Gillespie v Police

[2021] NZHC 2487

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-293

[2021] NZHC 2487

BETWEEN

ALEXANDER JAMES GILLESPIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 September 2021
Appearances:	C G Farquhar for Appellant F J C Faull for Respondent
Judgment:	22 September 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 22 September 2021 at 11:00 am pursuant to r 11.5 of the High Court Rules.

Solicitors:
Kayes Fletcher Walker, Auckland

GILLESPIE v POLICE [2021] NZHC 2487 [22 September 2021]

Introduction

[1]    Alexander Gillespie (the appellant) appeals the decision of Judge A G Mahon in the District Court at Manukau on 31 May 2021, sentencing him to 28 months’ imprisonment on charges of:1

(a)Burglary;2

(b)28 charges of dishonestly using a document to obtain a pecuniary advantage;3

(c)Unlawfully taking a motor vehicle;4

(d)Two charges of driving while disqualified;5

(e)Failing to answer District Court bail;6 and

(f)Breaching community work.7

Background

October 2017: Breach of community work

[2]    On 25 September 2017, the appellant was sentenced to 80 hours’ community work for driving with excess breath alcohol. He breached the conditions of that sentence by failing to report to a Probation Officer on 12 October 2017 as directed. On 13 March 2018 he pleaded guilty to a charge of breaching the sentence of community work.

1      Police v Gillespie [2021] NZDC 10720.

2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years imprisonment.

3      Crimes Act, s 228. Maximum penalty seven years imprisonment.

4      Crimes Act, s 226(1). Maximum penalty seven years imprisonment.

5      Land Transport Act 1998, ss 32(1)(a) and 32(3). Maximum penalty three months imprisonment or a$4,500 fine, and six months’ disqualification.

6      Bail Act 2000, s 38(a). Maximum penalty one year of imprisonment or a $2,000 fine.

7      Sentencing Act 2002, s 71(1)(a). Maximum penalty 3 months imprisonment or a $1,000 fine.

May 2018: Burglary and driving while disqualified

[3]    The appellant pleaded guilty to a charge of burglary and to a charge of driving while disqualified on 5 August 2019 having first appeared on the charges on 2 July 2018. The burglary offending occurred on 9 May 2018 when the appellant drove into the driveway of a residential address in Botany and, having ascertained that there was nobody home, he disabled the security lights and tampered with CCTV cameras before forcing a window open and entering the house. He took an iPhone and left. He was subsequently identified from CCTV footage and the iPhone was located at his home address. At the time of the burglary offending he was driving while disqualified

June 2018: Dishonestly using a stolen credit card to obtain a pecuniary advantage

[4]    Over the night of 15-16 June 2018, the Howick Post Office was burgled, and a credit card was stolen. The appellant subsequently obtained the credit card from unknown persons. During the course of 18 and 19 June 2018, the appellant used the stolen credit card to obtain goods to a total value of $3,972.72. Although the appellant presented the credit card on a number of further occasions additional financial loss to the card owner was only prevented by the card being declined by reason of there being insufficient available funds.

[5]    At a Judge-alone trial before Judge Mahon on 7 December 2020, the appellant was found guilty and convicted of 28 charges of dishonestly using the stolen credit card with intent to obtain a pecuniary advantage.

July 2018: Unlawfully taking a motor vehicle and driving while disqualified

[6]    On 1 July 2018 the appellant was observed by Police transferring items from a stolen car into another vehicle parked nearby. The appellant had earlier been seen driving the stolen car. He was a disqualified driver at the time. Following a Judge-alone trial before Judge Wharepouri in the Manukau District Court on 7 August 2020, the appellant was found guilty and convicted of a charge of unlawfully taking a motor vehicle, and a charge of driving while disqualified.8

8      Police v Gillespie [2020] NZDC 20818.

October 2019: Failure to answer District Court bail

[7]    On 15 October 2019, the appellant failed to answer District Court bail. He pleaded guilty to the offence prior to sentencing.

