WOODWARD v NEW ZEALAND POLICE [2021] NZHC 2367

WOODWARD v NEW ZEALAND POLICE [2021] NZHC 2367 [10 September 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2021-483-012[2021] NZHC 2367BETWEEN SIMON JAMES WOODWARDAppellantAND NEW ZEALAND POLICERespondentHearing: 8 September 2021Appearances: On the papersJudgment: 10 September 2021JUDGMENT OF GRICE J(sentence appeal)Introduction and backgroundThe offending and sentencing[1] On 23 June 2021 Mr Woodward was sentenced by Judge Carter in the MartonDistrict Court to 25 months' and two weeks' imprisonment for six charges, namely:one charge of unlawful possession of a firearm, one charge of unlawful possession ofammunition, one charge of cultivating cannabis, one charge of possessing utensils formethamphetamine, one charge of being unlawfully in a building in Queenstown, andlastly, one charge of unlawfully converting a motor vehicle.1[2] Mr Woodward had appealed his sentence, with that appeal being set down for6 October 2021. However, on 19 August 2021, counsel for Mr Woodward filed a1 Police v Woodward [2021] NZDC 12387.memorandum seeking clarification from the Crown of a factual matter relating to oneof Mr Woodward's charges.[3] Specifically, in relation to the unlawful possession of a firearm charge,Judge Carter had stated in his sentencing notes that when the police had executed asearch warrant on Mr Woodward's address, they had found an 8 mm starter pistol thathad been modified to fire live rounds, and was loaded with four rounds in thechamber.2[4] Importantly, Judge Carter took this as the lead charge, and adopted a startingpoint of 20 months' imprisonment, identifying a range of aggravating features,including the fact that the gun was loaded and that it had four rounds in the chamber:3The lead offence is the unlawful possession of firearm and there are a numberof aggravating features about that. It was an easily accessible pistol under yourbed. The pistol was loaded with four rounds in the chamber and the locatingof that pistol was accompanied at the same time by locating drugs andammunition at the same location.[5] That starting point was adopted by the Judge after having set out a number ofcomparable cases which related to the possession of unlawful loaded guns.Counsel identify an issue with the sentencing[6] In their 19 August 2021 memorandum, counsel for Mr Woodward identifiedthat there was no evidence in the summary of facts for Mr Woodward's offendingwhich indicated that the pistol was loaded, or had four rounds in the chamber. In fact,counsel submitted that the modification of the starter pistol meant that it could onlyhold one round in the chamber at a time, and that when the police seized it, it was notin fact loaded.[7] Counsel requested clarification from the Crown and police as to whether theywere still in possession of the pistol, whether it was unloaded at the time it was seized,whether it could or could not hold four rounds, and whether there was any ammunitionat Mr Woodward's address that could actually be used in the pistol.2 Police v Woodward, above n 1, at [4] & [10].3 At [10].[8] Counsel for Mr Woodward sought clarification on this matter before they filedtheir submissions for the 6 October sentence appeal, as it was their position that ifthere was a factual error in relation to the pistol, this could have affected thesentencing, particularly given the unlawful possession of a firearm was taken as thelead charge.[9] The Crown responded on 27 August 2021. Counsel for the Crown stated thatupon initial enquiries with police, the facts submitted by counsel for the police atsentencing (which the Judge appeared to rely on) were incorrect. The supervisingofficer of Mr Woodward's case file had contacted the police officer who located thepistol, who confirmed that the pistol was not loaded when it was seized. Also, thepistol had been located by police, who had sent it to Wellington for an examination todetermine whether it could be loaded at all and whether it could be loaded with any ofthe ammunition found with the pistol.[10] The Crown conceded that there had been an error of law that may have resultedin a manifestly excessive sentence. The Crown submitted that the matter should beremitted to the District Court for re-sentencing on the correct factual basis unders 251(2)(c) of the Criminal Procedure Act 2011. According to counsel, remitting thematter to the District Court would allow for the factual issues to be resolved byagreement or by a disputed facts hearing and would also allow for any personalmitigating factors not raised by Mr Woodward's previous counsel to be considered.[11] Counsel noted that both the factual issues raised on appeal, and a potential s 27cultural report for Mr Woodward yet to be filed, fell within the ambit of fresh evidencesought to be adduced on appeal which was governed by r 12B of the Court of Appeal(Criminal) Rules 2001. This would ordinarily be in the form of affidavit evidencewhich provides new information or rebuts factual findings of the sentencing court.[12] Counsel also referred to the case of Archer v R, where the Court of Appeal heldthat an appeal of sentence is not generally the venue for disputed factual matters to beraised, and that where the court is satisfied that the disputed facts process described ins 24 of the Sentencing Act 2002 has been miscarried and that the sentence would bemanifestly excessive if the facts alleged by the defendant establish the correct basisfor sentencing, the appeal should be allowed, and the matter remitted for sentence inthe lower court.4[13] Counsel submitted that remittal of the case back to the District Court would bemore appropriate and expedient than considering the factual issues by way of asentence appeal in this Court, and have to wait for affidavit evidence and the processin r 12B of the Court of Appeal (Criminal) Rules 2001 to be carried out.