IN THE Court of appeal OF new Zealand
	
CA459/2012
[2013] NZCA 246

BETWEEN	
NICHOLAS OWEN JONES
Appellant	

AND	
THE QUEEN
Respondent	

Court:	
Arnold, Simon France and Dobson JJ	

Counsel:	
P H Tomlinson for Appellant
K A L Bicknell for Respondent	

Judgment:
(On the papers)	
20 June 2013 at 11.30 am	

JUDGMENT OF THE COURT

A	The time for appealing the sentences imposed by Woodhouse J on 31 May 2011 and Lang J on 9 September 2011 is extended.
B	The appeal against the cumulative sentence of four years, five months’ imprisonment imposed by Woodhouse J for possession of methamphetamine is allowed.  The decision to make that sentence cumulative on another sentence is quashed.  It is to be served concurrently with all other sentences imposed on that day.
C	The appeal against the sentence imposed by Lang J of six years, one month’s imprisonment, to be served cumulatively on a sentence of three years, nine months’ imprisonment imposed by Woodhouse J for using a firearm against a police officer, is dismissed.
D	The effect is that Mr Jones will be subject to a sentence of nine years, ten months’ imprisonment.  The minimum period of imprisonment imposed by Lang J is unaffected.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Background
[1]	Mr Jones was sentenced by Woodhouse J to cumulative terms of imprisonment, being:
(a)	four years, five months for methamphetamine offending; and
(b)	three years, nine months for firearms offending.
[2]	There were concurrent terms for other offending, but these were the two operative sentences producing a nominal single sentence of eight years, two months’ imprisonment.
[3]	Subsequently further drug offending came to light.  Lang J determined the appropriate course was to assess all the drug offending together, that is, the offending already considered by Woodhouse J as well as the new offending.  Taken together, His Honour assessed the appropriate sentence for the drug offending as being six years, one month’s imprisonment.
[4]	Lang J intended to make the new sentence cumulative on the firearms sentence, but concurrent with the existing drug sentence imposed by Woodhouse J.  The effect would be that Lang J’s longer sentence would become the determining sentence of the second link.  It was, therefore, envisaged the sentencing structure would be:
(a)	offence one (firearm) – three years, nine months’ imprisonment;
(b)	offence two (drugs) – four years, five months’ imprisonment, cumulative on offence one;
(c)	offence three (drugs) – six years, one month’s imprisonment, also cumulative on offence one, but concurrent with offence two.
[5]	The effective sentence would be nine years, ten months’ imprisonment.  There was also a minimum term of imprisonment of three years applicable to the drugs sentence.  It would begin once Mr Jones became parole eligible on the firearms charge, which had no minimum period.
The problem
[6]	Unbeknown to Lang J, the initial sentences imposed by Woodhouse J had been dealt with in the warrant in this manner:
(a)	offence two (drugs) – four years, five months’ imprisonment;
(b)	offence one (firearms) – three years, nine months’ imprisonment, cumulative on offence two.
[7]	The sentence imposed by Lang J was:
(a)	offence three (drugs) six years, one month’s imprisonment, cumulative on offence one.
[8]	The effect is that there are now three links in the chain, totalling a notional single sentence of 14 years, three months’ imprisonment.  The minimum periods of imprisonment imposed with the drug sentences also run consecutively rather than concurrently.
[9]	This was not the sentence that Lang J intended to impose.  The Crown agrees, and invites the Court to determine the appeal on the papers, adjusting matters so as to impose the sentence that was intended.  A joint memorandum has been filed.
Judgment
[10]	The appeal notice initially referred only to the sentence of Lang J.  However, the sentence that must be adjusted is that imposed by Woodhouse J.  At the Court’s suggestion an appeal has now been filed in relation to that earlier sentencing.  Both appeals are out of time but we extend the period for filing.
[11]	The sentence imposed by Woodhouse J is varied in that the sentence for possessing methamphetamine for supply is made concurrent with the sentence for using a firearm against a police officer.  That means that the outcome of that sentencing occasion is five concurrent sentences, the longest of which is four years, five months’ imprisonment, with a minimum period of imprisonment of two years, two months.
[12]	The appeal against the sentence imposed by Lang J is dismissed.  The effect is, therefore, that the sentence of imprisonment imposed by him of six years, one month’s imprisonment (CRN 11004504097) will be cumulative on the sentence of three years, nine months’ imprisonment imposed by Woodhouse J for CRN 10004008539, using a firearm against a police officer.

Solicitors: 
Crown Law Office, Wellington for Respondent