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IN THE COURT OF APPEAL OF NEW ZEALAND<br />

CA443/2010<br />

[2012] NZCA 591<br />

BETWEEN<br />

AND<br />

DAVID GEORGE SAGGERS<br />

Appellant<br />

THE QUEEN<br />

Respondent<br />

Hearing: 19 November 2012<br />

Court:<br />

Counsel:<br />

Judgment:<br />

Wild, Chisholm and Courtney JJ<br />

R M Mansfield for Appellant<br />

M D Downs for Respondent<br />

18 December 2012 at 10 am<br />

JUDGMENT OF THE COURT<br />

A<br />

An extension of time for the appeal is granted.<br />

B<br />

The appeal is allowed.<br />

C<br />

The sentences imposed by the High Court are quashed.<br />

D<br />

Pursuant to s 385(3)(c) of the Crimes Act 1961, this case is remitted to<br />

the High Court with the direction that it determine the disputed facts<br />

relevant to sentence, and then resentence the appellant.<br />

____________________________________________________________________<br />

REASONS OF THE COURT<br />

(Given by Wild J)<br />

SAGGERS V R COA CA443/2010 [18 December 2012]


[1] Mr <strong>Saggers</strong> appeals against a sentence of 12 years’ imprisonment with a<br />

minimum non-parole period of six years imposed by White J in the High Court at<br />

Auckland on 24 March 2010. 1<br />

[2] The regrettable circumstances we will outline leave us no practical alternative<br />

but to allow this appeal, quash the sentence under appeal, and remit the matter to the<br />

High Court, for resentencing by a Judge who has determined the facts that are in<br />

dispute.<br />

[3] We wish to record at the outset that this situation in no way reflects adversely<br />

on White J. Indeed, he took meticulous steps to try and avoid the situation that has<br />

arisen.<br />

[4] Mr <strong>Saggers</strong> faced 13 charges mainly relating to the Class A controlled drug<br />

methamphetamine and unlawful possession of firearms and ammunition. The most<br />

serious of those charges were the first two:<br />

Section 6(1)(c)<br />

Misuse of Drugs Act 1975<br />

1 THE CROWN SOLICITOR AT<br />

AUCKLAND charges that DAVID<br />

GEORGE SAGGERS between 31<br />

May 2003 and 5 December 2007, at<br />

Auckland, supplied the Class A drug<br />

methamphetamine to another.<br />

REPRESENTATIVE<br />

Section 6(1)(b)<br />

Misuse of Drugs Act 1975<br />

2 THE CROWN SOLICITOR AT<br />

AUCKLAND charges that DAVID<br />

GEORGE SAGGERS between 31<br />

May 2003 and 5 December 2007, at<br />

Auckland, manufactured the Class A<br />

drug methamphetamine.<br />

REPRESENTATIVE<br />

[5] Mr Leary acted for Mr <strong>Saggers</strong> in respect of these charges. When<br />

Mr <strong>Saggers</strong> was arraigned at the start of his trial on 15 February 2010, he pleaded<br />

guilty to all the charges except counts 1 to 4, to which he entered pleas of not guilty.<br />

The trial proceeded on those four counts.<br />

1<br />

R v <strong>Saggers</strong> HC Auckland CRI-2008-090-4576, 24 March 2010 [sentencing judgment].


[6] The first Crown witness was a Ms Bracey, who had married Mr <strong>Saggers</strong> in<br />

1998, but separated from him in September 2003. In broad summary, Ms Bracey<br />

gave evidence that Mr <strong>Saggers</strong> had become involved with methamphetamine in<br />

about 2001–2002, and had begun manufacturing methamphetamine in the garage at<br />

the couple’s home in Riverhead. She described Mr <strong>Saggers</strong> constantly having “a<br />

hive of people around him” if he was home. She deposed to seeing big polythene<br />

bags of pink and white ContacNT capsules 2 in the garage, to Mr <strong>Saggers</strong> evaporating<br />

clear liquid in Pyrex dishes in the garage, to Mr <strong>Saggers</strong> handling large bundles of<br />

cash, and to finding a large sum of cash hidden in the garage. Ms Bracey also gave<br />

evidence that Mr <strong>Saggers</strong>’ business, HD Drainage, was an invoice and not a cash<br />

business, except for the “odd cash job”, which was never large.<br />

[7] Although Mr Leary cross-examined Ms Bracey at some length, he did not<br />

seek to challenge the gist of the evidence we have outlined.<br />

[8] On the second day of the trial, 17 February, the Crown called Ms Young. She<br />

was the seventh witness for the Crown. Ms Young told the Court that she had been<br />

in a relationship with Mr <strong>Saggers</strong> from about August 2003 until January 2004. Her<br />

evidence was to much the same effect as that of Ms Bracey summarised in [6] above.<br />

