McKenzie v The King
[2024] NZHC 1296
•21 May 2024
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2024-476-006
[2024] NZHC 1296
BETWEEN EVAN CRAIG DONALD MCKENZIE
Appellant
AND
THE KING
Respondent
Hearing (via VMR): 21 May 2024 Appearances:
M Bonniface for Appellant A McRae for Respondent
Judgment:
21 May 2024
JUDGMENT OF GRAU J
[Sentence appeal]
[1] On 15 March 2024, Judge Savage sentenced Mr McKenzie to four months’ home detention on one charge of assault on a person in a family relationship and two breaches of a protection order.1
[2] Mr McKenzie appeals his sentence. The only ground advanced on appeal is that the sentencing Judge erred in providing insufficient credit for time spent on electronically monitored bail (EM bail), and the end sentence should instead have been three months’ home detention.
1 R v McKenzie [2024] NZDC 5859; charges pursuant to Crimes Act 1961, s 194A (maximum penalty of two years’ imprisonment) and Family Violence Act 2018, ss 9, 90(a), and 112(1)(a) (maximum penalty of three years’ imprisonment) respectively.
MCKENZIE v R [2024] NZHC 1296 [21 May 2024]
The offending
[3] Mr McKenzie and the victim were previously in a relationship. A protection order had been in place since late 2022.
[4] On 10 February 2023, Mr McKenzie arrived at the victim’s home and entered without permission. An argument began over a financial issue. The victim asked Mr McKenzie to leave. He refused and the argument continued. He kicked the victim in the lower leg and left the address shortly after. He then sent the victim multiple abusive messages via text message and Snapchat.
Sentencing indication
[5] On 31 October 2023, Judge Savage gave Mr McKenzie a sentence indication. His Honour adopted a starting point of 18 months’ imprisonment, taking into account the entry into the victim’s home and a concerted attempt to manipulate her or to cause her psychological pain, as well as the assault on her.2 An uplift of two months would apply for Mr McKenzie’s history of offending.3 Guilty pleas would attract a 20 per cent credit, which the Judge described as reasonably generous.4 The Judge also noted that Mr McKenzie seemed to be doing well on EM bail. His Honour indicated that Mr McKenzie would receive a credit for that, as well as for the time he had spent in custody.5
Sentencing decision under appeal
[6] Judge Savage noted the sentence indication was of a starting point of 20 months’ imprisonment with a credit of 20 per cent for the guilty plea, reducing it to 16 months.6 His Honour then applied a two-month reduction to take into account the time Mr McKenzie had spent in custody. He also reduced the sentence by five months for the time Mr McKenzie spent on EM bail.7 That led to an end point of nine months’
2 R v McKenzie DC Timaru CRI-2023-076-282, 31 October 2023 (Note of Judge C D Savage on Sentencing Indication) at [3]–[6].
3 At [6].
4 At [8].
5 At [9].
6 R v McKenzie [2024] NZDC 5859 at [2].
7 At [5].
imprisonment which the Judge commuted to four months’ home detention (imposed concurrently) on each charge.8
Approach on appeal
[7] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed. The Court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles9.
Discussion
[8] No issue is taken with the Judge’s starting point or with the reductions made for the guilty pleas and for the time spent in custody.
[9] Mr Bonniface points out that Mr McKenzie was subject to EM bail from 30 May 2023 until 15 March 2024. The conditions were restrictive but there were no recorded issues of non-compliance over some nine and a half months.
[10] Mr Bonniface relies on the case of Hohipa v R, where the appellant had spent 14 months on EM bail.10 To account for this, on appeal, the Court of Appeal applied a reduction of around 12 months—approximately 85 per cent of the time Mr Hohipa had spent on EM bail.11 Mr Bonniface submitted that it was an error for the sentencing Judge not to refer to Hohipa or give reasons why he did not follow it. Accordingly, the Judge reached an end point of nine months’ imprisonment, rather than the six months that ought to have been reached had the Judge applied Hohipa. That would have resulted in an eight-month reduction for time on EM bail and would have led to an end sentence of three months’ home detention rather than four months.
8 At [6].
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
10 Hohipa v R [2015] NZCA 485.
11 At [35].
[11] Mr Bonniface also accepted, however, that there is little he can responsibly submit to suggest that such an error has resulted in a manifestly excessive sentence when the difference is only one month of home detention.
