DYER v R [2022] NZCA 296

DYER v R [2022] NZCA 296 [6 July 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA197/2021[2022] NZCA 296BETWEEN JORDAN RICHARD DYERAppellantAND THE QUEENRespondentCourt: Kós P, Brewer and Davison JJCounsel: C A Gentleman for AppellantP D Marshall and A G Becroft for RespondentJudgment:(On the papers)6 July 2022 at 9 amJUDGMENT OF THE COURTA The application to recall this Court's judgment in Dyer v R [2021] NZCA332 is granted.B The sentence of 250 hours of community work is quashed.C A sentence of 100 hours of community work is substituted.D In all other respects the sentence imposed by the judgment is unaltered.The sentence of 12 months' supervision subject to the standard conditionsand special conditions detailed in [53] of that judgment remains.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)An application for recall of judgment[1] Mr Jordan Dyer applies for recall of our judgment delivered on 23 July 2021in which we allowed his appeal against a sentence of home detention and six months'post-detention conditions, and substituted a sentence of 12 months' supervision and250 hours of community work.1Background[2] The applicant was sentenced to four months' home detention and six months'post-detention conditions by Judge Cameron in the District Court at Tauranga on9 April 2021.2 Department of Corrections staff acted immediately to fit the applicantwith an electronic-monitoring (EM) device and he commenced serving his homedetention sentence.[3] On the same day he was sentenced, his counsel filed a notice of appeal andapplication for bail pending appeal pursuant to s 54(2) of the Bail Act 2000 (the Act).The application for bail pending appeal was heard and granted by the District Courton 12 April 2021 and, in accordance with s 54(3) of the Act, Corrections staffdisconnected the applicant's EM device and he ceased serving the home detentionsentence pending the hearing and determination of his appeal.[4] The applicant's appeal against sentence was heard in this Court on22 June 2021 and judgment was reserved. That same day the Registrar wrote toCorrections advising that the appeal had been heard, however the Corrections staffmember receiving the letter misinterpreted it, and misunderstood it to advise that theappeal had been dismissed. The Corrections officer who was the applicant's probationofficer then arranged for an EM device to be once again fitted on the applicant and heresumed serving his home detention sentence from that date.[5] When the applicant's counsel received this Court's judgment on 23 July 2021quashing the home detention sentence and contacted the applicant to inform him,1 Dyer v R [2021] NZCA 332.2 R v Dyer [2021] NZDC 6501.he told her that he had understood his appeal had been dismissed and that hishome detention sentence was restored on 22 June 2021.[6] Therefore the applicant served four weeks of home detention as a result of theerror made by Corrections.[7] The applicant seeks recall of the judgment to remedy the injustice caused byCorrections' error, which has resulted in him serving four weeks of home detentionwhen this Court delivered its judgment quashing the home detention sentence andsubstituting a sentence of 12 months' supervision and 250 hours of community work.Recall[8] The Supreme Court in Uhrle v R, referring to Horowhenua County v Nash(No 2) and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2),has confirmed the three situations where it will be appropriate to grant an applicationfor recall:(a) where there has been an amendment to a relevant statute or regulationor a new judicial decision of relevance and high authority since thehearing;(b) where counsel have failed to direct the Court's attention to a legislativeprovision or authoritative decision of plain relevance; and(c) where for some other very special reason justice requires that thejudgment be recalled.3[9] The Court further explained:[29] As to the test to be applied, we consider that this should be formulatedto make clear the decision to reopen an appeal is an exceptional step, but alsoto ensure the court remains able to respond to the wide variety ofcircumstances that may necessitate that step in order to avoid injustice. We arecontent that these concepts are sufficiently captured within the three grounds3 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [22], citing Horowhenua County v Nash (No 2)[1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2)[2009] NZSC 122, [2010] 1 NZLR 76 at [2].for recall articulated in Horowhenua County and approved in Saxmere (No 2),and in particular in the third ground: whether for any very special reasonjustice requires the judgment to be recalled. It is the third ground that is likelyto be the most relevant in the criminal jurisdiction.(Footnotes omitted.)[10] This Court has previously observed that it may be appropriate for a court toexercise the power to recall a judgment where a decision has been made on an incorrectfactual basis.4SubmissionsThe applicant[11] In her written memorandum in support of the recall application,Miss Gentleman set out the circumstances in which the administrative error occurredand confirmed that, prior to consulting the applicant on 23 July 2021 following receiptof the Court's judgment allowing the appeal, she was unaware that Corrections hadrefitted the applicant with an EM device and that he had been serving a sentence ofhome detention since 22 June 2021. Counsel had conducted the appeal with theknowledge that the applicant had been admitted to bail on 12 April 2021 and had noreason to believe that situation had changed until being advised by the applicant of thesteps taken by Corrections on 22 June 2021.