L (CA326/2018) v R [2022] NZCA 81

L (CA326/2018) v R [2022] NZCA 81 [25 March 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPLICANT PROHIBITED BY S 201 OFTHE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA326/2018[2022] NZCA 81BETWEEN L (CA326/2018)ApplicantAND THE QUEENRespondentCourt: Gilbert, Katz and Edwards JJCounsel: C J Tennet for ApplicantMRL Davie for RespondentJudgment:(On the papers)25 March 2022 at 11 amJUDGMENT OF THE COURTThe application to withdraw a notice of abandonment of appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] In 2014, L was found guilty of 25 charges relating to sexual offending againstfour young complainants. The charges included 14 charges of sexual violation byunlawful sexual connection, 10 indecency charges, and one charge of assault on a childunder the age of 14. L was sentenced in the District Court at Wellington to:1(a) 15 years' imprisonment for the sexual violation charges;(b) two years' imprisonment for the indecency charges to be servedcumulatively on the 15-year sentence; and(c) six months imprisonment for the remaining charge of assault on a childto be served concurrently.[2] The notional end-sentence was therefore 17 years' imprisonment. The Judgealso imposed a minimum period of imprisonment (MPI) of seven years in relation tothe 15 years' imprisonment for the sexual violation charges.2[3] In 2015, L was found guilty of further sexual offending against another youngcomplainant. On 5 February 2016, he was sentenced in the High Court to four years'imprisonment, with an MPI of two years and eight months.3 That sentence wascumulative on the notional sentence of 17 years' imprisonment earlier imposed.4[4] The combination of the two MPIs imposed (nine years, eight months) andthe statutory non-parole period for the two years' imprisonment imposed in 2014(eight months) means that L will only become eligible for parole after serving 10 yearsand four months' imprisonment.[5] In 2018, L filed an appeal against conviction and sentence in both sets ofproceedings. However, on 1 October 2019, he filed a notice abandoning all appeals.[6] L now seeks leave to withdraw his notice of abandonment of the appeal ofthe 2014 sentence. The sole focus of the proposed appeal is on the imposition ofthe seven-year MPI.1 R v [L] DC Wellington CRI-2012-091-3644, 31 July 2014 [District Court sentencing judgment]at [32]–[34].2 At [31].3 R v L [2016] NZHC 97 at [30] and [37].4 At [31].Should leave to withdraw the notice of abandonment be granted?[7] The principles relevant to an application to withdraw a notice of abandonmentwere set out by this Court in R v Cramp.5 There are two grounds on which a Courtwill set aside a notice of abandonment of appeal:6(a) if the abandonment was a nullity because it was not the result of adeliberate and informed decision; or(b) if, in exceptional circumstances, the interests of justice requirethe Court to set it aside.[8] L relies on the second of these grounds. He says there was an error inthe imposition of the seven-year MPI which requires correction on appeal and justifiesthe notice of abandonment being set aside. Specifically, L says that the District CourtJudge only intended to sentence him to a total MPI of seven years on the notional end-sentence of 17 years' imprisonment. He says the Judge overlooked the fact thatthe statutory non-parole period of the two-year cumulative sentence, which iseight months, would be added to the MPI.[9] In addition, L says that when the MPI of two years and eight months imposedin 2016 is added to the seven years and eight months non-parole period from 2014, itresults in a total non-parole period which exceeds 10 years contrary to s 86(4) ofthe Sentencing Act 2002.[10] We do not consider there to be exceptional circumstances warranting the noticeof abandonment being set aside. L made a deliberate and informed decision toabandon his appeal in 2019. There is no basis to suggest that this decision was madein error or that it should be revisited nearly three years later. Moreover, we considerthe merits of the appeal to be quite weak. We say that for three reasons.5 R v Cramp [2009] NZCA 90 at [26].6 At [24]–[26]; see also R v Bridgeman CA87/04, 10 November 2005 at [8]–[9]; and R v CurtisCA288/04, 17 February 2005 at [34].[11] First, although the District Court Judge does, at times, refer to an MPI ofseven years in relation to the notional end-sentence of 17 years' imprisonment, it isnot seriously arguable that this is what the Judge intended. What is clear fromthe Judge's sentencing notes is that the notional end-sentence of 17 years'imprisonment comprised a series of determinate sentences to be served cumulativelyand concurrently for the 25 charges on which L was convicted. We have set out howthe sentence was constructed at [1] and [2] of this Judgment.