Mason v Police
[2022] NZHC 1845
•29 July 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-63
[2022] NZHC 1845
BETWEEN KATIE HARATA MASON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 July 2022 Appearances:
RO Gowing and AE de Villiers for the Appellant CA Bourke for the Respondent
Judgment:
29 July 2022
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 29 July 2022 at 11.30am
Registrar/Deputy Registrar
Date……………………………
Solicitors:Gowing & Co Lawyers, Whakatane Pollett Legal, Tauranga
MASON v NZ POLICE [2022] NZHC 1845 [29 July 2022]
Introduction
[1] Ms Mason was convicted on charges of dealing in methamphetamine,1 possession of methamphetamine,2 possession of cannabis for supply,3 offering to supply cannabis,4 breach of bail,5 receiving stolen property,6 possession of cannabis,7 possession of utensils for methamphetamine8 and supplying methamphetamine.9 On 25 March 2022, Judge C J Harding in the District Court at Whakatāne sentenced Ms Mason to 10 months’ home detention.10
[2] Ms Mason appeals against her sentence on the basis that the Judge erred by failing to give credit for time spent on remand in custody when determining the end sentence of home detention.11
[3] The appeal was filed out of time. Counsel for Ms Mason says that the error was noticed shortly after the date of sentencing and an application to recall the sentencing decision was filed to correct the error. That application was not scheduled for hearing until 10 May 2022 at which time the sentencing Judge declined jurisdiction.12 The Police do not oppose leave to appeal being granted and I accordingly grant leave.
The offending
[4] Ms Mason’s offending came to light as a result of a police investigation code named “Operation Kikorangi”. Intercepted communications revealed that between
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2) (representative charge). Maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty eight years’ imprisonment.
4 Misuse of Drugs Act 1975, s 6(1)(e) and (2) (representative charge). Maximum penalty eight years’ imprisonment.
5 Bail Act 2000, s 38(a). Maximum penalty one year’s imprisonment or $2,000 fine.
6 Crimes Act 1961, ss 246 and s 247(a). Maximum penalty seven years’ imprisonment.
7 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty three months’ imprisonment and/or $500 fine.
8 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year’s imprisonment and/or
$500 fine.
9 Misuse of Drugs Act 1975, s 6(1)(c) and (2) (representative charge). Maximum penalty life imprisonment.
10 Police v Mason [2022] NZDC 5230.
11 To be fair to the Judge, it is not clear if this was brought to his attention at sentencing.
12 Under s 177 of the Criminal Procedure Act 2011.
June and September 2021, Ms Mason supplied a total of identifiable weights of two and a half grams of methamphetamine, and on two occasions she offered to supply cannabis of an unidentified amount and value. On 7 September 2021, police searched Ms Mason’s property and located various items including a glass methamphetamine pipe, point bags containing 1.09 grams of methamphetamine, and 60 grams of cannabis head.
[5] On 20 December 2021, while Ms Mason was on bail for the above offending, her property was searched again. Police located various items including two glass pipes, approximately one gram of cannabis head, 378 grams of cannabis leaf, and a stolen camera. Ms Mason admitted to selling methamphetamine and cannabis since her last arrest, and said she had been given the camera by an associate.
Sentencing in the District Court
[6] After outlining the charges and the facts of the offending, the Judge referred to counsel’s submissions on Ms Mason’s role in the offending and the various discounts sought. While accepting there was an element of addiction, the Judge did not accept counsel’s submission that Ms Mason would have been motivated by addiction rather than anything else.13
[7] The Judge then referred to the mandatory sentencing principles under s 8 of the Sentencing Act 2002, and noted that the mitigating factors were Ms Mason’s guilty plea, remorse and her earlier good character.
