Horne v The King

[2023] NZHC 2860

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-062

[2023] NZHC 2860

BETWEEN

LINCOLN HORNE

Appellant

AND

THE KING

Respondent

Hearing:	11 October 2023
Appearances:	N L Donaldson for Appellant J G Avia for Respondent
Judgment:	12 October 2023

JUDGMENT OF GRICE J

(Sentence appeal)

Introduction

[1]    Mr Lincoln Horne appeals the decision of Judge Mika on 21 August 2023 sentencing him to four months’ home detention on the following charges:

(a)possession of a methamphetamine pipe;1

(b)unlawful possession of a firearm;2

(c)unlawful possession of ammunition;3

1      Misuse of Drugs Act 1975, ss 13(1)(a) and (3) (maximum penalty of one year’s imprisonment or a fine not exceeding $500 or both).

2      Arms Act 1983, s 45(1) (maximum penalty of four years’ imprisonment or a fine not exceeding

$5,000 or both).

3      Arms Act, s 51 (maximum penalty of three years’ imprisonment or a fine not exceeding $4,000 or both).

HORNE v R [2023] NZHC 2860 [12 October 2023]

(d)possession of cannabis (two charges);4

(e)possession of methamphetamine;5

(f)shoplifting;6

(g)wilful damage;7

(h)possession of an offensive weapon;8 and

(i)possession of a knife.9

[2]    By the time of his sentencing, Mr Horne had spent seven weeks in custody on remand. Mr Horne’s sole ground of appeal is that the credit given for time spent in custody was applied at the incorrect point of the sentencing exercise, resulting in an end sentence that was manifestly excessive.

Factual background

[3]Mr Horne’s charges arise out of a few tranches of offending.

October 2021 charge

[4]    This incident gave rise to the possession of a knife charge only. At approximately 1:51 am on 7 October 2021, Mr Horne was stopped at a routine vehicle stop. Mr Horne was then arrested for another matter and when he was taken out of the car a metal object was seen wedged between the driver’s seat and the door. A warrantless search was executed, and a large butcher’s knife was found.

4      Misuse of Drugs Act, s 7(1)(a) and (2) (maximum penalty of three months’ imprisonment or a fine not exceeding $500 or both).

5      Misuse of Drugs Act, s 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or a fine not exceeding $1,000 or both).

6      Crimes Act 1961, ss 219 and 223(d) (maximum penalty of three months’ imprisonment).

7      Summary Offences Act 1981, s 11(1)(a) (maximum penalty of three months’ imprisonment or a fine not exceeding $2,000).

8      Crimes Act, s 202A(4)(a) (maximum penalty of three years’ imprisonment).

9      Summary Offences Act, s 13A (maximum penalty of three months’ imprisonment or a fine not exceeding $2,000).

May 2022 charges

[5]    This tranche relates to the wilful damage and possession of an offensive weapon charges. The victim is Mr Horne’s ex-partner of six years, the pair separated about three years ago but have two children together aged six and eight years old. There have been approximately 16 previous family harm incidents recorded in regard to Mr Horne and the victim.

[6]    At about 4:10 pm on 9 May 2022, Mr Horne drove to the victim’s location on Taita Drive. After arguing with her, Mr Horne grabbed a collapsible baton from the boot of his car and smashed the victim’s car tail light. He yelled “that’s what you get” before driving away.

[7]    Mr Horne was then arrested a short time later. He told Police that he had cannabis in the boot of his car, and approximately 25 g was located.

June 2022 charge

[8]    This relates solely to the shoplifting charge. At about 3:30 pm on 28 June 2022, Mr Horne was at Countdown Queensgate. Mr Horne entered the supermarket and began placing items in a trolley. He then pulled a shoulder bag out from under his jacket and filled it with some of the items. Mr Horne then put the bag on his back and left without paying for the items. The items taken were valued at $449.97.

December 2022 charges

[9]This final tranche relates to the charges set out at [1(a)]–[1(e)] above.

[10]   At approximately 12:25 am on 18 December 2022, Mr Horne was driving on High Street, Taita. Mr Horne pulled into a driveway after the Police began flashing at him to stop. Mr Horne then got out of his car and ran away, onto a nearby roof. He eventually came down and was taken into custody.

[11]   While Mr Horne was emptying his pockets, Police witnessed a .22 calibre bullet fall onto the ground.

[12]   A warrantless search was then carried out on Mr Horne’s car. A .22 calibre pistol was then found in a sports bag in the car. Two methamphetamine pipes were also found, as was nine grams of cannabis and 0.39 grams of methamphetamine.

