Moeller v R - [2020] NZHC 1290

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-10

[2020] NZHC 1290

BETWEEN
JOSEPH WILLIAM MOELLER

Appellant

AND

THE QUEEN

Respondent

Hearing: 8 June 2020 (AVL)

Counsel:

N L Laird for Appellant

A D H Colley for Respondent

Judgment:

10 June 2020

JUDGMENT OF SIMON FRANCE J

[1] One of the available sentencing outcomes recognised in the Sentencing Act 2002 (the Act) is that an offender may be sentenced to imprisonment on what is known as a short-term sentence (two years or less),1 but given leave to apply for the sentence to be changed to one of home detention.2 This usually occurs when home detention would be the sentencing outcome but for the lack, at the time of sentencing, of a suitable address.

[2] This was the case with Mr Moeller, who received a 23-month sentence of imprisonment but was given leave to apply for home detention.3 He was also given his second strike warning.4 Six weeks later a suitable address became available and he applied for the term of imprisonment to be cancelled and home detention

1      Sentencing Act 2002, s 4(1); and Parole Act 2002, s 4(1).
2      Sentencing Act 2002, s 80K.
3      R v Moeller [2020] NZDC 4850.
4      Sentencing Act 2002, s 86C.

MOELLER v R [2020] NZHC 1290

substituted.5 This occurred and the District Court imposed a home detention term of 226 days.6 This was the remaining number of days left on Mr Moeller’s custodial sentence of 23 months, after taking into account credit for remand spent in custody. Mr Moeller appeals the length of that term, submitting it should be half the length.

[3] Section 80K of the Act sets out the process to be applied when an application is made to cancel a sentence of imprisonment and substitute one of home detention. The first step is to determine the sustainability of the proffered address. That being satisfactory, the second step is to determine the length of the substituted home detention sentence. Concerning length, s 80K(5) and (6) provide:

(5)A sentence of home detention substituted under subsection (4) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months.

(6)When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.

[4] In accordance with subs (6), the Court will normally be provided with a figure based on what is known as the sentence release date. This is the date on which the offender must be released from prison (as opposed to the date on which the sentence will formally expire), and will already reflect credit for any applicable pre-sentence custodial remand time and the time served since sentencing. That figure will normally become the period of the substituted home detention sentence.

[5] By way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moeller v R

Details

AGLC: Moeller v R [2020] NZHC 1290
Case: [2020] NZHC 1290
Decision Date: 10 June 2020

CaseChat Overview and Summary

In this appeal, Joseph William Moeller contests the length of his home detention sentence, which was substituted for the remaining term of his original 23-month imprisonment sentence. Moeller was granted leave to apply for home detention upon finding a suitable address, and subsequently applied for his imprisonment term to be cancelled. The District Court imposed a home detention sentence of 226 days, which Moeller argues should be halved. The legal issues in this case revolve around the appropriate length of a home detention sentence when it substitutes a second strike sentence of imprisonment, and whether the halving principle should still apply.

The court considered the statutory provisions and case law on the issue. Under section 80K of the Sentencing Act 2002, the length of a substituted home detention sentence must take into account the portion of the original sentence that remains unserved. However, the second strike regime, which mandates that the full sentence be served, creates an issue of equivalence when determining the length of the substituted home detention sentence. The court noted that while both views on this issue have merit, halving the sentence remains a reasonable basis for achieving equivalence.

Ultimately, the court found that there were no particular features that would justify Moeller serving a longer term of home detention than a non-second strike offender would for the same offending. Therefore, the court halved the time remaining and imposed a sentence of three and a half months’ home detention. The Crown supported the appeal on the basis that Moeller should serve zero days of home detention due to the amount of time served credit he has accrued.

The court allowed the appeal and imposed a sentence of three and a half months’ home detention, taking into account the time already served in prison. The court found that the outcome was not manifestly excessive and did not speculate on what might have been done at the original sentencing. The sentence of home detention of 226 days is cancelled and replaced with a sentence of three and a half months.

Orders