Gardner v Department of Corrections

[2017] NZHC 2895

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2017-441-35
CRI 2017-441-36

CRI 2017-441-37 [2017] NZHC 2895

BETWEEN

NIKKI JANE GARDNER

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	21 November 2017
Counsel:	E J Forster for Appellant C C Gullidge for Respondent
Judgment:	23 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Ms Gardner  was  serving  a  sentence  of  home  detention  for  cannabis  and firearms charges.  She was taken into custody on charges of breaching that sentence. The Department applied for the sentence to be cancelled and eventually it was.

Ms Gardner was resentenced to a term of nine months’ imprisonment.1  That sentence

is made up of the time left on the home detention sentence plus an extra component for two offences of breaching her home detention sentence.

1      Department of Corrections v Gardner [2017] NZDC 21736.

GARDNER v CORRECTIONS [2017] NZHC 2895 [23 November 2017]

(a)      whether the Court should have given credit to Ms Gardner for the time she spent in  custody following her arrest  for breach  of the home detention sentence, until the day the sentence was cancelled and she was resentenced; and

(b)whether the component of the sentence that reflects the time left on the home detention sentence was correctly assessed.

[3]      The relevant timeline is:

(a)      1  December 2016  sentenced  to  11 months  and  two  weeks’  home detention;

(b)10 August 2017 arrested on charges of breaching home detention and remanded in custody;

(c)      14 August 2017 Department applies for cancellation of home detention sentence and Ms Gardner to be resentenced; and

(d)      25 September 2017  the  home  detention  sentence  is  cancelled  and

Ms Gardner is sentenced to nine months’ imprisonment.

[4]      Relevant to the issues on appeal are ss 80Z, 80ZA and 80ZB of the Sentencing

Act 2002 which provide:

80Z     When home detention ends

(1)      An offender ceases to be subject to a sentence of home detention when–

(a)      the offender reaches his or her detention end date; or

(b)      a court cancels the sentence of home detention.

(2)       If the offender’s detention end date falls on a non-release day, the offender ceases to be subject to detention conditions on the nearest preceding day that is not a non-release day.

80ZA   When detention conditions suspended

The detention conditions of an offender serving a sentence of home detention are suspended during any period that the offender spends in custody under a court order (for example, on remand), but time continues to run during any period that they are suspended.

80ZB   Time ceases to run in certain circumstances

For the purpose of calculating how much time an offender who is subject to a sentence of home detention has served, –

(a)       time ceases to run on the sentence during any period between the date on which an application under section 80F(1)(a) is lodged and the date on which the application is determined by the court; but

(b)       some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account–

(i)       the extent (if any) to which the offender has complied with any detention conditions; and

(ii)      the amount of time (if any) that the offender has spent in custody.

[5]      The alternative to a Judge giving Ms Gardner credit for the pre-trial remand is s 90 of the Parole Act 2002.   That section requires pre-sentence detention to be administratively credited, and so it is relevant to set out s 91(1) of the Act which contains the definition of pre-sentence detention:

91   Meaning of pre-sentence detention

(1)       Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a)      any charge on which the person was eventually convicted; or

(b)      any other charge on which the person was originally arrested;

or

(c)       any charge that the person faced at any time between his or her arrest and before conviction.

(a)      while in prison Ms Gardner is still treated as being subject to the home detention sentence (s 80Z(1)).  That period therefore falls outside the definition in s 91(2) of the Parole Act of pre-sentence detention because it is not a period pending sentence. Ms Gardner is subject to a sentence;

(b)the three days in prison prior to the cancellation application are treated as time served towards the home detention sentence (s 80ZA);

(c)      the 46 days between the Department’s application for cancellation and the Court’s resentences do not count towards the home detention sentence.  Nor for the reasons given do they constitute pre-sentence detention; and

(d)the only route by which credit can be given for these 46 days is if a court does so on sentencing. This is recognised by the legislation, since s 80ZB(b) empowers the court to regard these days as time served.

[7]      These conclusions are the same as those reached by Mander J in Hawkins v Chief Executive of Department of Corrections.2   It is the approach taken by the Chief Executive here.3   It follows that credit needs to be given.

[8]      The submissions initially took the view that one month credit had been given as the Department was treating the 46 days as applicable to the two breach sentences. However, because they are concurrent sentences, allocating the 46 days to them has no impact on the time Ms Gardner serves under the nine month’ sentence.  I consider the full period should be credited by the sentencing Court.  The legislation does not

mandate a direct day for day correlation (s 80ZB(b) of the Sentencing Act is clearly

2      Hawkins v Chief Executive of Department of Corrections [2015] NZHC 1001.

3      In an email to counsel for Ms Gardner, the Department indicated it considered the situation would be different if the two breach sentences had been made separate cumulative sentences rather than the “uplift/concurrent” structure adopted here.  That is presumably based on Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [24]. Although I understand the reasoning, I doubt the Department is correct given the structure set out in ss 80Z to 80ZB. However, that is a matter for the Department and another time.

discretionary) but for the moment I cannot envisage a good reason not to give full credit.  It is real time served in prison, and full credit would be consistent with the Supreme Court decision in Booth v R.4

[9]      I accordingly conclude that following Ms Gardner’s arrest the analysis is that the first three days count as time served towards the home detention sentence, and the following 43 days require acknowledgement by the sentencing Judge.  This has not yet been done and so the appeal will be allowed.

[10]     Turning to the other issue of the assessment of the amount of the home detention sentence remaining, the relevant period is 14 August to 15 November 2017. This is 92 days. The orthodox approach is to double that in order to get the equivalent imprisonment period (because the offender will only serve half the jail term). That is a sentence of 184 days which equates to a six month’ sentence.

[11]     I accordingly calculate matters this way:

(a)       six months’ imprisonment for the balance of the sentence;

(b)two months’ imprisonment cumulative for the further offending (as assessed by the District Court); but

(c)       less an allowance for 43 days for time served (also to be doubled to ensure the credit is effective).

[12]     The  appeal  is  allowed  and  a  sentence  of  six  months’  imprisonment  is substituted for the existing nine month’ sentence.  The two concurrent sentences are

unchanged.

Simon France J

4      Booth, above n 3.