Boyd v The the King

[2022] NZHC 2361

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-025-000433

[2022] NZHC 2361

BETWEEN

WILLIAM TERAUNA BOYD

Appellant

AND

THE KING

Respondent

Hearing (by AVL):

14 September 2022

Appearances:

P Redpath for Appellant

R Donnelly for Respondent

Judgment:

14 September 2022

ORAL JUDGMENT OF OSBORNE J

[1]    William Boyd was sentenced, in the District Court, on a number of charges to five months’ home detention.1 The detail of his offending, and the mode of calculating a starting-point and allowing for appropriate uplifts and discounts (with the exception of the credit to be given for time spent in custody) are not in issue on this appeal – they are clearly enunciated in the sentencing notes.2

The ground of appeal

[2]    In his notice of appeal, Mr Boyd asserted he had been given insufficient credit for time in custody and on restrictive EM bail. Mr Redpath for Mr Boyd has now

1      R v Boyd [2022] NZDC 13246 at [34].

2      Mr Boyd asserted, as one of two grounds of appeal, that the Judge had adopted too high a starting- point. Counsel advised that that ground of appeal would not be pursued if the Court was minded to grant Mr Boyd’s appeal on his second ground.

BOYD v R [2022] NZHC 2361 [14 September 2022]

narrowed that ground of appeal to focusing on the time spent in custody, accepting the District Court’s discrete allowance for time spent on EM bail was appropriate.

The allowances made on sentencing

[3]    The Judge calculated an end period of imprisonment (before adjustment for time on home detention) of 12.35 months.3

[4]    After being arrested on some of his charges, Mr Boyd had spent 85 days remanded in custody followed by a period (2 July 2021 to 7 April 2022) on EM bail with progressively relaxed conditions.

[5]    The Judge gave credit for those periods (the 85 days in custody and the EM bail periods) by adjusting the end period of imprisonment to 10 months, which was then converted to a period of five months’ home detention.4

[6]    What is challenged flows from the total periods of custodial remand – totalling 184 days – to which Mr Boyd was subject before he was sentenced. That calculation has been confirmed by the Crown through information obtained from the Department of Corrections, which I admit in evidence for the purposes of this appeal.

[7]    Mr Redpath submits, and Mr Donnelly for the Crown agrees, that there was an error in the sentencing through failure to give credit for the total period in custody. Counsel agree the appeal should be allowed and a sentence of one-month’s home detention substituted for the existing five-month term.

The approach to credit for the period of remand in custody

[8]    It is clear that Mr Boyd, on the basis of the normal approach to time spent in custody (in his case six months in total), should receive a six-month credit for that time. As noted by Simon France J in Longman v Police, credit is given for time spent

3      Boyd v R, above n 1, at [31], [33].

4 At [31].

on custodial remand because it is seen as time spent serving the sentence which is later imposed by the Court.5 His Honour went on to say:6

In my view the clear default position is that full credit 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.

Application of the Longman approach

[9]    Counsel observed the Judge’s calculation of 12.35 months’ imprisonment (before credit) could appropriately have been converted to an end sentence of six and a half months’ home detention (before credit).

[10]   A one-for-one credit on account of the total period in custody would have resulted in an end sentence no longer than one month’s home detention.

[11]   In the circumstances, Mr Boyd (through Mr Redpath) accepted that an end sentence of one month’s home detention would have been an appropriate sentence. Mr Donnelly, on behalf of the Crown, supports that view.

[12]   I find the sentence of five months’ home detention was manifestly excessive and that a sentence of one month’s detention would have been appropriate.

Outcome

[13]The appeal will be allowed in relation to the period of home detention.

5      Longman v Police [2017] NZHC 2928 at [8]. See also McLean v Police [2022] NZHC 1802 at [17].

6      At [9] (footnote omitted).

Orders

[14]I order:

(a)The sentence of five months’ home detention is quashed and a sentence of one month’s home detention is substituted; and

(b)except to the extent so stated, the remaining components of Mr Boyd’s sentence (including post-detention conditions) remain unchanged.

Osborne J

Solicitors:

Eagles Eagles & Redpath, Invercargill Crown Solicitor, Invercargill