr Eaton threw a walletat him; he left the house, taking a DVD player, which he sold, and his mother's car,which he left at a carpark.[4] The victims were badly hurt. Mrs Geary suffered crushing injuries to her left and right wrists and hands, fractures to her left forearm and her right shoulder blade,open wounds to her face and forehead, a large haematoma to her head, severe bruising to the back of her neck and other bruising about her body. Her hands were so disabled that she could not feed or care for herself for more than two months. It was six months before she could drive a car and at the time of sentencing she still experienced loss of fine motor movement. Her hearing was impaired, and not for almost a year had she sufficient confidence to return to live in her own home. Mr Eaton sustained fractures to his lower jaw, cheek bone and upper jaw; open wounds to his face, chin, forehead, neck and chest; soft tissue injuries; and various bruises. He was badly affected psychologically. As noted, he has since died, though not of his physical injuries.[5] Mr Archer denied taking the axe handle to the house and sought a disputed facts hearing, which was averted when the Crown conceded the point and the Judge accordingly gave Mr Archer the benefit of the doubt. Mr Archer also claimed that he had wounded Mr Eaton in self-defence, explaining his guilty plea as an excess of force. It seems that no disputed facts hearing was sought about that. The Judge dismissed the claim as fanciful.[6] Judge Garland adopted a starting point, having regard to totality, of 14 years'imprisonment. It was not in dispute that the offending fell within band 3 ofR v Taueki.1 The Judge identified numerous aggravating factors: home invasion, vulnerability of the elderly victims, multiple victims, extreme violence, seriousinjury, Mr Archer's objective of stealing money and property, which established premeditation, and the use of weapons, which also pointed to an element of premeditation.[7] The Judge found no mitigating factors. He gave no credit for the late guilty pleas and he rejected professed remorse, which had come very late. Mr Archer has previous history, but only two convictions relate to violence and both were dated; accordingly, the Judge made no uplift for that. The end sentence was 14 years imprisonment. A minimum period of seven years or 50 per cent was fixed.1 R v Taueki [2005] 3 NZLR 372 (CA).The appeal[8] Mr McMenamin, who did not appear below, advanced the appeal primarily by contending that the starting point was too high, the presence of multiple aggravating factors notwithstanding. He stressed that the Judge's starting pointdepended on aggravating features that had neither been proved at trial nor established during a sentencing hearing. These facts were that Mr Archer had been provoked, and had acted in self-defence when wounding Mr Eaton, and that there was no premeditation and no home invasion. He emphasised that these facts were not accepted at sentencing; they were clearly put in issue by the submissions of trial counsel. Mr McMenamin also complained that the Judge ought to have given some credit for the late guilty plea and remorse.Proof of facts at sentencing:[9] Section 24 of the Sentencing Act provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in theoffence:(e) either party may cross-examine any witness called by the other party.(3) For the purposes of this section,—aggravating fact means any fact that— (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating factmitigating fact means any fact that—(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.[10] It will be seen that the sentencing court must accept as proved all facts essential to a guilty plea or verdict and may accept as proved any fact that was disclosed by evidence at the trial or agreed by the parties, and the prosecutor must prove, or negative as the case may be, beyond reasonable doubt the existence of (a) any disputed aggravating fact or (b) any disputed mitigating fact that (i) relates to theoffence or the defendant's role in it and (ii) is not wholly implausible or manifestlyfalse. A fact qualifies as an aggravating or mitigating fact when the court accepts that it may, if proved, affect the sentence.[11] Accordingly, the legislation distinguishes between material facts already proved by trial evidence or implicit in the finding of guilt, on the one hand, and material facts the parties may agree or prove for sentencing purposes, on the other. Italso distinguishes mitigating facts about the offence or the defendant's part in it,which the prosecutor must negative beyond reasonable doubt, from other mitigating facts, which the defendant must prove on the balance of probabilities.[12] Proof of disputed facts requires a sentencing hearing, which is triggered through a process beginning when one party asserts a fact and the other disputes it.The disagreement having been identified and drawn to the court's attention, thejudge indicates whether, if proved, it may affect sentence and in what way. For amitigating fact about the offence or the defendant's role in it, the court also decideswhether the fact is wholly implausible or manifestly false, a threshold that must be crossed before the prosecutor may be called upon to negative it. If the fact qualifies as an aggravating fact or as a mitigating fact necessitating proof and the party wanting to rely on it persists, both parties may adduce evidence as to its existence"unless the court is satisfied that sufficient evidence was adduced at the trial".[13] This process permits the court to make a number of decisions about a proposed sentencing hearing, including whether to hold the hearing at all where sentencing follows a trial. The disputed fact may have been the subject of some evidence at trial. If the court finds the fact is immaterial to sentence or has already been proved or negatived to the applicable statutory standard, which varies according to whether proof lies with the prosecutor or the defendant, it need not hold a sentencing hearing. To make this assessment the court needs to know something about the evidence the parties would call if permitted.