Sentencing decision of Judge Mika

[13]   Judge Mika sentenced Mr Horne on 21 August 2023.10 Mr Horne had accepted a sentence indication of Judge Mika, given on 17 April 2023 for the 10 relevant charges.11 This indication set out a starting point of 24 months’ imprisonment, and with the 25 per cent guilty plea discount applied, a final indication of 18 months’ imprisonment was given.12

[14]   Judge Mika began by acknowledging  a  number  of  reports  prepared  for  Mr Horne’s sentencing (and sentencing indications). This included a victim impact statement, a PAC report, restorative justice report and a comprehensive AOD drug assessment report. A letter written by Mr Horne was also considered.13

[15]   Regarding the AOD report, Judge Mika noted that Mr Horne faced the traumatic impact of his father dying before he was born. Although 30 years old at the time of sentencing, Mr Horne had been diagnosed with ADHD whilst in primary school. Mr Horne also showed a long and problematic history with alcohol and methamphetamine and used this to cope with his struggle in separating from his partner and children.14 For these matters, the Judge gave Mr Horne a further 10 per cent discount (or 2.4 months).15

[16]   The Judge also gave a five per cent discount for remorse (1.2 months). This meant a total further discount of 15 per cent (or 3.6 months) was given to Mr Horne for background and remorse. Judge Mika rounded this up to a four-month discount.16 Judge Mika then accounted for time Mr Horne had spent on EM bail, being a period

10     Police v Horne [2023] NZDC 18101.

11 At [2].

12 At [7].

13     At [3]–[6].

14 At [8].

15 At [9].

16 At [11].

of one month on 24-hour curfew, and then a further period of seven months. The Judge deducted four months for this.17

[17]   It was then at this point that Judge Mika made the deduction for the seven weeks Mr Horne spent in custody, deducting a further two months’ imprisonment.

This meant a final sentence of eight months’ imprisonment.18

[18]   The Judge ultimately decided that a sentence of four months’ home detention was appropriate with the special conditions contained in Mr Horne’s PAC report. Post- detention conditions for a period of 12 months were also imposed.19

[19]   Judge Mika also ordered the destruction  of  a number of items,  and  order Mr Horne to pay reparations to his ex-partner. This element of the sentence, however, is not disputed.20

Approach on appeal

[20]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011 (the CPA). A first appeal court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

The Court also retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.

[21]   When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is

17 At [12].

18 At [13].

19     At [15]–[16].

20 At [17].

“manifestly excessive” and is not justified by the relevant sentencing principles.21 It must be shown that there has been an error made by the sentencing Judge.22 The Court cannot ‘tinker’ with a sentence imposed where that end sentence is nevertheless in range.23

Discussion

[22]   As set out above, Mr Horne only challenges the decision of Judge Mika on the credit applied in relation to the type he spent in custody on remand. This comprises two issues, being the point at which Judge Mika accounted for the time Mr Horne spent on remand when calculating his final sentence and the approach taken in calculating the amount to be discounted.

[23]   Counsel for Mr Horne says that credit given for time spent in custody on remand should be deducted after commuting an end sentence of imprisonment to one of home detention.   This was not the approach  taken by Judge Mika.   For this,    Ms Donaldson relies on the decision of Simon France J in Longman v Police.24 There, His Honour set out the following approach to credit for time spent on remand when calculating a sentence of home detention:

In terms of the timing when this matter is to be considered, s 82 of the Sentencing Act [2002] and s 90 of the Parole Act 2002 amount to a legislative direction that a court is to disregard time served where the ultimate sentence is imprisonment. Logically, therefore, consideration of credit for time served only arises once a decision is reached that the sentence will be home detention. At that point the Court is freed from the legislative constraint because the time is no longer automatically credited.

[24]   This approach has been cited with approval in numerous other recent decisions of the High Court.25 Whilst I accept the submission of Ms Avia for the Crown that the authorities have not shown a consensus on this issue to date, I am of the view that the approach in Longman (and those following) is to be preferred.26

21 Tutakangahau v R [2014] NZCA 279 at [32]-[35].

22     Tutakangahau v R, above n 21, at [27].

23     R v Boyd (2004) 21 CRNZ 169 at [38].

24 Longman v Police [2017] NZHC 2928 at [10].

25 See for example R v Uhatafe [2023] NZHC 248; Kirikino v Police [2023] NZHC 1821; Mason v Police [2022] NZHC 1845; and Paul v Police [2021] NZHC 1924.

26 Being Vakapora v Police [2022] NZHC 493; Wharrie v R [2019] NZHC 633; Bracken v R [2022] NZHC 3265; Parkinson v Police [2019] NZHC 1710; Laloni v R [2015] NZCA 55; Diaz v R [2021] NZCA 426; and Williams v R [2021] NZCA 333.

[25]   To the extent that other cases deduct the time spent in custody on remand in order to set a period of imprisonment to be served and then halve that number to give the final sentence for home detention, this is prima facie inconsistent with the wording in s 82 of the Sentencing Act 2002, which reads:

82Pre-sentence detention must not be taken into account in determining length of sentence

In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.

[26]   To reiterate, when accounting for time spent in custody on remand before commuting a sentence to one of home detention the judge is, strictly speaking, taking into account that remand time when determining the length of a sentence of imprisonment. It thus follows that, in order to comply with the terms of s 82, a sentence of imprisonment should first be commuted to one of home detention before allowing discount for time spent on remand.

