Black v The King
[2023] NZHC 1575
•26 June 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-000014
[2023] NZHC 1575
BETWEEN DANIEL BLACK
Appellant
AND
THE KING
Respondent
Hearing: 22 June 2023 Appearances:
K Pascoe for the Appellant
R L Hicklin for the Respondent
Judgment:
26 June 2023
JUDGMENT OF ROBINSON J
[Sentence appeal]
This judgment was delivered by me on 26 June 2023 at 2:30 pm.
Registrar/ Deputy Registrar
Solicitors:
Nicholsons Lawyers, New Plymouth Crown Solicitor, New Plymouth
BLACK v R [2023] NZHC 1575 [26 June 2023]
Introduction
[1] On 17 March 2023 Mr Daniel Black was sentenced1 by Judge Hikaka at the New Plymouth District Court to six months’ home detention, to be followed by six months of post-detention conditions, on charges of assault with intent to injure,2 assault with a weapon3 and theft (over $1,000).4 Mr Black had earlier accepted a sentence indication5 and pleaded guilty to the charges, at which point he was granted bail pending sentence.6
[2] Mr Black also pleaded guilty to one charge of driving while disqualified. Judge Hikaka imposed a $300 fine for that, but did not disqualify Mr Black further.
[3] Mr Black appeals his sentence. Ms Pascoe, counsel for Mr Black, submits the end sentence is manifestly excessive because the Judge erred by failing to properly account for the 359 days Mr Black spent in custody pre-sentencing. Ms Pascoe says that because Mr Black spent six days short of a year in custody prior to sentence he should effectively have been sentenced to time served.
The offending
[4] The Judge accurately set out the background facts in his sentencing notes as follows:
[4] The victim was the owner of a motorbike that he purchased in 2018, it was valued at $20,000. You and the victim knew each other, he used to do repairs for you and the gang that you were associated with.
[5] On 15 September 2021, he and his partner were having an argument about his association with the gang and around the time his partner was leaving, you and another gang member arrived and she said to you and your associate that she knew what you were up to.
[6] So the next day, 16 September around 4 pm, you and another associate went to the address. The victim was working on the bike, you met him at the garage door, he said hello, you punched in the side of the head, he fell to the ground and you told him he was a snitch and that he had been telling his
1 R v Oka (aka Black) [2023] NZDC 5162.
2 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
3 Section 202C(1)(a). Maximum penalty five years’ imprisonment.
4 Sections 219 and 223(b). Maximum penalty seven years’ imprisonment.
5 R v Black DC New Plymouth CRI-2021-043-1655, 11 November 2022 (Notes of Judge GF Hikaka on Sentencing Indication).
6 R v Black [2022] NZDC 22598, per Judge Greig.
partner everything. You and your associate began punching him while he was on the ground. He got disorientated, he heard his toolbox being opened, a screwdriver was held at his throat against his skin and he recalled a comment either from or your associate saying that he should just be stabbed. You went on to try and get the keys of a car from him but he could not locate them so you took his bike keys off him. Your associate took a cellphone, security camera, an SD card that were in the toolbox. You told him you would be back the next day.
[7] You rode off on his bike and the next day another associate from the same group you belonged to at the time, went to his address, returned the cellphone and camera without memory card and then later that same day you returned and told him that if he wanted his bike back he had to pay $10,000.
[8] On 24 October 2021, your Facebook page showed that you were selling or swapping that bike for $27,000. There was a search warrant, the bike was located.
[9] The victim suffered bruising to his head and face and a sore back. He made a statement around December that year, confirmed that he got a black eye, his face was sore for days afterwards, he did not go to the doctors, he incurred significant cost as a result of the offending, he in fact moved out of town because of intimidation and fears for his safety. He had not seen his children for some time, because he had left town and he simply did not feel safe in this town. The upheaval for him has been massive and led to extreme difficulty. He had stayed away from people, felt like he was on the run, looking over his shoulder, needed to sell his house and sell the bike because he was worried about how identifiable it is and that would lead to him being tracked down by, presumably, you or others.
Sentencing
[5] After recounting the facts and Mr Black’s criminal history, the Judge relayed the sentencing indication Mr Black had accepted:7 a starting point of three years with three months added for previous convictions and the full 25 per cent discount for Mr Black’s guilty plea, resulting in 29 months’ imprisonment.
