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Jacob Lowenstein v/s The Queen


Company & Directors' Information:- R J JACOB LTD [Strike Off] CIN = U51109WB1949PLC018230

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 363 of 2019

    Decided On, 24 March 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE MILLER & THE HONOURABLE MR. JUSTICE GILBERT

    For the Appellant: J.D. Lucas, Advocate. For the Respondent: B.F. Fenton, Advocate.



Judgment Text


REASONS OF THE COURT

(Given by Gilbert J)

[1] In a results judgment delivered on 21 February 2020, we dismissed this appeal for want of jurisdiction.[1] These are our reasons for our conclusion that the High Court is the first appeal court for this appeal against sentence.

[2] Jacob Lowenstein engaged in two distinct sets of offending some eight months apart (all category 3 offences). The first set of offending — burglary and assault with intent to injure — occurred on 20 June 2018. Mr Lowenstein was charged with these offences on 27 June 2018 (set A charges). He pleaded not guilty and elected trial by jury on the set A charges on 2 August 2018. However, on 17 October 2018, Mr Lowenstein pleaded guilty to these charges and was remanded on bail for sentencing.

[3] While on bail awaiting sentencing on the set A charges, Mr Lowenstein committed the second set of offending — arson and unlawfully taking a motor vehicle on 11 March 2019, and a second arson at the same property on 13 March 2019. Mr Lowenstein was charged with these offences on 2 April 2019 (set B charges). He entered guilty pleas to the set B charges on 3 April 2019.

[4] On 14 June 2019 Judge Saunders sentenced Mr Lowenstein to six years and nine months’ imprisonment for the totality of this offending.[2] The Judge adopted a starting point of nine years’ imprisonment for the two arson charges.[3] He uplifted the starting point by 18 months for the set A charges. The Judge allowed a discount of 12 months for personal mitigating factors and a further discount of 25 per cent for the guilty pleas. This brought the indicative end sentence down to seven years and one month’s imprisonment. The Judge adjusted this for totality to arrive at an end sentence of six years and nine months’ imprisonment, constructed as follows:[4]

• (a) 13 March 2019 arson — six years’ imprisonment (set B).

• (b) 11 March 20119 arson — four years’ imprisonment (concurrent) (set B).

• (c) Unlawful taking of a motor vehicle — two years’ imprisonment (concurrent) (set B).

• (d) Assault with intent to injure and burglary — nine months’ imprisonment (cumulative) (set A).

[5] Mr Lowenstein filed a notice of appeal against sentence in this Court. He contended that the end sentence of six years and nine months’ imprisonment was manifestly excessive and insufficient allowance was made for personal mitigating factors and his participation in restorative justice.

[6] The appeal was scheduled to be heard on 27 February 2020. However, shortly prior to the hearing, a question as to this Court’s jurisdiction to hear the appeal arose, namely whether this Court or the High Court is the first appeal court for this appeal. The parties consented to this issue being dealt with on the papers.

[7] The appellate pathways for sentence appeals are set out in s 247 of the Criminal Procedure Act 2011(the Act). This relevantly reads:

247 First appeal courts

(1) The first appeal court for an appeal under this subpart is—

...

(b) the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge and if—

...

(ii) the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or

(c) the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge for a category 3 offence and if—

(i) the convicted person elected a jury trial; and

(ii) the convicted person pleaded guilty to the offence before the trial; and

(iii) the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or

(d) either the Court of Appeal or the Supreme Court, in any other case.

[8] Counsel for Mr Lowenstein suggests that the first appeal court is assessed by reference to the aggregated end sentence and this Court is the first appeal court in terms of s 247(1)(c). However, the Crown inclines to the view that the first appeal court is to be determined on a sentence-by-sentence basis and accordingly the High Court is the first appeal court in this case. We are grateful to counsel for their submissions.

[9] It will be seen that if Mr Lowenstein had been sentenced separately for each set of offences, any appeal would be to the High Court. In respect of the more serious (set B) offending, Mr Lowenstein did not elect a trial by jury and accordingly s 247(1)(b)(ii) would apply. Equally, if Mr Lowenstein had been sentenced separately on the set A charges, any appeal against sentence would also lie to the High Court. This is because, although he elected trial by jury on those charges, his sentence on those charges did not exceed five years’ imprisonment and accordingly s 247(1)(c) would apply.

