O'Brien v Police

[2018] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-58 [2018] NZHC 2644

BETWEEN

KARL FRANCIS O’BRIEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 October 2018
Appearances:	H R Hancock and K M Kedder for Appellant A W M Britton for Respondent
Judgment:	11 October 2018

JUDGMENT OF GRICE J (Appeal against sentence)

[1]      Mr O’Brien was sentenced to 15 months’ imprisonment, with an indication that a suitable address would allow him to serve the term on home detention.  The Judge converted the home detention option to a sentence of seven and a half months.

[2]      The charges that Mr O’Brien was convicted on, after pleas of guilty, were one charge of burglary and possession of instruments for burglary arising from events on

5 January 2018 and one charge of burglary arising from events on 20 January 2018.

[3]      Mr O’Brien appeals his sentence on the grounds it was manifestly excessive as the Judge erred by:

(a)Failing to provide a discrete discount to the starting point for time spent on electronically monitored (EM) bail;

O’BRIEN v NEW ZEALAND POLICE [2018] NZHC 2644 [11 October 2018]

(b)Failing to provide a discrete discount to the end sentence of home detention for time spent on pre-sentence detention; and

(c)      Providing a disproportionate global discount for both time spent on EM

bail and pre-sentence detention.

[4]      The Crown oppose the appeal on the basis the end sentence was not manifestly excessive, but do concede the Judge was incorrect when he failed to give discrete discounts for time spent on EM bail and pre-sentence detention.

The offending

[5]      On the morning of 5 January 2018, Mr O’Brien was at the Kiwi Rail substation in Lower Hutt. He was dressed in a high-visibility vest and had a hacksaw. He entered the substation through a small hole in the fence, and then attempted to take some copper wiring.   He left the enclosed yard when he was disturbed by a Kiwi Rail employee. The employee caught up to him and asked what he was doing. Mr O’Brien replied “taking the metal”.  He was discovered a short time later by police by his car close to his home.  A search of the car revealed an orange hacksaw and yellow high visibility vest.  Mr O’Brien denied the offending to the police.

[6]      On the morning of 20 January 2018, Mr O’Brien was at the Briscoe’s in Lower Hutt.  The store was closed to the public at the time, but Mr O’Brien rolled under the locked gate at the back of the store where the goods are delivered.  He tried to prise open a door but failed. In explanation to the police he told them it was not him and he had a bad back.

The sentencing

[7]      The Judge gave a sentencing indication on 20 June 2018. He took the starting point of 20 months for the lead charge of burglary.  He allowed a discount of 15 per cent for the guilty pleas.  This was converted into a three-month discount, taking the adjusted starting point to 17 months.  The Judge then gave a credit of two months for the time Mr O’Brien spent in custody and on electronically monitored bail.   This resulted in an end point of 15 months imprisonment.  The Judge then noted he would

convert that to a sentence of seven and a half months home detention if a suitable address was available.  Mr O’Brien accepted this sentencing indication and pleaded guilty.  Mr O’Brien was remanded to appear on 27 July 2018 for sentencing.  A pre- sentence report was directed.

[8]      When the matter came up for sentencing on 27 July 2018 Mr Hancock, for

Mr O’Brien, put in a submission directing the Court’s attention to Longman v Police as authority to support further credit being given to reflect Mr O’Brien’s time in custody and on EM bail.1     Longman supported giving full credit for time in custody on an end sentence of home detention.2  Mr Hancock, submitted that having spent one month in custody Mr O’Brien was entitled to a two-month discount for time in custody and the time on EM bail should be separately acknowledged.

[9]      The time that Mr O’Brien had spent on EM bail was five months. Mr Hancock submitted a discount of two months off the end sentence should be deducted for that.

Standard of appeal

[10]     Mr O’Brien brings his appeal under s 250 of the Criminal Procedure Act 2011. That provides that an appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that first there has been (for any reason) an intrinsic error in the sentence imposed and secondly a different sentence should be imposed.3   The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.4  As articulated in R v Peters:5

[13]     As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached.   Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

1      Longman v Police [2017] NZHC 2928.

2      At [8] – [9].

3      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

4      Ripia v R [2011] NZCA 101 at [15].

5      R v Peters CA12/03, 14 May 2003 at [13].

Submissions and analysis

[11]     Mr O’Brien submits that the Judge fell into error when he failed to apply discrete discounts for EM bail and pre-sentence detention.  Specifically, the Judge failed to:

(a)      Give a discrete discount to the starting point for EM bail;

(b)      Give a discrete discount to the final sentence for pre-sentence detention.

