Keown v R

[2010] NZCA 492

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/2010
CA404/2010
[2010] NZCA 492

BETWEENDEAN MCARTHUR KEOWN

Appellant

ANDTHE QUEEN

Respondent

Hearing:19 October 2010

Court:Hammond, Chisholm and MacKenzie JJ

Counsel:M Starling for Appellant

M F Laracy for Respondent

Judgment:29 October 2010 at 10 am

JUDGMENT OF THE COURT

A            The time for appealing is extended.

BThe appeal is allowed by reducing the sentence of five years and five months to five years and three months.

REASONS OF THE COURT

(Given by MacKenzie J)

[1]        The appellant pleaded guilty to one count of possession of the class B controlled drug MDMA (Ecstasy) for supply and one representative count of selling MDMA.  He was sentenced in the High Court at Christchurch by French J on 20 May 2010 to five years and five months imprisonment.[1]  The appellant was subsequently sentenced in the District Court at Christchurch by Judge Moran on 8 June 2010 following trial on one count of possession of cannabis for sale.  He was sentenced to an additional 12 months imprisonment, cumulative on the sentence imposed by French J.  He appeals against those sentences.

[1]      R v Keown HC Christchurch CRI-2010-409-56, 20 May 2010.

[2]        An extension of time for appealing is needed.  Counsel for the appellant appropriately waited until the District Court sentencing had taken place.  The appeal was out of time so far as the High Court sentencing is concerned.  In those circumstances an extension of time is appropriate, and is not opposed by counsel for the Crown.  The time for appealing is extended accordingly.

[3]        The MDMA offending came to light as the result of the Police investigation commenced in March 2008 into the distribution of Ecstasy between Auckland and Christchurch.  In March 2008 the appellant and an associate had driven from Christchurch to Auckland and met with a man who Police alleged headed a large international drug syndicate supplying MDMA to New Zealand.  The appellant again visited Auckland on 3 April 2008 and met with that same man.  He had with him a bag containing $210,000 in cash which he exchanged for a bag containing 10,000 MDMA tablets.  The appellant returned to Christchurch by air, while his associate drove back with the drugs in the car.  Police seized the tablets when the car was on the Wellington to Picton ferry.  On 15 April 2008 the appellant returned to Auckland and obtained a further 4,000 MDMA tablets.  The charge of possession related to the tablets obtained on the 3 April visit, which were subsequently seized.  The count of sale was a representative charge and alleged sales between 17 April 2008 and 22 July 2008. 

[4]        In sentencing the appellant, French J adopted a starting point of seven years.  She did not make any uplift on account of the appellant’s previous convictions.  She found two mitigating personal factors, namely the guilty plea and the fact that the appellant had been on electronically monitored bail (EM bail) for 12 months.  She allowed a 20 per cent discount on account of the guilty plea entered after depositions but more than a year before the scheduled trial date.  She also allowed what she described as a modest reduction on account of the EM bail, to reach an end sentence of five years five months imprisonment.

[5]        In sentencing for the cannabis offending, Judge Moran noted that a starting point of two to two and a half years had been adopted for the appellant’s co-offender.  He noted the recent sentence imposed by French J and referred to the need to arrive at a sentence that was proportionate to the total offending.  He said that he would be well and truly justified in adding another 18 months but that he intended to take what he regarded as a generous if not merciful course and impose an additional 12 months imprisonment. 

[6]        The sole ground of appeal is that insufficient credit was allowed for the time spent on EM bail.  The total reduction from French J’s starting point of seven years imprisonment was one year and seven months.  A 20 per cent allowance for the guilty plea is about one year and five months, so that the allowance for the time spent on EM bail must have been about two months. 

[7]        It is well established that time spent on a restrictive bail regime may constitute a mitigating factor personal to an offender which may need to be taken in account in the sentencing process.  The relevant principles are succinctly expressed  in R v Tamou in these terms:[2]

This Court in R v Faisandier CA185/00 12 October 2000 indicated at [28] that there may be a need for a Judge, in determining mitigating factors, to reflect the fact of a restrictive bail regime which would not otherwise be taken into account in the manner in which a sentence of imprisonment was calculated. The possibility was affirmed recently in R v Cristia [2008] NZCA 19.

None of the cases have adopted an arithmetic approach and that is understandable. It is difficult to equate time spent on even restricted bail with time spent as a remand prisoner. What is required is an evaluative assessment of all the circumstances which are involved. There will be occasions when no allowance is required at all, as demonstrated by the very different fact situation in R v Nichols CA406/02 16 June 2003.

[2]      R v Tamou [2008] NZCA 88 at [18] and [19].

[8]        Counsel for the appellant submits that this Court should, by an approach similar to that adopted in respect of credits for guilty pleas in R v Hessell,[3] specify the credit that EM bail should attract in sentencing.  He invites the Court to do so in this case.  Counsel for the Crown submits that the existing principles do not require any reassessment in the light of Hessell.  Ms Laracy submits that that case is concerned only with credit for guilty pleas and does not suggest discrete arithmetical discounts are appropriate for any other mitigating factors.  She submits that this Court has rejected an approach which equates to time spent in custody on remand with time spent on EM bail. 

[3]      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

[9]        We do not accept Mr Starling’s invitation to specify, in a general way, the extent of credit which should be given.  It would not be appropriate for a divisional Court to undertake that function.  We do not consider it appropriate to refer the case for the consideration of the Full Court.  We are not persuaded that the extent of credit for time spent on remand on restrictive bail conditions, whether EM or not, needs to be the subject of general guidelines.

