Popham v Police
[2025] NZHC 2650
•12 September 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-56
[2025] NZHC 2650
BETWEEN NICHOLAS ALAN POPHAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 September 2025 Appearances:
K E Tohill for Appellant (via VMR)
J C Collins for Respondent (via VMR)
Judgment:
12 September 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 September 2025 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
POPHAM v NEW ZEALAND POLICE [2025] NZHC 2650 [12 September 2025]
Introduction
[1] Nicholas Popham (aged 35) has pleaded guilty to three charges of wilful damage,1 two charges of speaking threateningly,2 and charges of common assault,3 assault in a family relationship,4 and driving while suspended.5 On 23 July 2025, he was sentenced by Judge Smith to five months’ home detention.6 Mr Popham now appeals his sentence on the grounds there was an error in calculating the deduction for time already spent in custody when sentencing him to home detention, and so the end sentence was manifestly excessive.
Facts
[2] On 27 May 2024, Mr Popham was served with a licence suspension. On 2 June 2024, police stopped a vehicle in Gibbston and Mr Popham was confirmed to be the driver.
[3] On 21 August 2024, Mr Popham was living with his partner and their three and a half-year-old son. There had been a deterioration in his relationship, and his partner had told him she did not want to be in the relationship anymore.
[4] For the purposes of this appeal, it is not necessary to detail the offending against the victim, particularly as the starting point is not challenged. Suffice to say Mr Popham physically attacked the victim several times, at one stage pulling her hair so hard some came out. He also broke her phone, burnt some of her clothing, damaged her vehicle and threatened her, including while holding a knife.
District Court decision
[5] The Judge adopted a starting point of 12 months’ imprisonment for the assault on a person in a family relationship with an uplift of three months for the further
1 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or $2000 fine.
2 Section 21(1)(a); maximum penalty three months’ imprisonment or $2000 fine.
3 Crimes Act 1961, s 196; maximum penalty one year’s imprisonment.
4 Section 194A; maximum penalty two years’ imprisonment.
5 Land Transport Act 1998, s 32(1)(c) and (3); maximum penalty three months’ imprisonment or
$4,500 fine.
6 Police v Popham [2025] NZDC 17470.
assault charge, three months for the wilful damage charges, two for the speaking threateningly and one for the driving while suspended. The adjusted starting point was 21 months’ imprisonment. This was reduced by 25 per cent for his guilty pleas, which resulted in a nominal prison sentence of 16 months. The Judge assessed totality and made no amends to this sentence.
[6]When considering time in custody and on restrictive bail, the Judge held:
[21] I would reduce that 16 months by six months because of the time in custody and restricted bail. It is not an exact mathematical deduction, but it is about right which comes to a 10-month prison sentence.
[7] The Judge then commuted the sentences to home detention with the largest sentence being 10 months’ home detention for the assault on a person in a family relationship.7 Concurrent sentences of five or one months’ home detention were imposed on all other charges.
[8] However, it appears the Judge then recognised she had not adjusted the sentence length by halving it as is the convention when imposing home detention and the maximum sentence imposed was halved to five months’ home detention as recorded in the charging document.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence
7 At [23].
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[10] Mr Tohill, for the appellant, does not challenge the starting point, uplifts, or the deduction for mitigating factors. The only point on appeal is the calculation of the sentence when accounting for time spent in custody or on restrictive bail. He submits the Judge erred in her method of arriving at an end sentence of five months’ home detention as she did not calculate a full credit for time served, and when granting a deduction, the Judge gave less than half of what the time served deduction should have been.
[11] The appellant was arrested and remanded in custody on 21 August 2024. He was released on restrictive bail on 20 March 2025 and sentenced on 23 July 2025. Mr Tohill submits he had spent seven months in custody on remand and four months on restrictive bail.
[12] Mr Tohill recognises there have been conflicting authorities regarding how the period of remand should be treated for the purposes of adjusting the length of a home detention sentence, and relies on R v Tai where Cooke J highlighted that “[n]ormally the period served on remand is irrelevant in setting the sentence because that period is treated as time served when later administering the sentence”.11 However, in a sentence of home detention, the court must decide what impact the time on remand has on the sentence.
[13] In R v Tai, the Judge determined that while there were multiple possible routes for the Court to account for time spent on remand, he preferred the approach where the time spent on remand was deducted only after converting the sentence to home detention, as this gave a more accurate credit for the time spent on remand. Mr Tohill submits the same approach should have been adopted here.
10 Ripia v R [2011] NZCA 101 at [15].
11 R v Tai [2021] NZHC 2769 at [37].
[14] Mr Tohill says that he could have sought correction of the erroneous sentence by the sentencing court under s 180 of the Criminal Procedure Act 2011 (CPA). However, given the High Court appeal was already set down, and the likelihood of the appellant having completed his sentence before the error was corrected, he submits the matter may be best dealt with in the High Court.
