Filing submissions for sentencing

ADLS’s Criminal Law Committee wishes to let practitioners know about some recent updates in relation to filing submissions for sentencing. This update has been prepared by the Committee’s Convenor, Marie Dyhrberg QC.

The Chief Judges of the High Court and District Courts have advised that following the commencement of part 5A of the Criminal Procedure Rules 2012, the 2014 Practice Note on sentencing in the High and District Courts was revoked on 18 August 2016.

Under the Solicitor-General’s Prosecution Guidelines, once the Crown Prosecution has assumed responsibility for a particular prosecution, then all matters in relation to that prosecution are solely for the Crown Prosecutor to decide, including sentencing, at which time the Criminal Procedure Rules 2012 relating to sentencing submissions will apply.

When the sentencing is being dealt with by Police Prosecutions, then, generally, Police Prosecutions will only file written sentencing submissions if a judge orders written submissions to be filed or if Police Prosecutions deem written submissions to be necessary due to the seriousness of any matter. In these cases, the Police Prosecutor will ask the judge to provide the timetable for the prosecution and defence to file sentencing submissions. Defence can file written submissions for any sentencing matter three working days before sentencing.

In relation to Crown Prosecutions, Counsel are advised to be familiar with the Criminal Procedure Rules 2012, as judges will require strict adherence to the Rules. Rule 5A.4 provides that the prosecutor must file a sentencing memorandum in accordance with Rule 5A.5(1) no later than five working days before the date of the sentencing hearing and the defendant must file a sentencing memorandum in accordance with Rule 5A.5(2) no later than three working days before the date of the sentencing hearing.

If the submissions are not filed in accordance with the Rules, then judges are entitled to require counsel to seek leave to file the submissions and if leave is not granted then the sentencing will be adjourned. Adjournments of sentencing are not in the interests of the parties or of justice. Delays often cause further anxiety to the various participants waiting to know what is to happen to the defendant and have an adverse effect on the efficient use of court resources, and adjournments push the time for sentencing beyond what is reasonable at present. Delays can also frustrate the proper working of the system, under which it is important to adhere to dates fixed for hearing.

Rule 5A.4 sets out what material is to be covered in the submissions by prosecution and by defence to the extent it is applicable, although further relevant material can be added. Rule 5A.6 provides that at the sentencing hearing unless the court directs otherwise, the order of submissions is that the prosecutor goes first, followed by the defendant with no right of reply, except with the leave of the judge. The summary of facts is taken as read.

Counsel have a positive duty on behalf of their clients to take all reasonable steps to ensure the Provision of Advice to Courts (PAC Reports) are ready and available to counsel prior to sentencing so as to take instructions from clients and prepare any submissions in relation to PAC Reports. The main email to follow up on actual report writers and progress of the reports is PACAucklandCourt@corrections.govt.nz

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