District Court decision under appeal

[8]    On 31 May 2021, the appellant was sentenced by Judge Mahon to 28 months’ imprisonment.9 The sentence was comprised of a term of 28 months’ imprisonment on the burglary and credit card offences; concurrent sentences of one month’s imprisonment for the breaches of community work and the two charges of driving while disqualified; and a concurrent sentence of six months’ imprisonment for the charge of unlawful taking. The Judge also disqualified the appellant for a total of 12 months in relation to the driving charges. The appellant was convicted and discharged on the charge of failing to answer District Court bail.

[9]    The Judge adopted the burglary charge as the lead offence for sentencing. After reviewing the submissions of counsel and the cases they referred to,10 he adopted a starting point of 20 months’ imprisonment for the burglary.11 He then applied uplifts of seven months for the credit card offending, four months for the other offending12 including taking account of the fact that the offending occurred while the appellant was on bail, and three months to take account of the appellant’s previous similar dishonesty offending, to reach a total starting point of 34 months’ imprisonment.

[10]   The Judge then applied a discount of six months for the appellant’s guilty pleas and personal mitigating factors to arrive at the sentence of 28 months’ imprisonment, which he imposed on the burglary and credit card offences. The Judge also imposed concurrent sentences of one month’s imprisonment on the charge of breaching community work and the two charges of driving while disqualified, and six months’ imprisonment on the charge of unlawful taking of the motor vehicle. The Judge

9      Police v Gillespie, above n 1.

10     In particular, Simon v R [2017] NZHC 1235; and Toluono v Police [2017] NZHC 809.

11 At [11].

12     Breach of community work; two charges of driving while disqualified; and the charge of unlawful taking.

imposed cumulative sentences of six months’ disqualification on each of the driving charges to reach a total disqualification of 12 months.

Approach to appeals under sentence

[11]   A sentence may be appealed pursuant to s 250(2) of the Criminal Procedure Act 2011. The Court will allow an appeal only if satisfied that there is an error in the sentence, and that a different sentence should be imposed.13 In any other case the appeal must be dismissed.14

[12]   An appellate court will not interfere with a sentence that is within the available range and justifiable by sentencing principles.15 It is well-established that the Court will not interfere with a sentence unless it is shown to be “manifestly excessive”.16 Whether the sentence imposed is “manifestly excessive” is to be determined by reference to the sentence imposed, rather than the process by which that sentence was reached.17

Appellant’s submissions

[13]   Ms Farquhar for the appellant, submits that the sentence imposed was manifestly excessive and that a sentence of home detention was appropriate and should have been imposed. She submits that:

(a)the Judge erred by failing to give adequate discounts for the appellant’s personal circumstances, which are clearly evident from the fresh evidence the appellant has filed in this Court and which he seeks to rely on for his appeal;

(b)the Judge failed to take into account the three years the appellant spent on EM bail prior to being sentenced; and

13     Criminal Procedure Act 2011, s 250(2).

14     Section 250(3).

15 At [36].

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

17     Ripia v R [2011] NZCA 101 at [l5].

(c)after applying appropriate discounts for those relevant mitigating factors, a sentence of home detention was the least restrictive outcome appropriate in the circumstances, and should have been imposed rather than imprisonment.

[14]   Ms Farquhar does not challenge the overall starting point of 34 months’ imprisonment, which is accepted as being within range. Rather, she relies on the Judge having applied insufficient discounts in relation to the appellant’s personal factors, in three respects.

Guilty plea and personal circumstances

[15]   First, Ms Farquhar submits that as the appellant pleaded guilty to the burglary offence once the summary of facts had been amended, and also admitted the breach of community work only a few months after the charge was laid, in accordance with the principles in Hessell v R,18 he ought to have been given a 10 per cent discount off his sentence. In relation to the charges of unlawful taking, Ms Farquhar also notes that although the appellant had taken the unlawfully taking of a motor vehicle and driving while disqualified charges to trial and was found guilty of those charges, Judge Wharepouri had acquitted him on two other charges.

