Ioane v Police

[2025] NZHC 1675

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000227

[2025] NZHC 1675

BETWEEN

GREGORY IOANE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

23 June 2025

Appearances:

V I Tava for the Appellant

S K Jocelyn for the Respondent

Judgment:

24 June 2025

REASONS JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 24 June 2025 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ………………………….

IOANE v NEW ZEALAND POLICE [2025] NZHC 1675 [24 June 2025]

[1]This judgment contains my reasons for allowing this appeal.

Introduction

[2]This is an appeal against sentence.

[3]        In the District Court, the appellant, Mr Ioane, pleaded guilty to one representative charge of causing harm by posting digital communications,1 a further discrete charge of causing harm by posting digital communications, and a charge of breaching a protection order.2 He was sentenced to seven-and-a-half months’ home detention.

Factual background

[4]        Mr Ioane had previously been in a relationship with the victim of his offending. On 1 October 2021, he posted explicit naked pictures of the victim on an Instagram story and shared explicit images via messages to the victim’s friends, family and colleagues. Sixteen explicit images were shared to various people linked to the victim, showing both full and partial nudity, as well as close up images of female genitalia, and occasionally the victim’s face was included in the photos. The victim’s cousin was also sent 18 nude and explicit images of the victim.

[5]        On 6 April 2023, Mr Ioane pleaded guilty to the representative charge of causing harm by posting digital communications. However, on 11 October 2023, before sentencing and while subject to a protection order in respect of the same victim, Mr Ioane again posted an intimate image of the victim on Instagram and tagged family members of the victim in that post.

[6]        On 2 September 2024, Judge Moses sentenced Mr Ioane to 11 months’ home detention in respect of both instances of the posting digital communications offending (that in 2021 and that in 2023) and the breach of a protection order charge.

1      Harmful Digital Communications Act 2015, s 22: maximum penalty two years’ imprisonment or fine of $50,000. I note Mr Ioane pleaded guilty to this first charge at a very late stage.

2      Family Violence Act 2018, ss 90(a), 9, and 112(1)(a): maximum penalty three years’ imprisonment.

[7]        In January 2025, Mr Ioane encountered issues with his home detention address. He was remanded in custody on 16 January 2025. He spent 103 days in custody until he was resentenced on 29 April 2025 to seven-and-a-half months’ home detention. At the resentencing, Judge McIlraith took account of the four-and-a-half months Mr Ioane had already spent on home detention prior to his remand in custody. However, the issue of the 103 days that elapsed from Mr Ioane being remanded in custody to being resentenced was overlooked as it was not raised with the Judge and he was not aware of it. This oversight forms the crux of the appeal.

Relevant legal principles

[8]        The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

[9]        Generally, s 82 of the Sentencing Act 2002 prohibits pre-sentence detention from being taken into account when calculating a custodial sentence. However, this restriction does not apply to a sentence of home detention.4

[10]As Simon France J held in Longman v Police:5

[8]        Credit for time spent on custodial remand is quite different. Conceptually, it has nothing to do with the appropriate length of the underlying stance. Rather, it is time spent serving that sentence for which credit is appropriate. With a sentence of imprisonment, credit is given automatically. With home detention, the Court needs to act to ensure it is given recognition.

[9]In my view the clear default position is that full credit should be given.

…

[10]      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.

3      Criminal Procedure Act 2011, s 250.

4      Mason v Police [2022] NZHC 1845; and Vakapora v Police [2022] NZHC 493.

5      Longman v Police [2017] NZHC 2928.

[11]     In providing credit for time spent in custody, this Court tends towards a “one for one” approach.6 The rationale for this, as explained by Fitzgerald J in Mason v Police,7 is that an offender 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.

Analysis and decision

[12]     There is no dispute in this case that the time Mr Ioane spent in custody awaiting resentencing should have been, but was not, taken into account at that point (the Judge was not made aware of it). It is clear that this has resulted in a sentence that is manifestly excessive and, accordingly, the appeal must be allowed.

[13]     The ultimate outcome is an evaluative exercise.8 The question always remains the appropriate period of home detention for the purposes of 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.

[14]     The Police submit that a sentence of four months’ home detention should be imposed on appeal, being a rough deduction of 103 days from the seven-and-a-half- month sentence imposed.9 I agree.

[15]     Mr Ioane’s sentence of seven-and-a-half-months’ home detention is quashed and substituted with a sentence of four months’ home detention. That sentence begins from 29 April 2025, which was 55 days, or near enough to two months, ago. As such, Mr Ioane has only two months of his sentence left to serve.

6      See, for example, Longman v Police [2017] NZHC 2928; Parkinson v Police [2019] NZHC 1710; Kirk v R [2019] NZHC 3361; Gotty v R [2020] NZHC 2035 at [18]; R v Tai [2021] NZHC 2769; Paul v Police [2021] NZHC 1924; Pou v Police [2021] NZHC 1068; 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).

7      Mason v Police, above n 4, at fn 51.

8      Mason v Police, above n 4, at [37].

9      The appellant submitted that 118 days should be deducted, but there are clearly only 103 days between 16 January 2025 and 29 April 2025.

Result

[16]The appeal is allowed:

(a)The sentence of seven-and-a-half-months’ home detention is quashed.

(b)A sentence of four months’ home detention is substituted.

Andrew J