Doidge v Police

[2021] NZHC 3195

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000067

[2021] NZHC 3195

BETWEEN

JORDAN MARK DOIDGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Memoranda

K Basire for Appellant

S M H McManus for Respondent

Judgment:

26 November 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 26 November 2021 at …. pm

Registrar/Deputy Registrar Date:

DOIDGE v NZ POLICE [2021] NZHC 3195 [26 November 2021]

Introduction

[1]                 In a judgment I gave on 30 August 2021 (the appeal judgment)1 I allowed the appeal of the appellant Mr Doidge against a two years four and a half months imprisonment sentence imposed on him in the District Court on 4 charges of stealing motor vehicles and three charges of receiving stolen motor vehicles. In that decision I quashed the District Court’s sentence and imposed an electronically monitored sentence of 11 months’ home detention on certain conditions.

[2]                 Counsel for the appellant has now filed memoranda dated 23 September 2021 and 16 November 2021 relating to the appeal judgment. Counsel for the respondent has filed a memorandum in response dated 15 November 2021.

[3]                 The upshot of the memoranda filed by counsel for the appellant involves the contention that there was an arithmetical error in the 11 months’ home detention sentence ordered in the appeal judgment. The error occurred in that I had allowed no credit for the period of 15 weeks from 18 May 2021 to 30 August 2021, leading up to his sentencing and appeal, during which the appellant had been in custody. The appellant’s position is that this 15 week period represents time spent serving his sentence and this Court is required to take it into account on appeal when the outcome (as it was) is conversion of the original sentence of imprisonment to one of home detention.

[4]                 This is opposed by the respondent. In the memorandum in response filed by counsel for the respondent, it is suggested that the appellant’s present request amounts effectively to a second appeal and as such it is an appeal which should be filed in the Court of Appeal. Accordingly the respondent maintains there is no jurisdiction for this Court to now reconsider credits that might have been available to Mr Doidge in his ultimate end sentence, and my earlier decision in the appeal judgment should simply remain.

1      Doidge v New Zealand Police [2021] NZHC 2256.

Jurisdiction issue

[5]                 Turning first to the jurisdiction issue raised by Ms McManus for the Crown, she notes initially that appeals to the High Court are governed by both the High Court Rules 2016 and the Criminal Procedure Act 2011. She goes on to contend that amending Mr Doidge’s home detention sentence now to account for time spent in custody is simply a second appeal and is one that should be filed in the Court of Appeal. For reasons that I outline below, I disagree.

[6]                 Turning now to the High Court Rules, as a formal record of my judgement has been sealed as I understand it, a possible rule of some relevance here is r 11.10 of the High Court Rules. This allows a judgment or order to be corrected if it either “contains a clerical mistake or error arising from an accidental slip or omission … or “is drawn up so that it does not express what was decided and intended.” I leave on one side whether or not this Court may have jurisdiction to entertain the request made on behalf of Mr Doidge in terms of this rule.

[7]                 Instead, and generally, on this jurisdiction question as I see it, there are three other possible avenues for exploring a possible amendment to Mr Doidge’s sentence, the first being under s 180 of the Criminal Procedure Act, the second under the inherent jurisdiction of this Court and the third obviously being by way of an appeal to the Court of Appeal under s 225 of the Criminal Procedure Act.

[8]I now turn to consider the first two of these.

Section 180 Criminal Procedure Act 2011

[9]                 It is clear from this provision that the Criminal Procedure Act allows the Court to correct a sentence that is described as “erroneous”:

180     Court may correct erroneous sentence

(1)If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a)on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or

(b)on its own motion.

(2)The decision of the court may be made,—

(a)if sentence was imposed in the High Court, by the High Court Judge who imposed the sentence or, if that Judge is not available, by any High Court Judge; or …

[10]              The authors of Adams on Criminal Law suggest that s 180(1) may be utilised “where there has been an error in the calculation of the end sentence”.2

[11]              The Court of Appeal in Paekau v R dealt with an appeal where an arithmetical error by the Judge had led to him imposing an end sentence of seven years imprisonment rather than the proper sentence which should have been imposed of six years and two months imprisonment.3 There the Court of Appeal held:

[12]               This is a matter which could have been dealt with in the District Court. Section 180 of the Criminal Procedure Act allows for the correction of an erroneous sentence by the sentencing court. We understand that trial counsel filed a memorandum in the District Court on 6 November 2019, seeking to have the matter recalled, but did not receive a response.

