Clode v The King
[2024] NZHC 1605
•18 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-113
[2024] NZHC 1605
BETWEEN JONATHON JAMES CLODE
Appellant
AND
THE KING
Respondent
Hearing: 13 June 2024 Appearances:
Appellant in Person
C L Fiennes for Respondent
Judgment:
18 June 2024
JUDGMENT OF CULL J
[1] This appeal concerns a mathematical error, which occurred in the imposition of a new sentence of community detention after the sentence of home detention was cancelled. On 7 September 2023, Mr Clode was sentenced to eight months’ home detention after being convicted on charges of:
(a)Unlawfully being in an enclosed yard;1
(b)Wilful damage;2
(c)Unlawfully taking a motor vehicle;3 and
(d)Theft of property worth more than $1,000.4
1 Summary Offences Act 1981, s 29(1)(b) — maximum penalty of three months’ imprisonment or a $2,000 fine.
2 Section 11 — maximum penalty of three months’ imprisonment or a $2,000 fine.
3 Crimes Act 1961, s 226(1) — maximum penalty of seven years’ imprisonment.
4 Sections 219 and 223(b) — maximum penalty of seven years’ imprisonment.
Clode v R [2024] NZHC 1605 [18 June 2024]
[2] In his sentencing notes, Judge Crosbie granted leave to Mr Clode to apply four months into his sentence to have the sentence cancelled and converted into community detention and supervision with a night-time curfew.
[3] Mr Clode took advantage of this opportunity granted to him and filed an application later that year seeking the variation of his sentence. On 26 January 2024, after Mr Clode had served four and a half months of his sentence of home detention, an order was made by another District Court Judge, in Judge Crosbie’s absence, cancelling the sentence of home detention. What is at issue in this appeal is the District Court’s imposition of a sentence of four months and 14 days’ community detention and supervision for six months from 26 January 2024.
[4] On the original sentence of eight months’ home detention commencing on 8 September 2023, the end sentence date was 8 May 2024. With the imposition of the new sentence, Mr Clode’s community detention ends on 9 June 2024 and the supervision ends on 26 July 2024.
[5] Mr Clode seeks that the re-sentence be corrected, as it has extended his original sentence of eight months’ home detention to nine months of home and community detention.
The offending
[6] At about 8.15 am on 21 March 2022, the victim of this offending received a notification that the CCTV camera in her back garden had detected movement. Upon reviewing the live feed from the camera, she found that Mr Clode had jumped over her fence into her garden.
[7] The victim spoke through the camera telling Mr Clode to get off the property. In response, he struck the camera from the wall.
[8] At 8.25 am the victim drove her vehicle to the address, parking it in the driveway. She locked the car before entering the address. After around two minutes the victim exited her house and went back to her vehicle. However, once she was out at the front of her property she saw her vehicle was gone. Mr Clode had used the spare
car keys to take the vehicle without the permission of the victim. Inside the vehicle was the victim’s handbag which contained her wallet, cards, passport, and other various items.
District Court Decision
[9] The Judge set the starting point for the sentence at two years’ imprisonment. He gave a 15 per cent discount for Mr Clode’s guilty plea, and a further 10 per cent discount for personal circumstances. This brought the sentence down by six months to 18 months’ imprisonment.
[10] The Judge eventually imposed a sentence of eight months’ home detention for the charges of unlawful taking of a motor vehicle and theft. He then convicted and discharged Mr Clode for the wilful damage and unlawfully being in an enclosed yard offences.
[11]The Judge then stated the following:
What I will also do is (provided that Mr Clode carries out the sentence positively) grant leave to apply at the halfway point (being four months) to cancel the sentence and convert that to community detention and supervision, which would be a night-time curfew. My intention is that the home detention starts in the normal way. You do four months (which, I have taken into account, will actually mean that you can work), but at that halfway point it will go on to a night-time curfew and supervision. But you would have to apply to the Court to cancel and to have that changed. That would be an application to me and would need to be supported by Probation. Even if you were living in Auckland, I would be prepared to do that on the papers.
[12] The Judge stated that Mr Clode’s sentence was to start at 7pm the following day (8 September 2023).
