Agar v R
[2021] NZCA 350
•29 July 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA85/2021 [2021] NZCA 350 |
| BETWEEN | LANCE KARL AGAR |
| AND | THE QUEEN |
| Hearing: | 23 June 2021 |
Court: | Kόs P, Brewer and Davison JJ |
Counsel: | M J Taylor-Cyphers and G D Burns for Appellant |
Judgment: | 29 July 2021 at 9 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence imposed in the District Court is quashed.
CA sentence of 20 months’ imprisonment is substituted.
DAppellant given leave to apply to commute sentence of imprisonment to home detention.
____________________________________________________________________
REASONS OF THE COURT
(Given by Davison J)
Lance Agar appeals the sentence of two years and two months’ imprisonment imposed by Judge Orchard in the District Court at Whangārei on 18 February 2021.[1] He had previously pleaded guilty to one charge of injuring with intent to injure,[2] and one charge of assault with intent to injure.[3] He had also been found guilty at trial on a charge of possession of an offensive weapon.[4] Those three charges related to events occurring at Pahi on the Kaipara Harbour in January 2018. The sentence also encompassed the appellant’s re-sentence on a burglary charge related to separate offending, also in January 2018, for which he had been sentenced to home detention, and for two charges of breaching his conditions of home detention.[5]
Background
[1]R v Agar [2021] NZDC 2907 [Sentencing notes].
[2]Crimes Act 1961, s 189(2) (maximum penalty five years’ imprisonment).
[3]Section 193 (maximum penalty three years’ imprisonment)
[4]Section 202A(4)(b) (maximum penalty three years’ imprisonment)
[5]Sentencing Act 2002, s 80(S) (maximum penalty one year’s imprisonment or a $2,000 fine).
The offending occurred during the annual Pahi Regatta. On the night of Saturday 27 January 2018 the appellant and the two complainants were among a gathering of people attending the regatta social function. The two male complainants were friends aged in their late 40’s. One of the complainants knew the appellant from having worked with him briefly several years beforehand. At around 11.30 pm the complainants were near the wharf listening to the live music and watching the fireworks display put on as part of the regatta celebrations, when they were approached by the appellant. When the appellant took his shirt off and began shouting and behaving in a belligerent manner they decided to move away and went out to the end of the wharf. The appellant followed them. When they reached the end of the wharf the first complainant stopped and turned to light a cigarette. As he turned, the appellant delivered a violent punch to his head and left eye. The first complainant fell onto the wharf. The appellant then approached the second complainant who was sitting nearby. The second complainant had not seen the attack on his friend and did not see the appellant approaching him. He too was struck by the appellant with a punch to the face which knocked him to the ground. The attacks were entirely unprovoked. The appellant then ran off.
The first complainant suffered a broken jaw which was either caused by the punch or by his head striking the wharf when he fell. He was later taken to hospital by ambulance and underwent an operation on his jaw. He remained in hospital for three days. The second complainant suffered a fractured nose which bled for several days and a fractured eye socket. He too required hospital treatment.
The following day the appellant returned to the regatta and while in the hospitality tent acted in an intimidatory manner towards a young man. He was told by the regatta organiser to leave and he went out to his car to go. He was then confronted by an associate of the young man he had been involved with in the hospitality tent, and he got out of his car holding what appeared to be a cut down machete knife or an axe handle for use as a weapon. The regatta organiser again intervened, and the appellant drove away.
District Court decision
The appellant was originally charged with five charges. They included a second charge of injuring with intent to injure, and a second charge of assault with intent to injure, arising from allegations that he had stomped on and kicked the two complainants as they lay on the wharf after he had knocked them down. The appellant denied those charges as well as the charge of possession of an offensive weapon and elected trial by jury. Judge Orchard presided at his trial. He was acquitted of the assault charges but found guilty and convicted of the charge of having possession of an offensive weapon. Consequently, the Judge had already heard detailed evidence regarding the events before sentencing the appellant on 18 February 2021 on the two charges he admitted, and for the possession of an offensive weapon charge on which he had been found guilty.
