Henry v Police

[2018] NZHC 394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000021

[2018] NZHC 394

BETWEEN

JASON HENRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 March 2018
Appearances:	Mireama Houra for the Appellant Annabel Linterman for the Respondent
Judgment:	13 March 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 March 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

HENRY v NEW ZEALAND POLICE [2018] NZHC 394 [13 March 2018]

Introduction

[1]                 The appellant, Jason Henry, was sentenced to 14 months’ imprisonment in the Auckland District Court after pleading guilty to a range of predominantly property and dishonesty charges.

[2]                 Leave was granted for him to apply for home detention if a suitable address became available. That occurred and Mr Henry was re-sentenced by a different Judge to a term of eight months’ home detention.

[3]                 He now appeals on the basis that the substituted sentence should have been seven months’ home detention or, alternatively, the substituted sentence ought to have taken account of time served.

Factual background

The offending

[4]                 This is an unorthodox sentence appeal. It is not concerned with whether the Judge erred in his assessment of the offending or the circumstances of the offender. Rather, the complaint is that the Judge did not comply with the requirements of the Sentencing Act 2002 (“the Act”) when substituting a sentence of home detention. Despite this, it is helpful to briefly set out Mr Henry’s offending.

[5]                 The relevant offending occurred over the space of one year between June 2016 and June 2017.

[6]                 On 9 June 2016 Mr Henry was found driving a $27,000 BMW in Manurewa. The car had been stolen six months earlier. It had an incorrect registration sticker and inside the car a methamphetamine pipe was found. Mr Henry was charged with receiving the car and possession of the pipe.

[7]                 Six months later, on 13 December 2016, Mr Henry unlawfully took a mountain bike in Newmarket after cutting through the lock using bolt cutters. He was charged with unlawfully taking the bicycle and possessing instruments for the purpose of taking a vehicle.

[8]                 The following day he took another bicycle from Britomart. Then five months later, on 5 May 2017, he took a bicycle from Panmure.

[9]                 In addition to  this  offending  he  faced  two  charges  of  breach  of  bail  on 9 September and 2 December 2016.

Procedural history

[10]              Mr Henry pleaded guilty to all charges and appeared for sentence before Judge P A Cunningham on 10 October 2017. She sentenced him to 14 months’ imprisonment but granted leave to apply for home detention should a suitable address become available.1

[11]              When a suitable address became  available  two  and  a  half  months  later  Mr Henry applied for the sentence of imprisonment to be substituted for one of home detention. The application came before Judge E P Paul on 22 December 2017.2 The Judge sentenced Mr Henry to eight months’ home detention.

District Court decisions

Judge Cunningham’s decision

[12]              Although Ms Houra, for Mr Henry, takes no issue with Judge Cunningham’s approach on sentence it is helpful for present purposes to examine how the end sentence of 14 months’ imprisonment was arrived at.

[13]              Judge Cunningham adopted a starting point of 10 months for receiving the BMW, uplifted that by six months to reflect the three charges of taking a bicycle and then applied a further uplift of one month for the remaining charges (being possession of the methamphetamine pipe and the two breaches of bail).3 This formulation resulted in a global starting point of 17 months which the Judge uplifted by a further

1      Police v Henry [2017] NZDC 23014.

2      Department of Corrections v Henry [2018] NZDC 29457.

3      While not explicitly mentioned, it can be inferred the Judge also considered the possession of instruments charge in fixing a starting point.

two months to reflect Mr Henry’s previous convictions. She then applied a five month discount for the guilty plea arriving at an end sentence of 14 months’ imprisonment.

[14]              Judge Cunningham considered Mr Henry’s personal mitigating factors. She observed that he would benefit from some intervention for his alcohol and drug issues as well as a tikanga Māori programme. She did not apply a discount for these factors but did comment that she would have sentenced Mr Henry to a term of home detention had a suitable address been available. In that event she granted him leave to apply for home detention.

Judge Paul’s decision

[15]              On 22 December 2017, Mr Henry applied for home detention substitution because a suitable address had been found.

[16]              Judge Paul was satisfied that the statutory requirements of s 80K of the Act had been met. He cancelled Mr Henry’s sentence of imprisonment and re-sentenced him to home detention for a period of eight months in respect of each charge. In doing so he noted that he took into account the period Mr Henry had already served in prison.4

Jurisdiction

[17]              This is a first appeal against sentence. The appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.5 The touchstone is whether the sentence imposed is manifestly excessive.6

[18]              The focus is on the sentence imposed, rather than the process by which it was reached.7 But as the Court of Appeal also stated in Tutakangahau v R:8

“… However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an

4      Department of Corrections v Henry above n 2 at [3].

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

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

7 At [36].

8 At [36].

explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge's intentions.”