[16]Ms Farquhar submits that the Judge also ought to have given the appellant a

20 per cent discount for personal circumstances, with reference to his mental impairment, addiction and recovery which are described in detail in the fresh evidence the appellant seeks leave to file and rely on for the purposes of his appeal. Counsel acknowledges that there was some evidence before the Judge at the sentencing that referred to the appellant suffering from attention deficit hyperactivity disorder (“ADHD”) and to him having adopted a pro-social rehabilitative lifestyle since the offending. She nevertheless applies to have further evidence admitted, and submits that although the evidence is not entirely new, it is credible and will provide the Court with a significantly more comprehensive presentation of the appellant’s relevant personal circumstances. The fresh evidence is contained in affidavits sworn by the

18     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45] and [47].

appellant himself, his partner, his mother, a letter from his employer, and in a report by Dr Karl Jansen, who is a psychiatrist specialising in ADHD.

[17]   Referring to Zhang v R,19 Ms Farquhar submits that this new evidence demonstrates a causal link between the appellant’s mental impairment and addiction issues, and his offending, as evident from the following:

(a)the appellant suffers from ADHD which predisposes him to mood disorders and substance abuse: here, methamphetamine;20

(b)that at the time of offending he had relapsed into his methamphetamine addiction which caused him to suffer from sleep deprivation and psychosis; and

(c)that this mental impairment and addiction to methamphetamine caused him to relapse and reoffend.

[18]   Ms Farquhar submits that the initiative and commitment shown by the appellant since the offending by undertaking and adhering to a drug rehabilitation programme for his methamphetamine addiction warrants a significant discount. The appellant has been ‘clean’ for three years and has also maintained employment with the support of his family and his new partner. Counsel submits that the risk of the appellant reoffending has been markedly reduced by his rehabilitation efforts and by the pro-social circumstances in which he now lives with his partner.

Time spent on EM bail prior to sentencing

[19]   Secondly, Ms Farquhar submits that the Judge failed to give the appellant any discount to recognise the three-year period which he had spent on EM bail, as required by s 9(2)(h) of the Sentencing Act 2002. Relying on Kreegher v R,21 Ms Farquhar submits that a six-month discount would be appropriate to recognise the three years the appellant spent on EM bail.

19     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

20     Ms Farquhar points to the comment made by the Court of Appeal in Zhang v R, above n 19, at

[145] noting that users often self-medicate for conditions such as ADHD and depression.

21     Kreegher v R [2021] NZCA 22 at [49].

Home detention - the least restrictive outcome

[20]   Thirdly, Ms Farquhar submits that the effect of these discounts being applied would reduce the adjusted starting point to a sentence of 18 months’ imprisonment, whereupon the Court should impose a sentence of home detention, it being the least restrictive outcome appropriate in the circumstances. Ms Farquhar submits that the appropriateness of a sentence of home detention is supported by the pro-social and supportive influences in the appellant’s life which have assisted him to remain drug-free and without re-offending over a three-year period. They include the full-time employment which has been confirmed as being available to him on release, and the on-going support of his family and particularly his partner, who is pregnant and expecting their first child in January 2022. Ms Farquhar also points to the concern expressed by Dr Jansen that a period of imprisonment will have a negative effect on the appellant.

[21]   In conclusion Ms Farquhar submits that the term of a home detention sentence should be determined by also allowing a full discount for the two months the appellant spent on remand. Counsel submits that the sentence should be one of eight months’ home detention.

Respondent’s submissions

[22]   Mr Faull for the Crown accepts that on an application of the test in Mark v R, the new evidence has the potential to materially impact the sentence and should, therefore, be admitted.22

[23]   The Crown accepts that the appellant’s personal circumstances warranted the Judge allowing greater discounts than he did, but submits that as the starting point adopted by the Judge was particularly generous, the end sentence of 28 months’ imprisonment is not manifestly excessive. Mr Faull submits that the appellant’s offending and criminal history justified the adoption of a significantly higher global starting point of around 44 months’ imprisonment.

