MCLEAN v R [2023] NZCA 578

MCLEAN v R [2023] NZCA 578 [20 November 2023]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 AOTEAROACA708/2020[2023] NZCA 578BETWEEN PAUL ELVIS RAWIRI MCLEANApplicantAND THE KINGRespondentHearing: 26 September 2023Court: Cooper P, Palmer and Jagose JJCounsel: J S Jefferson for ApplicantI S Auld for RespondentJudgment: 20 November 2023 at 11.00 amJUDGMENT OF THE COURTA The application to withdraw notice of abandonment of appeal againstsentence is granted and the notice of abandonment of appeal againstsentence is set aside.B The appeal is reinstated for the purpose of taking into account submissionsand evidence concerning personal mitigating circumstances able to beadvanced by Mr McLean. We record Mr Jefferson's acknowledgementthere will be no argument directed against the starting point adopted bythe sentencing Judge.____________________________________________________________________REASONS OF THE COURT(Given by Jagose J)[1] Paul McLean seeks to withdraw the abandonment of his appeal against asentence of 11 years' imprisonment imposed on him by Judge Cathcart in theDistrict Court at Gisborne on 6 November 2020 in relation to a number of sexualoffences.1 Although he appealed against both his conviction and sentence, he did notpursue the sentence appeal. In dismissing the appeal, this Court observed that"[o]riginally the appeal was against conviction and sentence, but the sentence appealis no longer being pursued."2Grounds for application to withdraw abandonment of appeal[2] In sentencing Mr McLean, the Judge took a starting point of 11 years'imprisonment. He then observed "I do not have any further information which allowsme to properly reduce that sentence".3 Although Mr McLean does not directly explainthe circumstances, it appears he was advised in preparation for the appeal that no issuecould be taken with the Judge's starting point and no information was provided tocounsel on any personal mitigating factors that might have been relied on to challengethe sentence. Mr McLean now wishes to bring his alleged neglect and abuse in earlychildhood for consideration on sentencing as background under s 27 of theSentencing Act 2002.[3] For Mr McLean, Mr Jefferson submits it only was while in custodyMr McLean had opportunity to address the abuse he suffered during his earlychildhood in state care. Even so, his comprehension was slow in coming and notsufficiently crystallised even at the time of appeal. Subsequent consultation with hissolicitors has given rise to procuring a s 27 report, identifying a basis on which tocontend his background had a causative contribution to his offending.4 Mr Jefferson1 R v McLean [2020] NZDC 23133 [sentencing decision]. There were two complainants: AB, aged16, and CD, aged 11. With respect to AB, Mr McLean was convicted of two counts of indecentassault under s 135 of the Crimes Act 1961. With respect to CD, Mr Clean was convicted of twocounts of indecent assault on a young person under 16 (s 134(3)) and two counts of unlawfulsexual connection (ss 128(1)(b) and 128B).2 McLean v R [2022] NZCA 114 at [2], n 4.3 Sentencing decision, above n 1, at [18].4 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].argues the interests of justice favour reinstatement of Mr McLean's appeal againstsentence for that reason alone.[4] For the Crown, Mr Auld acknowledges both delayed disclosure of childhoodabuse and its potential materiality to sentencing may have justified reduction of thesentence on appeal. But he says the delay now between sentencing and this applicationundermines the finality of criminal proceedings. Permitting belated sentence appealson such bases as a matter of course would also be detrimental to the workload of thisCourt. He observes Mr McLean's continued denial of the offending means hisbackground may limit any possible reduction in the sentence. He says, however, thatthe Crown would not take issue with the application if the Court finds there are trulyexceptional circumstances here.Governing principles[5] Section 337 of the Criminal Procedure Act 2011 and r 35 of the Court of Appeal(Criminal) Rules 2001 enable abandonment of appeal by notice, expressly advisingthe appellant "does not intend further to prosecute the appeal; and abandons allfurther proceedings concerning that appeal", authenticated or signed by the appellantor their lawyer.