Ms Young was still giving her evidence-in-chief when the Court adjourned at the end<br />

of Wednesday 17 February.<br />

[9] When the Court resumed on Thursday 18 February Mr Leary asked that<br />

Mr <strong>Saggers</strong> be re-arraigned. He then pleaded guilty to counts 1 and 2 and was<br />

convicted on those counts, and remanded in custody. At the Crown’s request<br />

Mr <strong>Saggers</strong> was discharged on counts 3 and 4. The trial concluded. Sentencing was<br />

scheduled for 24 March 2010.<br />

[10] The day before sentencing, White J issued a minute. 3 He recorded that he<br />

had received the Crown’s sentencing submissions dated 14 March, and the defence<br />

sentencing memorandum dated 19 March. The Judge noted that the defence<br />

submissions took issue: 4<br />

2<br />

3<br />

4<br />

These capsules contain the methamphetamine precursor substance pseudoephedrine.<br />

R v <strong>Saggers</strong> HC Auckland CRI-2008-090-4576, 23 March 2010 (Minute No 4).<br />

At [3].


… with the Crown’s “aggravating features” relating to the scale of<br />

operations and period of offending, the presence of ammunition and<br />

weapons and harm to the visiting child.<br />

[11] Pursuant to s 24(2) of the Sentencing Act 2002, the Judge then gave the<br />

parties this indication:<br />

[6] I indicate that I would give considerable weight to the following<br />

disputed facts which would be of particular significance to the sentence in<br />

this case in putting the case well within Band 3 in R v Fatu [2006] 2 NZLR<br />

72 (CA) —<br />

a) The ContacNT found at the accused’s house could have<br />

yielded between 100 and 300 grams of methamphetamine.<br />

b) The equipment, the precursors and the $253,720 found<br />

further supports the conclusion that it was a large scale<br />

commercial enterprise.<br />

c) It was an ongoing concern from 31 May 2003 to 5 December<br />

2007, a period of four years and seven months.<br />

d) The presence of ammunition and weapons related to the<br />

operation.<br />

[7] Subject to any further evidence which the defence may wish to<br />

adduce, I would propose to take into account in addition to the evidence<br />

adduced at the trial, especially the unchallenged evidence of [Ms Young], the<br />

further statements provided by the Crown from Jason Otis and Gregory<br />

Holmes.<br />

[8] The parties should now advise the Court whether they wish to rely<br />

on the disputed facts and whether they wish to adduce further evidence.<br />

[12] The remarks White J made to Mr <strong>Saggers</strong> when sentencing him on 24 March<br />

2010 included the following:<br />

Disputed facts<br />

[10] You took issue with the Crown’s submissions on “aggravating<br />

features” relating to the scale of your operation and the period of offending,<br />

the presence of ammunition and weapons.<br />

[11] I indicated in a minute issued yesterday to counsel that I would give<br />

considerable weight to the disputed facts which were of particular<br />

significance in putting the case within band 3 in R v Fatu [2006] 2 NZLR 72<br />

(CA) the leading Court of Appeal case for sentencing purposes and that I<br />

would take into account the evidence adduced at the trial, especially the<br />

unchallenged evidence of your former partner, and in addition the further<br />

statements provided by the Crown from Mr Otis and Detective Sergeant<br />

Holmes. I gave you the opportunity to adduce further evidence and to crossexamine<br />

Mr Otis and Detective Sergeant Holmes.


[12] Your counsel has advised me today that he does not seek to adduce<br />

further evidence or ask for Mr Otis and Detective Sergeant Holmes to be<br />

called for cross-examination on their statements. This means that I may now<br />

accept this evidence which indicated in my minute established the disputed<br />

facts for the purpose of band 3.<br />

[13] Your former wife and partner gave evidence during your trial before<br />

you pleaded guilty to the manufacturing and supplying charges. Your former<br />

wife was cross-examined on her evidence, but the evidence of your former<br />

partner was unchallenged. Indeed you pleaded guilty immediately after her<br />

evidence in chief had been completed. On the basis of their evidence, which<br />