[14] In a reply memorandum of 30 August 2021, counsel for Mr Woodward agreedwith the Crown that the matter should be remitted back to the District Court forsentencing. Counsel also identified an issue with the methodology used byJudge Carter in sentencing Mr Woodward, as it appeared that he had not properlyapplied the methodology required in sentencing following the Court of Appeal'sdecision in Moses v R,5 namely by trying to "offset" the 25 per cent discount for aguilty plea with the 20 per cent uplift for previous convictions.Relevant law and analysisFactual issues raised on appeal[15] Section 251(2)(c) of the Criminal Procedure Act 2011 provides that the firstappeal court, if it allows an appeal, may remit the sentence to the court that imposedit and direct that court to either set aside the sentence and impose another sentence, orvary the sentence.[16] Under s 24 of the Sentencing Act 2002, where a defendant has pleaded guiltybut there are disputed facts affecting aggravating or mitigating factors relevant tosentencing, those aggravating or mitigating facts must be proved in accordance withthe requirements in that provision.[17] Counsel for the respondent helpfully referred to the aforementioned case ofArcher v R. In that case, Mr Archer was sentenced to 14 years' imprisonment on onecharge of causing grievous bodily harm with intent to do so and one charge of4 Archer v R [2017] NZCA 52.5 Moses v R [2020] NZCA 296.unlawfully taking a motor vehicle when he entered the victims' home at night andattacked them. Before sentencing, a disputed facts hearing had not occurred toconsider two critical facts not proven: why Mr Archer used weapons against one ofthe victims and whether he committed a premeditated home invasion. A disputed factshearing was only called for one factual issue (whether Mr Archer took an axe handleto the house), and this hearing was in fact averted when the Crown conceded the point.[18] However, at sentencing, the Judge applied those unproven facts as aggravatingfeatures of the offending. Mr Archer subsequently appealed the decision on the basisthat that the Judge's starting point depended on aggravating features that had neitherbeen proved at trial nor established during a sentencing hearing.[19] The Court of Appeal found in Mr Archer's favour. The Court held that the s 24process was not followed, as those unproven facts were unquestionably influential inthe Judge selecting the starting point, and held that the starting point for this reasonwas manifestly excessive:6The Judge adopted a 14-year starting point in reliance on facts that had beendisputed and could not be taken to have been proved beyond reasonable doubtby the evidence already heard. Mr Archer's account invites scepticism but itcould not be discounted without hearing from him, if that was his wish. Weaccept that if all of the disputed facts fell his way, the end sentence would bemanifestly excessive.[20] The Court declined to adjust the sentence itself, instead holding that under thethen s 385 of the Crimes Act 1961 (the very similarly worded predecessor to s 251 ofthe Criminal Procedure Act 2011), where a court is satisfied both that the s 24 processhas miscarried and that the sentence would be manifestly excessive if the facts allegedby the defendant establish the correct basis for sentencing, then it may allow the appealand remit a sentence to the lower court for re-sentencing.7[21] Furthermore, in Adams on Criminal Law, the authors have noted that wherethere has been an error of process (for example judicial reliance on a disputed factwithout holding a disputed facts hearing under s 24), the appeal will only be upheld if6 Archer v R, above n 4, at [22].7 At [27].the error has a bearing on whether the sentence was manifestly excessive.8 If the erroris material in that determination, the court may adjust the sentence itself, if necessaryholding its own sentencing hearing or alternatively, it may remit the case to thesentencing court with the appropriate direction under s 251.9 The "preferred course"is for the sentencing to be reconsidered by the trial court, with the decision whether tohold a s 24 hearing left to that court.10[22] There does not appear to have been a disputed facts hearing in this case, at leastin relation to whether the modified pistol was loaded, whether there was anyammunition at Mr Woodward's address that could actually be used in the pistol, andwhether it was capable of holding four founds in the chamber. The reason for this isunclear. However, the Judge relied on the police submissions and considered thoseunproven facts (which are now conceded by the respondent to be incorrect) to beaggravating features of the offending. The Judge therefore relied on analogous casesinvolving loaded guns to set the starting point. The Judge's reliance on these facts hasresulted in a sentence that was manifestly excessive.[23] It is appropriate to allow the appeal and remit the sentence back to theDistrict Court under s 251(2)(c) for re-sentencing. Any arguments relating tothe Judge's methodology and/or adducing a s 27 report can then be dealt with duringthat re-sentencing process.Result[24] There is a significant factual error in Mr Woodward's sentencing relating to theunlawful possession of a firearm charge which has led to a manifestly unjust sentence.It appears this was as a result of submissions made at the sentencing, adopted bythe Judge in error. A disputed facts hearing, which may have clarified the issue, wasnot held.8 Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at SAB5.01, citingBanaba v R [2016] NZCA 122 at [22], [24] and [28]; Wang v R [2016] NZCA 56 at [23]; andFrench v R [2014] NZCA 297 at [7]–[8].9 At SAB5.01.10 See Mowbray v R [2018] NZCA 560 at [41] and Adams on Criminal Law – Sentencing at SA24.10.[25] Therefore, the appeal is allowed and the matter is remitted back to theDistrict Court for re-sentencing. That order is made accordingly under s 251(2)(c) ofthe Criminal Procedure Act 2011._____________________Grice JSolicitors:Debbie Goodlet, for the appellantWilkinson Smith Lawyers, for the Crown