[6] The Judge then acknowledged the s 27 report prepared for sentencing. His Honour accepted that report revealed a link between the life Mr Black experienced as a child and his offending later in life.8 He also recorded that following an ultimatum from his partner Mr Black had left the gang with which he had been affiliated and had secured full-time employment.9 The author of a report by the Department of
7 R v Oka (aka) Black, above n 1, at [12].
8 At [15].
9 At [13].
Corrections recommended a sentence of home detention and post-detention conditions.10
[7] The Judge noted the Crown’s view that home detention could well be the final sentence on account of the time Mr Black was remanded in custody.11 His Honour noted that period was calculated as 359 days, which he described as “a considerable period of time”.12 The Judge recorded that the prosecution had also put forward the option of a sentence of time served with release conditions.13
[8] Although Judge Hikaka was prepared to take into account the period of time Mr Black had been remanded in custody, he also noted that Mr Black had been remanded in custody partly because of the offending for which he was being sentenced but also partly because of his history of previous offending.14
[9] The Judge then acknowledged Mr Black was able to pay reparation.15 He noted Mr Black had recently obtained a driver’s licence for the first time, as well as an endorsement to enable him to drive dangerous goods vehicles for his employment.16 He relayed positive feedback from Mr Black’s employer. He then mentioned the driving while disqualified charge.17 He noted the submission for Mr Black that if he were sentenced to a community-based sentence, the Court might opt not to further disqualify him from holding a licence. The Judge later allowed that application not to be disqualified.18
[10] In determining the final sentence, the Judge reduced the starting point of 29 months imprisonment to take into account the matters set out in the s 27 report. The Judge also took into account positive aspects of Mr Black’s current lifestyle. However, his Honour did not quantify the resulting discount. Instead, he moved on to note that:19
10 At [17].
11 At [18].
12 At [18].
13 At [23].
14 At [18].
15 At [19].
16 At [20].
17 At [22].
18 At [27].
19 Emphasis added.
[26] I do not think I would be doing justice to the purposes and principles of the Sentencing Act 2002, however, to see as your counsel submits of an end sentence of 12 months’ supervision. It does not match the offending but I am able to, having made the deductions to get into the electronically-monitored range of sentence and taking into account the length of time you have been on remand in custody, to an end sentence of six months’ home detention, and the same length of time for post-detention conditions that will effectively be the 12 months.
[11] Although the Judge did not quantify the discount he applied to the starting point of 29 months imprisonment, it must have been sufficient to reduce it to a short term of 24 months or less, because the Court determined to commute the sentence to one of six months home detention. The Judge did not expressly quantify the short term of imprisonment. Nor did he set out his calculation of the credit he ultimately gave Mr Black for the 359 days he spent remanded in custody.
[12] The Judge then granted Mr Black’s no-disqualification application, though he did order a $300 fine. He ordered $500 of emotional harm reparation. Finally, the Judge also remitted Mr Black’s outstanding fines, and in doing so reiterated his faith in Mr Black’s future prospects based on his current positive lifestyle.
Law on appeal
[13] This Court must allow Mr Black’s appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.20 Otherwise, the Court must dismiss the appeal.21 Whether the end sentence is ‘manifestly excessive’ is a useful guide in determining whether there is an error.22
[14] The appeal court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.23 That is because the appellate court focuses on the final sentence rather than the process by which it was reached.
20 Criminal Procedure Act 2011, s 250(2).
21 Section 250(3).
22 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAB5.01].
23 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]. See also Te Aho v R [2013] NZCA 47 at [30].
Ground of appeal
[15] Mr Black relies on one ground of appeal: that the sentencing Judge erred by failing to properly account for the 359 days Mr Black spent in pre-sentence custody.
[16] In the absence of express calculations by the Judge, Ms Pascoe submits that the sentence of no more than 24 months’ imprisonment must have been commuted to a sentence of no more than 12 months’ home detention. She submits further that Mr Black should be given full credit for the 12 months he spent remanded in custody, with the result that any sentence of home detention effectively be reduced to “time served”.
[17] Ms Pascoe relies on this Court’s judgments in Longman v Police24and Mason v Police.25 In Longman v Police Simon France J noted that:26
In my view the clear default position is that full credit [for the time spent remanded in custody] should be given. This is where it is important to note the distinction from EM bail. There the analysis is what reduction to a prison term should be made for restrictive pre-sentence arrangements that do not involve jail. Here, the analysis is what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in jail in effect serving the same sentence. Seen that way, full equivalence should be the norm. Although arising in a different area, I suggest this outcome of full equivalence is consistent with the tenor of the Supreme Court decision in Booth v R where the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences.
[18] In Mason v Police Fitzgerald J referred to Longman v Police, and also to the decision of Downs J in Vakapora v Police 27 where the Court gave the defendant one month’s credit off his end sentence of home detention for every two months he had spent remanded in custody. On the facts before her Fitzgerald J adopted full equivalence, or the so called one-for-one approach.28 However, having reviewed the relevant authorities her Honour also held that determining the impact of time spent
24 Longman v Police [2017] NZHC 2928.
25 Mason v Police [2022] NZHC 1845.
26 Longman v Police, above n 24, at [9].
27 Vakapora v Police [2022] NZHC 493.
28 Mason v Police, above n 25, at [36]-[38].
remanded in custody on the length of a sentence of home detention is an evaluative exercise; and that the “one for one” approach is not mandatory.29
[19] For the Crown Ms Hicklin points out that another approach is the “two for one” approach, whereby an end sentence of home detention is reduced by one month for every two months the defendant spent in pre-sentence custody. This is the approach that was adopted in Wharrie v R30as well as Vakapora v Police.