In her sentencing decision the Judge commenced by summarising the offending that occurred on 27 January 2018. She then referred to the appellant’s acquittal at trial on the charges of injuring with intent to injure, and assault with intent to injure related to the allegations that he had stomped and kicked the complainants while they were on the ground. The Judge said:[6]
[3] … In my view, having heard the evidence, I am of the opinion that the reason for your acquittal was not because the jury believed you, but because neither of the witnesses really quite came up to brief, and so there was room for doubt in the jury’s mind as to whether there had been further assaults. I certainly do not accept that the jury’s verdict was on the basis that you were believed and I certainly do not think that it is reason for me to take an adverse view of the evidence of the two complainants. In my view, they were good witnesses, they were truthful witnesses, and they simply made concessions where they were called for.
[4] The only explanation you could give initially for your behaviour was that one of the men had touched you in the area of your crotch. That was something that was totally denied by either of them, and I accept that denial. It is clear to me, and you have conceded, that you had been smoking methamphetamine and a lot of it before these events happened[.] In my view, notwithstanding the fact that there is also evidence that you suffer from post‑traumatic stress disorder and ADHD, the most likely cause of your behaviour was the ingestion of that drug, which is known sometimes to cause people to behave in an aggressive manner and very violent manner. …
[6]Sentencing notes, above n 1.
The Judge accordingly found that the appellant’s methamphetamine intoxication at the time of the attacks did not mitigate his offending.[7] Her Honour then identified the principal aggravating features of the offending. The first being the considerable force involved in the punches to the heads of the two complainants. The Judge described the appellant as being a powerfully built man who was capable of inflicting significant injuries.[8] The Judge also noted the injuries suffered by each complainant and the fact that both required hospitalisation as being another aggravating factor. She said that one of the complainants had feared for his life when being attacked because the appellant was acting completely out of control.[9] She also commented, however, that in her view the attack was not protracted and the complainants’ injuries had not had a long-term effect on them.[10]
[7]At [4].
[8]At [5].
[9]At [6]–[7].
[10]At [8].
Dealing with the offensive weapon charge, the Judge found that an aggravating feature of the offending was that the weapon was “so ready to hand”, and but for the intervention of the event organiser, more serious violence was likely to have broken out.[11]
[11]At [11].
The Judge adopted a starting point of two years’ imprisonment for the two assault charges which she said she would uplift by six months for the possession of an offensive weapon charge.[12] In recognition of the appellant’s guilty pleas to those assault charges, the Judge deducted 20 per cent of the two year starting point to reach an adjusted starting point of 19 months’ imprisonment. She then added the six months uplift to arrive at 25 months’ imprisonment. The Judge then added one month for the fact that the offending had occurred while the appellant was on bail and in breach of his curfew. This took the adjusted starting point to 26 months’ imprisonment.[13]
[12]At [11].
[13]At [12].
The Judge then considered a discount in respect of the appellant’s personal and cultural background as detailed in a s 27 report. The Judge noted that as a result of sexual offending perpetrated against him as a young teenager, the appellant had suffered from post-traumatic stress disorder, as well as ADHD which she said had been a feature of his life for some time. The Judge also noted the appellant’s heavy methamphetamine use “as being a much more significant factor in [the appellant’s] offending than the two conditions that I have referred to”.[14] For these personal factors the Judge allowed a 10 per cent discount which she arithmetically calculated as being 2.6 months but rounded up to three months, and deducted it from the adjusted starting point to reach 23 months’ imprisonment.[15]
[14]At [13].
[15]At [14].
The Judge then explained:
[15] So, on the charges of assault with intent to injure and injuring with intent to injure, on each of those charges I am convicting you and sentencing you to 23 months. I am sentencing you also to five months’ imprisonment on the charge of possession of an offensive weapon, but all of those sentences are to be served concurrently.
The Judge then addressed three other matters:
(a)As regards the Department of Corrections application to cancel the appellant’s sentence of four months’ home detention[16] which had been imposed on 4 August 2020 and which had six weeks left to run, the Judge cancelled the remaining term of the sentence, and substituted it with three months’ imprisonment to be cumulative on the 23 months imposed for the other offending.[17]
(a)In relation to the appellant’s two breaches of home detention conditions the Judge imposed an additional one month’s imprisonment on each to be served concurrently with each other but cumulative on the other sentences.[18]
(b)In recognition of the appellant having spent a year on electronically monitored bail, “albeit it was not totally satisfactory”,[19] the Judge allowed a further one month’s discount. The Judge explained:
[18] … the way I am going to deal with that is I am going to amend the sentence imposed on the charge of assault with intent to injure and injuring with intent to injure from 23 months to 22 months, so 22 months for those charges, five months for the possession of an offensive weapon. Those are all concurrent with each other, plus three months on the re-sentencing on the burglary, plus an extra one month for the two breaches of home detention. So, in the end, that is an end sentence altogether of two years and two months’ imprisonment.