[27]On this point, I also would note the reasoning of Cooke J in R v Tai:27

[10]      The authorities have taken different views on how the period of time spent in prison on remand should be treated for the purposes of adjusting the length of a home detention sentence. Normally the period served on remand is irrelevant in setting the sentence because that period is treated as time served when later administering the length of the sentence. But that is not so if the sentence is to be one of home detention or community detention. Here the Court must decide what impact the time on remand has on the sentence. Some decisions have taken the time spent on remand and deducted it from the proposed term of imprisonment prior to the term of imprisonment being converted to a sentence of home detention. Others have deducted the period only after converting the sentence to home detention.

[11]      I prefer the latter approach … as they give more accurate credit for the period spent on remand. Your five months in prison on remand involves a period that you would have served on a 10 month sentence of imprisonment, which is in turn equivalent to serving five months’ home detention. So the starting point is that the period on remand should be deducted on a one month for one month basis when setting the home detention period. If you take it off the sentence of imprisonment before it is converted to home detention you effectively halve the credit, which does not seem appropriate. Applying what I believe to be the correct approach would reduce the period of home detention to be imposed by five months. But as the Court of Appeal emphasised in Kidman v R it is only a starting point as the ultimate question remains the

27     R v Tai [2021] NZHC 2769 (citations omitted).

appropriate period of home detention to impose under s 80A(3) of the Sentencing Act in light of all relevant sentencing principles and the circumstances of the case, including the time spent on remand.

[28]   There is also the issue of what the appropriate discount to be given for time spent in custody on remand is in this case. Ms Donaldson argues for the ‘one for one’ approach taken by Judge Mika—that is, seven weeks spent in remand  meant that  Mr Horne received a seven-week deduction to his period of home detention—but  Ms Avia submits that such approach is not mandatory, with the discount process nevertheless being an evaluative one for the judge. I agree with Ms Avia’s submission that the ‘one for one’ calculation is not mandatory, but I would also agree with the statement of Cooke J above that this will generally be the fairest approach, for the reasons given by His Honour.

[29]   The purpose of s 82 is to prevent the ‘double discounting’ of time spend on remand for those who have received a final sentence of imprisonment. As we know, where someone receives a final sentence of imprisonment, the Department of Corrections automatically calculates their release date taking into account the time spent on remand. Clearly, this does not apply to those who receive final sentences of home detention, so it is right that the court take such time into account when fixing the end sentence.

[30]   Given this purpose of 82, it is consistent that time spent on remand is taken into account after the decision is made to commute a sentence to home detention. Beyond this, I do not think it necessary for the court to prescribe a strict methodology to be applied in circumstances such as this. The ultimate question for the judge to determine is what the appropriate period of home detention should be when taking into account the relevant sentencing purposes and principles. As part of determining this ultimate question, an evaluative decision must be made as to how to appropriately credit time spent in custody on remand. Setting down a rigid mathematical formula that must always be applied is unhelpful in this exercise. Although a ‘one for one’ approach is most appropriate in this case, where taking such an approach in other circumstances would lead to a sentence that does not reflect an offender’s degree of culpability, totality adjustments can be made or another method of conversion (such

as a ‘two for one’ approach) can be used.28 This may also explain the lack of consensus as between previous cases.

[31]   Therefore, although there is an error by Judge Mika in calculating Mr Horne’s sentence,29 the question remains as to whether the end sentence of four months’ home detention is manifestly excessive such that this Court should allow the appeal.30 I do not believe that this is the case.

[32]   Mr Horne is facing 10 charges of imprisonable offences. An unlawful possession of a firearm charge by itself may sometimes attract sentences greater than those received by Mr Horne.31  I also note the case of  Payne  v Police,32  in which  Mr Payne received a sentence of four months’ home detention for a similar suite of charges to those amassed by Mr Horne.

[33]   Ms Donaldson submitted that the time in custody involved substantial periods of lockdown. She suggests that this means the time Mr Horne spent in custody might give rise to a higher discount than would usually be given. As a second point in reply, Ms Donaldson also pointed out that if Mr Horne was to serve a period of imprisonment he would be released earlier than the time he must serve on home detention. However, I do not consider the Court on appeal is in a position to make a quantitative assessment of custodial conditions, nor do I consider that the second point derogates from the fact that the sentence is not manifestly excessive in the circumstances.

[34]   In light of this, I am not satisfied that a sentence of four months’ home detention is manifestly excessive and dismiss the appeal accordingly.

28 See for example the approach of Palmer J in R v Signal [2023] NZHC 2757.

29 Applying the approach set out above, a final sentence of around  three months and  one week’s home detention would be reached.

30  I acknowledge Ms Donaldson’s submission, based on Longman v Police, whereby the nature of   the error here might be such that an appeal should be allowed on the basis of the error alone. Although I can understand the principled basis for this submission, s 250 of the CPA nevertheless requires a first appeal court be satisfied that a different sentence should be imposed before allowing an appeal.

31 See, for example, Himiona v Police [2021] NZHC 1718.

32 Payne v Police [2013] NZHC 1157.

Conclusion

[35]   Despite the error in calculating Mr Horne’s sentence, the end sentence imposed by Judge Mika of four months’ home detention is not manifestly excessive, and the appeal is dismissed accordingly.

Grice J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Luke Cunningham Clere, Wellington