Discussion
[20] Judge Hikaka did not consider that the purposes and principles of sentencing permitted him to impose an end sentence of supervision, as had been proposed by Ms Pascoe. He considered further detention was required. Despite the lack of express calculations, the end sentence imposed of six months home detention appears more consistent with a “two for one” rather than a “one for one” approach to the credit given to Mr Black for the time he spent remanded in custody.
[21] I agree with the Judge that an appropriate discount for the matters raised in the s 27 report would lead to a short-term sentence of imprisonment of 24 months or less. For example, a 15 per cent discount for that combined with the 25 per cent discount for Mr Black’s guilty plea would mean a 40 per cent discount to the starting point adopted by the Judge (and accepted by Mr Black) of three years and three months imprisonment. That would result in an end sentence of 23.4 months imprisonment.
[22] Putting to one side the time Mr Black spent in pre-sentence custody, I also agree with the Judge that it would be appropriate to convert that short term sentence to one of home detention. Mr Black has clearly taken positive steps towards a more pro-social life. His rehabilitation is to be encouraged. The purposes and principles of sentencing do not require further imprisonment. The Court must impose the least restrictive sentence available.
[23]However, it is also significant that if Mr Black’s short-term sentence had not
been commuted to home detention he would have been immediately released from
29 At [30], citing Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.
30 Wharrie v R [2019] NZHC 633.
custody. That is because the release date of a short-term sentence is the date on which the offender has served half of it.31 As such, Mr Black is in a significantly worse position by virtue of having had his term of imprisonment commuted to one of home detention than he would have been in if it had not. Although sentencing is always an evaluative exercise, this also seems contrary to the general scheme of the Sentencing Act 2002 which provides that in the hierarchy of sentences a sentence of imprisonment is more restrictive than a sentence of home detention.32
[24] Ms Hicklin also refers me to s 82 of the Sentencing Act 2002 which provides that the Court must not take into account the period during which an offender was on pre-sentence detention when determining the length of any sentence of imprisonment to be imposed. However, I do not consider this would have prevented the Court from taking into account the mandatory operation of s 86 of the Parole Act 2002 when determining whether a short term of imprisonment should be commuted to home detention.
[25] As Fitzgerald J emphasised in Mason, determining the credit to be given for time spent remanded in custody when calculating an end sentence of home detention is ultimately an evaluative exercise. However, in Mr Black’s case I do not consider that the principles and purposes of sentencing required him to be detained at home for six months in addition to the 12 months he was detained in custody. On the contrary, I accept Ms Pascoe’s submission that Mr Black’s end sentence of six months home detention was manifestly excessive because it does not adequately take into account the time he spent remanded in custody. Mr Black’s end sentence of six months home detention is such that he has been detained for longer than he could lawfully have been detained if he had been sentenced to a short term of imprisonment. Although sentencing is an evaluative exercise I consider this to be an error. I allow the appeal on that basis.
[26] Having found it is appropriate to allow the appeal I need to determine an appropriate substitute sentence. In determining the sentence I also need to take into account that Mr Black has spent three months on home detention.
31 Parole Act 2002, s 86(1).
32 Sentencing Act 2002, s 10A.
[27] I consider Mr Black should effectively be sentenced to “time served”, with six months’ post detention conditions. At the end of the hearing I discussed with counsel whether this might be achieved by quashing the sentence of home detention and replacing it with a short term of imprisonment. I received supplementary submissions which suggested a sentence of 21 months’ imprisonment to take into account the three months Mr Black has spent on home detention which would effectively result in a sentence of time served. Counsel also suggested Mr Black be granted leave to apply for home detention. Not because he would make such an application; but to ensure the end sentence reflects that the Court considered he was eligible for home detention.
[28] I am grateful to counsel for the supplementary submissions. However, on reflection I consider it would be artificial and in many respects counter-intuitive to allow Mr Black’s appeal against a sentence of home detention by replacing it with a short term of imprisonment. Taking an evaluative approach to the particular circumstances of Mr Black’s case I consider it is more appropriate to quash Mr Black’s sentence of six months home detention and replace it with a sentence of three months home detention.
Result
[29]The appeal is allowed.
[30] Mr Black’s sentence of six months’ home detention is quashed and replaced with a sentence of three months’ home detention.
[31] All other aspects of the sentence referred to at [26] – [29] of Judge Hikaka’s sentencing notes are to remain, including the six months post detention conditions.
Robinson J
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