Approach on appeal
This first appeal against sentence is brought as of right pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and a different sentence should have been imposed.[20] Otherwise, the appeal must be dismissed.[21]
Submissions
The appellant
[16]This sentence was imposed in relation to a burglary charge arising from offending by the appellant on 7 January 2018 for which he was convicted and sentenced in the Whangārei District Court to four months’ home detention.
[17]At [16].
[18]At [17].
[19]At [18].
[20]Criminal Procedure Act 2011, s 250(2).
[21]Section 250(3).
Ms Taylor-Cyphers for the appellant submits the two issues in the appeal are whether the Judge erred in her sentencing method by failing to adhere to the two-step sentencing process prescribed in Moses v R,[22] and whether inadequate discounts were given for the appellant’s personal factors.
[22]Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
Counsel says that while no issue is taken with the two year starting point adopted by the Judge,[23] taking into account the possession of an offensive weapon charge; the cancellation of the home detention sentence; and the breaches of home detention charges, an adjusted starting point for all of the offending should have been two years and six months’ imprisonment.
[23]As it involved attacking the head and serious injury, falling well within “band 2” of Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. See also: R v Taueki [2005] 3 NZLR 372 (CA).
As to discounts, counsel takes no issue with the 20 per cent discount allowed for the appellant’s guilty pleas to the assault charges. But she argues greater discounts ought to have been given for the appellant’s mental health, his efforts at rehabilitation, his willingness to participate in restorative justice, and his genuine remorse, as well as an allowance for time spent on electronically monitored (EM) bail.
Counsel also submits that the Judge erred by failing to apply any discount to the three months’ imprisonment added in substitution for the remaining period of six weeks home detention. Further, that by adding a month for the two breaches of home detention the Judge effectively double-counted the breaches in determining the final sentence because the breaches related to the home detention sentence. Finally the appellant says that the Judge also erred by failing to consider whether to adjust and reduce the sentence having regard to totality.
Mental health issues
Ms Taylor-Cyphers does not challenge the 10 per cent discount allowed by the Judge on account of the appellant’s personal background including his hardship, deprivation, and cultural factors, but submits that the appellant ought to also have been given an additional 10 per cent discount to recognise his history of mental health issues and their contribution to the offending.
Counsel refers to the report prepared by a clinical psychologist Dr Sakdalan, which was before the Judge, and which detailed the appellant’s history of severe depression and anxiety. Ms Taylor-Cyphers notes that since his offending the appellant has been diagnosed as suffering PTSD and ADHD and he now takes daily medication. She notes that Dr Sakdalan commented in his report that it was likely that the appellant’s violent reaction to being “inadvertently being touched in the crotch area” was triggered by his sexual abuse issues, and his poor impulse control, increased aggression, poor judgement and emotional reactivity “can be attributed to a confluence of his mental health conditions”.
Rehabilitation efforts
Ms Taylor-Cyphers further submits that the Judge ought also to have allowed a discount to recognise and encourage the appellant’s efforts at rehabilitation. Counsel notes that on his own initiative and cost prior to sentencing, the appellant had undertaken and successfully completed a 35 day residential drug rehabilitation programme. Counsel further notes that Dr Sakdalan reports that the appellant has now been sober for more than two years.
Restorative justice and remorse
Ms Taylor-Cyphers also notes that although the appellant wished to engage in restorative justice with the two complainants, it did not take place because the complainants were not willing to participate in the process. Counsel says that the appellant’s genuine remorse ought also to have been recognised and a discount allowed. She says his remorse is evident from his guilty pleas to the assault charges relating to the punches to the complainants’ heads, his expression of remorse noted in the pre-sentence report, and from a letter of apology he wrote.
