McLean v Police
[2022] NZHC 1802
•25 July 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2022-425-09
[2022] NZHC 1802
BETWEEN BENJAMIN RENATA McLEAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 July 2022 Appearances:
J A T Ross for Appellant
W T Chapman for Respondent
Judgment:
25 July 2022
ORAL JUDGMENT OF OSBORNE J
Introduction
[1] Benjamin McLean pleaded guilty to and was convicted of seven sets of offending, totalling 19 charges, on 19 October 2021 and 23 December 2021. These are charges of failing to stop,1 dangerous driving,2 theft,3 breach of community work,4 wilful damage,5 breach of a protection order,6 assault on a person in a family
1 Land Transport Act 1998, ss 52A(1)(a)(ii), (2), (3), and (6), and 114(2): maximum penalty a fine not exceeding $10,000 and a mandatory disqualification for six months.
2 Section 35(1)(b) and (2): maximum penalty three months’ imprisonment or a fine not exceeding
$4,500 and a mandatory disqualification for six months or more.
3 Crimes Act 1961, ss 219 and 223(b), (c) and (d): maximum penalty variously seven years’ imprisonment, one year’s imprisonment or three months’ imprisonment.
4 Sentencing Act 2002, s 71(1)(f): maximum penalty three months’ imprisonment or a fine not exceeding $1,000.
5 Summary Offences Act 1981, s 11(1)(a): maximum penalty three months’ imprisonment and a fine not exceeding $2,000.
6 Family Violence Act 2018, ss 9, 90(a), and 112(1)(a) and (b) and (3): maximum penalty three years’ imprisonment.
McLEAN v NEW ZEALAND POLICE [2022] NZHC 1802 [25 July 2022]
relationship7 and assault with a weapon.8 Mr McLean was sentenced by Judge Brandts-Giesen to home detention for eight months and two weeks and 80 hours of community work on 24 March 2022.9 Mr McLean appeals that sentence.
Facts
[2] Mr McLean committed a number of offences on seven occasions in a seven month period in 2021.
[3]The tranches were:
(a)Tranche A — four counts of theft (value under $500), driving in a dangerous manner (representative), and failing to stop when followed by red and blue flashing lights (representative)
(b)Tranche B — theft (value under $500)
(c)Tranche C — theft (value over $1,000), theft (value under $500) and breach of community work.
(d)Tranche D — theft (value under $500)
(e)Tranche E — assault on person in family relationship, three counts of contravening a protection order, wilful damage and assault with a weapon
(f)Tranche F — theft (value over $1,000)
(g)Tranche G — theft (value between $500 and $1,000).
7 Crimes Act, s 194A: maximum penalty two years’ imprisonment.
8 Section 202C: maximum penalty five years’ imprisonment.
9 Police v McLean [2022] NZDC 5134.
District Court decision
[4] Mr McLean accepted two different sentence indications, one from Judge Walker for tranches A and B of offending, and one from Judge Brandts-Giesen for the other tranches of offending. When Judge Brandts-Giesen sentenced Mr McLean, he considered both sentence indications, and also added a home detention sentence in remitting Mr McLean’s outstanding fines.
[5]The sentence the Judge imposed is reflected in my Table A:
Table A
Part of sentence
Description
Sentence
Sentence for tranches C-G
(sentence indication from Judge Brandts- Giesen)
Leading offences –
tranche E of offending (wilful damage, breach of protection order x 3,
assault with a weapon)
18 months’ imprisonment starting point
Uplift for persistent shoplifting
+ 4 months
Uplift for past offending
+ 3 months
Subtotal
25 months
Discount for guilty plea
- 25%
- 6.25 months
Total for tranches C- G
18.75 months’
imprisonment, converted to 9 months’ home detention
Sentence for tranches A and B (Judge Walker sentence indication)
Sentence indication for offending
+ 3 months’ home detention
Subtotal
12 months’ home detention
Discount for remorse, time in custody and EM bail, willingness to engage in restorative justice, issues raised in cultural report
- 2 months’ home detention
Discount for time spent in custody and on EM bail
- 2 months’ home detention
Sentence for current offending
8 months’ home detention
Remission of fines
2 weeks’ home detention (served cumulatively)
Overall sentence
8 months’ and 2 weeks’ home detention
[6] The Judge also imposed 80 hours of community work rather than imposing disqualification and imposed reparation of $15 per week to be distributed to the victims of the offending. His Honour also said that where the offences were not imprisonable, that Mr McLean would be convicted and discharged.
Principles on appeal
[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
10 Criminal Procedure Act 2011, s 250(2) and (3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[8] Mr Ross, on behalf of Mr McLean, submits that the Judge failed to give an adequate discount for Mr McLean’s time served in custody and on electronically monitored (EM) bail. He submits the sentence should be reduced to four months’ home detention (not including the remission of fines). The rest of the sentence is not challenged.
[9] Mr Ross observes that Mr McLean spent 151 days remanded in custody prior to sentencing between 12 May 2021 and 18 June 2021, and between 12 October 2021 and 1 February 2022. Mr Ross cites authority to the effect that a sentencing Judge must fully take into account time spent on remand and allow a discount for a sentence of home detention.13 He therefore submits that a five-month discount ought to have been given for time spent on remand, instead of the, at most, two-month discount given by the District Court Judge.