22     Mark v R [2019] NZCA 121 at [16].

[24]   Mr Faull accepts that the 20-month starting point adopted by the Judge for the burglary charge was appropriate, as was the three-month uplift for previous offending. However, he submits that an uplift of at least 10 months for the credit card offending would have been appropriate.23 He further submits that the combined four month uplift for the remaining charges was also generous in the circumstances, and says that a cumulative sentence of six months’ imprisonment would have been appropriate for the unlawful taking of a vehicle offending,24 and a further uplift of four months’ imprisonment having regard to the scale and persistence of the offending committed on bail.

[25]Regarding the available discounts, the respondent submits that:

(a)A guilty plea discount of no higher than 15 per cent was available;

(b)A combined discount of 15 per cent was warranted to recognise the appellant’s personal factors including mental impairment and addiction issues, remorse and rehabilitative efforts and progress;

(c)A discount of no more than four months would be appropriate to reflect the time spent on EM bail because for the majority of that time the appellant’s bail restrictions were significantly reduced by reason of him being granted exceptions to his curfew conditions to enable him maintain employment, and because he breached his bail conditions on several occasions.

[26]   On this basis, Mr Faull submits than a starting point of 44 months’ imprisonment, with a combined discount of 16 months for the factors outlined above would have been appropriate. This would produce an end sentence of around 28 months’ imprisonment, the same as imposed by the Judge. Mr Faull accordingly submits that the end sentence cannot be said to be manifestly excessive.

23 Citing Toluono v Police, above n 10 (uplift of no more than 10 months); and Tiopira v Police  [2012] NZHC 1720 at [12] in which Lang J observed that “as a general proposition, a starting point of around 12 to 18 months’ imprisonment will be appropriate where the offending results in losses of around $2,000 to $3,000."

24 Citing O’Rourke v Police [2016] NZHC 273 (starting point of nine months’ imprisonment); and

Gideon v Police [2014] NZHC 1065 (starting point of 12 months’ imprisonment).

Discussion

[27]   As both counsel have accepted, it is uncontentious on an application of the test in Mark v R that the new evidence should be admitted given its potential impact on the sentence.25 For the reasons I shall explain, I agree with counsel that the appellant’s personal factors and the time he had spent on EM bail, warranted the Judge allowing a greater discount than he gave and that by not allowing the discounts the Judge erred.

Starting point

[28]   There is no sentencing tariff guideline authority for burglary because the circumstances in which burglary offending can be committed vary widely. Burglary of a dwelling house is a significant aggravating factor to be taken into account in sentencing because of the heightened risk of confrontation with the occupants. The Court of Appeal in Arahanga v R observed that dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment. 26

[29]   Factors relevant to assessing the gravity of burglary offending include: the degree of planning and sophistication of the offending; the type of premises entered; the kind and value of any property stolen; whether any damage was done; the impact and effect of the offending on the occupants; and the extent of the offending where multiple burglaries have been committed.27

[30]   The appellant’s burglary offending involved planning and pre-meditation albeit not particularly sophisticated. He selected a private residence which he expected to be unoccupied at the time. He interfered with and disabled some security lights and tampered with CCTV cameras before using a ‘jemmy’ to force his way into the house via a rear window. He stole an iPhone from the house. The value of the iPhone is not stated in the prosecution summary, but the uninsured loss to the owner was $500 being their insurance excess. The victim of the burglary explained in a victim impact

25     Mark v R, above n 22, at [16].

26     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

27     R v Nguyen CA110/01, 2 July 2001 at [17].

statement that the burglary had left her and her children feeling unsafe and scared in their home.

[31]   Having regard to these features of the offending and its impact on the victim and her family I am satisfied that the starting point adopted by the Judge of 20 months’ imprisonment for the burglary offending was within the available sentencing range and appropriate. I also consider that the three-month uplift applied by the Judge on account of the appellant’s history of previous burglary and dishonesty offending was appropriate.28

[32]   As regards the 28 charges of credit card offending, while there is no tariff case for this type of offending, the courts have accepted that a starting point in the range of 12 to 18 months’ imprisonment should be applied where credit or debit cards are unlawfully used on multiple occasions resulting in monetary loss similar to that which occurred in the present case.29 In my view the Judge’s uplift of seven months for this credit card offending was particularly generous by comparison with similar cases,30 and I agree with the Crown that an uplift of 10 months’ imprisonment is appropriate having regard to the number of offences and also because the extent of the financial harm caused by the offending would have been greater had the card not been declined on multiple occasions.

