Hose v Police
[2025] NZHC 2260
•11 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000290
[2025] NZHC 2260
BETWEEN MARLENE HOSE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 July 2025 Appearances:
R Roy for Appellant
J Kim for Respondent
Judgment:
11 August 2025
JUDGMENT OF BECROFT J
[Appeal against sentence]
This judgment was delivered by me on 11 August 2025 at 3pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel: Mr Roy, Auckland Kayes Fletcher Walker
HOSE v NEW ZEALAND POLICE [2025] NZHC 2260 [11 August 2025]
What this appeal is about and the result
[1] Ms Marlene Hose was sentenced in the Pukekohe District Court in May 2025 by District Court Judge GT Winter to six months’ home detention.1
[2] The sentence was for 15 charges of theft.2 The Judge was satisfied the offences were largely planned and targeted commercial shoplifting, with a co-offender(s), involving a total value of $13,131.51. The Judge was prepared to accept Ms Hose’s share was just under $8,000.
[3] The thrust of this appeal, well presented and argued by Mr Roy, was that the Judge erred by not adequately reducing Ms Hose’s home detention sentence to reflect her time already spent in custodial remand for the offending. Consequently, Mr Roy submits the sentence is manifestly excessive.
[4] Mr Kim, for the police, acknowledges that what he calls an arithmetical error has occurred with respect to Ms Hose’s time spent on remand. With respect, it was a little more than an arithmetical error. In any case, he agrees this has resulted in a sentence that is manifestly excessive. Mr Kim accepts that the appeal should be allowed. He submits a sentence of three months’ home detention should be imposed, which is exactly Mr Roy’s submission.
[5] I uphold the appeal as I agree with the reasoning of both counsel. What follows are my reasons.
The offending
[6] The offending occurred between 20 September 2024 to 10 February 2025. It involved various retail stores and occurred in four main tranches, each interrupted by Ms Hose’s arrest and then her re-admission to bail.
1 New Zealand Police v Hose [2025] NZDC 11082.
2 There were four charges of theft under $500, Crimes Act 1961, ss 219 and 223(d), maximum penalty three months’ imprisonment; six charges of theft between $500 and $1,000, ss 219 and 223(c), maximum penalty one year’s imprisonment; and five charges of theft over $1,000, ss 219 and 223(b), maximum penalty seven years’ imprisonment.
[7] Given that the appeal is successful on a technical ground, there is no need to say more about the facts than that the thefts ranged from grocery items stolen from Countdown and Super Liquor (at the lowest end), through to theft of clothing, tools and toolboxes, on some occasions of more than $1,000 in value.
The Judge’s decision
[8] No issue is taken with the Judge’s 18-month starting point to reflect the offending globally. Nor can issue be taken with the six-month reduction for Ms Hose’s guilty pleas and her personal circumstances. So, the Judge’s end point of 12 months’ imprisonment could not be challenged. His decision to “commute” the sentence to one of home detention is unremarkable.
[9] In the circumstances, the Judge was satisfied that a period of six months’ home detention was the least restrictive option which would nonetheless meet the principles and purposes of the Sentencing Act 2002 (the Act).
[10] The Judge noted that Ms Hose had served the equivalent of six months because she had been on remand for something approaching three months. He did not accept that she was at a “time served equivalent”, as he put it, but he noted that her remorse and period spent on remand may have caused her to rethink her life. For that reason, he was prepared to commute the prison sentence to six months’ home detention.
Approach on appeal
[11] An appeal against sentence must be allowed only if the Court is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.3 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle.4 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.5
3 Criminal Procedure Act 2011, s 250.
4 Tutakanghau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[31].
5 At [36].
Home detention sentences
[12] The sentence of home detention is created by s 15A of the Act. Importantly, the Court may impose this sentence only if (amongst other things) it would otherwise sentence the offender to a “short-term sentence of imprisonment”. A short-term sentence of imprisonment is defined as a fixed sentence of imprisonment of 24 months (two years) or less.
[13] It is worth emphasising that the “route” to home detention must be through the prior gate of a judicial conclusion that imprisonment of two years or less would be the sentence that would otherwise be imposed. In that sense, it is not a completely standalone sentence which can be imposed without restriction in its own right. Prior conditions must be met.6
[14] The “mechanics” of home detention are set out in subpart 2A of part 2 of the Act.7 Importantly, home detention may be for such period as the Court thinks fit, but must not be for less than 14 days or more than 12 months.8
[15] Ordinarily, when a Judge is satisfied that a prison sentence can be commuted to one of home detention, the length of home detention is about half the prison sentence. This is because, by virtue of s 86 of the Parole Act 2002, a defendant serving a short-term sentence of imprisonment is automatically released after serving half that sentence—virtually irrespective of their behaviour while in prison.9
[16] So, as home detention can only be imposed on a person who would otherwise receive a short-term sentence of imprisonment, it is thought fair and just that the home detention sentence be no longer than the prison sentence that would otherwise be served by the offender—that is, half the otherwise justified prison sentence.