Analysis

[19]              Judge Cunningham’s power to grant leave for substitution is found under s 80I of the Act. Section 80K then provides for applications for cancellation and substitution:

“80K   Application for cancellation of sentence of imprisonment and substitution of sentence of home detention

(1)An offender who is subject to a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80I may apply to the court at any time.

(2)An application must be served as soon as practicable on the chief executive of the Department of Corrections.

(3)An application must be accompanied by a pre-sentence report updated in accordance with section 80L.

(4)On application under subsection (1), the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention.

(5)A sentence of home detention substituted under subsection (4) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months.

(6)When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.

…

(8) A sentence of imprisonment  that  is  cancelled  under  this section is a custodial sentence for the purposes of any other enactment.”

[20]              In this context it is worthy of note that the sentencing decision as to whether home detention is, in principle, the proper sentence is made by the Judge who grants leave under s 80I.9 The sentencing decision on an application to cancel a sentence of

9      Gamble-Mackesy v Department of Corrections [2015] NZHC 1568 at [28].

imprisonment and substitute it for one of home detention under s 80K is simply to determine whether the matters in s 80A(2) are satisfied.10

[21]              However, the use of the word “may” in s 80K(4) provides the Court with a residual discretion to decline to substitute a sentence of home detention. While in practice this may be a relatively infrequent occurrence the discretion nonetheless exists because supervening circumstances may give effect to a change rendering substitution inappropriate.11

[22]              In the present case there is no suggestion of a material change in Mr Henry’s circumstances; no new information had come to light following Judge Cunningham’s sentencing. There were no supervening circumstances which might have operated to render home detention inappropriate.

[23]              Mr Henry’s complaints in the present case are that the substituted sentence should have been seven months’ home detention or, alternatively, should have taken account of the time served between 10 October and 22 December 2017 (being 73 days or approximately two and a half months).

[24]              I shall deal with each of these issues in turn, though I observe at the outset that in the present appeal the two grounds are interrelated.

Should a sentence of seven months’ home detention have been imposed?

[25]              Ms Houra submits that the usual practice adopted by sentencing Courts when considering home detention as an alternative to imprisonment is to impose a term which is equal to half the term of imprisonment which would otherwise have been imposed. The rationale for this practice is that home detention is only available where offenders would otherwise be sentenced to a short term sentence of imprisonment.12 Short term sentences are sentences of imprisonment of 24 months or less.13 Under the Parole Act 2002 the release date for those serving a short term of imprisonment is the

10 At [28].

11 At [88].

12     Sentencing Act 2002, s 15A.

13     Parole Act 2002, s 4.

date on which they have served half of their sentence.14 The practice of fixing sentences of home detention at half the length of the period of imprisonment involves an acknowledgement that the offender, if they were instead serving a sentence of imprisonment, would be eligible for release at the half way point.

[26]              This convention is, however, not prescribed by the legislation. It is a judicial practice which recognises the practicalities of  the  operation  of  the  Parole  Act.  Ms Houra properly acknowledges as much. Nonetheless, she says that in the absence of an explanation for not following the convention Judge Paul should have adopted the usual practice. His failure to do so amounts to reversible error.

[27]              As noted, there is no immutable or rigid mathematical formula which the law requires be applied when substituting a sentence of home detention. That point was made emphatically by the Court of Appeal in R v Bisschop.15 There, counsel had submitted that the home detention imposed was manifestly excessive because it exceeded half the term of imprisonment. The Court disagreed, observing:

“[18] Nevertheless, Counsel accepted that “halving” is not a matter of law. We do not accept that any mathematical process should be adopted. The proper approach, consistent with R v Tamou [2008] NZCA 88, is an evaluative assessment of all the circumstances. While the maximum period of home detention that can be imposed (12 months) equates with the maximum period an offender sentenced to a short-term sentence of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case. Once the jurisdiction to impose home detention exists through what otherwise would have been a short-term prison sentence, then the home detention term, if granted, is to be fixed after an overall assessment of all factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate.

[19] Home detention is not the same as imprisonment. It is no longer a sentence of imprisonment given the removal of the definition that was in s 4(1) of the Sentencing Act. The person is not in custody. Conditions may be onerous and restrictive but not to the same extent as imprisonment. “Halving” ignores the reality that prison is more onerous than home detention, but home detention is itself a serious sentence which imposes major restrictions on liberty.”