[10] We can see no policy reason why these clear appellate pathways to the High Court should be derailed merely because sentencing on all charges occurred at the same time and the overall end sentence exceeded five years’ imprisonment. It would mean in this case that the election of trial by jury on the set A charges, which was superseded by the guilty pleas (and therefore had no continuing relevance), would result in the appellate pathway being redirected to this Court even though the penalty for the set A charges was only nine months’ imprisonment. This would be tantamount to the jury trial tail wagging the summary jurisdiction dog. We do not consider Parliament could have intended this.

[11] Had Parliament intended this “drag-along” outcome, we expect it would have said so expressly, as it has in other comparable contexts. For example, s 139 of the Act provides that where two or more charges against a defendant are to be heard together, if one charge is to be tried by a jury, all charges must be tried by a jury. Similarly, if one charge is to be tried in the High Court, all charges must be tried in the High Court.

[12] Additionally, the Act provides a solution for situations where there are conflicting appellate pathways. Section 321 of the Act specifies how jurisdiction is determined where appeals lie to different appeal courts under the general provisions and reconciles these by applying drag along provisions. Section 321 relevantly provides:

321 Related appeals that are to be heard by Court of Appeal

(1) This section applies if—

...

(b) a convicted person appeals to the Court of Appeal against sentence under section 244 or the prosecutor appeals to that court against sentence under section 246.

(2) Appeals arising from the exercise of a related right of appeal by the convicted person or the prosecutor must be heard and determined by the Court of Appeal.

[13] A “related right of appeal” is defined in s 320 and relevantly includes:

320 Meaning of related right of appeal

(1) For the purpose of section 321, related right of appeal,—

(a) in relation to a first appeal by a convicted person to the Court of Appeal against conviction or sentence, means a right of appeal to the High Court or the Supreme Court against conviction or sentence for—

(i) an offence that arises from the same incident or series of incidents as the offence to which the appeal to the Court of Appeal relates; or

(ii) an offence for which the convicted person was sentenced on the same occasion as that on which the sentencing court imposed the sentence to which the appeal to the Court of Appeal relates:

(b) in relation to a first appeal by a convicted person to the Court of Appeal against conviction, means a right of appeal to the High Court or the Supreme Court against the sentence for the offence to which the appeal to the Court of Appeal relates:

...

[14] If Mr Lowenstein had been sentenced to more than five years’ imprisonment on the set A charges, his appeal would lie to this Court under s 247(1)(c). In that event, any appeal against sentence on the set B charges would also be dealt with by this Court by virtue of s 321(2) as a related right of appeal in terms of s 320(1)(a)(ii). This is because the sentencing for both sets of charges occurred on the same occasion. That would be so even though the usual appellate pathway for any appeal against sentence on the set B charges would have been to the High Court under s 247(1)(b)(ii), no election of trial by jury having been made in respect of those charges.

[15] We consider a sentence-by-sentence approach was intended by Parliament under s 247, not an aggregated approach. This fits with the wording of s 247 which relevantly focuses attention on “the sentence ... for a category 3 offence” and whether the person elected jury trial for that offence. It is also consistent with the

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express provisions in s 321. If this Court is the first appeal court for a particular sentence, then any appeal against other sentences for offences arising out of the same incident or series of incidents or imposed on the same sentencing occasion, will also be to this Court by virtue of s 321. In this case, none of the sentences under appeal fall within the jurisdiction of this Court. Section 321 is not engaged. [16] For these reasons, we conclude that the High Court is the first appeal court for Mr Lowenstein’s appeal against sentence. His appeal to this Court must accordingly be dismissed for want of jurisdiction. Result [17] The appeal is dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal. ------------------------------------------------------------------ [1] Lowenstein v R [2020] NZCA 25. [2] R v Lowenstein [2019] NZDC 11538. [3] At [20]. [4] At [21].
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