Ms Taylor-Cyphers submits that this, in conjunction with his rehabilitative efforts, warrants a discount in excess of thirteen per cent — eight per cent for remorse and five percent for willingness to engage in restorative justice — and the Judge erred by failing to recognise and award any discount for these factors.
Time spent on EM bail
Ms Taylor-Cyphers submits that although the Judge allowed a one month discount on account of the 12 months the appellant spent on EM bail, she failed to take any account of the fact that before being granted EM bail, the appellant spent seven months in 2018 on remand in custody in relation to the burglary charge for which he was originally sentenced to home detention and re-sentenced by the Judge. The discount of just under 4 per cent is also said to be out of line with authorities. Ms Taylor-Cyphers submits a discount of 22 per cent was warranted.
Breaches of home detention
Counsel also submits that there is an element of double‑counting in the Judge’s re-sentencing of the appellant to three months’ imprisonment on the charge for which he had earlier been sentenced to home detention, and then also imposing a further one month cumulative sentence for the two breaches of the home detention sentence. Ms Taylor-Cyphers notes that the appellant’s two breaches of his home detention conditions had resulted in the Department of Corrections’ application for cancellation of the sentence, and were the basis for the Judge’s decision to cancel the home detention sentence and substitute a term of three months’ imprisonment. Counsel submits that the appellant’s breaches of home detention were subsumed in the decision to cancel the home detention sentence and to impose the three-month term of imprisonment in its place. By adding a further one month’s imprisonment the Judge effectively double-counted.
Failure to consider totality of sentence imposed
Finally, Ms Taylor-Cyphers submits that by imposing cumulative sentences for the re-sentencing of the burglary charge and the breaches of home detention on top of the 22 month sentence imposed for the other matters and arriving at a total of 26 months’ imprisonment, the Judge erred by failing to consider whether the totality of the sentences she imposed was proportionate to the gravity of the overall offending. Counsel says that a reduction of two months is appropriate to take account of the totality principle contained in s 85 of the Sentencing Act 2002, and that a sentence of 24 months’ imprisonment would properly reflect the overall gravity of the offending having regard to the circumstances of the offending and offender.
The Crown
Ms Johnston for the Crown submits that the sentence of two years and two months’ imprisonment imposed on the appellant was within range and not manifestly excessive. She submits that the two year starting point adopted by the Judge was appropriate, the uplift of six months’ imprisonment imposed in respect of the possession of an offensive weapon charge was justified and available to the Judge, and the allowances for mitigating factors appearing from the psychological report (specifically the appellant’s PTSD and ADHD), and time spent on EM bail, were adequate.
Ms Johnston says there was no double counting involved in the sentence imposed in substitution for the home detention sentence, as the conversion of the remaining six-week period to three months’ imprisonment was orthodox and the one-month sentence imposed for the breaches related to different offending. The Crown says that the 20 per cent discount awarded for the guilty pleas was entirely sufficient. Counsel further says that the three month discount allowed by the Judge for “s 27 factors” clearly included the appellant’s personal background as described in the psychological report.
As regards the time spent by the appellant on EM bail, the Crown submits it is a matter of broad judicial discretion and says that the one-month discount allowed by the Judge was open to her, especially having regard to the appellant’s history of non‑compliance with the conditions of home detention. In relation to the appellant’s drug addiction and its connection with his offending, the Crown accepts that to the extent that the Court accepts that his addiction was causative of his offending, some discount may have been available on that account.
Finally, Ms Johnston submits that although the Judge did not explicitly refer to the totality principle in relation to the end sentence she imposed, the sentence was not out of proportion to the totality of the appellant’s offending.
Discussion
Failure to follow the Moses v R sequence
In Moses this Court replaced the previous three-step methodology established in Hessell v R and R v Clifford, with a two-step methodology for calculating and allowing guilty plea discounts.[24] Under the Moses approach, the first step is for the court to determine the adjusted starting point, incorporating any aggravating and mitigating features of the offence. In the second step the court takes account of all the aggravating and mitigating factors personal to the offender, together with any guilty plea discount which should be calculated as a percentage of the adjusted starting point.[25] Although the guilty plea discount is included within the second step along with other discounts for personal factors, the sentencing judge must still quantify the guilty plea discount, as quantifying the discount enables the sentence that would have been imposed but for the guilty plea to be readily ascertained and understood, and ensures that it does not exceed 25 per cent of the adjusted starting point.[26]
[24]Moses v R, above n 22, at [45], referring to Hessell v R [2009] NZCA 450; [2010] 2 NZLR 298; and R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.