14     Parole Act 2002, s 86.

15     R v Bisschop [2008] NZCA 229.

[28]              This conclusion is consistent with the effect of s 80A(3) of the Act which provides that a sentence of home detention may be for a period “as the Court thinks fit”, but no less than 14 days and no more than 12 months.

[29]              In my view, the Judge’s failure to follow sentencing convention cannot amount to an error of principle in these circumstances. Ms Houra sought to rely on Gerrard v Police.16 There, Nation J found the release date on the prison sentence is a relevant consideration when substituting a sentence of home detention and that in the circumstances the “rule of thumb” approach should have been adopted.17 In my view, nothing in what Nation J said was intended to recast the Court of Appeal’s reasoning in Bisschop. In Bisschop the Court acknowledged that what was called for was an overall assessment of relevant factors and that a strict mathematical approach is not appropriate. In Gerrard the relevant factors importantly included that the appellant had served 16 of the 23 months of his term of imprisonment. Naturally, this justified a more generous approach in setting the duration of home detention. The present case is materially different from Gerrard.

[30]              As Ms Linterman, for the Police, submits more is required on the part of the appellant than to simply point to what is claimed to be a mathematical error. Ms Houra has not particularised the factors she relies on as to why the imposition of an eight month sentence of home detention amounted to an error, except submitting the Judge failed to take account of time served. That leads conveniently to the second ground of appeal.

Should the substituted sentence have taken account of time served?

[31]              Ms Houra relies on s 80K(6). This provision requires the Judge at re- sentencing to take into account the portion of the original sentence which remains unserved at the time of the order. Mr Henry had served approximately two and a half months in prison, of a total term of 14 months, by the time Judge Paul substituted his sentence.

16     Gerrard v Police [2016] NZHC 3130.

17     At [25] to [26].

[32]              However, the s 80K(6) requirement falls well short of mandating the Court to reflect that circumstance in a mechanical or formulaic way. As Nation J observed in Gerrard:

“[23] I do not consider the wording of s 80K(6) or the context in which it occurs would require the Court to always fix the term of a substituted sentence of home imprisonment at no more than half the remaining term of the sentence of imprisonment that the prisoner is serving. Section 80K(6) requires the Court to take into account the portion of the original sentence that remains unserved. The reference is to the original sentence, not the original sentence and rights to release from that sentence under the Parole Act.”

[33]              In support of this submission Ms Houra relies on Kopa v Police.18 Mr Kopa was sentenced to 13 months’ imprisonment but was granted leave to apply for home detention which he then did. A sentence of five months and 21 days’ home detention was substituted. It was accepted that the Judge erred in calculating the length of the substituted sentence by not taking into account the 87 days Mr Kopa had served in custody.

[34]              Ellis J allowed the appeal observing that while the Court is required to have regard to the portion of the original sentence which remains unserved s 80K does not require precise mathematical conversion. However, she added that it was difficult to see why, absent some special circumstances, the substitution would not be based on at least a rough arithmetical exercise and, if such an approach is not undertaken, one would expect reasons to be given.19

[35]              However, Kopa is a quite different case from the present because it was accepted the Judge was in breach of s 86K(6); he failed to take into account any of the time served in custody on remand. That is not the case here, where the Judge expressly observed he took into account time served.

[36]              In her submissions, Ms Linterman drew my attention to eight cases, including authorities relied on by Ms Houra, to demonstrate that not only is there no blanket rule

18     Kopa v Police [2017] NZHC 1244.

19 At [4].

as to substitution but that in at least half of the cases cited no reasons were given for departing from convention.20

[37]              While I agree with Ellis J that reasons to depart from the usual convention might, for best practice reasons, be expected to be given I do not accept the failure to give reasons is fatal, particularly in the present case, where the disparate and discrete offending took place over an extended period.

[38]In these circumstances it cannot be said that the Judge erred.

[39]              In the absence of identifiable error the first of the cumulative requirements under s 250 of the Criminal Procedure Act 2011 has not been satisfied. On that ground the appeal must fail.

Result

[40]The appeal is dismissed.

Moore J

Solicitors/Counsel:

Ms Houra, Whangaroa Crown Solicitor, Auckland

20     See  Gerrard  v  Police,  above  n  176; R  v  Purukamu  HC Whangarei  CRI-2010-027-001483,  2 December 2010; White v Police HC Napier CRI-2010-441-00051, 16 December  2010; Sherriff v R HC Napier CRI-2008-010-2367, 4 September 2008; Batt v Police HC Christchurch CRI-2010-409-000157, 26 August 2010; R v Bisschop, above n 15; and R v Bishop HC Gisborne CRI-2010-016-2882, 21 October 2011.