[33]   I also consider that the four month uplift applied by the Judge in respect of the breach of community work, two charges of driving while disqualified, the unlawful taking of a motor vehicle and the fact that the offending occurred while the appellant was on bail was generous, considering that the Judge imposed concurrent penalties of one month’s imprisonment on the charge of breach of community work, the two charges of driving while disqualified, and six months for the charge of unlawful

28 Sentencing Act 2002 s 9(1)(j). The appellant had two previous convictions for burglary (2012; 2014), five previous convictions for receiving stolen property (2012; 2014); and a previous conviction for theft (2014) and for using a document to obtain a pecuniary advantage (2014).

29 Rako v R [2015] NZCA 463 at [9]; Tiopira v Police [2012] NZHC 1720 at [12].

30 See McLaren v Police [2021] NZHC 742 at [20] in which a nine month starting point for broadly similar offending was described as “undoubtedly lenient” in comparison with cases such as Rako v R, above n 26; Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007; Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011; Edwards v Police [2012] NZHC 737; and Tiopira v Police [2012] NZHC 1720.

taking.31 In my view a six month uplift in respect of these charges would more appropriately reflect the gravity and criminality involved in this offending.

[34]   I do not however agree with the Crown that a further uplift was also appropriate to take account of the appellant’s offending while on bail. A discrete uplift was applied in Stepanicic v R, which the Crown relies on, in circumstances where the appellant had been on bail for other unrelated offending at the time of the index offences, but did not receive an uplift in respect of that previous offending.32 That can be distinguished from the present case where not only did the appellant receive a separate uplift for his previous offending, but the extent of the offending while on bail is numerically skewed by the 28 charges relating to the credit card offending. Treating each of the credit card offences as separately punishable bail breaches would in my view fail to recognise that the credit card offending was effectively a single course of offending committed by the repeated use of a single card over a period of two days.

[35]   Applying those uplifts produces an overall or ‘global’ starting point of 39 months’ imprisonment.

Discounts

Guilty plea

[36]   The Judge allowed a discount of six months to reflect the appellant’s guilty plea and personal factors. The Judge did not explain the composition of the six months and what discount he had allowed for the guilty plea, and what portion of the discount related to the appellant’s personal mitigating factors.

[37]   In Hessell v R, the Supreme Court explained that it is for the sentencing Judge to assess the value of the plea in the particular circumstances.33 Having initially entered a plea of not guilty to the burglary charge, the appellant subsequently pleaded guilty some 10 months later, after a trial date had been set and when the prosecution summary of facts was amended to allege that only an iPhone had been taken during

31     Police v Gillespie, above n 1, [23].

32     Stepanicic v R [2015] NZCA 211 at [10].

33     Hessell v R, above n 17, at [61] – [62].

the burglary. While he did not plead guilty to the credit card offending or to the unlawful taking of the vehicle charge, it is relevant to note that at his Judge-alone trial before Judge Wharepouri although he was found guilty of the unlawful taking and driving while disqualified charges, he was acquitted on two other charges laid by the Police. In my view a guilty plea discount of 20 per cent is appropriate for the appellant’s guilty plea in relation to the burglary charge. The discount for the guilty plea does not apply across the board to all the charges and it is limited to the starting point adopted for the burglary of 20 months, and is therefore a reduction of 4 months.

Addiction and mental impairment

[38]   The new evidence filed by the appellant provides information regarding the appellant’s mental health, addiction, efforts made towards rehabilitation, family support and employment, and personal circumstances that was not before Judge Mahon when he sentenced the appellant.

