FLETCHER v R [2022] NZCA 456

FLETCHER v R [2022] NZCA 456 [29 September 2022NOTE: 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 AOTEAROACA366/2018[2022] NZCA 456BETWEEN MARK ANDREW FLETCHERApplicantAND THE KINGRespondentHearing: On the papersCourt: Courtney, Thomas and Peters JJCounsel: S J Gray for AppellantC A Brook and FESF Girgis for RespondentJudgment: 29 September 2022 at 11 amJUDGMENT OF THE COURTThe application for leave to withdraw the notice of abandonment of appealagainst sentence is granted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] This judgment determines an application by the applicant, Mr Fletcher, towithdraw a notice of abandonment of appeal against sentence.Principles[2] In R v Cramp, this Court discussed the two grounds on which it might set asidea notice of abandonment of appeal.1[3] The first is if the notice of abandonment is properly viewed as a nullity, ratherthan the result of a deliberate and informed decision by the appellant.2[4] The second is if exceptional circumstances exist. In considering this ground,the Court will have regard to the importance of finality in criminal cases, thecircumstances in which the notice of abandonment was given, and whether the reasonsfor the application to withdraw are of an exceptional nature. If this threshold is met,it is also necessary for the Court to make a provisional assessment of the likely meritsof any appeal before exercising its discretion.3[5] Ms Gray, counsel for the applicant, submits that both grounds are made out inthe present case. Crown counsel oppose the application.Background[6] On 22 March 2018, Judge Dawson sentenced the applicant for offendinginvolving violence against a former domestic partner in July 2016, serious sexualoffending committed in November 2016, and assault with intent to injure committedagainst a fellow prison inmate in 2017.4[7] After discounts for remorse and for such guilty pleas as the appellant hadentered, and a reduction for totality, the applicant's end sentence was 12 years'imprisonment.5 A minimum period of imprisonment (MPI) of four years and ninemonths', or 50 per cent, was also imposed on the sentence for the sexual offending.61 R v Cramp [2009] NZCA 90 at [20]–[26].2 At [24].3 See R v Bridgeman CA87/2004, 10 November 2005; R v Curtis CA288/2004, 8 February 2005;P (CA250/2016) v R [2018] NZCA 383; and Than v R [2014] NZCA 365.4 R v Fletcher [2018] NZDC 5566 [Sentencing notes].5 At [45].6 At [48].[8] Because it is relevant to what follows, it is common ground that no reportregarding the applicant's cultural and personal background was provided to the Judgeat sentence pursuant to s 27 of the Sentencing Act 2002 (s 27 report). That said, theJudge did have a number of medical reports which provided information as to theapplicant's physical and mental health (medical reports), and two recently preparedProvision of Advice to Courts reports from the Department of Corrections (PACreports). We say more about the significance of these reports below.First notice of appeal[9] The applicant's evidence is that, immediately after sentencing, he advised histrial counsel that he wished to appeal but that counsel did not come to see him forsome time. Given that, the applicant himself filed a notice of appeal against sentencein June 2018. This appeal was allocated a hearing date in February 2019.[10] The applicant's evidence, as to the circumstances of the abandonment of hisappeal, is as follows.11. When I finally got to see [counsel], I asked him to help me with thesentence appeal. I told him I wanted a cultural report done, but he toldme there was no chance I could successfully appeal my sentence. Hetold me cultural reports didn't mean much.12. He knew my background quite well, because it wasn't the first timehe had acted for me. But still, he said that getting a cultural reportdone wouldn't help.13. I took his advice and agreed not to go ahead with it. [Counsel] signedthe notice of abandonment on my behalf.14. This was just before my appeal was meant to be heard.[11] We record that the Crown has not filed an affidavit from counsel, and it doesnot challenge the applicant's evidence as to the advice that counsel gave him. We inferfrom this that counsel's evidence would not have assisted the Crown's opposition tothis application. Despite that, we would have preferred to have an affidavit fromcounsel. We expect we would also have been assisted by having a copy of counsel'ssubmissions on sentence, which the Judge described as "extensive and most useful."77 Sentencing notes, above n 4, at [25].Second notice of appeal[12] The applicant subsequently reconsidered the matter of an appeal and a freshnotice of appeal was filed in February 2021.[13] In April 2022, and unaware of the abandonment, Ms Gray filed submissions inwhich she sought an extension of time to appeal and addressed the merits of the appeal.Ms Gray also filed a comprehensive s 27 report. In her submissions on the merits,Ms Gray submits that the Judge did not have sufficient regard to the information in themedical reports in considering whether any discounts were required for the applicant'spersonal circumstances. She also submits that, as the Judge did not have a s 27 report,the causal links between the applicant's upbringing and his offending were notconsidered.