Paul v Police

[2021] NZHC 1924

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI 2021-485-43

[2021] NZHC 1924

BETWEEN

TEMUERA PAUL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 July 2021
Counsel:	R J Bayer and N L Donaldson for Appellant L R van der Lem for Respondent
Judgment:	28 July 2021

ORAL JUDGMENT OF MALLON J

Introduction

[1]    Temuera Paul was charged with and pleaded guilty to a number of dishonesty charges, unlawfully being in a building without reasonable excuse and failing to answer bail.1 He was sentenced in the District Court to nine months’ home detention and to pay reparation of $5,438.78.2 He appeals his sentence on the ground that insufficient credit was given for the three months he spent in custody on remand and for the four months he spent on electronically-monitored (EM) bail subject to a      24 hour curfew.

1      Burglary (x3): Crimes Act 1961, s 231(1)(a) and (b) (maximum penalty 10 years’ imprisonment); taking, obtaining or using a document for pecuniary advantage (representative): s 228(1)(b) (maximum penalty seven years’ imprisonment); theft of property under $500: ss 219 and 223(d) (maximum penalty three months’ imprisonment); unlawfully being in a building without reasonable excuse: Summary Offences Act 1981, s 29(1)(a) (maximum penalty three months’ imprisonment, $2,000 fine); failure to answer District Court bail: Bail Act 2000, s 38(a) (maximum penalty one year imprisonment, $2,000 fine); and failure to answer Police bail: s 24 (maximum penalty three months’ imprisonment, $1,000 fine).

2      Police v Paul [2021] NZDC 10785.

PAUL v POLICE [2021] NZHC 1924 [28 July 2021]

Summary of facts

[2]I adopt his counsel’s summary of the offending which is as follows:

(a)On 2 March 2020 Mr Paul found a discarded wallet in Waharoa (where he was living at the time) and used the credit card to make three separate purchases of cigarettes from a local Mobil. The value of the property obtained was $186.40.

(b)On 11 September 2020 Mr Paul and an associate entered the back shed of a property in Matamata and were found trying to steal a water blaster. Items taken included a leaf blower, mountain bike and water blaster.

(c)Also on 11 September 2020, Mr Paul went to another address, walking into the house through the back door. When the occupant woke and asked Mr Paul who he was, he gave his name and left the address when told to.

(d)On 4 November 2020 Mr Paul entered the Horse and Jockey Inn in Matamata through an open window and took a cellphone. He returned the cellphone when asked about it by the staff.

(e)Also on 4 November 2020, Mr Paul walked to another address and entered a garage on the property, taking a bicycle and helmet. Police recovered the bicycle the next day after Mr Paul admitted to the Police that it was at his home address.

[3]Mr Paul was convicted and discharged on the charges of failing to answer bail.

District Court

[4]    The Judge adopted a global starting point of 30 months’ imprisonment for all the offending. This was in accordance with what was proposed by counsel on his behalf. This was made up of a 12 month starting point for one of the burglaries, with an additional 12 month uplift for the two other burglaries, and then an additional six

month uplift for the dishonesty offending and offending whilst on bail, as well as   Mr Paul’s relevant previous convictions. After mitigating factors, the Judge reduced this to nine months’ home detention.3

The appeal

[5]    In reaching this end point the Judge said that deductions were available for the guilty pleas, the cultural factors and the remorse as evidenced by attendance at and participation in the two restorative justice meetings, as well as saying that he had taken into account time spent on remand and on EM bail.

[6]    This meant he applied a total discount of 40 per cent to the adjusted starting point to reach an 18 months’ imprisonment sentence before conversion to home detention. Assuming a full guilty plea discount was applied, this meant that for all the other mitigating factors and for time spent on remand in custody, the discount was  15 per cent.

[7]    A discount of 15 per cent would have been appropriate for the cultural report, remorse and restorative justice.4 It therefore appears that either an inadequate discount for these factors was allowed or the Judge did not in fact make an appropriate allowance for time spent on EM bail and remand in custody.

[8]    The respondent submits that a discount was not required for the EM bail, although it was available, but does accept that the three months for time spent in custody should have been allowed. It does not seek to debate the appropriateness of the overall starting point, nor that the 40 per cent overall discount was appropriate for the guilty plea, remorse, restorative justice and cultural factors.5

[9]    It is accepted that time spent on very restrictive bail conditions may be taken into account in mitigation.6 Although it does not have to be, the Judge here said he

3      The Judge did not say how much he had allowed for each of the mitigating factors he took into account.

4      See, for example, Waho v R [2020] NZCA 526; Court-Clausen v R [2020] NZCA 488; Woodstock v R [2020] NZCA 472; and Carr v R [2020] NZCA 357. Here, the Judge said the cultural report “describes eloquently Mr Paul’s poverty of circumstances during his upbringing”.

5      The respondent accepts that the maths do not add up and the appeal should be allowed.

6      Parata v R [2017] NZCA 48.

had taken it into account. And, although the EM bail was subject to approved absences for training and employment, it does not appear that Mr Paul was able to take advantage of those approved absences, as he was still on the benefit at the time of sentencing.

[10]   It is also accepted that an offender is entitled to credit for time spent in custody on remand if a sentence of home detention is imposed. The leading case on when and how these discounts should be taken into account is Simon France J’s decision in Longman v Police.7 For the reasons explained in that judgment, 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. As the Judge said, it feeds into the appropriate length of sentence.8 For the reasons also explained in that judgment, credit for time spent on custodial remand is different. Conceptually it has nothing to do with the appropriate length of the underlying sentence. Rather it is time spent serving that sentence for which credit is appropriate. With a sentence of imprisonment, credit is given automatically but with home detention, the Court needs to act to ensure it is given recognition.9 As the Judge also said, full equivalence should be the norm.10

[11]   The Court of Appeal took a different approach in Laloni v R, a divisional decision given in 2015.11 In that case the Court deducted the time spent on remand from the adjusted length of the imprisonment sentence before converting it to home detention. However, the Court did not set out why it had taken that approach. It also pre-dated the Supreme Court’s decision in Booth, which, as Simon France J said in Longman, is consistent with a default position of full credit given for the time on remand.12

[12]   The difference matters. Here, from the adjusted starting point of 18 months, a further two months’ discount is appropriate in my view for the time spent on restrictive

7      Longman v Police [2017] NZHC 2928.

8 At [7].

9 At [8].

10 At [9].

11     Laloni v R [2015] NZCA 55.

12     Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

electronically-monitored bail, given he was subject to a 24 hour curfew and there is no suggestion of an compliance issues. If the three months in remand is taken from 16 months’ imprisonment, that would mean 13 months’ imprisonment, which would adjust to six and a half months’ home detention.

[13]   In contrast, if the 16 months is converted to eight months’ home detention, and from that the three months is then deducted, that results in a sentence of five months’ home detention. That period better equates with what would be the position if the sentence was not converted to home detention. That is, if a sentence of 16 months’ imprisonment was imposed, Mr Paul would be released in a period of five months, the three months on remand being counted as time served.

[14]   In accordance with the approach in Longman, the end sentence here should be five months’ home detention.

Result

[15]   The appeal is allowed. The sentence imposed in the District Court is quashed and replaced with a home detention sentence of five months. The reparation orders remain in place.

Mallon J