Carey v Police

[2023] NZHC 2970

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-516

[2023] NZHC 2970

BETWEEN

JAYDEN HAYES CAREY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 October 2023
Appearances:	A S R Kashyap for Appellant H Brown for Respondent
Judgment:	24 October 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 24 October 2023 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

A S R Kashyap, Auckland

Kayes Fletcher Walker, Auckland

CAREY v NEW ZEALAND POLICE [2023] NZHC 2970 [24 October 2023]

[1]        Mr Carey pleaded guilty in the District Court to numerous charges involving dishonesty offences, dangerous driving and being in unlawful possession of a pistol and ammunition. On 9 May 2023, Judge S J Lance sentenced Mr Carey to one year eight months imprisonment on all charges.1 The Judge granted Mr Carey leave to apply for home detention.2

[2]        On 9 August 2023, Judge Lance granted an application by Mr Carey to have his sentence of imprisonment converted to a sentence of home detention.3 The Judge ordered Mr Carey to serve a sentence of 12 months home detention.

[3]        Mr Carey appeals against sentence on the basis that the sentence of 12 months home detention is manifestly excessive. He says the Judge erred by failing to take account of the fact that the original sentence had been one of 20 months imprisonment and that he had already served three months of that sentence when he applied successfully for the sentence to be converted to one of home detention.

[4]        Mr Carey requires leave to bring the appeal out of time but the respondent does not oppose leave being granted. I grant leave accordingly.

[5]        The narrow scope of the appeal means that it is not necessary for me to traverse the details of Mr Carey’s offending. I therefore turn directly to the points raised on appeal.

The sentence of 12 months home detention

[6]        Ordinarily, a sentence of imprisonment is converted to a sentence of home detention that is equivalent to one-half of the prison sentence. This reflects the fact that an offender serving a sentence of imprisonment of two years or less is released automatically after serving one-half of the sentence. An offender serving a sentence of home detention must serve the whole sentence.

1      New Zealand Police v Carey [2023] NZDC 9113.

2 At [25].

3      New Zealand Police v Carey [2023] NZDC 22851.

[7]       In Moeller v R, Simon France J held that in determining the length of a substituted sentence of home detention the Court should have regard to the statutory release date rather than the sentence expiry date.4 In the case of a short term sentence the statutory release date will fall on the date when the offender completes one-half of the sentence.5 That date will take into account any time spent in custody on remand.6 In Moeller, Simon France J noted that a substituted sentence of home detention need not necessarily be one-half of the end sentence of imprisonment and that a longer sentence may be imposed.7 In general, however, I consider that this issue would need to be addressed explicitly at sentencing or when a substituted sentence of home detention is imposed. Reasons would need to be given to justify departure from the usual approach. I note that a failure to give reasons for a departure from the “halving” method was considered to be an error in Gerrard v Police.8

[8]        In the present case the Judge did not articulate the sentence of home detention to be imposed on Mr Carey. It is necessary to go to the paperwork generated following the hearing to discern the sentence that he imposed. Nor did the Judge give any reasons for his decision not to follow the usual course and sentence Mr Carey to the equivalent of one-half of the prison term that would be otherwise appropriate.

[9]        In addition, the Judge ought to have given Mr Carey credit for the time he had already served in custody. He gave no reasons for not doing so.

[10]      The Crown agrees the appeal must be allowed. It calculates that Mr Carey spent a total of 151 days in custody before being sentenced. He then served 99 days of the sentence imposed on 9 May 2023. This means he spent a total of 250 days, or nearly nine months, in custody. This is the equivalent of 18 months imprisonment. He only had two months to serve before reaching his  statutory release date on       10 October 2023.

4      Moeller v R [2020] NZHC 1290, [2020] 3 NZLR 726, at [4]-[6].

5      Parole Act 2002, s 86(1).

6      Section 90(1).

7      Moeller v Police, above n 4, at [12].

8      Gerrard v Police [2016] NZHC 3130 at [29].

Result

[11]      The appeal against sentence is allowed. The sentence of 12 months home detention is set aside. In its place I substitute a sentence of two months home detention on all the charges on which the original sentence was imposed.

[12]      Counsel should now file a joint memorandum setting out any special post-detention conditions that should be imposed.

Lang J