[17]In Vakapora v Police,10 Downs J put it this way:
6 Sentencing Act 2002, s 15A(1) and (2).
7 Sentencing Act 2002, ss 80A–80I.
8 Sentencing Act 2002, ss 80A(3).
9 Such prisoners may be subject to internal prison discipline sanctions.
10 Vakapora v Police [2022] NZHC 493 at [13].
A home detention sentence is only available if the defendant would receive a sentence of or less than 24 months’ imprisonment. But the maximum length of a home detention sentence is 12 months. … Necessarily then when imposing a sentence of home detention, a Court must halve the term of imprisonment to reach the corresponding term of home detention.
[18] The first thing to say is that halving the prison sentence has become something of a judicial “rule of thumb”. However, the practice has emerged and been followed so often that it now approaches an informal principle. It is usually applied unless there is very good reason to contrary. For instance, it might not be applied if the “halved” sentence of imprisonment simply does not sufficiently reflect the gravity and seriousness of the offending.
[19] Judges are usually explicit if they take this step and, in my view, Judges should be. Generally speaking, departure from the “halving” principle seems to be reserved for particularly serious offending where a “halved” sentence of imprisonment means that a resulting sentence of home detention is plainly inappropriate.
Factoring in time spent on remand
[20] I now turn to the more complex question, about which there is judicial disagreement, as to the effect of time spent on custodial remand when calculating a prison sentence.
[21] Generally speaking, s 82 of the Act prohibits pre-sentence detention from being taken into account when calculating a custodial sentence. However, this restriction self-evidently does not apply to a sentence of home detention.
[22] As Downs J observed in Vakapora, as a sentence of home detention is not a sentence of imprisonment, there is no legislative provision which determines the effect that time on remand has on a sentence of home detention.11 The issue is for the Courts to determine.
11 At [12].
[23] In this respect, Mr Kim helpfully pointed to the comments of Simon France J in Longman v Police:12
In terms of the timing when this matter is to be considered, s 82 of the Sentencing Act 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] Once the court reaches the sentence of home detention, it is then open to the Court to decide how to give the offender credit for the time already served.
[25] It is clear that there are two judicial approaches to this calculation, each subtly different. Which of the two approaches is followed has important consequences for a defendant and will result in a longer (if the first approach is adopted) or a shorter (if the second approach is adopted) period of home detention.
[26] The first approach is found in Vakapora. There, the Court deducted half of the custodial remand period from the home detention sentence. This was done on the basis that, as home detention is typically half of the equivalent prison sentence, it would be consistent to allow half of the time served on remand in custody to be factored into the end sentence. Downs J, in his careful and analytical decision, referred to this as the “two equals one” approach. I refer to it as the “two for one” approach.
[27] The “two for one” approach recognises that “a sentence of imprisonment and a sentence of home detention are not the same and are not intended to be the same”.13 Effectively, the approach contemplates that as home detention is generally half of a sentence of imprisonment, if an offender has spent two months in custody, they would have served one month of home detention, and are therefore entitled to a one-month deduction in their home detention sentence for every two months spent in custody.
12 Longman v Police [2017] NZHC 2928 at [10].
13 Mason v Police [2022] NZHC 1845 at [35].
[28] Adopting this approach, and applying it to the circumstances of this case, the three months spent on custodial remand would be the equivalent of Ms Hose serving one-and-a-half months of home detention—and therefore she would be entitled to one- and-a-half months’ reduction from the otherwise appropriate six months’ home detention set by Judge Winter, resulting in a sentence of four-and-a-half months of home detention.
[29] The second approach, as set out in Mason v Police,14 is to adjust the period of home detention to reflect the time spent in custody on an equal basis—that is a “one for one” approach. The rationale for this approach is that offenders sentenced to home detention should not find themselves worse off in terms of their home detention sentence than if the sentence had not been commuted to home detention. Fitzgerald J provided the following example:15
A simple example illustrates the perceived “unfairness”. If by adopting the required sentencing approach, an end sentence of 24 months' imprisonment is arrived at, it is then open to the Judge to commute that sentence to home detention. If the Judge nevertheless decides not to commute the sentence, and the offender had spent four months on remand in custody, the offender would be released after spending a further eight months in custody (being required to serve only half of the short term sentence, and receiving a one for one credit for pre-sentence custody). If the Judge decided, however, that it was appropriate to commute the 24 month sentence of imprisonment to home detention, the starting point would be a 12 month term of home detention. Adopting a one for one credit for the time spent on remand in custody, the home detention sentence would be one of eight months, and therefore equivalent to the point at which the offender would have been released from custody had the sentence not been commuted to home detention. Conversely, if a two for one approach were adopted, the home detention sentence would be 10 months, and accordingly the offender would be subject to a sentence of home detention for two further months than the equivalent in the sentence of imprisonment scenario.