[12]   In the present case involving Mr Doidge unfortunately, an error occurred in the miscalculation of the correct conversion of his sentence to one of home detention. This calculation error resulted in an erroneous sentence being imposed which, as the Court of Appeal in Paekau noted, was one that could be dealt with in this Court as the sentencing Court in terms of s 180 Criminal Procedure Act.

2      Simon France (ed) Adams on Criminal Law — Criminal Procedure Act (online ed, Thomson Reuters) at CPA [180.01].

3      Paekau v R [2020] NZCA 332, at [11].

[13]   Accordingly. I am satisfied that, despite a contrary view expressed by counsel for the respondent, jurisdiction does exist under s 180 here for a possible correction of Mr Doidge’s sentence.

Criminal Procedure Rules 2012

[14]   It is useful at this point also to have regard to the Criminal Procedure Rules which largely replicate the High Court Rules. Rule 1.6 of the Criminal Procedure Rules provides:

1.6        Correction of accidental slip or omission

(1)This rule applies if—

(a)any judgment or order, or the reasons for any judgment or order, contain a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the court or not); or

(b)any judgment or order is so drawn up as not to express what was actually decided and intended.

(2)The court or a Registrar may correct the judgment or order, or the reasons for the judgment or order, —

(a)on the court’s or Registrar’s own initiative; or

(b)on an application made for that purpose.

[15]   In Carrick v Police Davison J issued a Minute in which he applied r 1.6 to correct a sentence appeal judgment which incorrectly recorded the appellant’s convictions:4

(5)I correct the judgment accordingly, pursuant to r 1.6 Criminal Procedure Rules 2012 and relying on the Court’s inherent jurisdiction.

4      Carrick v Police, High Court Auckland, CRI-2017-404-62, 1 June 2017.

The relevant paragraph numbers in the corrected judgment are … and the cross-referencing have also been updated. In terms of the analysis at [56], the disorderly behaviour charge now comes to be considered in the context of the third incident. The net effect of the change is the same, and the end sentence reached remains unchanged.

Inherent jurisdiction

[16]   Lastly I turn to consider this Court’s inherent jurisdiction and how this relates to the present matter. The Court of Appeal in its decision in R v Smith dealt with an appeal against a conviction and sentence.5 The appeal was dismissed after an ex parte hearing of a kind, which was later held to be invalid by the Privy Council. The appellant applied for a new hearing on the basis the previous invalid hearing was a nullity. The Court of Appeal held:6

The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice.” Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.

[17]   In R v Dodd7 Duffy J held she had jurisdiction to recall the a judgment imposing a sentence on Mr Dodd, on the basis the sentence referred to the criminal history of the offender’s brother and was therefore incorrect. Based on the offender’s brother’s criminal history, the starting point of the sentence had been uplifted by two months. Duffy J noted she would be prepared to correct the error “if persuaded that I had jurisdiction to do so”.8

[18]   Although the Judge in that case felt that neither s 180 of the Criminal Procedure Act nor r 1.6 of the Criminal Procedure Rules might apply to the circumstances there, she found that the Court’s inherent jurisdiction did apply and its role was to fill the gaps not covered by legislation, [at 25]. She also held that her conclusions regarding

5      R v Smith [2003] 3 NZLR 617 (CA).

6      Above n 5, at [36].

7      R v Dodd [2019] NZHC 667.

8 At [2].

s 180 and r 1.6 did not provide any bar to the use of the inherent jurisdiction in a case such as in the one facing her.

[19]    Although I do not necessarily share Duffy J’s views with respect to the application of s 180 of the Criminal Procedure Act or r 1.6 of the Criminal Procedure Rules, here I accept that this Court’s inherent jurisdiction in any event does allow the correction of any sentencing error that may be determined in a case like the present, providing such irregularity is satisfactorily established by Mr Doidge, and the Crown respondent (as it has) has had sufficient opportunity to address this Court on the exercise of the correction power.

[20]   For all these reasons I conclude that jurisdiction does exist in this case to correct Mr Doidge’s judgment either in terms of s 180 of the Criminal Procedure Act or by way of application of the inherent jurisdiction this Court holds.

Should the Court consider time spent remanded in custody and if so, what is the correct deduction?