[8] Next, the Judge canvassed the s 27 report prepared on Ms Mason’s behalf, noting that its contents were largely “rather better than most of such reports”.14 He noted that Ms Mason went “off the rails” when her partner was imprisoned for offending, ended up in contact with people “in the drug scene” and became addicted to methamphetamine.15
13 Police v Mason, above n 10, at [4].
14 At [7].
15 At [7].
[9] The Judge then outlined the pre-sentence report, which he described as “very positive”.16 The report said that Ms Mason was very remorseful and motivated to address the factors that led to her offending. It also assessed her at a low risk of reoffending, and noted the strong support including from whānau available to her at the proposed home detention address. The Judge noted the report writer’s recommendation of a sentence of home detention with post-detention conditions, commenting that there seemed to be “significant confidence” that Ms Mason would make good progress in the programmes and counselling available to her.17
[10] Against this background, the Judge adopted a starting point of two years’ imprisonment for the methamphetamine charges, with an uplift of 12 months for the other offending.18 He gave a 55 percent discount for personal mitigating factors, comprising 10 percent for Ms Mason’s addiction, some 10 percent for the s 27 factors and further discounts for character and rehabilitation together with a guilty plea. The Judge then uplifted the resulting figure by three months for Ms Mason’s “blatant” offending while on bail, coming to an end sentence of 19 months’ imprisonment.19
[11] The Judge said that this end sentence should “unusually, but in [Ms Mason’s] case appropriately, be converted to home detention”.20 While noting that courts are reluctant to give a home detention sentence at the address from which the offending occurred or close by, the Judge considered that the support available at the address and Ms Mason’s determination to stop offending ameliorated this concern.
[12] The Judge therefore sentenced Ms Mason to 10 months’ home detention with the standard and special conditions laid out in the pre-sentence report, together with various post-detention conditions. The Judge also made an order for the destruction of the utensils and the drugs.
16 Police v Mason, above n 10, at [8]. I have read the report and endorse that description.
17 At [10].
18 At [12].
19 At [13].
20 At [13].
Approach on appeal
[13] 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.21 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle.22 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.23
The appellant’s submissions
[14] Counsel for Ms Mason accept that the Judge’s starting point and discounts were appropriate. The sole issue on appeal is whether the Judge erred in failing to give credit for time Ms Mason spent on remand in custody (and if so, what effect that time on remand should have on the end sentence of home detention).
[15] Counsel submit that at the time of sentencing, Ms Mason had been remanded in custody for approximately three months. They say that due to an oversight, this factor was not taken into consideration when calculating the end sentence and, as a result, an incorrect sentence was imposed. Counsel submit that the Court must take time spent on remand into account at sentencing, and that on the approach taken by this Court in R v Tarau, the three months Ms Mason spent on remand equates to a six-month term of imprisonment.24 They submit that deducting those six months from the Judge’s end sentence of 19 months’ imprisonment results in a sentence of 13 months’ imprisonment, to be substituted with a sentence of six months and two weeks’ home detention, being the appropriate sentence.
[16] I sought further submissions from counsel on a recent decision of Downs J in Vakapora v Police, in which the Judge reviewed a number of earlier decisions of this Court (and the Court of Appeal) concerning the manner in which pre-sentence remand in custody ought to be reflected in a sentence of home detention.25 Counsel maintained
21 Criminal Procedure Act 2011, s 250.
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].
23 At [36].
24 Relying on R v Tarau [2018] NZHC 2595.
25 Vakapora v Police [2022] NZHC 493.
their position that the correct approach is that taken in Tarau (that is, doubling the time spent on remand, deducting it from the sentence of imprisonment, then halving that figure to reach the home detention sentence). Counsel submitted that if it is accepted that one month of home detention is equivalent to one month of imprisonment, then it follows that equal credit for time spent in custody should be given. In this respect, they submit that the Court in Vakapora failed to consider s 86 of the Parole Act 2002, which provides that the release date in a short-term sentence is the date on which the offender who is subject to the sentence has served half of it.
[17] Counsel also queried the reasoning in Kidman v R, in which the Court of Appeal declined to mandate a particular approach to credit for time spent on remand in custody when determining the term of a sentence of home detention.26 Counsel submit that the fact Parliament has not provided for credit in respect of home detention in the same manner as a sentence of imprisonment does not mean the courts do not have the jurisdiction to do so.
The respondent’s submissions
[18] Ms Bourke for the respondent acknowledges that the Judge erred in failing to take into account time spent on remand in calculating the sentence of home detention, but submits that it is open for this Court to determine that the end sentence was nevertheless not manifestly excessive.
[19] Counsel emphasises that the Court of Appeal has held that the approach to discounts for time spent on remand in the context of home detention is an evaluative one.27 Ms Bourke submits that time spent on remand should be deducted from the calculated term of imprisonment before it is commuted to home detention, not from the sentence of home detention.28 Ms Bourke contends that any deduction should not exceed the time spent in custody, relying on this Court’s decisions in Saunders v Police and Closey v Police.29 On this basis, she submits that the preferred methodology is to deduct the time spent on remand (three months) from the end sentence of
26 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.