[25]At [46].
[26]At [47].
Here the Judge was confronted with several discrete instances of offending. The appellant had entered guilty pleas to two charges. He had been found guilty of the charge of possession of an offensive weapon, so a guilty plea discount did not apply to that offending. He was also to be re-sentenced for burglary offending for which he had previously been sentenced to home detention, and the guilty pleas he had entered for the two assault charges did not relate to that re-sentencing process. Finally, he was also to be sentenced on two charges of breaching his home detention conditions, which he had admitted.
The correct sentencing approach in accordance with Moses was for the Judge to determine the adjusted starting point, incorporating any aggravating and mitigating features of all of the offending for which the appellant was to be sentenced (the first step). Having determined an overall starting point the Judge ought then to have taken account of all the aggravating and mitigating factors personal to the offender, including the appellant’s guilty pleas, and to allow a discount applicable to that component of the adjusted starting point which was included on account of the offences to which the appellant had pleaded guilty.
However, by applying the guilty plea discount to the starting point she had determined applicable for the assault charges, and before considering whether to allow discounts for the appellant’s other personal aggravating and mitigating factors, the Judge failed to follow the two step sequence outlined in Moses.
We also note that although the Judge initially said that she would uplift the adjusted starting point by six months for the offensive weapon offending,[27] later in her decision she said that she was sentencing the appellant to five months’ imprisonment in respect of that charge.[28] Then, at the end of her sentencing decision and somewhat confusingly, the Judge said that as she had overlooked giving the appellant one month’s credit for the year he had spent on EM bail, she would amend and reduce the sentence to be imposed for the two assault charges from 23 months to 22 months.[29]
[27]Sentencing notes, above n 1, at [11].
[28]At [15].
[29]At [18].
We are satisfied that the two year starting point adopted by the Judge for the assault offending was within range. We are also satisfied that a six month uplift on account of the possession of an offensive weapon charge is within range and appropriate. The appellant’s failure to comply with his home detention sentence conditions was offending distinct from the burglary offending for which he was sentenced to four months’ home detention, and consequently the two charges of breaching those conditions warrant an uplift. We consider that an uplift of the starting point by one month to account for both instances of that offending is appropriate.
We accordingly adopt an adjusted starting point of 31 months for the assault offending on 27 January 2018, the possession of an offensive weapon on 28 January 2018, and the two offences of breaching home detention conditions.
Turning to the personal aggravating and mitigating factors, we first note the appellant’s guilty pleas to the assault charges. The pleas were entered at a reasonably early stage. The appellant initially entered guilty pleas to four of the five charges he faced arising from the events of 27 and 28 January 2018. On 1 March 2019 he entered guilty pleas to the two assault charges and also the charges which alleged he had stomped on and kicked the first and second complainants as they lay on the wharf after he had knocked them down. However, on 24 June 2020 he applied to the District Court to withdraw his guilty pleas in respect of the two charges which alleged that he had stomped on and kicked the complainants as they lay on the wharf. Judge Orchard granted his application on 10 July 2020.[30] The appellant then proceeded to trial before a jury on those charges along with the charge of possession of an offensive weapon. As we have noted, he was acquitted of those two assault charges. Accordingly his earlier guilty pleas on 1 March 2019 to the other two assault charges are properly viewed as being entered at a reasonably early stage, warranting 20 per cent discount.
[30]R v Agar [2020] NZDC 12857.
The guilty pleas do not however apply to all of the offending included within the scope of the 31-month starting point. Accordingly when calculating the sentence reduction applicable to the guilty pleas, it is necessary to restrict it to the two-year starting point applicable to the assault charges, and the breaches of home detention conditions which were admitted. Clearly, the guilty plea discount for the assault charges does not apply to the offence of possession of an offensive weapon on which the appellant was found guilty after having earlier pleaded not guilty. A 20 per cent discount from two years and one month, is five months, and that is the discount we shall allow for the appellant’s guilty pleas.