[12] As the Court of Appeal has said in the case of Paora v R, there is no guideline about the discount for time spent on EM bail.12 The Court noted that percentages ranging between 30 and 50 per cent are often used, and that an allowance of up to 50 per cent is not uncommon. The Court also said 50 per cent is not an upper limit; assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case.13
[13]The Court also stated in Paora v R:14
We note that this Court observed in Parata that were equivalence to be granted for EM bail, offenders would have an incentive to extend the period of bail as a means of servicing a sentence. We prefer to regard that not as policy reason to deny equivalence but as something which sentencing judges might need to bear in mind if contemplating near-equivalence in any given case if the circumstances warrant it …
[14] In this case, I agree Mr McKenzie’s bail conditions were restrictive. They were of a similar nature to the conditions in Hohipa. Mr McKenzie was able to shop every Friday, to attend appointments with his Family Court lawyer (for Family Court matters concerning his child), and to attend a day-long course in February 2024.
[15] Mr McKenzie’s conditions went further than Mr Hohipa’s to include a condition that he was not to possess or use any Internet-capable device. However, that condition was the necessary consequence of the offending. The confines of EM bail led his Honour Eaton J to conclude by a “narrow margin” that the risk of online communication could be managed.15 Put another way, without such a condition, Mr McKenzie would likely have remained in custody until he resolved his charges. And that took some time. He did not request a sentencing indication for some four months after he was granted EM bail and, unlike Hohipa, there was no amendment to the charges or the summary of facts before the eventual guilty plea. Hohipa is also
12 Paora v R [2021] NZCA 559 at [53].
13 At [53].
14 At [54] (footnotes omitted).
15 McKenzie v Police [2023] NZHC 1321 at [29].
distinguishable when the length of Mr Hohipa’s time on EM bail was considerably longer and the reduction for time spent on EM bail was made in the context of a significantly longer sentence, where the starting point was six years and six months’ imprisonment.
[16] The Crown has referred me to a number of cases in which discounts of between 33 per cent and 70 per cent of the time spent on EM bail have been applied. All cases turn on their own facts, but it is difficult to see the discount of 55 per cent afforded to Mr McKenzie as outside of an available range.
[17] Finally, I note that the Judge did not follow an orthodox sentencing approach, but even if he had, it would have led to the same result.
[18] Following the Moses methodology, the guilty plea discount of 20 per cent ought to have applied to the 18-month starting point, not to the starting point uplifted for previous convictions. That two-month uplift is required to be taken into account at the second stage, because previous convictions are a personal aggravating factor. Accordingly, the guilty plea discount would have been slightly lower.
[19] The other matter is that a reduction for time spent in custody on remand is more commonly deducted after a sentence of imprisonment is commuted to home detention.16 That would have been in Mr McKenzie’s favour.
[20]Thus, the sentencing exercise would be as follows:
(a)18 months as a global starting point;
(b)20 per cent guilty plea discount (3.5 months);
(c)discount for time on EM bail (5 months);
(d)uplift for previous convictions (2 months);
16 See Longman v NZ Police [2017] NZHC 2928.
(e)notional sentence of 11.5 months imprisonment;
(f)provisional sentence of 5.75 months’ home detention;
(g)reduction for time in custody on remand (2 months) leading to a final sentence of 3.75 months’ home detention.
[21] On that basis, there is a difference of one week between the sentence that was imposed and the sentence that would have applied had the sentencing exercise been undertaken in the manner above. As above, the guilty plea discount would have been less, but there would have been a practical benefit to Mr McKenzie in reducing the length of the home detention sentence by applying the reduction for time spent in custody at that stage. Had the Judge also applied the reduction for the time spent on EM bail that is sought on appeal, the end sentence would have been approximately two months home detention, which would have been an inadequate response to the offending.
[22] I also note that the Judge reached an end point of nine months’ imprisonment and commuted it to four months, when the notional prison sentence is routinely halved. Thus, a sentence of four and a half months’ home detention could also have been imposed using the Judge’s methodology.
[23] All of that demonstrates the end sentence of four months’ home detention was clearly within an available range.
Result
[24]The appeal is dismissed.
Grau J
Solicitors:
JMJ Lawyers Limited, Timaru for Appellant Crown Solicitor, Timaru for Respondent
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