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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hore v The King

Details

AGLC: Hore v The King [2023] NZHC 1356
Case: [2023] NZHC 1356
Decision Date: 29 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, Toni Leigh Hore appeals a sentence of six months' home detention imposed by Judge Phillips in the Dunedin District Court. The appellant contends that the sentence was imposed in error due to a miscalculation by the Judge in converting her original 22-month imprisonment sentence to home detention. The appeal hinges on the contention that Judge Phillips should have calculated the home detention sentence based on the remaining term of imprisonment, which would have been four months, rather than six months.

The primary legal issue the Court had to resolve was whether the appellant's sentence was subject to error in its calculation and if this error warranted a different sentence. The Court examined the principles guiding the conversion of imprisonment sentences to home detention, particularly the practice of halving the remaining term of imprisonment to determine the length of the home detention sentence. The Court noted that under the Parole Act 2002, the appellant should have been credited with time already served and that the remaining term of imprisonment, which equates to four months, should have been halved for the home detention sentence.

In its judgment, the Court found that the appellant's original sentence of 22 months' imprisonment, reduced by the seven months already served, left a remaining term of four months. As per the general practice, the home detention sentence should have been half of this remaining term, equating to four months. The Court concluded that Judge Phillips erred in calculating the home detention sentence and allowed the appeal. The sentence of six months' home detention was quashed, and a new sentence of four months' home detention was imposed, with standard and special conditions as outlined in the pre-sentence and updated memoranda.

Orders