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Paul v Police

Paul v Police

Case [2021] NZHC 1924 28 July 2021

Unlawfully Being in a Building without Reasonable Excuse

Criminal Law

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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…

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 Paul v Police

Details

AGLC: Paul v Police [2021] NZHC 1924
Case: [2021] NZHC 1924
Decision Date: 28 July 2021

CaseChat Overview and Summary

Temuera Paul appealed against his sentence of nine months' home detention, arguing 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 bail subject to a 24-hour curfew. The primary legal issue before the court was whether the District Court judge appropriately allowed for the time spent on remand and electronically-monitored bail when imposing the sentence of home detention. The court considered the appropriate legal principles governing the application of credit for time spent on remand and electronically-monitored bail in cases where home detention is imposed.

The High Court held that credit for time spent on electronically-monitored bail should be considered when determining the appropriate length of the underlying sentence. It is a mitigating factor that is assessed in the same way as remorse, guilty plea and rehabilitative efforts. Credit for time spent in custodial remand, however, is conceptually different and is given for time served of the sentence imposed. The Court followed the approach in Longman v Police, which held that with a sentence of imprisonment, credit is given automatically but with home detention, the Court needs to act to ensure it is given recognition. The Court found that the appropriate sentence should be five months' home detention, taking into account the three months on remand.

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

Orders