[14] This regime is centrally important to a fair sentencing process. At the same time, it is designed to work in a practical and economical way in busy first instance courts. There are no formal requirements for triggering a dispute or sentencing hearing. Rather, the parties are expected to identify the dispute and engage with one another and the court about it before a decision is made to hold a hearing. For its part, the court is permitted to proceed on agreed facts, to decide and tell the parties whether a disputed fact matters and to conclude, where there was a trial, that a sentencing hearing is unnecessary because the fact has been sufficiently proved by evidence there.[15] In this regime, it is an essential part of counsel's responsibilities to identify disputed facts that may be thought material, to discuss them with the court and to call for a hearing if necessary. If counsel has failed to act at the time, it may not be easy on appeal to show that something has gone wrong.A material failure of process in this case[16] In this case, the s 24 process was not followed for facts that were unquestionably influential in selecting the starting point; namely, why Mr Archer used weapons against Mr Eaton and whether he committed a premeditated home invasion. In the absence of evidence from trial counsel, we do not know why a sentencing hearing was called for in relation to only one aggravating fact, namely whether Mr Archer took the axe handle to the house. It is plain that Mr Archer had put these aggravating facts in issue at trial and, importantly for our purposes, theCrown did not contest Mr McMenamin's submission that they were also disputed atsentencing.[17] The Judge's statement that Mr Archer's allegations about self-defence and provocation were fanciful indicates either that these mitigating facts were wholly implausible or that he thought he had enough evidence from the trial to satisfy himself to the required standard. He had heard Mrs Geary's evidence and received astatement of Mr Eaton. Both were consistent with premeditation and Mr Eaton'sstatement was wholly inconsistent with self-defence or provocation. Notably, he said that he had been stabbed as he lay on the bed and that he tried to use the duvet to protect himself.[18] The trial having ended by plea before the Crown case closed, the evidence was incomplete. We called for the trial record. The scene photographs were in evidence. They depict a bloodstained duvet lying on the bed, but without explanation they do not appear to establish the disputed facts one way or another. Mr Eaton and Mr Archer were the only eyewitnesses to what happened in the bedroom. The Judge had not heard from the Officer in charge of the scene, or from Mr Archer. It is immaterial that he may have elected to remain silent; the legislation does not preclude such a defendant from giving evidence at sentencing.2[19] These things being so, we accept Mr McMenamin's submission that it wasnot open to the Judge to decide either that the claims of provocation and self-2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [76]. The legislation does not assume that a complete trial record contains all evidence relevant to sentencing. As with any other disputed evidence, the court may by reference to the trial record refuse a hearing, finding the facts already proved or the claims plainly implausible.defence, which are mitigating facts about the offence, were wholly implausible or manifestly false, or that they had been sufficiently negatived at trial. The guilty plea necessarily excludes self-defence, but it may do so because Mr Archer admits using excessive force in self-defence. He may still contend that he was acting in self-defence in the circumstances as he saw them. We observe that defence counsel had claimed at trial that Mr Eaton advanced on Mr Archer with yet another weapon, a softball bat, that was kept in the bedroom.[20] Premeditation and home invasion fall into a different category. These areaggravating facts. The Judge had heard Mrs Geary's evidence about them, includingcross-examination in which the defence case was put. The record indicates that counsel challenged Mrs Geary, contending that Mr Archer was permitted to enter the house, and her answers were vague. Mr Archer could give admissible and directly relevant evidence about these matters, and he claims he would have taken the opportunity had it been offered at sentencing. In all the circumstances we think the Judge could not have concluded that premeditation and home invasion were already proved beyond reasonable doubt.[21] Mr McMenamin submitted that the appeal must be allowed for failure of process. We do not accept that. The question for an appellate court is whether the sentence was manifestly excessive. It is for the appellant to demonstrate that. The court may conclude that nothing turns on the failure of process. There are many authorities to that effect.3[22] However, we accept that the failure of process matters here. The Judge adopted a 14-year starting point in reliance on facts that had been disputed and could not be taken to have been proved beyond reasonable doubt by the evidence alreadyheard. Mr Archer's account invites scepticism but it could not be discounted withouthearing from him, if that was his wish. We accept that if all of the disputed facts fell his way, the end sentence would be manifestly excessive.43 See for example Banaba v R [2016] NZCA 122 at [22], [24] and [28]; Wang v R [2016] NZCA 56 at [23]; and French v R [2014] NZCA 297 at [7]–[8].4 This was the conclusion reached in Sullivan v R [2011] NZCA 366.[23] We do not attribute fault to the Judge. Counsel had called for a hearing for only one disputed fact and the Judge may have thought that Mr Archer did not persist with the others. Points taken in written submissions are not uncommonly abandoned at hearing. But as we have said, the Crown did not contest this point. Had it done so we may have called for affidavits from counsel who appeared at sentencing.5What may we do about it?[24] Mr McMenamin would have us adjust the sentence ourselves, but we could do so only by assuming the disputed facts in Mr Archer's favour or by holding adisputed facts hearing. The Court has done those things in other cases.6 In this case, we are not disposed to do either of them; the first might do the victims an injustice and the second is both impractical and (because we would have to rely on the written record of the trial evidence) unsatisfactory.