[14] The applicant's abandonment of his first appeal came to light after thesubmissions were filed, and this application followed.SubmissionsApplicant[15] As to the first ground for withdrawal identified in Cramp, Ms Gray submitsthat the applicant's decision to abandon his appeal, although deliberate, was not"informed" as it was based on erroneous legal advice to the effect that a report unders 27 has no value in the sentencing process.8[16] For the same reasons, Ms Gray submits that the circumstances of theabandonment were exceptional, such that the interests of justice require that it be setaside. Ms Gray referred us to Dickey v R, in which this Court accepted that the"exceptional circumstances" ground was made out when a young appellant abandonedher appeal without obtaining legal advice, and possibly not fully understanding whatshe was doing.9 This Court held that the appeal might have some merit and allowedthe notice of abandonment to be withdrawn.8 R v Cramp, above n 1 at [21] and [24].9 Dickey v R [2021] NZCA 600 at [8]–[9]..[17] Ms Gray submits this case is similar, given the absence of (correct) legal adviceto the applicant, and the information that is provided in the s 27 report.Respondent[18] Crown counsel submit that the first ground identified in Cramp is not made outbecause the applicant's decision to abandon the appeal was both deliberate andinformed, that is after receiving advice as to the merits of the appeal, or rather the lackof them.[19] As to the second ground, Crown counsel submit the appeal does not havesufficient merit to allow withdrawal of the notice. Although it is accepted that trialcounsel ought to have obtained a s 27 report before advising on the merits of an appeal,Crown counsel submit that trial counsel was correct in considering that the Court hadsufficient information from the medical and PAC reports to determine the relevanceof the applicant's personal circumstances to sentencing. Counsel submit a s 27 reportwould not have made any difference to sentence and thus the application to withdrawought to be declined.Discussion[20] We accept Ms Gray's submission that the applicant's decision to abandon hisappeal was based on erroneous legal advice, and so was not "informed" in the sensethat is required by the first ground in Cramp. The legal advice given to the applicantwas incorrect, not only in respect of the utility of a s 27 report, but more generally asto whether an appeal against sentence had any prospect of success.[21] As to s 27, Crown counsel themselves accept that trial counsel could notproperly advise the applicant on the benefits or otherwise of a s 27 report without atthe very least exploring what that report might address, and quite possibly withouthaving first obtained and considered such a report.[22] As to the merits of an appeal more generally, we have already referred to themedical and PAC reports that were before the Judge. These date from October 2007.This first report was concerned with a serious injury sustained by the applicant in 2006,which appears to have meant he could no longer work at all, let alone in his chosenfield.[23] This report is followed by many others, including a 2016 assessment by theMason Clinic of the applicant's fitness to plead, completed at the request of the Police,and a report of February 2018 from the Department of Corrections in respect of apsychological assessment of the applicant carried out in late 2017.[24] The PAC reports, dated November 2017 and January 2018, are alsocomprehensive and, amongst other things, address the applicant's alcohol and druguse.[25] The Judge did not discuss these reports in his sentencing note. On the contrary,he referred to them in passing only, acknowledging their receipt and saying that thepsychological reports and assessment indicated that the applicant had "many issues toaddress", and the Judge considered that those issues needed to be addressed before theapplicant could be released from prison.10 Regardless of the absence of a s 27 report,we would have expected a thorough discussion of the various reports and theirsignificance.[26] For the same reasons, we consider that the circumstances are exceptional andthat the second ground in Cramp is made out. The provisional assessment of the meritsof an appeal required by this ground is sufficiently set out in our comments above.The short point is that we consider that an appeal has some prospects of success, giventhe information available as to the applicant's personal circumstances.[27] Lastly, to assist counsel, we note that some of what is now in the s 27 report isinconsistent with the applicant's history as it is recorded in the medical reports,particularly those earliest in time. By way of example, the s 27 report documents whatthe applicant has reported as to his apparently violent upbringing. This, however, isdifferent to the information on the same topic in the medical report of, for instance,20 October 2007 and the "Clinic Letter" of 28 March 2012. There are alsoinconsistencies between the s 27 report and medical reports as to whether the applicant10 Sentencing notes, above n 4, at [40].has, or has previously had, an issue with substance abuse. Counsel will wish to addressthese apparent inconsistencies in the course of future steps.Result[28] The application for leave to withdraw the notice of abandonment of appealagainst sentence is granted.Solicitors:Te Tari Ture o te Karauna | Crown Law Office, Wellington for the Respondent