LOWENSTEIN v R [2020] NZCA 78

LOWENSTEIN v R [2020] NZCA 78 [24 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA363/2019[2020] NZCA 78BETWEEN JACOB LOWENSTEINAppellantAND THE QUEENRespondentCourt: French, Miller and Gilbert JJCounsel: J D Lucas for AppellantB F Fenton for RespondentJudgment:(On the papers)21 February 2020 at 3.30 pmReasons: 24 March 2020 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed for want of jurisdiction. The High Court is the firstappeal court for this appeal.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] In a results judgment delivered on 21 February 2020, we dismissed this appealfor want of jurisdiction.1 These are our reasons for our conclusion that the High Courtis the first appeal court for this appeal against sentence.1 Lowenstein v R [2020] NZCA 25.[2] Jacob Lowenstein engaged in two distinct sets of offending some eight monthsapart (all category 3 offences). The first set of offending — burglary and assault withintent to injure — occurred on 20 June 2018. Mr Lowenstein was charged with theseoffences on 27 June 2018 (set A charges). He pleaded not guilty and elected trial byjury on the set A charges on 2 August 2018. However, on 17 October 2018,Mr Lowenstein pleaded guilty to these charges and was remanded on bail forsentencing.[3] While on bail awaiting sentencing on the set A charges, Mr Lowensteincommitted the second set of offending — arson and unlawfully taking a motor vehicleon 11 March 2019, and a second arson at the same property on 13 March 2019.Mr Lowenstein was charged with these offences on 2 April 2019 (set B charges).He entered guilty pleas to the set B charges on 3 April 2019.[4] On 14 June 2019 Judge Saunders sentenced Mr Lowenstein to six years andnine months' imprisonment for the totality of this offending.2 The Judge adopteda starting point of nine years' imprisonment for the two arson charges.3 He upliftedthe starting point by 18 months for the set A charges. The Judge allowed a discountof 12 months for personal mitigating factors and a further discount of 25 per cent forthe guilty pleas. This brought the indicative end sentence down to seven years andone month's imprisonment. The Judge adjusted this for totality to arrive at an endsentence of six years and nine months' imprisonment, constructed as follows:4(a) 13 March 2019 arson — six years' imprisonment (set B).(b) 11 March 20119 arson — four years' imprisonment (concurrent)(set B).(c) Unlawful taking of a motor vehicle — two years' imprisonment(concurrent) (set B).2 R v Lowenstein [2019] NZDC 11538.3 At [20].4 At [21].(d) Assault with intent to injure and burglary — nine months'imprisonment (cumulative) (set A).[5] Mr Lowenstein filed a notice of appeal against sentence in this Court.He contended that the end sentence of six years and nine months' imprisonment wasmanifestly excessive and insufficient allowance was made for personal mitigatingfactors and his participation in restorative justice.[6] The appeal was scheduled to be heard on 27 February 2020. However, shortlyprior to the hearing, a question as to this Court's jurisdiction to hear the appeal arose,namely whether this Court or the High Court is the first appeal court for this appeal.The parties consented to this issue being dealt with on the papers.[7] The appellate pathways for sentence appeals are set out in s 247 of the CriminalProcedure Act 2011(the Act). This relevantly reads:247 First appeal courts(1) The first appeal court for an appeal under this subpart is—(b) the High Court, if the appeal is against a sentence imposed bythe District Court presided over by a District Court Judgeand if—(ii) the sentence was for a category 3 offence and theconvicted person did not elect a jury trial; or(c) the High Court, if the appeal is against a sentence imposed bythe District Court presided over by a District Court Judge fora category 3 offence and if—(i) the convicted person elected a jury trial; and(ii) the convicted person pleaded guilty to the offencebefore the trial; and(iii) the sentence appealed against is not a sentence ofimprisonment exceeding 5 years; or(d) either the Court of Appeal or the Supreme Court, in any othercase.[8] Counsel for Mr Lowenstein suggests that the first appeal court is assessed byreference to the aggregated end sentence and this Court is the first appeal court interms of s 247(1)(c). However, the Crown inclines to the view that the first appealcourt is to be determined on a sentence-by-sentence basis and accordinglythe High Court is the first appeal court in this case. We are grateful to counsel for theirsubmissions.