[12] In considering whether to order an MPI, the Judge had regard to s 86 ofthe Sentencing Act.7 That section provides for an MPI to be imposed on a"determinate sentence of imprisonment of more than [two] years for a particularoffence".8 The only determinate sentence of imprisonment of more than two yearswas the 15-year sentence imposed for the sexual violation charges. There was nostatutory authority to impose an MPI in relation to the other determinate sentences ofimprisonment.[13] In addition, the Judge had to consider whether he had the jurisdiction to imposean MPI in relation to offending that occurred prior to 7 July 2004, being the date thatthe current s 86 of the Sentencing Act came into force. Under the prior provision, anMPI could only be imposed if the circumstances of the offence were sufficientlyserious to justify an MPI longer than the period otherwise applicable under s 84(1) ofthe Parole Act 2002. The Judge found that L's convictions for sexual violation priorto 7 July 2004 were sufficiently serious to justify an MPI in relation to thoseconvictions.9 That reasoning confirms that the Judge only intended to impose an MPIin relation to the 15-year sentence of imprisonment imposed for the sexual violationcharges. Indeed, the statutory power to impose an MPI only existed in relation tothe sentence for those charges.[14] Second, the calculation of non-parole periods for the 2014 sentence is governedby the Parole Act. Section 84(4) of that Act provides:7 District Court sentencing judgment, above n 1, at [26].8 Sentencing Act 2002, s 86(1).9 District Court sentencing judgment, above n 1, at [28]–[30].(4) The non-parole period of a long-term notional single sentence isthe total obtained by adding together all the non-parole periods ofevery sentence that makes up the notional single sentence.[15] The combination of sentences which comprise the 2014 sentence fall withinthe definition of a "long-term notional single sentence". That is because they comprisea series of determinate sentences of imprisonment imposed cumulatively on each otherwhich result in a notional single sentence of more than 24 months.10 Because the 2016sentence was ordered to be served cumulatively on the 2014 sentence the combinationof both those sentences also meets the definition of a long-term notional singlesentence.[16] Therefore, in accordance with s 84(4), the total non-parole period is to becalculated by adding together all the non-parole periods of every sentence that makesup the notional single sentence. For L, that means the seven-year MPI is added tothe statutory non-parole period for the two-year cumulative sentence imposed forthe indecency charges. To that is added the two year, eight months MPI imposed in2016. That results in a non-parole period of 10 years and four months.[17] Third, it is not seriously arguable that the total of all non-parole periodsbreaches s 86 of the Sentencing Act. The relevant subsections of s 86 provide:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, itmay, at the same time as it sentences the offender, order thatthe offender serve a minimum period of imprisonment inrelation to that particular sentence.(4) A minimum period of imprisonment imposed under thissection must not exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.10 Parole Act 2002, ss 4 definitions of "long-term sentence" and "notional single sentence" and 75(2).[18] As these subsections make clear, the limits imposed in s 86(4) only apply tothe determinate sentence of imprisonment in respect of which the MPI is imposed.The limits do not, therefore, include sentences of two years or less, and so do notinclude the statutory non-parole period that otherwise applies to such sentences.Each of the MPIs imposed in this case were well within the prescribed limits.There was no breach of s 86.[19] In sum, L's application falls far short of the required threshold to set aside anotice of abandonment of appeal. The principle of finality takes precedence in thiscase and the application must be declined. We order accordingly.Result[20] The application to withdraw the notice of abandonment of appeal is declined.[21] Existing suppression orders prohibiting publication of the name, address,occupation and identifying details of the applicant and the complainants remain inforce.Solicitors:Crown Law Office, Wellington for Respondent