[21]   I turn now to the substantive issues before me. On these when sentencing a defendant to home detention it is clear the Court is required to take into account the time a defendant has spent remanded in custody when setting the sentence.9

[22]In Longman v Police at [8]–[9] this Court held:

Credit for time spent on custodial remand is quite different. Conceptually, it has nothing to do with the appropriate length of the underlying sentence. Rather it is time spent serving that sentence for which credit is appropriate. With a sentence of imprisonment, credit is given automatically. With home detention, the Court needs to act to ensure it is given recognition.

In my view the clear default position is that full credit should be given … 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 the time actually spent in jail in effect serving the same sentence. Seen that way full equivalent should be the norm.

9      Longman v Police [2017] NZHC 2928, at [9]; Parkinson v Police [2019] NZHC 1710, Nottingham v R [2020] NZSC 74, at [38].

[23]   In Parkinson v Police, Clark J in this Court dealt with an appeal where a District Court Judge failed to give credit for time spent while the offender was in custody, when imposing a sentence of home detention. In doing so she noted:10

… full equivalence should be the norm … When assessing what reduction there should be to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment. That is because, with a sentence of imprisonment, the prisoner will automatically obtain credit for time spent on custodial remand and that time will be deducted from the sentence that is served. For this reason, in determining the length of any sentence of imprisonment, the Court is not to take into account any part of the period during which an offender was on pre-sentence detention. But where the sentence of imprisonment is to be supplanted with home detention the Judge will have to take into account the time spent in custodial remand to ensure full credit is given for that time.

(Citations omitted).

[24]   It is clear therefore, as I see it, that on a successful appeal, where a sentence of home detention is imposed, the new sentence should take into account the time an appellant has spent remanded in custody or on home detention, because otherwise it would not be considered.11

[25]   Recent Court of Appeal decisions which have allowed appeals against sentences of imprisonment commuting to home detention, have allowed a discount calculated at double the period remanded in custody. This is because an offender who is sentenced to a short term of imprisonment becomes eligible for parole after they have served half their sentence.12 As the authors of Adams on Criminal Law note:13

Because a sentence of home detention is served in full, there is a rule of thumb that the sentence will normally be one-half of the prison sentence that would otherwise have been appropriate. However, this is not automatic, and a longer term of home detention may occasionally be warranted: Brittin v Police.14

In the present case however, I am satisfied that the rule of thumb noted above applies. Ms McManus for the respondent did not endeavour to argue otherwise, nor as I see it would it have been appropriate to do so here.

10     Parkinson v Police, above n 9, at [19].

11     Nottingham v R, above n 9, at [38].

12     Diaz v R [2021] NZCA 426, at [50]; Williams v R [2021] NZCA 333, at [26].

13     Simon France (ed) Adams on Criminal Law – Criminal Procedure Act SA 80A.06.

14     Brittin v Police [2017] NZHC 2410, at [59].

[26]   But, regrettably, in the present case in the appeal judgment, although applying the “rule of thumb”, I did not take into account the prior period Mr Doidge had been remanded in custody. This was from 18 May 2021 to 30 August 2021 amounting to some 14 weeks and six days being approximately 3.5 months.

[27]   To appropriately take this into account, following the Court of Appeal directions noted above, the proper way to calculate the appropriate discount to which Mr Doidge is entitled here on his end sentence of 22.8 months’ imprisonment,15 is as follows:

(a)Subtract from this 22.8 months’ imprisonment a total of seven months’ imprisonment (being double the 3.5 month period for which Mr Doidge was earlier remanded in custody) leaving a total imprisonment period of 15.8 months; and

(b)Divide this 15.8 months’ imprisonment period by two to calculate the final sentence for home detention representing a figure of 7.9 months.

[28]   Resulting from all this, the correct deduction for Mr Doidge’s time spent remanded in custody here should have been seven months’ imprisonment and his final home detention sentence should have been for 7.9 months rather than the 11 months imposed in the appeal judgment.

Result

[29]   Accordingly, I now recall the appeal judgment, delete para [64] of that judgment and reissue the appeal judgment with a replacement para [64] as follows (but the reissued judgment is otherwise unchanged):

15     Determined at [58] of the Appeal judgment.

[64] I quash the sentence imposed in the District Court of two years and four and a half months’ imprisonment and, because Mr Doidge has spent from 18 May 2021 to 30 August 2021 (being a period of approximately 3.5 months) remanded in custody, I substitute in place of that quashed sentence an electronically monitored sentence of 7.9 months home detention.

.

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Barrister:

K Basire, Barrister, Christchurch