[6] But the section and rule do not address abandonment's consequences. ThisCourt accordingly has developed "the test to be applied when the Court is asked to setaside a notice of abandonment",5 being:(a) whether abandonment was a "nullity", that is "not the result of adeliberate and informed decision, in other words the mind of theappellant did not go with his act of abandonment";6 or(b) whether required by the interests of justice in exceptionalcircumstances, having regard to:75 R v Cramp [2009] NZCA 90 at [20]–[26]. This test has been most recently applied in Hayde v R[2023] NZCA 323 at [8]; and Utatao v R [2023] NZCA 70 at [15].6 R v Cramp, above n 5, at [21] referring to R v MacKay [1980] 2 NZLR 490 (CA) citingR v Medway [1976] QB 779 (CA) at 798.7 At [26] referring to R v Curtis CA288/04, 17 February 2005 at [34]; and Bridgeman v R CA87/04,10 November 2005 at [9].(i) the importance of finality in criminal cases;(ii) the circumstances in which the notice of abandonment wasgiven; and(iii) the necessity for an applicant for such an order to satisfy theCourt the reasons for the application are of an exceptionalnature.[7] Exceptional circumstances are "circumstances which are unusual",8 "not unique or very rare but truly an exception rather than the rule."9 So far as "theimportance of finality in criminal cases" is concerned, consideration of that factor is:10 underpinned by concerns about the interests of victims (including thefamily and friends of a deceased victim), witnesses, and the integrity of thecourt's processes which are put at risk if appeals are allowed to be reactivatedafter years of delay. It is also important not to deny other litigants fromaccessing the court's finite resources through the court needlessly revisitingearlier decisions.Discussion[8] In context, Mr Jefferson's written submissions on Mr McLean's unsuccessfulappeal, advising "[t]he appellant does not pursue the appeal against sentence", meetthe statutory requirement for an effective notice of abandonment of the appeal.[9] We consider Mr McLean's late appreciation of his contended foundationalearly childhood abuse is unusual, explicable here by his "reasonable and practicable"custodial access to "rehabilitative programmes and other interventions intended toeffectively assist the rehabilitation and reintegration of offenders into thecommunity".11 But for that access, Mr McLean's own assessment is that "[i]t wasalways something that I blocked out, that I hid. I was ashamed of it and tooembarrassed to talk to anyone about it." Mr Jefferson confirms he was given noindication of any personal mitigating factors for Mr McLean's appeal against sentence.8 Creedy v Commissioner of Police [2008] NZSC 31, [2008] 3 NZLR 7 at [31]–[32] recastingWilkins & Field Ltd v Fortune [1998] 2 ERNZ 70 (CA) at 76 and citing R v Kelly [1999] 2 AllER 13 (CA) at 20.9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34] citing Creedy vCommissioner of Police, above n 8, at [31]–[32].10 Marteley v R [2021] NZCA 636 at [37(b)].11 Corrections Act 2004, s 6(1)(c)(i) and (h).[10] The importance of finality in criminal cases has limited influence here. Anyrisk that other offenders similarly might seek to revisit sentencing is subject to theCourt's grant of any necessary leave. Interests of those affected by Mr McLean'soffending only are affected by knowledge that some relatively modest discount on asubstantial sentence may be sought. Such an appeal would not revisit any aspect ofthis Court's prior considerations. The limited scope of any appeal against sentence asexclusively addressing s 27 factors means its demand on this Court's finite resourcesis light. And, even if "[f]inality is a good thing, justice is a better".12[11] Mr McLean's application essentially is in the interests of justice, to enable anycausative aspects of his late-comprehended background to be taken into account on areinstated appeal against sentence. His background may offer mitigating factorsdistinct from any other considered on Mr McLean's sentencing, such as his lack ofremorse. Or it may not. But the interests of justice are understandably late-emergingfactors of potential relevance to sentencing. They should not be excluded fromconsideration by that late emergence alone.Result[12] In the interests of justice, the application to withdraw notice of abandonmentof appeal against sentence is granted. We set aside Mr McLean's notice ofabandonment of his appeal against sentence.[13] The appeal is reinstated for the purpose of taking into account submissions andevidence concerning personal mitigating circumstances able to be advanced byMr McLean. We record Mr Jefferson's acknowledgement there will be no argumentdirected against the starting point adopted by the sentencing Judge.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent12 Lal v The King Emperor [1933] All ER Rep 723 (PC) at 726 as cited in Ellis v R [2022] NZSC 114,[2022] 1 NZLR 239 at [199], n 206.