was credible and compelling as to what they saw you doing, I accept it has<br />

been established beyond reasonable doubt that you were manufacturing and<br />

supplying methamphetamine on a large scale commercial basis between<br />

31 May 2003 and January 2004.<br />

[14] On the basis of the items discovered by the police as a result of their<br />

searches of your home and commercial premises, including the ContacNT,<br />

the equipment, the precursors and the $253,720, together with the<br />

unchallenged further evidence of the ESR Forensic Scientist, Mr Otis, and<br />

the Police expert witness, Detective Sergeant Holmes, I accept that it has<br />

been established beyond reasonable doubt that your large scale commercial<br />

manufacturing and supply operation continued from 31 May 2003 to<br />

5 December 2007, a period of four years and seven months. You declined<br />

the opportunity to challenge the evidence which established the disputed<br />

facts.<br />

[15] The factual conclusions that I have reached are supported by your<br />

pleas of guilty to the manufacturing and supply charges both of which refer<br />

to the period of 31 May 2003 to 5 December 2007. I am bound to accept all<br />

the facts essential to your pleas of guilt: Sentencing Act 2002, s 24(1)(b).<br />

[13] Under the heading “Defence Submissions”, the Judge also made these<br />

remarks to Mr <strong>Saggers</strong>:<br />

[33] You dispute the Crown’s assertions that the amount of<br />

methamphetamine manufactured and the size of the operation meant that it<br />

was commercially significant. You say that the evidence from the Crown’s<br />

witnesses covered only the period up to January 2004. You say that your<br />

former wife’s evidence has inconsistencies, and a possible financial motive<br />

reduced her credibility. You note that your former partner was not crossexamined<br />

and at the time she was heavily addicted to methamphetamine.<br />

[34] On the aggravating factors the Crown put forward, as to the scale of<br />

the operation and the period of offending, your counsel acknowledged that<br />

there was not a complete absence of commerciality, but disputed the length<br />

and level of commerciality that the Crown relied on.


[14] In evidence before us Mr Leary said that he had spoken to Mr <strong>Saggers</strong> in the<br />

Court cells following the sentencing. He produced a file memo he had dictated the<br />

following day, 25 March. 5 The memo includes the following:<br />

This was a wide ranging discussion of some concern.<br />

Mr <strong>Saggers</strong> was disgruntled having just received a 14 year sentence reduced<br />

by 15% to 12 years with a non parole period of 50% - i.e. 6 years of which<br />

he will serve 5 having been on remand for over 1 year.<br />

He then proceeded with a litany of issues which included:<br />

…<br />

3. I advised Mr <strong>Saggers</strong> that even if [he] had given evidence he would<br />

never have been believed with the powerful effect of the two female<br />

witnesses who did not know each other and had no reason to like<br />

each other and had not conspired against him but their general<br />

evidence was in every way confirmed by the ESR Scientist Dr Otis.<br />

4. He then questioned the wisdom of pleading guilty to the minor<br />

offences on the morning of trial as being to no avail and then the<br />

subsequent pleading of guilty three days later on the 18 th of<br />

February. I told him that he would never have achieved a 15%<br />

discount and if he had challenged all throughout the hearing he<br />

would have got the full 14 years with may be greater non-parole<br />

period given that the “scourge” frequently referred to by the Courts<br />

would have attracted greater penalty.<br />

5. I informed him that if he was dissatisfied (having already cast<br />

aspersions on David Jones QC handling of events) he was welcome<br />

to get another opinion but that could result in the possible loss of the<br />

discount and furthermore add alteration to the sentence including an<br />

uplift of non-parole.<br />

…<br />

7. He was clearly disturbed …<br />

8. I took the precaution of taking Mr Scott Clark with me …<br />

[15] Subsequently – we were not given the precise date – Mr <strong>Saggers</strong> terminated<br />

his instructions to Mr Leary. Mr Mansfield was then instructed.<br />

[16] Assisted by Mr Mansfield, on 15 July 2010, Mr <strong>Saggers</strong> filed a notice of<br />

appeal against sentence. That notice stated as the first ground of appeal:<br />

5<br />

Exhibit H to Mr Leary’s affidavit sworn on 31 January 2012.


