JONATHAN MATHEW HOPWOOD AND THE KING

[2024] NZHC 3993

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2024-463-125

[2024] NZHC 3993

BETWEEN

JONATHAN MATHEW HOPWOOD

Appellant

AND

THE KING

Respondent

Hearing:	16 December 2024
Appearances:	M R Douglas for the Appellant C Bourke for the Respondent
Judgment:	20 December 2024

JUDGMENT OF GAULT J

(Appeal against sentence)

This judgment was delivered by me on 20 December 2024 at 2:00 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr M R Douglas, Barrister, Tauranga

Ms C Bourke and Ms G Ellison, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga

HOPWOOD v R [2024] NZHC 3993 [20 December 2024]

[1]                  Mr Hopwood appeals his sentence of nine months’ and seven days’ home detention imposed  by  Judge  J  P  Geoghegan  in  the  Tauranga  District  Court  on 9 October 2024,1 in relation to charges of:

(a)assault with intent to injure;2

(b)threatening to kill;3 and

(c)strangulation.4

Alleged offending

[2]                  The appellant and the victim have known each other for 18 years and more recently they were in a romantic relationship, before separating five months prior to December 2022. At that time, the appellant was on bail with a condition not to associate with the victim following charges arising from a prior incident.

[3]                  On 6 December 2022 at approximately 8:00 pm, Mr Hopwood arrived at the victim’s address and demanded she pack her things and get in his vehicle. Fearing repercussions, she did so and Mr Hopwood drove her to a carpark. He assaulted her multiple times in the car,  striking her in the  face and  head  with his closed fists.   He threatened to kill her if she tried to leave the vehicle. He threatened to slit her throat for calling the police during a previous family harm incident on 9 November 2022. He threatened to burn her skin with his lighter. He strangled her with his bare hands to the point that she almost lost consciousness.

[4]                  At approximately 6:15 am the next morning, she observed a member of the public driving past, pushed Mr Hopwood off, exited the vehicle and ran for help.

1      R v Hopwood [2024] NZDC 24875.

2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

3      Crimes Act 1961, s 306(1)(a). Maximum penalty seven years’ imprisonment.

4      Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.

District Court sentencing

[5]                  On the leading charge of strangulation, the Judge set a starting point of two years’ and six months’ imprisonment. He made an uplift of six months for the balance of the offending. He allowed a reduction of 25 per cent for Mr Hopwood’s guilty plea, four months for time spent on EM bail, which he said was very restrictive but also provided Mr Hopwood with distinct benefits in terms of rehabilitation, and 10 per cent for personal mitigating factors. There was also an uplift of two months for previous convictions. This would result in an end sentence of 21 months and two weeks’ imprisonment.

[6]                  The Judge then addressed time spent in custody, stating the complicating feature here was that, while in custody in respect of these charges Mr Hopwood was also in custody in respect of serious drug offending charges going through the Court. The Judge accepted that Mr Hopwood was in custody for one year and said:

Theoretically, that should equate to an allowance of six months, however, because of the other factors I consider that the appropriate allowance is one of three months which would result in an end sentence of 18 months and two weeks’ imprisonment.

[7]                  The Judge then considered whether Mr Hopwood should be granted home detention. He said that Mr Hopwood was doing well at the Grace Foundation (where he had been on EM bail) and that if that work could continue, the community and  Mr Hopwood would be far better off. He concluded that the need for deterrence and denunciation was trumped by the need to see Mr Hopwood continue in a rehabilitative and hopefully therapeutic sentence. The Judge was satisfied that Mr Hopwood should be sentenced to home detention and sentenced him to nine months and one week’s home detention on the charge of strangulation and concurrent shorter sentences of home detention on the other charges.

Approach on appeal

[8]                  To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different

sentence should be imposed.5 The error can be intrinsic in the decision or shown as a result of additional material submitted on appeal.6 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.7 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.8

Discussion

[9]                  It is common ground that a reduction for time spent in custody only arises once a decision is reached that the sentence will be home detention. This is because s 82 of the Sentencing Act 2002 and s 90 of the Parole Act 2002 direct the Court to disregard time served where the ultimate sentence is imprisonment.9 Accordingly, it is common ground that the end sentence of imprisonment before consideration of home detention should have been 21 months and two weeks rather than 18 months and two weeks.