[10] Mr McLean also spent seven weeks and two days on EM bail, from 1 February 2022 until his sentencing on 24 March 2022. Mr Ross submits that this is a mandatory mitigating factor for sentencing.14 He submits, citing authority,15 that generally a reduction equating to less than half the time spent on EM bail with restrictive conditions is an appropriate discount. Mr Ross submits that it is unclear on the Judge’s decision how much of a discount was for Mr McLean’s time spent on EM bail, but nevertheless such allowance as was given was too little. He suggests the appropriate discount would be one month.
[11] Overall, Mr Ross suggests that the sentence of 10 months’ home detention, in keeping the two-month discount for remorse and the cultural report factors, ought to have been reduced by six months to reflect the time spent in custody and on EM bail.
13 Te Aho v R [2013] NZCA 47; Ropiha v R [2013] NZCA 60; Longman v Police [2017] NZHC 2928; and Trainor v Police [2022] NZHC 1022.
14 Citing Sentencing Act, s 9(2)(h).
15 Wharrie v R [2019] NZHC 633; R v Rose [2017] NZHC 1488; Parata v R [2017] NZCA 48; R (CA528/2016) v R [2017] NZCA 210; Chea v R [2016] NZCA 207; R v Mihaka [2014] NZHC 2921; Prattley v Police [2014] NZHC 486; and Keown v R [2010] NZCA 492.
This would produce an end sentence of four months’ and two weeks’ home detention, including the cumulative two week period for the remission of fines.
Respondent’s submissions
[12] Mr Chapman, for the Police, accepts that the discount applied gave insufficient recognition of the time spent in custody. He accepts that there should have been a five-month discount to reflect the five months Mr McLean spent in custody.
[13] Mr Chapman contests the discount Mr McLean should get to reflect the period he spent on EM bail. He submits that having regard to the Judge’s comments regarding remorse and the matters contained in the cultural report, that the initial reduction of two months would be appropriate to reflect these matters and the time spent on EM bail.
[14] Mr Chapman submitted that, from the 12 month point in my Table A, Mr McLean should have received a five-month discount for his time spent on remand and a two-month discount to reflect his remorse, cultural factors and time spent on EM bail. This would result in an end sentence of five months’ and two weeks’ home detention, including the home detention period for the remission of fines.
Analysis
[15] There is some confusion what discounts the Judge gave for Mr McLean’s time in custody and time on EM bail. His Honour said:
[12] Combining your apparent remorse, a time in custody and EM bail, your willingness to engage in restorative justice even though that was not accepted, and the issues raised in the cultural report, I reduce the 12 months to 10 months’ home detention. That is a substantial reduction but I realise the personal background that you have been brought up in, although at 38 it is high time that you put that behind you.
[13] It has also been suggested to me that I should give you a further discount for time that you have spent in custody and on EM bail. I disagree with the one-to-one ratio which has been suggested, because even a remand is not the same as being a sentenced prisoner, and even being on EM bail is not the same as being on remand, let alone sentenced. However, I will reduce the home detention by two months so that we get to eight months.
[16] Given the uncertainty of which discounts are given for which factors, it is appropriate on appeal to determine what appropriate discounts would be for:
(a)the time spent on custodial remand;
(b)the time spent on EM bail; and
(c)collectively Mr McLean’s remorse and willingness to engage in restorative justice and the issues raised in his cultural report.
Period of remand in custody
[17] It is clear Mr McLean should, on the basis of the normal approach, receive a five-month discount for his time spent in custodial remand. As noted by Simon France J in Longman v Police, credit is given for time spent on custodial remand because it is seen as time spent serving the sentence which is later imposed by the Court.16 His Honour went on to say:17
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.
Period of EM bail
[18] However, as acknowledged by counsel, the situation is different for time spent on EM bail. As Simon France J in Longman observed:
[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. First, even 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
16 Longman v Police, above n 13, at [8].
17 At [9] (footnote omitted).
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.
(footnote omitted)
[19] The fact that a one-for-one discount is not the appropriate way to reflect time spent on EM bail has recently been affirmed by the Court of Appeal in Paora v R, where that Court notes that s 30Q of the Bail Act 2000 provides that a defendant on EM bail is not in custody.18 There is no arithmetical formula to determine what discount is appropriate for time spent on EM bail; it is a purely evaluative exercise.19 That said, it is recognised that an allowance should be given when a significant period is spent on EM bail without breach.20 The Court of Appeal in Paora v R noted that percentages range usually from 30 to 50 per cent, and that an allowance of up to 50 per cent is not uncommon. This is not an upper limit.21
[20] As noted by Simon France J in Longman v Police, s 9 of the Sentencing Act requires a judge to consider time spent on EM bail as a mitigating factor to sentencing. Subsection (3A) provides that the Court must consider the period of time spent on EM bail, the relative restriction of the EM conditions, particularly considering the frequency of the offender’s authorised absences, the offender’s compliance with the EM conditions, and any other relevant matter.
