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 of explanation, home detention sentences only occur when a defendant would otherwise be sentenced to what the Act calls “a short-term sentence”, which is a sentence of 24 months or less. A key feature of a short-term sentence is that there is no parole eligibility (which normally arises after one-third of a sentence) but there is mandatory release after one-half of the sentence.7 The practice has developed that the length of the alternative home detention sentence should, as a general rule, be the equivalent of the number of days a defendant would actually serve in prison. This is achieved by imposing a home detention sentence that is half the indicated sentence of

5      Sentencing Act 2002, s 80K.

6      Moeller v R ]2020] NZDC 7288.

7      Parole Act 2002, s 86(1).

imprisonment, thereby reflecting the prisoner would only serve half of that short-term sentence.

[6]    The figure provided under s 80K(6), because it focuses on the sentence release date (as opposed to the sentence expiry date), already reflects the halving adjustment. As noted, it also reflects credit available for time served so both the key influences on the home detention sentence length are already accommodated.  For this reason the   s 80K(6) figure will normally be the home detention sentence length.

[7]    The difference with second strike sentences is that the s 80K(6) figure, based on the sentence release date, will reflect the time served credit, but not the halving rule. This is because second strike short-term sentences of imprisonment are not halved; the prisoner must serve all of the sentence and the sentence release date reflects that.8

[8]    The issue presented by this case is whether the different parole rule that applies to second strike sentences of imprisonment should also influence the length of a home detention sentence imposed in its place. The District Court Judge’s figure here of  226 days reflects an affirmative answer. However, in Mangi v R, this Court answered the question differently.9 It was there reasoned that the second strike parole rules apply only to “determinate sentences of imprisonment”,10 and there was no reason otherwise to depart from the normal halving practice.

[9]    A contrary view was expressed in Tialata v Police where it was observed the rationale underlying the halving rule did not apply for second strike offences, because the equivalent of the time the prisoner would actually serve in prison is the full figure.11

[10]   Both views, with respect, obviously have merit. The issue arises because home detention as a substitution for a second strike sentence of imprisonment is often not a good fit. The two schemes – home detention and short-term sentences – work together

8      Sentencing Act 2002, s 86C(4).

9      Mangi v R [2018] NZHC 2732.

10     Sentencing Act 2002, s 86C(4).

11     Tialata v Police [2017] NZHC 3096 at [39].

in part because the maximum lengths match. A 24-month sentence of imprisonment is a 12-month sentence in actual time. That is also the maximum length of a home detention sentence. Broad equivalence can be achieved.

[11]   The second strike rules distort that. Mr Moeller provides an example. The time he has left to serve only arises because he has an unusually lengthy period of remand credit (being 14 and a half months). But imagine he had none and the same thing had happened – a 23-month sentence of imprisonment, six weeks to find a suitable address and then a substituted home detention sentence. The s 80K(6) figure would be around 21 months which is of course nine months longer than the available maximum home detention sentence.12 Equivalence is not in these circumstances possible.

[12]   Section 80K(5) requires the Court to impose the length of sentence it thinks fit, thereby affording flexibility. Halving remains a reasonable basis; it represents an acknowledgment of the time the offender would serve in prison if he or she had not been subject to the second strike regime. It cannot be any sort of mandatory rule.13 There may be, for example, circumstances in the underlying offending that suggest something more than half was appropriate, notwithstanding the second strike regime does not apply.

[13]   In the present case I accept the sentencing Court did not identify any features that would support Mr Moeller serving longer than a non-second-strike offender would for the same offending. I would therefore halve the time remaining. But for the matter now to be discussed, I would allow the appeal and substitute a home detention sentence of three and a half months.14

[14]   The Crown supported the appeal on a different basis, arguing that the correct answer was zero days left of sentence. This submission is driven by the amount of time served credit Mr Moeller has. At sentencing it was around 13 months; by the time of the s 80K resentencing it was 14 and a half months.

12     Sentencing Act 2002, s 80A(3).

13     As this Court has noted: see Gerrard v New Zealand Police [2016] NZHC 3130 at [23].

14     This is at the day of resentencing.

[15]   The Crown submits, and I agree, the normal approach at sentencing is to identify the length of the home detention sentence, and then adjust it to account for time already served in prison. Given the rationale of achieving equivalence this is the correct sequence. If the time served is deducted from the home detention sentence length, on, for example, a one-for-one basis, a day in prison is treated as the same as a day spent on home detention. There is no absolute rule about giving one-for-one credit, but it provides a sound starting point.

[16]   The Crown observes here that had Mr Moeller had a suitable address on the day of sentencing, it is likely he would have been discharged because the time already spent in jail exceeds the maximum length of a home detention sentence. It reasons from this that on the resentencing he should not be any worse off because there was no address available at the time of sentencing.

[17]   It is not, however, necessarily correct that Mr Moeller would have been discharged at the original  sentencing.  As  a  second  strike  offender,  he  still  had 10 months to serve of his sentence. On one view of it, a sentence of 10 months’ home detention would still reasonably be available. This is to return, though, to the issue already discussed which is to what extent should the second strike rules influence the structure of the home detention sentence.

[18]   The District Court did not consider this issue at the time of sentencing, because it was not actually imposing home detention. It is not helpful at this stage to speculate what might have been done, although I think it far from clear that Mr Moeller would have been discharged as if he was not a second strike offender and had served his sentence.

[19]   The sentencing Court imposed the sentence structure it did. If the sentence is altered to one of three and a half months’ home detention it will mean, in relation to a second strike sentence of 23 months’ imprisonment, Mr Moeller has served 14 and a half months in prison, and three and a half months on home detention. I do not regard that outcome as manifestly excessive.

[20]   The  appeal is allowed.    The sentence of home detention of 226 days is cancelled and in its place I impose a sentence of three and a half months.

Simon France J

Solicitors:

Laird Legal Services, New Plymouth for Appellant Crown Law Office, Wellington for Respondent