[10]       Section 7(5) of the Bail Act 2000 authorises the imposition of reasonable terms and conditions when bail is granted.  That provides the legislative basis for the imposition of conditions as to electronic monitoring.  Mr Starling submits that EM bail is similar, in terms of the restriction on liberty imposed, to home detention.  That is not necessarily so.  Electronic monitoring, when it is required as a condition of bail, is a means of monitoring compliance with restrictions on movement which are necessarily specified in each case, and may vary from case to case – for example, restriction to a home, or to a home and place of work.  Absences for specific purposes may be authorised.  The degree of restriction on liberty which is imposed by conditions of bail may vary widely, both in cases where electronic monitoring is imposed as a condition of bail and where it is not.

[11]       Counsel for the appellant submits that EM bail is effectively identical to home detention, and that home detention sentences are generally calculated as being half the length of a short term of imprisonment.  That is because sentences of home detention are not subject to parole whereas under a short term of imprisonment the prisoner will be released upon serving one half of the sentence.  He submits that this should be taken into account in assessing the credit for time spent on EM bail.

[12]        As we have noted, the restrictions imposed by EM bail are not necessarily similar to those imposed by a sentence of home detention.  Even in cases where they are similar, we do not consider that any assistance is to be derived, in assessing the extent of credit to be given for time spent on EM bail, by a consideration of how sentences of home detention are calculated.  We accept counsel for the respondent’s submission that this Court should not adopt an arithmetical approach of that sort.  Such an approach was expressly rejected in Tamou.  Under s 90 of the Parole Act 2002, time spent in pre-sentence detention is taken into account as time served.  Time spent on restrictive bail conditions is not.  That is why a credit is sometimes allowed on sentencing.  But the way in which sentences of home detention and imprisonment are calculated is not a relevant factor in assessing the extent of the credit when a sentence of imprisonment is imposed.  As this Court said in Tamou, what is required is an evaluative assessment of all the circumstances which are involved.  A relevant factor, in assessing the credit to be given for pre-sentence bail, is to weigh up the degree of restriction on liberty imposed by the bail conditions, compared with the degree of restriction on liberty involved in a prison sentence.

[13]       In this case, the appellant was on 24 hour electronic monitoring which confined him to the residential address where he was living with his daughter and her partner and their new baby, the appellant’s grandchild.  His variations included many visits away from this house to go to various places including probation and community work, doctor, dentist and physio visits, visits to his lawyer, and Court appearances in both Christchurch and Auckland.  While those conditions are restrictive, they are considerably less restrictive than a prison sentence. 

[14]       In Tamou, the appellant had spent nine months on electronic monitored bail.  The sentencing Judge made no allowance.  This Court reduced the sentence by three months to allow for that factor.  In R v Gray,[4] the appellant had been subject to a curfew and other stringent conditions of bail for about two years and nine months.  This Court held that the sentencing Judge’s allowance of three months for this factor could not be challenged.  In R v Aram,[5] a one year discount to reflect about 18 months on bail conditions which the Judge described as “fairly restrictive” was upheld by this Court.  In R v Latifi,[6] a two year discount for an offer of assistance, remorse, existence of restrictive bail conditions, and ill health was upheld.  In R v Nichols and Piggott,[7] the Court noted that while the appellant there faced significant restrictions he was in the comfort of his own home with his family and with the freedom to move around his farm day and night.  That was not seen as justifying any interference with the sentence imposed by the sentencing Judge.  In R v Faisandier,[8] the appellant had been confined to her home for 24 hours a day for ten and a half months.  A deduction of six months by the sentencing Judge was increased to 12 months by this Court.

[4]      R v Gray [2008] NZCA 224.

[5]      R v Aram [2007] NZCA 328.

[6]      R v Latifi [2007] NZCA 372.

[7]      R v Nichols and Piggott CA406/02 and CA417/02, 16 June 2003.

[8]      R v Faisandier CA185/00, 12 October 2000.

[15]       French J allowed a credit of about two months, on the basis that the appellant had been on bail on those conditions for about 12 months.  Having regard to those cases, and recognising the degree of discretion available to the sentencing Judge, we are not persuaded that, on the basis of the facts as understood by the sentencing Judge, the allowance of two months was inadequate, so as to lead to a sentence which was manifestly excessive. 

[16]       However, it became apparent during the hearing before us that the information before the sentencing Judge as to the time spent on electronic monitored bail was not correct.  The appellant actually served two terms on EM bail from 28 August 2008 to 17 May 2009, and again from 20 July 2009 to 28 April 2010.  That is a period of some 18 months.  It is possible, that, had the sentencing Judge been made aware of the correct position, she may have made a somewhat higher allowance.  To ensure that the appellant is not disadvantaged, we consider it appropriate to make some additional allowance, to take account of that possibility.  We would extend the discount by an additional two months.  While that might ordinarily be seen as tinkering with the sentence, we see it as justified in this case by the need to ensure that the appellant is not disadvantaged. 

[17]       For these reasons, we consider it appropriate to allow the appeal in respect of the sentence imposed by French J by reducing the term from five years and five months to five years and three months.  All other aspects of the sentences remain unchanged.

Solicitors:

Crown Law Office, Wellington for Respondent