Respondent’s submissions
[15] Mr Collins, for the respondent, accepts the appellant would be entitled to receive credit against the nominal end sentence of 16 months’ imprisonment, to appropriately reflect time spent on remand.
[16] Mr Collins notes that there is a potential error in that the appellant indicates the appeal is against a sentence of five months’ home detention when the District Court judgment records that home detention was imposed, with all periods to be concurrent, but the longest at “10 months for the assault in a family relationship”.12
[17] In calculating the credit for time spent in custody, the respondent submits the formula to be applied is unclear. Mr Collins refers to three cases, in which three different formulae are adopted, including R v Tai relied on by the appellant.13
[18] Mr Collins submits that it is unclear which of these formulae are the ‘best method’ as there does not appear to be a Court of Appeal authority and different outcomes are reached depending on the formula adopted.
Analysis
[19] I deal first with the issue of jurisdiction. While the heading to s 180 of the CPA is “Court may correct erroneous sentence”, the sentence only gives the sentencing court a limited power to resentence where a sentence “could not by law be imposed” or where the court has failed to impose a sentence required by law. Neither of those circumstances arises here. There is no suggestion that the sentence is not one that is
12 Police v Popham, above n 6, at [23(a)].
13 Gotty v R [2020] NZHC 2035; R v Tai, above n 11; and Doidge v Police [2021] NZHC 3195.
able to be imposed, just that it was incorrectly calculated. Thus, the alleged error is properly dealt with on appeal, not under s 180 of the CPA.
[20] This appeal is isolated to whether the deduction given for time spent on remand was correctly calculated. The nominal sentence reached after deduction for the guilty plea, of 16 months’ imprisonment, is not in dispute. The first alleged error is that the appellant spent seven months in custody prior to sentencing, not six months as accounted for by the Judge, and four months on restrictive bail. I accept the Judge was in error in adopting the figure of six months’ remand in custody, not seven months.
[21] The calculation of a sentence of home detention begins from the presumption that a home detention sentence will be half the length of the short sentence of imprisonment which would otherwise be imposed. The principles underpinning why the sentence is usually halved when converting from imprisonment to home detention were explained in Moeller v R:14
… 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. 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 imprisonment, thereby reflecting the prisoner would only serve half of that short-term sentence.
[22] I now turn to the calculation of what reduction there should be on a home detention sentence for the time spent in custody. There are three formulae provided in the case law:15
(a)First, some decisions have taken the time spent on remand and deducted it from the proposed term of imprisonment prior to the term of imprisonment being converted to a sentence of home detention.16
14 Moeller v R [2020] NZHC 1290, [2020] 3 NZLR 726 at [5] (footnote omitted).
15 R v Tai, above n 11, at [37]–[38].
16 R v Tai, above n 11, at [37]; see Gotty v R, above n 13, at [18].
(b)Second, some decisions have deducted the period only after converting the sentence to home detention.17
(c)Third, some decisions have doubled the period spent on remand and deducted that from the proposed term of imprisonment prior to conversion to a home detention sentence.18
[23] On its face, it appears that the Judge applied the first of these three formulae. The first of these three formulae was not preferred by the Court in R v Tai. The second and third formulae, while the calculations occur in a different order, should arrive at the same result. It was the second formula which was applied in R v Tai, with this Court finding that it “give[s] more accurate credit for the period spent on remand”.19 In Tai, this was explained as follows:20
Your five months in prison on remand involves a period that you would have served on a 10 month sentence of imprisonment, which is in turn equivalent to serving five months’ home detention. So the starting point is that the period on remand should be deducted on a one month for one month basis when setting the home detention period. If you take it off the sentence of imprisonment before it is converted to home detention you effectively halve the credit, which does not seem appropriate.
[24] To fairly reflect the time spent in custody, I consider the approach taken in Tai v R is the most straight forward and accurate. First the sentence of 16 months’ imprisonment should be halved when converting it to home detention, resulting in a sentence of eight months’ home detention. Then there should be a deduction of seven months for time spent in custody. This results in an end sentence of one month’s home detention. I do not consider any further deduction for time spent on restrictive bail is appropriate. The bail conditions were not exceptional and were designed to mitigate against the risk of further offending against the complainant.
[25] I am satisfied that the difference between a one-month sentence of home detention and a five-month sentence of home detention is significant and the end sentence is manifestly excessive.
17 See R v Tai, above n 11.
18 See Doidge v Police, above n 13.
19 R v Tai, above n 11, at [38].
20 At [38].
Result
[26] The appeal is allowed. The sentences of five months and three months’ home detention are, on the relevant charges, quashed and substituted with a sentence of one month’s home detention on all charges.
Solicitors:
Kieran Tohill Law Ltd, Dunedin Crown Solicitor, Dunedin
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