We consider that the appellant’s personal background and his mental health issues also warrant a discount. The appellant’s personal background as described in the comprehensive report prepared by Dr Sakdalan warrants recognition by way of a discount. The report refers to the appellant having suffered sexual abuse while a teenager. He has a history of anxiety and depression which started in his formative years, and he has received psychiatric treatment and medication for his condition. After he separated from his partner in 2017 he became severely depressed and turned to substance abuse as a form of self-medication. He was diagnosed by a psychiatrist in 2019 as suffering from Adult ADHD and prescribed medication. Dr Sakdalan considers that he also meets the diagnostic criteria for Complex PTSD (C-PTSD) which seems to have developed around the time of his reported sexual abuse when he was 14 years old. Dr Sakdalan says that the appellant’s background history, his upbringing and formative years were marked by instability, emotional neglect, disconnection and rejection as well as pressure to assume an adult role in caring for his mother from a young age. Dr Sakdalan says that at the time of his offending in January 2018, the appellant remained undiagnosed and untreated for ADHD (and C‑PTSD), and was under the influence of substances including methamphetamine.
As we have noted, the Crown acknowledges that had the Judge at sentencing found the appellant’s mental health conditions to be causally connected to his offending, a discount may have been available. In his report Dr Sakdalan identifies a nexus between the appellant’s teenage trauma of sexual abuse and his violent response in the index offending. He says:
It is likely that his sexual abuse issues particularly his tendency not to trust other people and his sexual issues (i.e., inadvertently being touched in the crotch area) were triggered which resulted [in] a ‘fight response.’ On this occasion, problems with poor impulse control, increased aggression, poor judgement and consequential thinking, high emotional reactivity which can be attributed to a confluence of his mental health conditions such as ADHD, C‑PTSD and substance withdrawal (substance use issues).
This Court has approved sentencing discounts being allowed for an offender suffering mental illness causative of or contributing to the offending, but falling short of insanity, because it moderates culpability and renders less appropriate or more subjectively punitive a sentence of imprisonment.[31]
[31]E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [153]; and Orchard vR [2019] NZCA 529, [2020] 2 NZLR 37 at [45]–[48].
Here the Judge, having had the benefit of seeing and hearing the complainants give evidence at the appellant’s trial in which they both denied that either of them touched the appellant’s crotch prior to the violence, accepted their evidence as being reliable. Accordingly, we do not accept that the appellant’s violent offending against the two complainants was triggered by being touched in the area of his crotch. However, we do consider that the appellant’s mental health, including his severe depression and anxiety, nevertheless had a causative, albeit less direct, link to his offending.
We also recognise the appellant’s initiative and efforts towards rehabilitation. He enrolled himself in the “Turning Point” residential drug rehabilitation programme after the events of January 2018 and he has been sober for over two years. His efforts at rehabilitation are appropriately acknowledged and encouraged by way of a discount of his sentence. In our view a discount of 20 per cent is appropriate to recognise the appellant’s personal background, his mental health issues as described in Dr Sakdalan’s report, and his significant efforts towards drug rehabilitation.
We also accept that the appellant has displayed genuine remorse. He has consistently expressed his remorse to the writer of the pre-sentence report, to Dr Sakdalan, and by writing a letter of apology to the complainants as well as being willing to engage in a restorative justice process. However, we consider that his remorse is adequately and appropriately acknowledged by the 20 per cent discount he will receive for his guilty pleas to the assault charges.
Turning to the availability of a discount for the time spent by the appellant on EM bail, we note that whereas time spent in pre-sentence detention is counted as time served, time spent on restrictive bail conditions is not.[32] When considering the discount for time spent on EM bail, there:[33]
… is no rule as to how much discount (if any) should be given. The level of discount is left to the Judge’s discretion. No arithmetical formula should be applied.
[32]Keown v R [2010] NZCA 492 at [12], citing Parole Act 2002, s 90.
[33]Chea v R [2016] NZCA 207 at [110] (footnote omitted), citing Faisandier v R CA185/00, 12 October 2000 at [28]; Tamou v R [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; and Keown v R, above n 32, at [12].