[25] That leads us to the question whether this Court's jurisdiction extends toremitting an appeal for re-sentencing in such circumstances. This appeal is governed by s 385 of the Crimes Act 1961, as charges were first laid on 4 March 2013 (the Criminal Procedure Act 2011 took effect on 1 July 2013). That section provided:385 Determination of appeals in ordinary cases(2A) This subsection applies to—(a) an appeal to the Supreme Court or the Court of Appeal against sentence:(b) an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against sentence.(3) On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must—(a) dismiss the appeal; or(b) if it thinks that a different sentence should have been passed,—5 At [5] and [22].6 See for example R v Gatenby CA511/04, 28 April 2005, in which this Court reluctantly assumedthe facts in the appellant's favour; and R v Chicoine CA220/04, 21 March 2005, in which it held a sentencing hearing.(i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the court thinks ought to have been passed; or(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or(c) remit the case to the court that imposed the sentence with a direction that such court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.[26] The section had been amended in 2008,7 presumably in response to thisCourt's decisions in R v Chicoine and R v Gatenby, which held that there was no jurisdiction to remit a sentence appeal to the lower court for re-sentencing where s 24 had not been complied with.8 When those appeals were decided the legislation appeared to contemplate that this Court might allow an appeal only if it thought the sentence was wrong and that the Court would then fix the sentence itself:385 Determination of appeals in ordinary cases. . .(2A) This subsection applies to—(a) an appeal to the Supreme Court or the Court of Appeal against sentence:(b) an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against sentence.(3) On any appeal [to which subsection (2A) applies, the Court of Appeal or the Supreme Court], if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been passed or vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; and in any other case the Court shall dismiss the appeal.[27] We take the view that following amendment s 385 permits this Court to allow an appeal and remit a sentence to the lower court for re-sentencing where the Court is satisfied both that the s 24 process has miscarried and that the sentence would be manifestly excessive if the facts alleged by the defendant establish the correct basis7 Crimes Amendment Act (No 2) 2008 s 13.8 R v Chicoine, above n 6, at [20]; and R v Gatenby, above n 6, at [17]–[18].for sentencing.9 Put another way, the Court need not first be satisfied that a differentsentence should have been passed. The Court's jurisdiction is conferred by s 383,which provided generally that:383 Right of appeal against conviction or sentence(1) Any person convicted on indictment may appeal to the Court of Appeal or, with the leave of the Supreme Court, to the Supreme Court against—(a) the conviction; or(b) the sentence passed on the conviction (unless the sentence is one fixed by law); or(c) both.[28] Such a jurisdiction imports any implied powers necessary to give effect to it,10 and in s 385(3)(c) there is an express power to remit that does not depend on this Court first quashing the sentence or being satisfied that the sentence was in fact wrong. Rather, the Court may remit the appeal with a direction that the lower court hold a sentencing hearing and either confirm the sentence or pass such other sentence as the law permits and the lower court thinks fit.Guilty plea and remorse[29] We dismiss as untenable Mr McMenamin's complaints that the Judge oughtto have given some sort of discount for the guilty plea and remorse. So far as theguilty plea is concerned, we do not accept that the late disclosure of the detective'snote changed anything; it seems to record little more than an admission of the undisputed fact that Mr Archer was the offender, and it told the Court nothing more than Mr Archer already knew. So far as remorse is concerned, it was open to the Judge to discount the claim for want of sincerity. We observe that the presentence report bore out his conclusion.Decision[30] We extend time for appealing.119 A similar view was taken in R v Sullivan, above n 4, at [33].10 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [35].11 The appeal was filed on 16 April 2016, 60 days out of time.[31] We have accepted that the sentencing process miscarried. The failure to offer a sentencing hearing for material disputed facts led to a starting point that would have been manifestly excessive had all the disputed facts fallen Mr Archer's way.We are in no position to decide those facts ourselves, and it would not be right to assume them in his favour.[32] It follows that the appeal must be allowed. We do not quash the sentence. Rather, we remit the proceeding to the District Court, directing that it hold a sentencing hearing and either confirm the sentence or pass such other sentence as the law permits and the District Court thinks fit.[33] Mr McMenamin asked us to direct, in that event, that the re-sentencing ought not to be done by Judge Garland, who took a dim view of Mr Archer at sentencing. We decline to do that. The Judge is not disqualified merely because he sentenced Mr Archer for what was on any view a vicious and unsavoury crime. He heard the trial evidence and is best placed to evaluate it along with any adduced at a sentencing hearing.[34] We record that, as we told counsel at the hearing, the Judge need not treat the existing sentence as an upper limit. A sentencing hearing, at which both parties may adduce evidence, could resolve against Mr Archer facts that the Judge previously accepted or assumed, such as the source of the axe handle, or result in him taking an even less favourable view of the circumstances overall. That is a risk inherent in the disputed facts process.Solicitors:K J McMenamin & Sons, Christchurch for AppellantCrown Law Office, Wellington for Respondent