Nandan v Police

[2023] NZHC 2975

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-447

[2023] NZHC 2975

BETWEEN

RIKLELSH YENGTESHWAR NANDAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 October 2023
Appearances:	B Finucane and D Taumihau for Appellant S Arnerich and R H Vercoe for Respondent
Judgment:	24 October 2023

ORAL JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors/counsel:

B Finucane, Auckland

Kayes Fletcher Walker, Auckland

NANDAN v NEW ZEALAND POLICE [2023] NZHC 2975 [24 October 2023]

[1]    Mr Nandan pleaded guilty in the District Court to a variety of charges. On 8 August 2023, Judge J H Lovell-Smith sentenced Mr Nandan to six months home detention.1 Mr Nandan appeals against sentence solely on the ground that the Judge failed to give him credit for time he had spent in custody before being sentenced.

[2]    Given the narrow scope of the appeal it is not necessary to outline the detail of Mr Nandan’s offending. I therefore proceed directly to the issue to be determined on appeal.

The sentence

[3]    The Judge adopted a starting point of 17 months imprisonment on all charges. She then allowed discounts totalling 35 per cent to reflect mitigating factors including guilty pleas and rehabilitative efforts. This resulted in a reduction of six months, thereby producing an end sentence of 11 months imprisonment.

[4]    The Judge then converted that sentence to one of six months home detention.2 In fixing the length of the sentence the Judge took into account the fact that she had remitted outstanding fines totalling $3,030.3     The Judge dealt with the fact that     Mr Nandan had been in custody for a period whilst on remand as follows:

[8]        I would also add with regard to your remand in custody; you were initially released on bail successfully but by 18 April 2023 you had breached your bail. The Judge has noted that electronically monitored bail appeared to be unavailable and therefore when you entered your guilty pleas you were remanded in custody. There was an EM bail application. You were clearly bailed on 20 April. This summary is all back to front. By 22 May when you sought EM bail again it was declined and since then you have been remanded in custody. The fact that you have been remanded in custody was because of your breaches. If you had not breached your bail, and I do not know the details of it, you would have been bailed when assessing the time that you have spent in custody.

[9]So, the home detention is for six months. …

1      New Zealand Police v Nandan [2023] NZDC 16837.

2 At [9].

3 At [7].

Decision

[5]    Mr Nandan was in custody for four days between 10 and 14 April 2023, when he was granted bail. He breached the terms of his bail on 18 April 2023 and then remained in custody until he was sentenced on 2 August 2023. This meant he spent a total of approximately three and a half months in custody before being sentenced. This is the equivalent of a sentence of seven months imprisonment. The Judge appears to have decided not to give Mr Nandan any credit for the time he had spent in custody solely because he had effectively brought his custodial remand on himself.

[6]    As Ms Arnerich correctly points out for the respondent, the issue of whether the end sentence was manifestly excessive remains an evaluative exercise. The respondent’s position is that the overall gravity of Mr Nandan’s offending justified an end sentence of six months home detention.

[7]    However, as Mr Finucane points out on Mr Nandan’s behalf, the fact that an offender is remanded in custody for breaching bail conditions does not generally mean that the time spent in custody should be disregarded when imposing a sentence of home detention. In Laloni v R, the Court of Appeal observed:4

It was of course the appellant’s own conduct that resulted in his remand in custody following his earlier release on bail. That factor however should not disentitle him from the normal allowance, which is made to reflect time spent in custody when imposing a sentence of home detention.

[8]    There may be cases in which the breach of bail has been so egregious, or the time spent in custody so small, that it will not justify the time spent on custodial remand being deducted from the end sentence. In the present case, however, there was no justification for such a lengthy custodial remand being disregarded in fixing the end sentence. This is particularly so given the fact that Mr Nandan would only have been required to spend another two months in prison before he was eligible for automatic release.

[9]    Deducting the seven months Mr Nandan has effectively already served from the end sentence of 11 months imprisonment results in a sentence of four months

4      Laloni v R [2015] NZCA 55.

imprisonment. This would ordinarily be converted to two months home detention. In the present case, however, the Judge also remitted fines totalling more than $3,000. I therefore consider the end sentence should be one of three months home detention.

Result

[10]   The appeal against sentence is allowed. The sentence of six months home detention is set aside. In its place I substitute a sentence of three months home detention on all charges on which Mr Nandan received sentences of six months detention. The sentences imposed on remaining charges will remain intact.

Lang J