[12]     I will deal with both of these points individually in turn.

Discount for EM bail

[13]     Counsel argues that the Judge should have given Mr O’Brien a discrete two- month discount for the time spent on EM bail.

[14]     Section 9(2)(h) of the Sentencing Act 2002 (the Act) notes the Court must take into account time spent on EM bail as a mitigating factor.  This is further specified under s 9(3A) which notes that the Court must consider:

(a)      The period of time spent on EM bail;

(b)The  relative  restrictiveness  of  the  EM  condition,  including  the frequency and duration of the offenders authorised absences from the relevant address;

(c)      The offender’s compliance with their bail conditions during this period;

and

(d)      Any other relevant matter.

[15]     The reduction given to recognise time spent on EM bail is not a matter of arithmetical equivalence,6 but it is the submission of Mr O’Brien that the Judge did not turn his mind to the factors set out in s 9(3A) of the Act.

[16]     In terms of what the extent of the reduction should have been, Mr O’Brien submits that the standard conditions of EM bail are like those of home detention. Bail can, in some cases, be more restrictive than home detention as any absence from the address when subject to a 24-hour curfew will need to be approved by the Department of Corrections.  Mr O’Brien was subject to such a 24-hour curfew and complied with it well.   He had a number of approved absences, and commenced approved employment for which he was allowed absences. The Crown submits that this shows it was not the most restrictive form of EM bail as he was allowed absences for work.

[17]     Mr O’Brien was on EM bail for five months and submits it would be consistent with the appropriate case law for a discount of two months to be imposed. According to the case law cited by counsel for Mr O’Brien, it appears the allowance for reductions equate in general terms to half the time spent of EM bail where restrictive conditions are imposed.7

Discount for presentence detention

[18]     Credit for time spent in pre-sentence detention requires separate recognition by the Court when imposing a sentence of home detention.8   This discount is to be applied when the sentence is converted from one of imprisonment to home detention.9

[19]     Section 82 of the Sentencing Act 2002 provides that presentence detention cannot be taken into account when determining the length of a sentence of imprisonment as it will be deemed time served by the Department of Corrections, but

6      Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 a [110]; Keown v R [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA at [19].

7      R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka

[2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]

8      Longman v Police, above n 1, at [8].

9      At [8] – [9].

there is no equivalent provision for home detention sentences.10  This is why it falls to the Court to fix and take into account in sentencing.

[20]     In Longman, Simon France J confirmed the need for a sentencing Judge to ensure that credit for time on custodial remand be accounted for.11    He noted it is consistent with the Supreme Court decision in Booth to give full credit for time spent in custody when imposing a sentence of home detention.12    It is the submission of

Mr O’Brien’s counsel that as a sentence of home detention is typically half that of a short term of imprisonment (due to the function of s 86 of the Parole Act 2002), a reduction of half the prison time served should have been given.

[21]     This argument suggests the Judge should have given a discount of one month off the final sentence of home detention to also take account the two months of presentence detention served in prison.

Crown’s response

[22]     The Crown accept that the discount of two months’ imprisonment given by the Judge was low if it was meant to recognise EM bail and pre-sentence detention separately. They do not oppose the argument that the two discounts should have been recorded separately.

[23]     The fundamental submission of the Crown is that the final sentence of seven and a half months home detention is not manifestly excessive.  Mr O’Brien has 29 previous convictions for dishonesty offending – five of which were for burglary.  It is also of note that Mr O’Brien was on bail when he committed the first burglary.  A separate uplift could have, but was not, applied for this.

[24]     Therefore, the Crown says the final sentence imposed cannot be seen as manifestly excessive and seven and a half months’ home detention was appropriate in the circumstances.

10     R v Rose, above n 7, at [58].

11     Longman v Police, above n 1, at [8].

12     At [9]; Booth v R [2016] NZSC 127, (2017) 1 NZLR 223.

Conclusion

[25]     Having reviewed the facts of the matter, the circumstances of the burglaries involved, which were clearly premeditated and involved the use of tools specifically obtained for the purpose of the burglaries, and the significant number of previous dishonesty offences, I conclude the final sentence was within the appropriate range.

[26]     It is clear that the Judge should have recorded discounts for pre-sentence detention and EM bail.  However, a one for one consideration for time spent on EM bail is not required. I believe standing back and looking at the final sentence imposed, it was not manifestly excessive despite the error in the process leading to the Judge’s conclusion.

[27]     Accordingly, the appeal is dismissed.

Grice J

Solicitors:

Public Defence Service, Wellington