1) <strong>My</strong> counsel failed to cross examine relevant witnesses in<br />

accordance with my instructions at trial; and/or failed to<br />

pursue a Disputed Facts Hearing; and/or failed to call<br />

evidence at my Sentencing Hearing.<br />

[17] The notice sought an extension of time for the appeal. Mr <strong>Saggers</strong> gave as<br />

his reason for the late filing of the appeal:<br />

I was unhappy with my previous representation and accordingly<br />

sought different counsel. That took time and delayed the process of<br />

Appealing my Sentence.<br />

[18] In his minute of 30 August 2010, Hammond J directed that the application for<br />

an extension of time be dealt with at the hearing. Given Mr <strong>Saggers</strong>’ explanation for<br />

the delay in appealing, and the lack of opposition by the Crown to an extension, we<br />

extend time for the filing of the appeal.<br />

[19] Mr <strong>Saggers</strong> supported his appeal with an affidavit sworn on 21 July 2011. In<br />

this affidavit he contended that his only involvement in manufacturing<br />

methamphetamine was to evaporate methamphetamine which had been given to him<br />

by Mr Sowman and Mr Kareus between 2003 and January 2004. He said that he had<br />

instructed his trial counsel, Mr Leary, to challenge the level of his offending as<br />

alleged by the Crown. Mr Leary had advised him that he would make that challenge<br />

and that the level of Mr <strong>Saggers</strong>’ methamphetamine activity would be resolved at<br />

sentencing. Mr <strong>Saggers</strong> stated that Mr Leary had not further advised him before he<br />

was sentenced, and in particular had not advised him of the options of a disputed<br />

facts hearing or resolving the level of his offending by agreement with the Crown.<br />

Mr <strong>Saggers</strong> said that Mr Leary had not followed his instructions, with the result that<br />

he had been sentenced on an incorrect basis and received a sentence which was<br />

manifestly excessive.<br />

[20] Under cross-examination, Mr <strong>Saggers</strong> remained adamant that Mr Leary had<br />

not advised him that he could have a disputed facts hearing. It had never been<br />

mentioned. He was also adamant that Mr Leary had not advised him that disputing<br />

facts could result in a worse outcome for Mr <strong>Saggers</strong> in terms of sentence. He said<br />

that Mr Leary had not advised him that pressing on with a disputed facts hearing<br />

may mean that he would not get a discount for pleading guilty, cooperation and so


on. Mr <strong>Saggers</strong> said that he had never agreed with Mr Leary not to call any<br />

evidence, and to deal with disputed facts only by way of submissions to the Judge.<br />

[21] Following a waiver of privilege, the Crown obtained an affidavit from<br />

Mr Leary, who deposed:<br />

3.11 The appellant well understood that he was entitled to have a disputed<br />

fact hearing. I explained to him that neither his evidence nor those<br />

who were to support him had sufficient cogency to persuade any<br />

Judge. …<br />

…<br />

3.13 The appellant accepted that for the purposes of sentencing there<br />

would be no evidence and that we would rely on my submissions.<br />

[22] However, under cross-examination, Mr Leary accepted that he had not<br />

advised Mr <strong>Saggers</strong> “in so many words” that he could proceed to a disputed fact<br />

hearing regarding the extent of his offending. Mr Leary said that he had advised<br />

Mr <strong>Saggers</strong> a long time before he was sentenced “that the only way [he] could<br />

dispute the commerciality was by way of witness submission and not by viva voce<br />

evidence.” Mr Leary was firm in his view that “the quality of [the evidence<br />

Mr <strong>Saggers</strong> could give or call] didn’t stack up”.<br />

[23] We accept Mr <strong>Saggers</strong>’ evidence that, despite pleading guilty to all the<br />

charges save the two on which he was discharged, he wanted to dispute the facts of<br />

the offending he had admitted. Mr Leary accepted that, as was demonstrated by the<br />

sentencing submissions he made for Mr <strong>Saggers</strong> to White J.<br />

[24] In that situation, proper discharge of his professional duties required<br />

Mr Leary to advise Mr <strong>Saggers</strong> of his ability to dispute the facts by giving and<br />

calling evidence at a disputed facts hearing under s 24(2)(b) of the Sentencing Act.<br />

[25] We find that Mr Leary did not at any stage do that. There may well have<br />

been sound reasons why Mr Leary would want to advise Mr <strong>Saggers</strong>, in the strongest<br />

possible terms, not to require a disputed facts hearing under s 24. But that does not<br />

relieve Mr Leary of his duty to advise Mr <strong>Saggers</strong> of his right to request a disputed


facts hearing. If Mr <strong>Saggers</strong> was not aware of that right, he could not make an<br />

informed decision not to exercise it.<br />

[26] In some other cases this Court has itself conducted a disputed facts hearing.<br />