[13] Mr Clode filed his application seeking to vary his sentence of home detention on 23 November 2023. His application was accompanied by a Department of Community Corrections’ letter in support of the cancellation and the conversion of the home detention sentence to sentences of community detention and supervision.
[14] It appears that Judge Crosbie was on leave and Mr Clode’s application was not dealt with until 26 January 2024. He did not make an appearance and it appears that
his application was dealt with on the papers on 26 January 2024. There is no sentencing note or Minute of how the orders for community detention of four months and 14 days and the order for the sentence of supervision of six months were calculated. The net effect of those orders is that Mr Clode’s sentence was extended effectively by one month.
Parties’ positions
Mr Clode
[15] Mr Clode appeared at the hearing and addressed the Court. He did not file any written submissions. His concern was that he had understood that his original sentence of eight months expired on 8 April 2024 and he was unable to attend his daughter’s birth and other arrangements he had made which required travel. He confirmed to the Court that he had not appeared at the time that the re-sentencing occurred and that he was simply informed of the result by his Probation Officer. He acknowledged that he was prepared to abide by the order of supervision but that he wanted his sentence formally corrected on the record. He reminded the Court that he had filed his application in sufficient time for the matter to be heard on 8 January by which time head served his four months of his home detention sentence as directed by Judge Crosbie. He understood that four months from 8 January was 8 April, when he expected his sentence to have expired.
Crown
[16] The Crown acknowledges that the resentencing of Mr Clode has resulted in him being set down to serve a total of nine months home detention and community detention, and that from the sentencing notes it appears that the Judge intended to convert half the sentence rather than extend the sentence. However, the Crown submits that the overall sentence imposed was not manifestly excessive. Because community detention is less onerous than home detention, when substituting one for the other, it need not necessarily be done on a “one for one” basis. The Crown also argues the term of supervision imposed was appropriate to account for the fact that post-detention conditions of home detention would no longer apply given that sentence had been cancelled.
[17]Overall, the Crown submits that the appeal should be dismissed.
Approach on appeal
[18] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.5 The Court must dismiss the appeal in any other case.6
Discussion
[19] Mr Clode takes no issue with the six months’ sentence of supervision. His concern is that his sentence was extended by a month beyond the original intended sentence of eight months’ home detention.
[20] It seems clear from the Judge’s sentencing notes that there was no intention to extend Mr Clode’s sentence beyond eight months. The Judge instead intended to change Mr Clode’s sentence halfway through to community detention if he was compliant with the conditions of home detention. There is nothing to suggest he has not been compliant.
[21] On appeal a sentence may be overturned where there has been an error that requires correction, even if the sentence imposed is within range.7 This includes where there has been a mathematical error that would have been corrected had it been drawn to the Judge’s attention at the time. As stated in the Court of Appeal, it is expected that the appellate court will impose the corrected sentence to give effect to the sentencing judge’s intentions.8
[22] I am satisfied that an error was made when Mr Clode’s sentence of home detention was cancelled and the sentence of four and a half months’ community detention was imposed. I consider it is irrelevant that the final sentence of nine months was within range. Community detention is designed to be less onerous than home
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
6 Criminal Procedure Act 2011, s 250(3).
7 Tutakangahau, above n 5, at [36].
8 At [36].
detention and there was no basis upon which the original sentence should have been extended. An appellate judge must correct the sentence where a mathematical error has occurred.9
[23] In correcting that error, I must also correct Mr Clode’s calculation. In his oral submissions before me, he understood that his original sentence from 8 September 2023 for eight months’ home detention was due to expire on 8 April. A sentence of eight months from 8 September expires on 8 May 2024. Nevertheless, in re-sentencing Mr Clode from 26 January, the District Court has imposed five months from 26 January, expiring on 9 June. If done correctly, there should have been four months from 8 January 2024 which then expired on 8 May 2024. I correct it accordingly.
Result
[24]The appeal against sentence is allowed.
[25] The sentence of four months and 14 days’ community detention is set aside and a sentence of four months’ community detention is imposed from 8 January 2024 with an expiry date of 8 May 2024. The sentence of six months’ supervision is unchanged.
Cull J
Solicitors:
Crown Solicitor, Christchurch, for Respondent
9 Pearce v Police [2023] NZHC 640 at [26].
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