[12] Miss Gentleman says that Corrections' administrative error resulted in theapplicant being erroneously subjected to four weeks of home detention andconsequently a miscarriage of justice has occurred that ought to be remedied by theCourt recalling its judgment and substituting a sentence which takes account of thefour weeks spent by the applicant on home detention.The respondent[13] The Crown accepts that if the Court had understood that the applicant hadserved approximately three and a half months, or nearly 90 per cent, of hishome detention sentence it is unlikely that this factor would not have been mentioned4 See, for example, Banks v R [2015] NZCA 182 at [23]; R (CA89/2018) v R [2019] NZCA 176 at[10]–[13]; and McMillan v R [2021] NZCA 146 at [4]–[6].when determining and explaining the substituted sentence. Furthermore, the Crownaccepts that as it seems the Court proceeded on the basis that the applicant hadremained on bail from 12 April 2021, and was not aware he had recommenced hishome detention sentence on 22 June 2021, that matter would have been material to theCourt's consideration of the appropriate sentence to be substituted.[14] The Crown also acknowledges that the Court held a sentence ofhome detention was not an appropriate sentence in all the circumstances of the case,and that the four weeks of home detention served by the applicant were the result ofan administrative error rather than as an expected consequence of the appellateprocess.[15] The Crown says that should the Court consider an injustice has occurred inthese unusual circumstances, it would not oppose the Court recalling the judgment andreducing the sentence of 250 hours of community work. It notes that as one of theprincipal purposes of the sentence imposed was to ensure the applicant reflected onthe effect of his offending on the complainant, that objective may well have alreadybeen achieved by the short period he spent on home detention between 22 June and23 July 2021.Discussion[16] At the hearing of the appeal Miss Gentleman advised that following thesentence being imposed in the District Court, "a few days later it was deferred pendingthis appeal". Counsel advised that as a result, apart from a short period during whichthe applicant had been unable to work while an internal process was undertaken by hisemployer, he had continued in full-time employment and his supervisor had advisedthat, subject to confirmation by the company's HR department, his employer wouldaccommodate any sentence conditions.[17] The Court accordingly proceeded to hear and determine the appeal on the basisthat apart from the "few days" referred to by his counsel the applicant had notcommenced serving the home detention sentence and had been granted bail pendingappeal.[18] When delivering judgment on 23 July 2021 the Court was unaware of theaction taken by Corrections on 22 June 2021 that had resulted in the applicant servinga home detention sentence.[19] The events that have led to the applicant serving four weeks of home detentionhas resulted in a significant injustice to him, he having served a sentence which wehad found to have been manifestly excessive having regard to the gravity of hisoffending. In our judgment of 23 July 2021 we found that a sentence of supervisionfor a period of 12 months coupled with 250 hours of community work would meet thepurposes and principles of sentencing.5 We added:[48] Furthermore, a sentence of 250 hours' community work will be aneffective means of holding the [applicant] accountable and promoting in hima sense of responsibility for his offending by restricting his freedom, whilealso enabling him to continue to work at the supermarket and continue to buildon his recent history of good work performance there. Completing250 hours of community work will also ensure that the [applicant] reflects onhis offending and its effect on the complainant. It will occupy a considerablepart of his time when he is not at work, and will enable him to work for thebenefit of the community.[20] We are satisfied that the unfortunate administrative error resulting in theapplicant serving four weeks of home detention presents a very special reason wherejustice requires that we recall our judgment in order to remedy the injustice the errorhas caused, and the effect it has on the sentence we imposed following the applicant'ssuccessful appeal.[21] We consider that the four weeks of home detention served by the applicantbetween 22 June and 23 July 2021 should be treated as having satisfied the sentenceof 250 hours of community work to a significant extent. Accordingly, we shall recallour judgment and substitute 100 hours of community work for the 250 hourspreviously ordered.Result[22] The application for recall of this Court's judgment in Dyer v R [2021] NZCA332 is granted.5 Dyer v R, above n 1, at [47].[23] The sentence of 250 hours of community work is quashed.[24] A sentence of 100 hours of community work is substituted.[25] In all other respects the sentence imposed by the judgment is unaltered.The sentence of 12 months' supervision subject to the standard conditions and specialconditions detailed in [53] of that judgment remains.Solicitors:Gowing & Co Lawyers Ltd, Whakatane for ApplicantCrown Law Office, Wellington for Respondent