[39]   The expert report from Mr Jansen34 together the appellant’s own affidavit and the two pre-sentence reports describe him as having struggled with ADHD and associated mood disorders throughout his life, developing a methamphetamine use disorder in the process of self-medicating through drug use. When the present offending occurred, the appellant was off his ADHD medication, he was depressed following the break-up of his previous domestic relationship, and had relapsed into using methamphetamine, and was suffering from sleep deprivation and cognitive disturbance.

[40]   In his report dated 11 August 2021 Dr Jansen sets out a detailed account of the appellant’s drug abuse and mental health history and explains the effects of the appellant having ADHD which was diagnosed during his childhood. Dr Jansen says that from his examination of the appellant and his review of his medical history, the appellant’s ADHD was diagnosed in childhood, has extended into his adult life, and meets the diagnostic criteria of the disorder.35

34     Dr Karl Jansen, MB.ChB., M.Med.Sci.,D.Phil.(Oxon), FRCPsych.,ARANZP.

35     DSM-V diagnostic criteria (American Psychiatric Association (2013) – The Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-V, 2013).

[41]   Dr Jansen says that the appellant has a past history of recurrent depression and drug induced psychosis. He is currently in recovery from methamphetamine use disorder, and reports abstinence in the years following his arrest. Dr Jansen explains that the genetically determined condition ADHD, is the most common neuro development disorder in children, and that 75% of childhood cases continue to manifest ADHD symptoms in adulthood. Referring to impulsivity and ADHD, Dr Jansen explains:

ADHD is often combined with other psychiatric disorders such as oppositional defiant disorder/conduct disorder, mood and anxiety disorders. Besides the core symptoms of ADHD, deficits in executive functions (a set of cognitive skills that are necessary to plan, monitor, and execute a sequence of goal-directed complex actions) are commonly associated with ADHD.

As a consequence of the above, they are much more likely to offend and are much more likely to develop problems with substances, some of which is self- medicating. Use of methamphetamine, cannabis and alcohol, in particular, is sometimes self-medication of the underlying ADHD and associated mood issues.

[42]Dr Jansen concludes:

[The appellant] is of course not personally responsible for his unfortunate genetic loading for ADHD, substance use disorders and mood disorders.

Impulsivity, poor judgement, a reduced capacity to be able to benefit from experience and a markedly elevated likelihood of depression, anxiety and substance use disorders are a feature of that condition.

While he might be considered responsible for his methamphetamine use, it is clear that he was both self-medicating ADHD and depression, and that he had methamphetamine use disorder, i.e. psychiatric disorders. By definition, dependence involves a degree of compulsion, a loss of control by the conscious ego based in the frontal lobes of the brain over entrained dependence circuits in the more primitive brain.

[The appellant] has made some efforts in the past to address his difficulties, through medication and rehabilitation.

I assess him as a good prospect for doing so again. …

[43]   I accept that the evidence demonstrates there to be a causal link between the appellant’s ADHD and drug addiction, and his offending. The Court of Appeal has noted the prevalence of methamphetamine as a form of self-medication for ADHD.36 In my view the appellant’s mental condition and his drug addiction were factors that

36     Zhang v R, above n 18, at [145].

directly contributed to his offending and it is appropriate that these personal factors be recognised by a discount to reduce the sentence that would otherwise be imposed. I note that prior to being sentenced the appellant has maintained his abstinence from methamphetamine and that in his affidavit he says that he is committed to continuing to do so following his release. As is clear from the affidavits filed by his partner, who is expecting their first child in January 2022, and his mother, he has the support of his family. His employer has also confirmed his position will be open for him to return to when he is released from prison.