[10]              Once a decision has been reached that the sentence will be home detention, and applying the rule of thumb that a sentence of home detention is half of the sentence of imprisonment it replaces, the next question is the appropriate reduction for time spent in custody. This requires an evaluative approach reflecting the rehabilitative component of home detention.10 While keeping that evaluative approach in mind, two common approaches to account for time spent on remand in custody have developed. As this Court said in Kirikino v Police:11

Different approaches have been taken to the issue of how to recognise time spent on remand in custody when imposing sentences of home detention.    In some decisions, the sentencing Court has deducted half the remand period from the home detention sentence on the basis that, as home detention is typically half of the equivalent prison sentence, it is consistent to allow half of the time served on remand in custody to be factored into the final sentence (the “two equals one” approach).12 However, most cases appear to have

5      Criminal Procedure Act 2011, s 250(2).

6      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

8      Ripia v R [2011] NZCA 101 at [15].

9      Longman v Police [2017] NZHC 2928 at [10]; and Horne v R [2023] NZHC 2860 at [26].

10     Vakapora v Police [2022] NZHC 493 at [20] citing Kidman v R [2011] NZCA 62.

11     Kirikino v Police [2023] NZHC 1821 at [19].

12     Wharrie v R [2019] NZHC 633 at [30]-[33].

adopted the approach of adjusting the period of home detention to equivalently reflect the time spent in custody on a “one for one” basis.13

[11]              Mr Douglas, for Mr Hopwood, recognised that in this case the “one for one” approach is problematic. Mr Hopwood’s time spent in custody would entirely extinguish the period of home detention, which would call into question the rehabilitative rationale for commuting the short sentence of imprisonment. I note the Crown had sought a sentence of imprisonment. The time spent in custody also indicates that Mr Hopwood would have been better not to seek home detention at all, but rather accept the short sentence of imprisonment on the basis that he would be entitled to immediate automatic release having served more than half the sentence.

[12]              Thus, on appeal, Mr Douglas sought a reduction that was consistent with a sentence of home detention but nevertheless brought the sentence down below the two and a half months’ home detention that Mr Hopwood has served since sentencing.

[13]              Applying the “two equals one” approach, and accepting that Mr Hopwood spent (almost) a year in custody, he would have received a reduction of six months from 10 months and three weeks’ home detention (50 per cent of 21 months and two weeks’ imprisonment) which would have resulted in a home detention sentence of approximately four months and three weeks.

[14]              Instead, the Judge started with the “two equals one” approach but then made a further reduction of three months on the basis of “other factors”. Mr Douglas characterised this as in effect a “four equals one” approach, and submitted that the only other factor considered was the Judge’s reference to the fact that Mr Hopwood was also in custody in respect of serious drug offending charges. Mr Douglas submitted that the presumption of innocence in relation to those charges meant that it was impermissible for such a further reduction. Ms Bourke, for the Crown, did not suggest that a further reduction was permissible on that basis, but she submitted that the Judge’s reference to “other factors” may have referred to the rehabilitative purpose and that a further reduction on that basis was open.

13     Kirk v R [2019] NZHC 3361; 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.

[15]              It is unclear whether the Judge had anything in mind other than the concurrent remand on the separate drugs charges. Even though those charges were temporarily part of the same Crown charge notice, the concurrent remand would not justify further reducing the credit for time spent in custody. Of course, as Mr Douglas accepted, if Mr Hopwood is later convicted and sentenced on the separate charges, he would not get a double credit. Adopting a rehabilitative lens, as Ms Bourke put it, would also not justify such a further reduction in the credit.

[16]              While the “one for one” approach is generally preferable, Ms Bourke submitted that the “two equals one” approach was open here on an evaluative basis having regard to the rehabilitative component of home detention. Even on that basis, the sentence was manifestly excessive. However, that approach was not applied and I need to consider the matter afresh. Accepting that even a short sentence of home detention would  have  enabled  the  imposition   of   post-detention   conditions,   and   that  Mr Hopwood would remain on EM bail at the Grace Foundation pending trial on the separate drugs charges, I consider that a home detention sentence materially shorter than that applying the “two equals one” approach would not have sufficiently reflected the rehabilitative component of home detention. On an evaluative basis, I consider the maximum appropriate reduction for Mr Hopwood’s time spent in custody in the circumstances of this case was seven months, which would have resulted in an end sentence of three months’ and three weeks’ home detention.

[17]              The appeal is allowed. The sentence of nine months and seven days’ home detention is quashed and substituted with a sentence of three months and 21 days’ home detention.

Gault J