27 Citing Kidman v R, above n 26, at [14].
28 Relying on Laloni v R [2015] NZCA 55 at [14].
29 Saunders v Police [2015] NZHC 1964 at [26]; and Closey v Police [2020] NZHC 990 at [18].
imprisonment (of 19 months) for a total of 16 months, then commute this to a sentence of eight months’ home detention. Counsel submits that this effectively reflects the “two equals one” methodology as termed by Downs J in Vakapora.30
[20] Counsel further submits that counsel for Ms Mason appears to be effectively advocating for a “one for one” approach discussed in Vakapora, on the basis that the home detention sentence should reflect the effective term of imprisonment (and the point at which the offender would have been released from custody, had the sentence not been commuted to home detention). Counsel highlights that while the Court in Vakapora did not explicitly refer to s 86 of the Parole Act, Downs J considered the issue of home detention being a substitute for a sentence of imprisonment in relation to the rationale for the one to one approach, which demonstrates that the Judge was aware of the relevant principles. Counsel further notes that the Sentencing Act does not equate the sentences of imprisonment and home detention, and the hierarchy of sentences under s 10A of the Act places home detention as a less restrictive sentence than imprisonment.
Relevant law – credit for time spent on remand
[21] As will be evident from the above summary of the parties’ submissions, they are agreed that the Judge ought to have given credit for time Ms Mason spent on remand in custody when sentencing her to home detention. However, the authorities have taken differing views on how this credit ought to be applied – both in terms of the size of the credit and when it should be applied.
[22] In terms of the size of the credit, some decisions have 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).31 Other decisions have taken the view that every month on remand is
30 Vakapora v Police, above n 25.
31 Laloni v R, above n 28, at [14] (although the Court did not articulate its reasons for adopting this approach); Wharrie v R [2019] NZHC 633 at [30]–[33]; and Vakapora v Police, above n 25, at [28]. See also Parkinson v Police [2019] NZHC 1710; McMillan v Police [2019] NZHC 3323 at [43]; Closey v Police, above n 29, at [35]; and Gotty v R [2020] NZHC 2035 at [18], in which the Court appeared to endorse the “one to one” approach by deducting the full period of remand from the term of imprisonment, but nevertheless deducted the full amount from the term of
equivalent to a month of home detention because if the sentence were not commuted to home detention there would be an automatic credit to the sentence on a one for one basis (the “one for one” approach).32
[23] In Kidman v R, the sentencing Judge had failed to take into account six months spent on remand in calculating a sentence of home detention.33 The Judge indicated that he would have reduced the six-month home detention sentence to four and a half months to reflect this factor, but declined to resentence. On appeal, it was argued that the “one for one” approach was mandatory. The Court of Appeal declined to mandate any particular approach, commenting that an “evaluative approach” should be taken.34 However, the Court did not hold that one for one should never be employed.35
[24] Subsequently, in Longman v Police, Simon France J took the view that one for one is the “default position”, stating:36
[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.
[25] A number of subsequent decisions have cited the reasoning in Longman in adopting the one for one approach.37 However, in Vakapora v Police, Downs J queried the approach in Longman, stating:38
imprisonment, then halved the resulting figure to reach the sentence of home detention, effectively resulting in a “two equals one” outcome. See the discussion at [27] below.
32 Longman v Police [2017] NZHC 2928 at [9]; 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 Harrison v Police [2022] NZHC 345.
33 Kidman v R, above n 26, at [15].
34 At [15]–[16].
35 As noted by Downs J in Vakapora v Police, above n 25, at [20].
36 Longman v Police, above n 32.
37 For example, Pou v Police, above n 32; Paul v Police, above n 32; and Kirk v R, above n 32; and see Parkinson v Police, above n 31; and McMillan v Police, above n 31, but see my comments at n 31 above and [27] below.
38 Vakapora v Police, above n 25, at [25] (footnotes omitted).
These views command respect. However, the Supreme Court’s decision in Booth v R was concerned with the effect of pre-sentence detention on a sentence of imprisonment. More particularly, Booth was concerned with the interpretation of s 90 of the Parole Act; a provision not engaged here. Furthermore, Longman does not cite Kidman or [Laloni]. It is not obvious, therefore, why “the default position is that full credit should be given”.