[44]   I am satisfied from the information contained in the affidavits and Dr Jansen’s report that the appellant has made a concerted effort to maintain a drug-free status and that his positive and supportive personal relationship and his employment record are consistent with him making commendable progress and rehabilitation. I consider that a 15 per cent discount is appropriate to recognise these factors. This discount is applied to all the charges and will result in a reduction of six months.37

[45]   I find that the Judge erred by failing to recognise and make any allowance for the time the appellant spent on EM bail in accordance with ss 9(2)(h) and 9(3A) of the Sentencing Act 2002. After spending two months in custody following his arrest the appellant was granted EM bail on 3 September 2018, with subsequent variations to conditions to enable him to work. He remained on EM bail until 24 February 2021 at which time the EM condition was removed and he was then on bail simpliciter up until being sentenced to imprisonment on 31 May 2021. This is a period of two years, five months and 21 days which must be recognised in determining the final sentence to be imposed. While the terms of the appellant’s EM bail were not particularly restrictive, the overall impact of time spent subject to personal restrictions cannot be minimised. Having regard to the factors under s 9(3A) of the Sentencing Act, including the alleged breaches of bail conditions, and the relative flexibility of his particular EM bail conditions, I consider that a five-month discount is appropriate.

37     Arithmetically 15 percent of the adjusted starting point of 39 months is 5.85 months which I round up to 6 months.

Home detention

[46]   Applying these discounts to the adjusted starting point of 39 months produces a sentence of 24 months’ imprisonment. Accordingly, I find that the sentence of 28 months’ imprisonment imposed by Judge Mahon is manifestly excessive and a different sentence should be imposed.

[47]   As a sentence of 24 months’ imprisonment is a short-term sentence, it is open to the Court to consider home detention.38 It is clear that a sentence of home detention is the most appropriate and least restrictive sentencing outcome in the circumstances. The appellant has a supportive family and employer. He has made conscientious efforts to put an end to his drug use and to live a productive life with the support of his partner. A sentence of home detention will enable him to remain in the community and to build on the efforts he has made to rehabilitate himself.

[48]   As the sentence to be imposed is one of home detention, the Court can also allow a discount to reflect the time spent in custody.39 Although the Court’s determination of the discount to be allowed for time spent in custody is an evaluative exercise to be made having regard to all the circumstances, as Young J in Longman v Police observed, “full equivalence should be the norm”.40 The appellant has been subject to a period of imprisonment from his sentencing on 31 May 2021 to the present, a period of approximately three and a half months.

[49]   I consider that it is appropriate to allow the full equivalent time the appellant has spent in custody, and deducting this period from the sentence reduces it imprisonment down to 20.5 months’ imprisonment, which I round down to 20 months. Having regard to the purposes and principles of sentencing,41 including a balancing

38   Because Judge Mahon arrived at a final sentence of 28 months, he did not engage with the question of whether a sentence of home detention would be appropriate in all the circumstances. See general discussion on the two-stage process of consideration of home detention as an available sentence in R v Vhavha [2009] NZCA 588 at [31] per William Young P.

39 See Bates v R [2016] NZCA 456 at [19]; Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; R

v Ford [2008] NZCA 64; R v Stempa [2008] NZCA 254; and Laloni v R [2015] NZCA 55 at [9]. I note however, that s 82 of the Sentencing Act 2002 prohibits the Court from taking time spent in pre-sentence detention into account in fixing a period of imprisonment.

40 Longman v Police [2017] NZHC 2928 at [9].

41 Sentencing Act 2002, ss 7 and 8; see also discussion of the approach to fixing home detention sentences in R v Bisschop [2008] NZCA 229 at [19].

between accountability and denunciation with rehabilitation in particular, I consider that a home detention sentence of ten months is appropriate.

Result

[50]   The appeal against sentence is allowed, and the sentence imposed on the appellant on 31 May 2021 of 28 months’ imprisonment is quashed and substituted with a sentence of ten months’ home detention to be served at the appellant’s home address as recorded in the Corrections pre-sentence report dated 31 March 2021.

[51]   The sentence of home detention is to be subject to the standard statutory conditions together with the Special Conditions as set out in the Corrections pre- sentence report dated 31 March 2021. Prior to commencement of the home detention sentence the proposed address is to be assessed as to its suitability for electronic monitoring and a report prepared and filed with the Court.

[52]   The orders imposing cumulative periods of disqualification on each of the driving charges, and making a total disqualification of 12 months are to remain in force.

Paul Davison J