FISHER v NEW ZEALAND POLICE [2023] NZHC 1568
Because the District Court sentenced the appellant on charges that had been withdrawn, the sentence was erroneous and must be quashed and the matter remitted to the District Court for sentencing on the remaining charges and the corresponding summary of facts to preserve the appellant's appeal rights.
Source-derived case information.
- Citation
- [2023] NZHC 1568
- Parties
- Appellant: Tommy Shannon Fisher; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 22 June 2023
- Procedural Posture
- Criminal Appeal / Appeal Judgment (high Court)
- Outcome
- Appeal allowed; District Court sentence quashed; matter remitted for resentencing on the remaining charges.
- Legal Topics
- Withdrawn Charges, Remittal for Resentencing, Sentence Quashing, Appeal on Sentencing Error
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tommy Shannon Fisher
Appellant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Appeal Judgment (high Court)
Legal Issues
- 1 Whether the sentence was imposed using charges that had been withdrawn
- 2 Whether that error requires quashing the sentence and remitting for resentencing
- 3 How to preserve the appellant's appeal rights when resentencing occurs in the District Court
Ratio Decidendi
Because the District Court sentenced the appellant on charges that had been withdrawn, the sentence was erroneous and must be quashed and the matter remitted to the District Court for sentencing on the remaining charges and the corresponding summary of facts to preserve the appellant's appeal rights.
Court Disposition
Appeal allowed; District Court sentence quashed; matter remitted for resentencing on the remaining charges.
Orders
- The sentence of two years and three months' imprisonment imposed in the District Court is quashed.
- The matter is remitted to the District Court for sentencing in respect of the remaining charges and on the summary of facts which pertain to those charges.
Full Case Text
Judgment text and source record
1 paragraphs
FISHER v NEW ZEALAND POLICE [2023] NZHC 1568 [22 June 2023]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2023-425-6[2023] NZHC 1568BETWEEN TOMMY SHANNON FISHERAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersAppearances: J A T Ross for AppellantM B Brownlie for RespondentJudgment: 22 June 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 22 June 2023 at 3.15 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 29 March 2023, Judge D G Harvey sentenced the appellant, Mr Fisher, totwo years and three months' imprisonment on a range of charges.1 Mr Fisher filed anappeal against sentence alleging there was an error in sentence because he wassentenced on charges which should not have been before the Court.[2] I have now received a joint memorandum of counsel confirming that the Judgesentenced on a range of charges, and an associated summary of facts, which had notbeen amended to reflect the fact that the following charges had been withdrawn:(a) using a document (x 11); and(b) burglary (x 2).[3] In light of this information, it is clear that there was an error in the sentenceimposed and, consequently, a different sentence should be imposed and the appeal isallowed.2[4] In the circumstances, and to preserve the appellant's appeal rights whensentenced on the correct charges in the District Court, I make the following orders:(a) the sentence of two years and three months' imprisonment imposed inthe District Court is quashed; and(b) the matter is remitted back to the District Court for sentencing in respectof the remaining charges and on the summary of facts which pertainsto those charges.Solicitors:Crown Solicitor, InvercargillCopy To:J A T Ross, Barrister1 New Zealand Police v Fisher [2023] NZDC 6072.2 Criminal Procedure Act 2011, s 250(2).