That course is not practicable here. That is because the sentencing process needs to<br />

be undertaken afresh. Mr <strong>Saggers</strong> intends giving, and possibly calling, evidence that<br />

is almost directly contrary to the evidence that was given at the trial before White J<br />

by Ms Bracey, and later by Ms Young. We do not know what further evidence the<br />

Crown may wish to call in response to that adduced by Mr <strong>Saggers</strong>. That situation<br />

can only adequately be dealt with in the High Court. The transcript of the evidence<br />

taken at the trial, in particular the evidence of Ms Bracey and Ms Young, will be<br />

available to the resentencing Judge. The fact that that evidence was not really<br />

challenged by Mr Leary at trial (and in the case of Ms Young was not challenged at<br />

all) is a difficulty for Mr <strong>Saggers</strong> that will need to be confronted by counsel<br />

representing him at the resentencing.<br />

[27] Counsel for the Crown and Mr Mansfield both referred us to this Court’s<br />

decisions in R v Chicoine 6 and R v Gatenby. 7 In a situation not dissimilar to this,<br />

Gatenby followed Chicoine in holding that this Court had no power to quash a<br />

sentence and remit the case back to the sentencing court (in that case the District<br />

Court) for a disputed facts hearing to be followed by a resentencing of the prisoner. 8<br />

[28] However, since Chicoine and Gatenby were decided in 2005, s 385 of the<br />

Crimes Act 1961, which deals with determination of appeals in ordinary cases, has<br />

been amended by adding provisions enabling this Court to remit the case back to the<br />

sentencing court. The relevant provisions are s 385(2A) and (3), the latter of which<br />

came into force on 26 June 2008:<br />

(2A)<br />

This subsection applies to—<br />

(a)<br />

an appeal to … the Court of Appeal against sentence:<br />

…<br />

6<br />

7<br />

8<br />

R v Chicoine CA220/04, 21 March 2005.<br />

R v Gatenby CA511/04, 28 April 2005.<br />

At [16]–[17].


(3) On any appeal to which subsection (2A) applies, the Court of Appeal …<br />

must—<br />

(c)<br />

…<br />

(b)<br />

if it thinks that a different sentence should have been passed,–<br />

(i) quash the sentence and replace it with another sentence<br />

warranted in law (whether more or less severe) that the Court<br />

thinks ought to have been passed; or<br />

(ii) vary, within the limits warranted in law, the sentence or any<br />

part of it or any condition imposed in it; or<br />

remit the case to the Court that imposed the sentence with a<br />

direction that such Court take an action of the kind described in<br />

paragraph (b)(i) or (ii) in accordance with any directions given by<br />

the Court of Appeal …<br />

[29] This Court referred to Gatenby, and then to the new s 385(3), in Paul v R, 9<br />

but decided against utilising the new power to remit back. The Court appears to<br />

have used s 385(3) in Sullivan v R, 10 though without expressly referring to s 385.<br />

And it used s 385(3) again in R v Mackey. 11<br />

[30] It is for these reasons that we said at the outset of this judgment that what has<br />

happened leaves us with no practical alternative but to remit the matter to the High<br />

Court with a direction to determine the disputed facts relevant to sentence and then<br />

to resentence the appellant.<br />

[31] At the hearing of this appeal we raised with counsel whether White J would<br />

need to resentence Mr <strong>Saggers</strong>. Although White J is now a Judge of this Court, he<br />

could do that. Section 57(4) of the Judicature Act 1908 provides that every judge of<br />

the Court of Appeal may from time to time sit as or exercise any of the powers of a<br />

judge of the High Court.<br />

[32] Upon reflection, though not without some hesitation, we think that any Judge<br />

of the High Court could satisfactorily resentence Mr <strong>Saggers</strong>. The concern that<br />

White J heard the evidence of the critical witnesses Ms Bracey and Ms Young is met<br />

by the fact that there is a transcript of their – in material respects – unchallenged<br />

evidence.<br />

9<br />

10<br />

11<br />

Paul v R [2011] NZCA 589 at [30]–[32].<br />

Sullivan v R [2011] NZCA 366.<br />

R v Mackey [2008] NZCA 444.


