VALENTINE v NEW ZEALAND POLICE [2016] NZHC 400

VALENTINE v NEW ZEALAND POLICE [2016] NZHC 400 [10 March 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000116[2016] NZHC 400BETWEEN TONY DEXTER VALENTINEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 March 2016Appearances: N Hansen for AppellantS E Burdes for RespondentJudgment: 10 March 2016JUDGMENT OF GENDALL JBackground[1] On 17 June 2015, the appellant was sentenced in the District Court to 14 months' imprisonment on one charge of drinking with excess breath alcohol third or subsequent offence.1 While the appellant was serving his prison term, on 29 July 2015, he was again called up before Judge Garland in the District Court on sentencing for five charges of obtaining a pecuniary advantage by deception and one charge of theft.2 He was sentenced to a further nine months' imprisonment, to beserved cumulatively on the 14 month term.[2] The appellant now appeals against this nine months' imprisonment sentence for the obtaining pecuniary advantage and theft charges on the basis that it is manifestly excessive in light of a change in circumstances related to a medical condition he has. The appellant contends that had the Judge in the District Court considered his ill health and his need for significant back surgery, then either a1 R v Valentine [2015] NZDC 11097.2 R v Valentine [2015] NZDC 14785.sentence of home detention would have been deemed appropriate, or, this second sentence would have been imposed concurrently and not cumulatively.Jurisdiction[3] The appellant is able to appeal the sentence imposed as of right.3 This Court, as first appeal Court,4 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.5 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6Appeal out of time[4] The present appeal was filed by the appellant on 19 November 2015, almost four months after this sentence was imposed. This is far in excess of the 20 working days allowed for the appellant to exercise his right of appeal against sentence.7However, r 8.5 of the Criminal Procedure Rules states that "a notice that is given out of time must be treated as if it contains an application for extension of time."8[5] In this case, the Court has been guided by the Crown to relevant authorities relating to the grant of leave for appeals out of time.9 Having considered submissions on this aspect, I am prepared to grant leave on the basis that there are potential merits to the proposed appeal and to grant leave here would avoid any possible or potential miscarriage of justice. Furthermore, as I see it, granting leave would not unduly prejudice the Crown in any real way. Leave is granted accordingly.3 Criminal Procedure Act 2011, s 244.4 Section 247.5 Section 250.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.7 Criminal Procedure Act 2011, s 248.8 Criminal Procedure Rules 2012, r 8,8.9 Mikus v R [2011] NZCA 298 at [26].Appeal to adduce further evidence[6] For this appeal the appellant endeavoured to introduce in evidence an affidavit by Mr Michael Thwaites, a prison doctor, as to his present medical condition. Of course leave to do so is required.[7] Under s 335(2)(c) of the Criminal Procedure Act 2011, an appeal court may receive evidence if it thinks it necessary or expedient in the interest of justice. In the present appeal, given that the respondent has little objection to the introduction of this additional evidence, I exercise my discretion to receive this evidence of Mr Thwaites as to the appellant's current medical condition. Leave is granted for this purpose.Substantive submissions[8] Ms Hansen, counsel for the appellant in this appeal, submits that at the time of both the first and second sentencing here, Judge Garland failed to consider theappellant's medical condition. Ms Hansen maintains that had the Court consideredthe appellant's ill health, either a sentence of home detention would have been imposed, or, on the second sentencing, a concurrent rather than cumulative sentence would have been deemed more appropriate.[9] In terms of evidence available at the time of sentencing, counsel however does point out references made in the "Provision of Advice to Courts" report (PACreport). Under the "Income, Work Skills and Education" subheading, the reportstated:Tony Valentine informed that he is in receipt of accidence compensation due to a back injury. He stated that he is awaiting an MRI scan to investigate the injury further and that he is using medication for pain relief.[10] The report then goes on to mention the inability of the appellant to finish his previous sentences of community service. It points out that the imposition of these sentences has not deterred the appellant from further offending.[11] In Judge Garland's original 17 June 2015 sentencing notes, there was brief mention of the defendant's ill health and in particular, at [6] and [9], his back injury.The only real discussion by the Judge was in his summary of factors that theappellant's counsel maintained should be taken into account for considering home detention, including at [9], "[the appellant's] personal circumstance, in particular, [the appellant's] back injury which may require surgery at some time in the future".[12] The respondent suggests, however, that this is a case in which the appellant'sill health only started deteriorating significantly after the sentencing. The appellant in fact had back surgery for his disc prolapse to remove the disc on 18 November 2015 and he maintains now that since that time he has been in more pain than before he had surgery. In circumstances of this kind, the appellant's recourse is not to an appeal against sentence but an administrative application to the Parole Board under the Parole Act 2002 or the Corrections Act 2004.Discussion[13] I do not accept that at the time of sentencing, the defendant was suffering from a substantial medical condition, known to Judge Garland as the sentencing Judge, that required his ill health to be taken into account as a major mitigating factor. This is the first time, as I understand it, that significant evidence is beingadduced about the appellant's deteriorating back pain. While the PAC report brieflymentioned the appellant's previous back injuries, as I see it, these were comments made in passing when discussing the appellant's income and ACC compensation. In the absence of any medical evidence with regard to the appellant's back injury, it was proper for the Judge to give little weight to the defendant's brief submission.[14] It is clear the Court is required to consider a defendant's ill health if it was apparent at the time of sentencing.10 However, where there is no significant evidence of ill health at the time of sentencing, the Court cannot be said to have erred in sentencing.[15] In Poi v R, to which both counsel referred me in submissions, the defendant was victim to a serious assault after sentencing, being beaten up by prison inmates.11As a consequence of that serious assault, Mr Poi suffered traumatic brain injuries and10 R v Luce [2007] NZCA 476 at [24].11 Poi v R [2015] NZCA 300.at the time of appeal, was in a coma. The Court of Appeal refused to intervene, however, because there was an absence of error at the time of sentencing that warranted the Court interfering with the sentence under s 250(2) of the Criminal Procedure Act 2011. The Court of Appeal held that the appropriate response was an administrative one, under s 25(1) and 41(1)(b) of the Parole Act 2002 or s 62(2)(a)(ii) of the Corrections Act 2004.[16] I agree that, in circumstances where the appellant's health conditiondeteriorates after sentencing, the appropriate response is not one to lodge an appeal against that sentence. Instead, as I see it, the proper recourse may involve, for example, filing an application under s 25 of the Parole Act 2002 to notify the chairperson of the appellant's declining health.12 Once an application is lodged, the Chairperson may, under s 41 of the Parole Act 2002, refer the offender to the Parole Board for consideration of compassionate release. A ground for compassionate release under s 41(1)(b) is if the offender is seriously ill and unlikely to recover.13[17] In the alternative, an offender could also apply under s 62 of the Corrections Act 2004 for temporary release from custody due to grounds relating to what is described as compassionate or humane treatment of the prisoner.14Result[18] For all the reasons outlined above, therefore:(a) Leave is granted to bring this appeal out of time.12 Parole Act 2002, s 25.13 Parole Act 2002, s 41(1)(b).14 Corrections Act 2004, s 62(2)(a)(ii).(b) Leave is granted to adduce the fresh evidence of Mr Michael Thwaites.(c) The appeal against sentence is dismissed....................................................Gendall JSolicitors:Nicola Hansen, ChristchurchRaymond Donnelly & Co, Christchurch