Hore v The King

[2023] NZHC 1356

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-000008

[2023] NZHC 1356

BETWEEN

TONI LEIGH HORE

Appellant

AND

THE KING

Respondent

Hearing:	29 May 2023
Appearances:	S Saunderson-Warner for the Appellant R D Smith for the Respondent
Judgment:	29 May 2023

ORAL JUDGMENT OF GENDALL J

Introduction

[1]    The appellant, Ms Toni Hore, appeals against the sentence of six months’ home detention imposed on her by Judge Phillips in the Dunedin District Court on 9 February 2023.1

[2]    The appeal is advanced on the basis that the sentence was imposed in error. The conversion of the sentence to one of home detention included a mistake such that a sentence of four months’ home detention should have been imposed.

1      Hore v Department of Corrections [2023] NZDC 2391.

TONI LEIGH HORE v R [2023] NZHC 1356 [29 May 2023]

Facts

[3]    The charges to which Ms Hore’s sentence relates are burglary, supply of methamphetamine, car conversion, possession of a methamphetamine pipe and possession of cannabis.

[4]    Ms Hore had co-operated with the police, pleaded guilty and her culpability was reduced by the fact of her addiction to substance abuse as well as her cultural background. Additionally, Ms Hore was a first offender, so the prospects of rehabilitation were considered to be bright. In sentencing Ms Hore on 5 October 2022, Judge Robinson encouraged the appellant to enrol in rehabilitative programmes.2 Considering the above factors, the Judge came to a sentence of 22 months’ imprisonment. The Judge also gave Ms Hore leave to apply for home detention.

[5]    On 9 February 2023, this sentence of imprisonment was cancelled and substituted with the sentence now under appeal—a sentence of six months’ home detention. Judge Phillips approved Ms Hore’s application for home detention at the Bridge Programme with “no hesitation”. The Judge noted that of the original 22- month prison sentence, 15 months remained, on the basis that Ms Hore had served seven months’ imprisonment. This entitled her to some credit in the calculation of the sentence of home detention. The Judge came to a period of six months’ home detention, presumably by halving the remaining length of time which is standard practice when converting a sentence of imprisonment to one of home detention.

Parties’ positions

[6]    The appellant says that the Judge erred by deducting the time already served from the full 22 month sentence. Instead, the Judge should have noted that a 22-month sentence would equate to 11 months’ imprisonment by operation of s 86 of the Parole Act 2002. The seven months already served should then have been deducted from the 11 month sentence leaving four months to be served in accordance with the general practice to halve the remaining term of imprisonment. No reason existed to depart from that practice.

2      R v Hore [2022] NZDC 19763.

[7]    The Crown agrees that the Judge seemed to be under a misapprehension as to the period of Ms Hore’s remaining term of imprisonment and that the correct period remaining to be served was indeed four months. However, the Crown does not concede the appeal should be allowed because the end sentence is appropriate and not manifestly excessive. In the event that the appeal is allowed, the Crown says post- release conditions should be imposed.

Relevant Law

[8]    Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a 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.3

[9]    Generally, the focus in a sentence appeal is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.4 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.5

Analysis

[10]   Ms Hore’s release date was to be June 2023. She had spent in custody a period of  three  months  prior  to  being  sentenced,  from  May  to  August  2022.     On     5 October 2022, the appellant was sentenced to a term of 22 months’ imprisonment and had served a total of seven months of this sentence until it was cancelled in February 2023. This meant the appellant had four months left to serve of her sentence of imprisonment, in accordance with s 86 of the Parole Act.

[11]   I respectfully adopt the approach of Simon France J in Moeller v R, in taking that remaining time of four months’ to be the correct period for Ms Hore’s substituted sentence of home detention.6 While s 80K of the Sentencing Act 2002 does not

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

4      Ripia v R [2011] NZCA 101, At [15].

5      Tutakangahau v R, above n 3, at [36].

6      Moeller v R [2020] NZHC 1290 at [4].

provide for a specific mathematical formula for determining the length of the substituted home detention sentence, it is clear that Judge Phillips in the District Court intended to follow the general practice of halving the remaining term of imprisonment. The practice was explained by Simon France J as follows:7

By way of explanation, home detention sentences only occur when a defendant would otherwise be sentenced to what the Act calls “a short-term sentence”, which is a sentence of 24 months or less. A key feature of a short- term sentence is that there is no parole eligibility (which normally arises after one-third of a sentence) but there is mandatory release after one-half of the sentence. The practice has developed that the length of the alternative home detention sentence should, as a general rule, be the equivalent of the number of days a defendant would actually serve in prison. This is achieved by imposing a home detention sentence that is half the indicated sentence of imprisonment, thereby reflecting the prisoner would only serve half of that short-term sentence.

[12]   There was no reason for the orthodox principle to not apply here8 and the calculation that the Judge came to was in error. On appeal, the error needs to be remedied. A substitute sentence of four months’ home detention is imposed.

Conclusion

[13]   The appeal is allowed. The substituted sentence of six months’ home detention is quashed. A sentence of four months’ home detention is imposed in its place. Standard and special six months post-detention conditions are to apply as specified in the 8 February 2023 pre-sentence report and, where appropriate, the 26 May 2023 updated Memorandum from Corrections I attach. These are deemed to have commenced from the new sentence end date.

Gendall J

Solicitors:

Sarah Saunderson-Warner, Barrister for the Appellant RPB Law for the Respondent

7      At [5] (footnote omitted).

8      Kopua v R [2017] NZHC 1244 at [5].