[9] It will be seen that if Mr Lowenstein had been sentenced separately for eachset of offences, any appeal would be to the High Court. In respect of the more serious(set B) offending, Mr Lowenstein did not elect a trial by jury and accordinglys 247(1)(b)(ii) would apply. Equally, if Mr Lowenstein had been sentenced separatelyon the set A charges, any appeal against sentence would also lie to the High Court.This is because, although he elected trial by jury on those charges, his sentence onthose charges did not exceed five years' imprisonment and accordingly s 247(1)(c)would apply.[10] We can see no policy reason why these clear appellate pathways tothe High Court should be derailed merely because sentencing on all charges occurredat the same time and the overall end sentence exceeded five years' imprisonment.It would mean in this case that the election of trial by jury on the set A charges, whichwas superseded by the guilty pleas (and therefore had no continuing relevance), wouldresult in the appellate pathway being redirected to this Court even though the penaltyfor the set A charges was only nine months' imprisonment. This would be tantamountto the jury trial tail wagging the summary jurisdiction dog. We do not considerParliament could have intended this.[11] Had Parliament intended this "drag-along" outcome, we expect it would havesaid so expressly, as it has in other comparable contexts. For example, s 139 of the Actprovides that where two or more charges against a defendant are to be heard together,if one charge is to be tried by a jury, all charges must be tried by a jury. Similarly, ifone charge is to be tried in the High Court, all charges must be tried in the High Court.[12] Additionally, the Act provides a solution for situations where there areconflicting appellate pathways. Section 321 of the Act specifies how jurisdiction isdetermined where appeals lie to different appeal courts under the general provisionsand reconciles these by applying drag-along provisions. Section 321 relevantlyprovides:321 Related appeals that are to be heard by Court of Appeal(1) This section applies if—(b) a convicted person appeals to the Court of Appeal againstsentence under section 244 or the prosecutor appeals to thatcourt against sentence under section 246.(2) Appeals arising from the exercise of a related right of appeal bythe convicted person or the prosecutor must be heard and determinedby the Court of Appeal.[13] A "related right of appeal" is defined in s 320 and relevantly includes:320 Meaning of related right of appeal(1) For the purpose of section 321, related right of appeal,—(a) in relation to a first appeal by a convicted person to the Courtof Appeal against conviction or sentence, means a right ofappeal to the High Court or the Supreme Court againstconviction or sentence for—(i) an offence that arises from the same incident or seriesof incidents as the offence to which the appeal tothe Court of Appeal relates; or(ii) an offence for which the convicted person wassentenced on the same occasion as that on whichthe sentencing court imposed the sentence to whichthe appeal to the Court of Appeal relates:(b) in relation to a first appeal by a convicted person to the Courtof Appeal against conviction, means a right of appeal tothe High Court or the Supreme Court against the sentence forthe offence to which the appeal to the Court of Appeal relates:[14] If Mr Lowenstein had been sentenced to more than five years' imprisonmenton the set A charges, his appeal would lie to this Court under s 247(1)(c). In that event,any appeal against sentence on the set B charges would also be dealt with by this Courtby virtue of s 321(2) as a related right of appeal in terms of s 320(1)(a)(ii). This isbecause the sentencing for both sets of charges occurred on the same occasion.That would be so even though the usual appellate pathway for any appeal againstsentence on the set B charges would have been to the High Court under s 247(1)(b)(ii),no election of trial by jury having been made in respect of those charges.[15] We consider a sentence-by-sentence approach was intended by Parliamentunder s 247, not an aggregated approach. This fits with the wording of s 247 whichrelevantly focuses attention on "the sentence for a category 3 offence" and whetherthe person elected jury trial for that offence. It is also consistent with the expressprovisions in s 321. If this Court is the first appeal court for a particular sentence, thenany appeal against other sentences for offences arising out of the same incident orseries of incidents or imposed on the same sentencing occasion, will also be to thisCourt by virtue of s 321. In this case, none of the sentences under appeal fall withinthe jurisdiction of this Court. Section 321 is not engaged.[16] For these reasons, we conclude that the High Court is the first appeal court forMr Lowenstein's appeal against sentence. His appeal to this Court must accordinglybe dismissed for want of jurisdiction.Result[17] The appeal is dismissed for want of jurisdiction. The High Court is the firstappeal court for this appeal.Solicitors:Crown Law Office, Wellington for Respondent