[33] We record that we asked Mr Mansfield to ensure that Mr <strong>Saggers</strong> was aware<br />

that a disputed facts hearing and resentencing in the High Court may result in the<br />

imposition of a higher sentence than the one under appeal. At least three<br />

circumstances may combine to produce that result.<br />

[34] First, in sentencing Mr <strong>Saggers</strong>, White J allowed him a 15 per cent discount<br />

(which the Judge rounded down to two years) to reflect “the guilty plea, including<br />

the element of remorse, and the elements of delay and co-operation accepted by the<br />

Crown”. 12 We agree with Mr Downs’ submission that the content of Mr <strong>Saggers</strong>’<br />

evidence in support of this appeal “is a hair’s breadth from being a challenge to the<br />

convictions” for manufacturing and supplying methamphetamine. The high point of<br />

this evidence is the following two paragraphs in Mr <strong>Saggers</strong>’ affidavit:<br />

4.22 I have never taken part in the manufacturing of methamphetamine,<br />

apart from evaporating small amounts of the drug in liquid form<br />

when it was given to me by Mr Sowman or Mr Kareus. However I<br />

acknowledge that I have seen Mr Sowman extract methamphetamine<br />

at his house and once at my house in October 2003.<br />

4.23 I saw Mr Kareus evaporate methamphetamine (which he had<br />

prepared somewhere else) in my garage three times in the second<br />

half of 2003. I did not stop him from doing this because he gave me<br />

some methamphetamine (for my personal use). However, I did not<br />

have any involvement with either the manufacturing or the sale of<br />

any manufactured drug. From what I saw, the amounts Mr Kareus<br />

evaporated were not substantial.<br />

If Mr <strong>Saggers</strong> reiterates that evidence in a disputed facts hearing, then White J may<br />

well review any allowance for guilty pleas including remorse and for co-operation<br />

with the police.<br />

[35] Secondly, Mr Leary deliberately did not challenge the gist of the evidence<br />

Ms Bracey gave about the extent and nature of Mr <strong>Saggers</strong>’ methamphetamine<br />

manufacturing and supply, the latter manifest in the large amounts of cash<br />

Ms Bracey saw Mr <strong>Saggers</strong> handling, and the substantial amount of cash which she<br />

said he had hidden. Mr <strong>Saggers</strong> pleaded guilty before Ms Young’s evidence-in-chief<br />

was completed, so there was no cross-examination of Ms Young. Given that neither<br />

of those witnesses was challenged as to the manufacturing and supply aspects of<br />

12<br />

Sentencing judgment, above n1, at [67].


their evidence, there will be a difficulty in Mr <strong>Saggers</strong> inviting the Judge to prefer<br />

his evidence over that of Ms Bracey and Ms Young.<br />

[36] Thirdly, further evidence adverse to Mr <strong>Saggers</strong> may emerge at the disputed<br />

facts hearing. For example, under cross-examination before us, Mr Leary pointed to<br />

the availability to the Crown of evidence that Mr <strong>Saggers</strong> had outlaid, in three<br />

different ways, a further $210,000 approximately in cash during the period covered<br />

by the manufacturing and supply charges. Mr Leary told us that he could not see<br />

that Mr <strong>Saggers</strong> could have earned that money by any lawful means. That was one<br />

of the reasons why Mr Leary advised Mr <strong>Saggers</strong> to plead guilty to the<br />

manufacturing and supply charges.<br />

[37] Mr Mansfield undertook to convey these matters to Mr <strong>Saggers</strong> and to<br />

confirm to us that, notwithstanding them, his instructions from Mr Mansfield<br />

remained to pursue this appeal. Mr Mansfield did that by memorandum dated<br />

27 November 2012. To that memorandum Mr Mansfield annexed a letter casting<br />

doubt on the accuracy of one component of the $210,000 figure set out in [36]<br />

above. That drew a memorandum dated 28 November from Mr Downs objecting to<br />

the introduction of that letter, and pointing out that it “sits awkwardly with the<br />

appellant’s stance before this Court, which was that disputed facts should be resolved<br />

by the High Court”. Somewhat obviously, the impugned letter has had no bearing on<br />

this judgment; Mr Downs is correct in saying that the determination of disputed facts<br />

relevant to sentence will be for the High Court.<br />

[38] Accordingly, we allow this appeal. We quash the sentences under appeal.<br />

We remit this matter to the High Court with the direction that it determine the<br />

disputed facts relevant to sentence, and then resentence Mr <strong>Saggers</strong>.<br />

[39] Any consideration of bail pending resentencing is a matter for the High<br />

Court, but seems inappropriate.<br />

Solicitors:


Crown <strong>Law</strong> Office, Wellington for Respondent

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