Longman v Police

[2017] NZHC 2928

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI 2017-485-51 [2017] NZHC 2928

BETWEEN

ADAM JOHN LONGMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 November 2017
Counsel:	K Preston for Appellant J M OʼSullivan for Respondent
Judgment:	28 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Longman appeals a sentence of seven months’ home detention.1  The basis of the appeal is that insufficient credit was given for time spent on electronically monitored (EM) bail prior to sentencing, and for time spent on custodial remand prior to sentencing.  The respondent submits sufficient credit has been given, but contends alternatively the current overall outcome is a lenient sentence which should not be adjusted.

Facts

[2]      Mr Longman  pleaded  guilty  to  charges  of  burglary,  breaching  release conditions  and  breaching  community work  conditions.   The  burglary  concerned

commercial premises. Mr Longman and two others entered a yard, disabled the power

1      New Zealand Police v Longman [2017] NZDC 20707.

LONGMAN v POLICE [2017] NZHC 2928 [28 November 2017]

and broke into an office.  There they disabled the surveillance cameras.  About one thousand dollars in cash was taken. The offenders then went outside, took tools from a workshop and took a truck which they loaded with stolen property.  The truck was abandoned elsewhere with the stolen property missing. Earlier, while in the office the offenders poured milk over most surfaces and ransacked it.  The stolen property was valued at just under $38,000.

[3]      Mr Longman has a significant criminal history.  He has around 70 previous convictions dating back 14 years.  Since June 2014 he has 15 convictions, all but one of which merited a term of imprisonment (for some home detention was the ultimate outcome).  This offending is largely property focused and relevantly includes two burglaries and three breaches of conditions.

[4]      The District Court took a starting point of two years for the burglary.  There were then added three months for the other offending, and a three month uplift for past offending.  A totality adjustment offset one of those three month periods leading to a

27 month starting point reduced by 25 per cent for a guilty plea to 20 months.  This was converted to 10 months’ home detention, which was then reduced by a global three month figure to reflect time on EM bail and time in custody.  The respective periods Mr Longman served were four and a half months’ pre-sentence custody and two and a half months EM bail.

Discussion

[5]      The appeal puts in issue two conceptually different periods – time spent on EM bail and time spent on custodial remand.   It is important to recognise the inherent differences to ensure appropriate credit is given. These differences mean the relevance of each period falls to be assessed at different points in the sentencing process.

[6]      Time  spent  on  EM  bail  is  a  mandatory  consideration  when  setting  the appropriate  sentence  (ss  9(2)(h)  and  9(3A)  of  the  Sentencing Act 2002).    The

authorities make it clear that it is not a matter of arithmetical equivalence.2  First, even

2      See, for example, Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 at [110]; Keown v R [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA 88 at [19].

the most restrictive EM bail is not the same as serving time in jail; it is still considerably less restrictive.  Second, there are many variables including length of

time on EM bail, conditions, and compliance. Within a 24 hour curfew situation there can be considerable variance in the amount of absences permitted such as to mean that two apparently similar sets of conditions have operated vastly differently.

[7]      Credit for time spent on EM bail is considered when fixing the appropriate length of any sentence of imprisonment. It is a mitigating factor that is assessed in the same way and at the same time as factors such as remorse, guilty plea and rehabilitative efforts.  It feeds into the appropriate length of the sentence.

[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.  This is where it is important to note the distinction from EM bail.  There the analysis is what reduction to a prison term should be made for restrictive pre-sentence arrangements that do not involve jail. Here, the analysis is what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in jail in effect serving the same sentence.  Seen that way, full equivalence should be the norm. Although arising in a different area, I suggest this outcome of full equivalence is consistent with the tenor of the Supreme Court decision in Booth v R where the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences.3

[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

3      Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

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.

[11]     Against that background I turn to the present case.

[12]     The Court gave a global credit of three months.   For the reasons given, I consider separate consideration was required.  In relation to EM bail, Mr Longman spent two and a half months on a 24 hour curfew. There were four approved absences and no breaches.4

[13]     I do not accept the appellant’s submission that credit of two and a half months should be given.  That is inconsistent with the decided cases.  As was pointed out in Parata, what one is determining here is the amount of reduction to a term of imprisonment that is merited.5  Two and a half months is not a particularly long period of EM bail, and I consider a one month credit sufficient. With that short length of EM bail, credit at all is far from inevitable.

[14]     In terms of credit for time served, the Court identified 20 months as the underlying term of imprisonment. That should now be adjusted to 19 months to reflect the EM  bail  credit,  leaving  a home  detention  term  of nine and  a half months. Consistent with the earlier discussion, at this point recognition should be given to the four and a half months spent on custodial remand meaning the correct home detention figure is five months.  However, before confirming that as the outcome of the appeal

it is necessary first to address the respondent’s position that, whatever errors might be identified, the existing sentence of seven months’ home detention is not a manifestly excessive sentence.

[15]     The respondent challenges as unduly lenient the ultimate starting point of two years and three months’ imprisonment. The first aspect of that is to query the starting point of two years for the burglary whilst acknowledging that it was the figure

suggested by the police prosecutor. I agree it is at the bottom of what one might expect,

4      I observe as a general proposition that there is often insufficient information at sentencing.  If an offender wishes credit for EM bail, the details of that bail including length, conditions and breaches should be given to the Court. That information was given here.

5      Parata, above n 2, at [11].

but note the respondent refers to R v Gage where the Court of Appeal described a two year two month starting point for a similar offence involving $45,000 worth of goods as well within range.6  That suggests this figure was available.

[16]     The respondent’s primary submission concerns the treatment of the two breach charges.7   By making a totality adjustment it is submitted the Court effectively gave no penalty at all for that offending.  The community work sentence, and the release conditions, were significant components of the previous sentence.  Mr Longman did not turn up to do his community work.  Nor did he maintain a residence at which he could be contacted, meaning the Department could not reach him regarding the community work (100 hours) or the other aspects of the release conditions aimed at rehabilitation.   Both aspects of that previous sentence have now been lost without

Mr Longman complying with any of them.

[17]     I agree with the underlying proposition, and consider the totality adjustment was wrong.  Two years six months’ imprisonment was far from an excessive starting point and no adjustment was needed.  However, it is not correct to directly link the totality adjustment to the uplift for previous breaches. It could equally be said to have cancelled out the uplift for previous offences, leaving a three month uplift in place for the past offences.  The reality is that it is just an adjustment down of the final figure, and is not attached to a particular component.

[18]     Overall, while I agree with the respondent that most components have worked in Mr Longman’s favour, it does not lead me to the position where what I consider to be an error should be not corrected.  I am in part influenced by the subject matter of the error which is a failure to give credit for time served in jail.  I am also in part influenced  by the  reality that  the  appellant  pleaded  guilty following  a  sentence indication which fixed his culpability at 20 months.   I am hesitant to disallow an otherwise meritorious appeal on the basis that the sentence indication figure was light. I consider it arguable (I put it no higher than that) that in those circumstances an

opportunity to withdraw the plea should be proffered, and that is not desirable here.

6      Gage v R [2014] NZCA 140 at [15].

7      Points are made with less force about the guilty plea credit and the size of the uplift for past convictions. Whilst another Judge may have taken higher figures, I consider neither to be wrong.

Result

[19]     The appeal is allowed.

[20]     The sentence of seven months’ home detention for burglary is quashed and substituted with one of five months’ home detention. The conditions are unchanged.

[21]     The existing sentences of home detention for the two breach charges are quashed and replaced with sentences of one month home detention, such sentences to

be concurrent with each other, and with the burglary sentence.

Simon France J