[30] Recently, in Ioane v Police,16 Andrew J considered a sentence appeal where three-and-a-half months of time spent on custodial remand had not been taken into account by the sentencing Judge before imposing a seven-and-a-half months’ home detention sentence.17 In that case, the respondent accepted that the time spent on
14 Mason v Police, above n 13.
15 At [35], fn 51.
16 Ioane v Police [2025] NZHC 1675.
17 There, in fairness, the sentencing Judge had not been made aware that Mr Ioane had spent time on remand.
remand ought to have been taken into account and in that case it resulted in a manifestly excessive sentence. While not specifically indicating a preference regarding the approaches in Vakapora or Mason, Andrew J adopted the “one for one” approach, allowed the appeal and reduced the sentence by three-and-a-half months. His Honour acknowledged that:18
The ultimate outcome is an evaluative exercise. The question always remains the appropriate period of home detention for the purposes of a s 80A(3) of the Sentencing Act, in line with all of the relevant sentencing principles and the circumstances of the case, including the time spent on remand in custody.
[31] As I understand the situation, although the High Court has seemingly diverged in respect of the approach to be taken, the High Court has generally tended to favour the “one for one” approach.19 As I understand it, this is certainly the usual approach in the District Court.
[32] For what it is worth, in my view, the first approach in Vakapora, is a “purists” approach, and has mathematical consistency. But the second approach is fairer to a defendant. Where there is a degree of “custodial” consequence, such as there is in any sentence of home detention, the approach which is less disadvantageous to the defendant should be adopted. It also recognises what appears to be the now preponderance of High Court authority.
[33] I also accept Fitzgerald J’s reasoning that credit for time spent on remand in custody is better deducted from the term of home detention, otherwise seen as appropriate, and not to “reach back” and deduct it from the term of imprisonment before it is halved to reach the home detention sentence.
18 At [13] (footnote omitted).
19 See, for example, Longman v Police [2017] NZHC 2928; Parkinson v Police [2019] NZHC 1710;
Kirk v R [2019] NZHC 3361; R v Tai [2021] NZHC 2769 at [38]; Paul v Police [2021] NZHC
1924; and Harris v Police [2022] NZHC 345. The Court of Appeal has followed this approach in both Diaz v R [2021] NZCA 426 at [50] (where 6 months spent in custody justified a 12-month credit from Mr Diaz's sentence of imprisonment, which was then halved when it was converted to home detention) and Williams v R [2021] NZCA 333 at [26] (where the Court held that 6 weeks spent in custody justified a credit of 3 months deducted from Mr Williams' sentence of imprisonment, which was then halved to reach a sentence of home detention).
[34] I propose to take the “one for one” approach described in Mason which appears to be the dominant judicial approach.
[35] However, I emphasise, as with Fitzgerald J, that what the cases do not diverge on is the principle that in determining the length of time of a sentence of home detention, an evaluative exercise is necessary. Accordingly, the so-called “one for one” approach is not mandatory.20
Applying the principles to this case
[36] Here, the Judge did not specifically address how he calculated the six-month sentence of home detention, and nor did he overtly factor in the time spent on remand.
[37] Given his conclusion that the 12-month sentence should be commuted to home detention, his absence of reasons as to why this should be other than six months’ home detention is telling. Perhaps there is the implication that anything less than that would be inadequate for accountability purposes. But this reasoning is not explicit, and it should have been. In my view, the Judge should have made an allowance for the time spent on custodial remand after commuting the sentence of imprisonment to one of six months’ home detention.
[38] I am of the view that the Judge should have specifically addressed if, and how, he proposed to take into account the three months spent on remand. He did not do so. There was not only an “arithmetical error“—as politely characterised by Mr Kim— but also, in my view and with great respect, an error of principle.
[39] The “one for one” approach in terms of factoring in custodial remand time would have resulted in a sentence of three months’ home detention. This approach should have been adopted.
[40] That being the case, as there has been an error in the Judge’s approach, I am quite satisfied that this has resulted in a manifestly excessive sentence—that is a home detention sentence that is twice as long as it should have been.
20 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.
Result
[41] I quash the sentence of six months’ home detention and replace it with three months’ home detention.
Becroft J
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