Here the Judge applied a discount of one months’ imprisonment for the year the appellant spent on EM bail. The Judge’s reason for the modest discount was the appellant’s unsatisfactory conduct whilst on EM bail.[34]
[34]Departing from the monitored address on numerous occasions, leaving the address due to disputes with his neighbours and interfering with electronic equipment.
The appellant was charged with burglary on 18 January 2018. He was initially released on police bail and on 8 February 2018 was granted bail in the District Court. On 20 July 2018 he was charged with the assaults in relation to the January 2018 incident. When he appeared in the Whangārei District Court on 30 July 2018 on those charges he was remanded in custody. He was subsequently granted EM bail on 18 December 2018. He was sentenced for the burglary offending on 14 August 2020, at which time the fact that he had been on EM bail since 18 December 2018 was noted in the pre-sentence report as being relevant to the sentence to be imposed for that offending.
Accordingly, the appellant had been on EM bail for 26 months prior to being sentenced by Judge Orchard on 18 February 2021. From our review it also appears that he initially spent approximately four and half months on custodial remand between 30 July 2018 and 18 December 2018, and then the 26 months on EM bail before being sentenced on 18 February 2021. The fact that he had spent 20 months on EM bail before being sentenced for the burglary offending in August 2020 appears to have been treated as relevant to the sentence imposed for that offending.
The appellant failed to comply with his home detention conditions on two occasions. It also appears that he failed to comply with his EM bail conditions. The pre-sentence report for the current offending noted that during the period the appellant had been subject to electronic monitoring there had been numerous issues and departures from the electronically monitored address, and that he had interfered with the electronic monitoring equipment.
We accordingly find that the Judge erred by proceeding on the basis that the appellant had spent a year on EM bail. The correct period was 26 months. The Judge was however justified in observing that the appellant’s compliance with the EM bail conditions was “not totally satisfactory”.[35] From the information contained in the pre‑sentence report, it would appear that his compliance was in fact poor. That being the case, despite the lengthy period spent on EM bail, any discount would be modest. We do however consider that a greater discount than the one month allowed by the Judge is appropriate given the extended EM bail period, and we will allow a discount of 10 per cent, or three months.
[35]Sentencing notes, above n 1, at [18].
The three months imposed in substitution for the six weeks’ home detention yet to be served was an orthodox adjustment to convert home detention to imprisonment. This was a sentence for separate offending. The appropriate discounts were applied when the burglary sentence was imposed and the three months’ imprisonment is not susceptible to further discounts in the context of the appellant’s sentencing for the January 2018 offending.
Final sentence
Commencing with a starting point of two years for the two assaults, we uplift by six months for the possession of an offensive weapon offending, and one month for the two breaches of home detention conditions, to reach an adjusted starting point of 31 months’ imprisonment. We allow a 20 per cent discount of five months for the guilty pleas entered in relation to the two assault charges and the breaches of the home detention conditions.
We also allow a discount of 20 per cent for the appellant’s personal background, his mental health issues as described in Dr Sakdalan’s report, and his significant efforts towards drug rehabilitation. This discount calculation is made with reference to the starting point of 31 months as this discount factor is applicable to all of the offending encompassed in that adjusted starting point. The resultant arithmetical calculation is 6.2 months, which we shall round to six months.
For the time spent on EM bail we allow a 10 per cent discount of three months.
Those discounts total 14 months, which when deducted from the 31-month adjusted starting point, yields a sentence of 17 months. To that we add three months’ imprisonment,[36] being the substituted sentence for the home detention sentence, to reach a final sentence of 20 months’ imprisonment. Standing back and looking at the gravity of the appellant’s offending as a whole, we find that a sentence of 20 months’ imprisonment is not wholly out of proportion to that offending.
[36]To be served cumulatively with the 17-month sentence imposed for the other offending.
Therefore, the final sentence we would impose is six months less than that imposed by the Judge, and we accordingly find that the sentence of two years and two months’ imprisonment imposed by the Judge is manifestly excessive.
Result
The appeal is allowed, and the sentence imposed in the District Court is quashed.
We substitute a sentence of 20 months’ imprisonment.
The appellant is given leave to apply to commute the sentence of imprisonment to one of home detention.
Solicitors:
Crown Law Office, Wellington for Respondent
11
9
0