[26] Turning to the issue of when the credit ought to be applied, some decisions have deducted the time spent on remand only after converting the sentence of imprisonment to one of home detention.39 Others have made the deduction from the sentence of imprisonment before it is converted to home detention.40
[27] The Court of Appeal’s decisions in Laloni v R, Diaz v R and Williams v R are examples of the latter approach, though Laloni differs from the others in one important respect.41 In Laloni, the defendant had been on remand for nine months. The Court deducted three months from the end sentence of imprisonment (which was 21 months). The resulting figure (18 months) was then halved to give a sentence of nine months’ home detention. As Downs J noted in Vakapora, this approach is consistent with two equals one.42 Some High Court decisions have followed this same approach while simultaneously endorsing the “one for one” methodology.43 For example, in Parkinson v Police, the Court cited Simon France J’s reasoning in Longman in deducting the full period on remand from the end sentence of imprisonment – but then halved the resulting sentence in reaching a home detention sentence.44 As noted, this effectively results in a two equals one outcome, and thus arguably does not give the “full credit” referred to in Longman.
39 Longman v Police, above n 32, at [14]; Kirk v R, above n 32, at [9]; Stridom v Police [2019] NZHC 354 at [50]; Slade v Police [2020] NZHC 3396 at [26]–[33]; Paul v Police, above n 32, at [10]– [14]; R v Tai, above n 32, at [38]; and Whichman v R [2022] NZHC 1223 at [28]–[29].
40 Laloni v R, above n 28, at [14]; Saunders v Police, above n 29, at [26]; Parkinson v Police, above n 31; McMillan v Police, above n 31, at [43]; Closey v Police, above n 29, at [35]; and Gotty v R, above n 31, at [18].
41 Laloni v R, above n 28; Diaz v R [2021] NZCA 426; and Williams v R [2021] NZCA 333.
42 Vakapora v Police, above n 25, at [22]. Although as Downs J noted, the defendant had been on remand for nine months, yet the deduction was three months, not four and a half months.
43 See for example Parkinson v Police, above n 31; Gotty v R, above n 31; Wharrie v R, above n 31; McMillan v Police, above n 31; and Closey v Police, above n 29. Churchman J noted this divergence in the case law in Slade v Police, above n 39, at [27]–[32].
44 Parkinson v Police, above n 31, at [19]–[20] and [23].
[28] The Court of Appeal took a different approach again in Diaz v R and Williams v R.45 The Court doubled the time spent on remand and deducted it from the end sentence of imprisonment, citing the rationale that “[a]n offender who is sentenced to a short term of imprisonment becomes eligible for parole after he or she has served one half of the sentence imposed.”46 The Court then halved the resulting sentence to reach a sentence of home detention, citing the same rationale. This approach results, albeit by a different route, in a one for one outcome. It is consistent with Lang J’s approach in Tarau, on which counsel for Ms Mason relies.47
Analysis
[29] There is no dispute that an error was made in the sentence in the District Court, in not discounting the sentence of home detention to reflect Ms Mason’s pre-sentence time in custody. The question is whether a different sentence ought to be imposed, and if so, what.
[30] On the current state of the authorities, including relevant Court of Appeal decisions, I proceed on the basis that the only matters that are binding on me are that determining the length of time of a sentence of home detention is an evaluative exercise, and that the so-called “one for one” approach is not mandatory.48
[31] I deal first with the issue of when the credit for time on remand in custody ought to be applied when determining the appropriate length of a sentence of home detention. In my view, the preferable approach is to make the deduction after commuting the end sentence of imprisonment to one of home detention. This is consistent with the statutory directive in s 82 of the Sentencing Act that the Court must not take into account time spent on remand in custody when determining the length of a sentence of imprisonment. In this regard, I respectfully agree with Simon France J’s remarks in Longman that:49
45 Diaz v R, above n 41; and Williams v R, above n 42.
46 Diaz v R, above n 41, at [50]; and Williams v R, above n 41, at [26]. With respect, this proposition is incorrect. An offender is released (not merely eligible for release) on the date on which they have served half of that sentence: Parole Act 2002, ss 6(2), 51(2) and 86(1).
47 Although neither appellate decision referred to Tarau.
48 Kidman, above n 26.
49 Longman v Police, above n 32.
[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.