[21] In this case, Mr McLean spent 51 days on EM bail. This is not a long period of time. In Longman, one month’s credit was given to reflect two-and-a-half months on EM bail.22 In McKeeman v Police, no discount was given for 39 days spent on EM
18 R v Paora [2021] NZCA 559 at [45](a).
19 At [46]; and Tamou v R [2008] NZCA 88 at [18]–[19].
20 Chea v R, above n 15, at [111].
21 R v Paora, above n 18, at [53].
22 Longman v Police, above n 13, at [13].
bail.23 It is important to consider the time spent on EM bail in conjunction with the other factors.
[22] Mr McLean’s EM bail conditions were relatively restrictive. He had a 24-hour curfew and was not to leave the property he was bailed to without the prior approval of the Department of Corrections. This approval could be granted for a number of appointments. He also had non-association conditions with the victim of the family violence offending, other than for restorative justice purposes. This Court has not been told how often, if at all, Mr McLean left the EM bail address to attend such appointments. He also had to present himself if called upon by the Police. He was not to consume alcohol or drugs (other than medication prescribed to him) and was to submit to alcohol and drug testing as required by the Police. He does not appear to have breached these conditions in any way.
[23] Given these factors, a discount of 40 per cent would have been appropriate to account for the period on EM bail, which would come to around three weeks.
Remorse and cultural issues
[24] The Court next needs to consider the appropriate discount for remorse and the issues raised in the cultural report. The sentencing Judge accepted that Mr McLean was remorseful, despite comments made in his pre-sentence report suggesting otherwise. The Judge recognised that Mr McLean had also offered to make amends through reparation payments and requested a referral for restorative justice. Those are factors to be taken into account under s 10 of the Sentencing Act.
[25] Mr McLean’s cultural report detailed the domestic violence his father inflicted on his mother for the first five years of his life, his disconnection from his whakapapa and mātauranga Māori, his diagnosis and struggle with ADHD from a young age, his alcohol and drug abuse, and his gang connections through his father. As noted by the sentencing Judge, the report is supported by a number of sources, not just from Mr McLean’s self-assessment. Cultural background factors are relevant to the sentencing
23 McKeeman v Police [2022] NZHC 1033 at [8].
exercise insofar as they reduce the culpability of the offender. As noted by the Court of Appeal in Waikato-Tuhega v R:24
In short, the assessment of a nexus between the offender’s background and the offending should not be a mechanical exercise with a high threshold of proof but an overall assessment, assisted by evidence available, under s 27 and generally, of how personal circumstances might have contributed to culpability or offending.
[26] In this case, I am satisfied that Mr McLean should have received a discount to reflect his cultural background and his offers of reparation and restorative justice. An appropriate discount would be 15 per cent, in other words the same discount as the Judge arrived at for those matters.
Calculation of end sentence
[27] The next issue is the calculation of the end sentence. As seen in recent cases in this Court,25 the Court has considered the discount for time spent on custodial remand at different stages of the sentencing exercise, either at the aggravating and mitigating factor of the offender stage, or after the end sentence of home detention is set. Where it is undertaken at the aggravating and mitigating factor stage of sentencing, the time spent on custodial remand needs to be notionally doubled, to reflect the fact that an offender would only spend half of the period of a sentence of short duration in custody.26 I will adopt that approach here, as it is clear that the time spent on EM bail needs also to be considered at that stage.27 I also must adopt the two-stage approach identified in R v Moses.28 This necessitates a reformulation of the sentence imposed by the sentencing Judge, which is reflected in my Table B:
24 Waikato-Tuhega v R [2021] NZCA 503 at [51].
25 Trainor v R, above n 13; and Doidge v Police [2021] NZHC 3195.
26 Doidge v Police, above n 25, at [25].
27 Longman v Police, above n 13, at [14]; and R v Paora, above n 18, at [65].
28 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
Table B
Description Sentence Sentence indication for tranches C-G of offending (excluding guilty plea discount)
25 months’ imprisonment
Sentence indication for tranches A and B (excluding guilty plea discount)
8 months’ imprisonment
Total starting point
33 months’ imprisonment
Aggravating and mitigating features of the offender:
- 25% for guilty plea
- 15% for cultural factors and remorse
- 10 months for time spent (5 months) on custodial remand
- 3 weeks for time spent on EM bail
- 24 months’ imprisonment (rounded)
Subtotal
9 months’ imprisonment
Conversion to home detention
4 months’ and 2 weeks’ home detention
+ 2 weeks for remission of fines
End sentence
5 months’ home detention
[28] Therefore, the end sentence of detention would be one of five months’ home detention.
Order
[29]I order:
(a)the sentence of eight months and two weeks’ home detention is quashed and it is replaced by a term of five months’ home detention;
(b)all other conditions attaching to home detention remain in place; and
(c)the other aspects of the sentence, namely the orders as to community work and reparation remain in place.
Osborne J
Solicitors:
Crown Solicitor, Invercargill
Copy to: J A T Ross, Barrister, Invercargill
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