[32] In addition, there is perhaps an element of artificiality in determining that a sentence of imprisonment should be commuted to home detention, and then “reaching back” to adjust that sentence of imprisonment to reflect pre-sentence custody.50 While I accept that such an approach has been taken in some appellate decisions, the Court in those cases did not expressly discuss the merits of the competing approaches.
[33] I therefore proceed on the basis that the credit for time spent on remand in custody is to be deducted from the term of home detention, not the term of imprisonment before it is halved to reach the home detention sentence.
[34] Having resolved this preliminary issue, I must nevertheless go on to consider whether to take (or at least adopt as a starting point) a one for one approach or a two equals one approach. As can be seen from [27] and [28] above, both outcomes are available on the authorities, regardless of the point at which the Court applies the credit.
[35] I can see merit in both approaches. A 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. In those circumstances, and as Ms Bourke observed in her oral submissions, any perceived “unfairness” in the two for one approach simply reflects that home detention is not the equivalent of imprisonment and in the hierarchy of sentences, is a less restrictive sentence. On the other hand, the rationale for the one for one approach is that an offender sentenced to a sentence of home detention, which is itself based on a term of imprisonment, should ultimately be in no worse position (in terms of the length of their home detention sentence) than if the sentence of imprisonment had not been commuted to home detention.51
50 See a similar observation made by Campbell J in Harris v Police [2022] NZHC 345 at [26], n 20, where the Judge described such an approach as “opaque”.
51 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
[36] Recognising that neither approach is wrong, I prefer an approach which, at least as a starting point, reflects a one for one credit. While the duration of a home detention sentence is usually calculated by reference to half of the term of imprisonment, that is something different, in my view, to also halving a “credit” to that sentence of imprisonment. The one for one approach more appropriately acknowledges an offender’s time spent, pre-sentence, in the most restrictive environment possible in the hierarchy of sentencing. It is not apparent to me why recognition of that pre-sentence restriction should be materially different depending on whether the offender is ultimately to serve a short-term sentence as one of imprisonment or one of home detention.52
[37] Nevertheless, the Court of Appeal is clear that the ultimate outcome is an evaluative exercise. The question therefore always remains the appropriate period of home detention for the purposes of s 80A(3) of the Sentencing Act, in light of all the relevant sentencing principles and the circumstances of the case, including the time spent on remand in custody.
[38] On this basis, I consider the appropriate starting point is that a three month credit is to be applied to Ms Mason’s 10 month sentence of home detention to reflect the time she spent in pre-sentence custody. From this starting point, I turn to the evaluative exercise that is required.
[39] The respondent did not suggest that even if a one for one credit for Ms Mason’s time spent in custody were to be adopted, there were nevertheless circumstances which meant the full three-month discount was not appropriate. In the absence of any factors
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.
52 Noting in the former case, the recognition will be automatic in the context of the Department of Corrections setting the offender’s release date, while in the latter, it is to be taken into account by the Court when setting the duration of a home detention sentence.
pointing to a lesser discount being warranted, I take into account the statutory directive that I am to impose the least restrictive outcome that is appropriate in the circumstances.53 This weighs in favour of full credit for pre-sentence custody being given to Ms Mason. Such an approach also reflects, in my view, the rehabilitative focus of the home detention sentence, and the conditions of that sentence imposed by the Judge and set out at [15] of his sentencing notes. There is no suggestion that any of those conditions (and in particular, Ms Mason’s attendance at relevant programmes) will be implicated if a one for one credit is given.
[40] There will accordingly be an order that Ms Mason’s sentence of 10 months’ home detention is quashed and replaced with a sentence of seven months’ home detention. All other conditions of sentence imposed by the District Court are to remain the same.
[41] For completeness, had I adopted a “two for one” approach, such that Ms Mason’s term of home detention would have been reduced by only one and a half months, I do not consider reducing the sentence by that amount would have been “tinkering”. In the context of a sentence of 10 months’ home detention, this would have reflected a 15 per cent reduction.
Result
[42]The appeal is allowed.
[43] Ms Mason’s sentence of 10 months’ home detention is quashed and replaced with a sentence of seven months’ home detention. All conditions of that sentence referred to at [15] of the District Court Judge’s sentencing notes are to remain the same.
Fitzgerald J
53 Sentencing Act 2002, s 8(g).
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