R v Takamore
[2020] NZHC 1328
•12 June 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-035-1361
[2020] NZHC 1328
THE QUEEN v
AARON TAKAMORE
Hearing: 12 June 2020 Appearances:
G J Burston for Crown (via AVL)
J C Hannam for Defendant (via AVL)
S Nicholls and K Herbert for Department of Corrections (via AVL)
Re-sentencing:
12 June 2020
SENTENCING NOTES OF THOMAS J
(APPLICATION TO CANCEL AND SUBSTITUTE SENTENCE)
[1] Mr Takamore appears today in relation to the application by the Department of Corrections (the Department) to cancel the sentence of 12 months’ home detention imposed on 13 September 2019.1 The Department seeks that the sentence be cancelled and substituted with imprisonment.
Background
[2] On 13 September 2019, I sentenced Mr Takamore to 12 months’ home detention in respect of one charge of aggravated burglary. I arrived at that sentence
1 R v Takamore [2019] NZHC 2315.
R v TAKAMORE [2020] NZHC 1328 [12 June 2020]
by assessing a starting point of five years, taking into account the seriousness of the offending, reduced to four years to reflect Mr Takamore’s lesser participation in the offending. I then considered mitigating factors personal to Mr Takamore, being his personal circumstances and cultural factors, remorse, time in custody on remand and his guilty plea to arrive at a sentence of 24 months’ imprisonment before considering whether a sentence of home detention was appropriate.
[3] I noted that, from the outset, the Crown had recognised that Mr Takamore’s case was one in which home detention would be appropriate. Mr Takamore was sentenced to home detention at the address assessed as suitable, together with special and standard detention and post-detention conditions.
[4] In November 2019, and without the matter having been referred to me, Mr Takamore’s home detention address was changed to that of his mother. Mr Takamore left the address without the Department’s consent, leading to his being remanded in custody on 19 January 2020. The Department then applied to cancel the sentence and for Mr Takamore to be resentenced to imprisonment.
[5] In March 2020, Mr Takamore was convicted of two charges of breach of the sentence of home detention. On 19 March, I dismissed the Department’s application to cancel the sentence of home detention, the effect of which was that Mr Takamore’s sentence of home detention imposed on 13 September 2019 continued to run. The home detention address reverted to the original home detention address.
[6] On 8 May 2020, the occupant of the home detention address requested Mr Takamore’s removal. He has been in custody since that date.
[7] Despite numerous attempts, no suitable address for home detention is available. Mr Takamore no longer seeks a continuation of the home detention sentence and is prepared to serve the balance of his sentence as a short term of imprisonment. Mr Hannam confirms that an updated presentence report is not sought.
[8] I also note that Mr Takamore appears by AVL from the Whanganui Prison. We have just gone down to COVID-19 Alert Level 1. In the usual course, Mr Takamore
would attend in person for sentencing. It has been agreed today, and specifically Mr Takamore agrees, for sentencing to take place by his appearance through AVL.
[9] Mr Takamore was given his second strike warning on 21 March 2019. This means that he will serve any sentence of imprisonment without parole or early release.2
The law
[10] On being satisfied there are grounds for the application for cancellation of a home detention sentence, the Court may cancel the sentence and substitute any other sentence (including home detention) that could have been imposed at the time of conviction.3
[11] When determining a substitute sentence, the Court must take into account the portion of the original sentence that remains unserved at the time of the order.4 The Court may, at the same time, cancel any sentence of community work that the offender is serving concurrently with the sentence of home detention.5
[12] In considering an application to re-sentence, the Court must focus on the sentence that could have been imposed at the time the original sentence was passed.6 Any need to sanction a failure to comply with the original sentence is relevant when an offender is charged with breach of the original sentence but it is not relevant to the consideration of a substituted sentence.7 In Morgan v R, the Court of Appeal considered an appeal against a substituted sentence of eight months’ imprisonment where the original sentence was 150 hours of community work. It was apparent Mr Morgan had no intention of performing the hours, having completed only four. The Court of Appeal said:
[14] Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various
2 Sentencing Act 2002, s 86C(4).
3 Section 80(f)(4)(d).
4 Section 80G(2).
5 Section 80G(1)..
6 Morgan v R [2008] NZCA 232, at [13].
7 Morgan v R [2008] NZCA 232, at [13].
purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender's rehabilitation, that factor may assume less weight on re-sentencing given the offender's failure to comply with the community- based sentence.
[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant's failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.
[13] Therefore, while there must be some proportionality between the sentence originally imposed and the substituted sentence, the substituted sentence is not necessarily arrived at by way of a mathematical calculation taking into account the time spent on home detention and subtracting that from the nominal sentence of imprisonment which would have been imposed had the offender not been sentenced to home detention. It remains an evaluative exercise.
Assessment of substituted sentence
[14] The appropriate approach is to start with the original sentencing decision and the end point of a nominal sentence of 24 months’ imprisonment (prior to considering home detention). That sentence, however, included a deduction for time Mr Takamore had spent on remand. This was because he was being sentenced to home detention as opposed to imprisonment where a deduction for time in custody on remand is a matter for the Department. It is therefore necessary to make an adjustment to the nominal starting point in considering this application to reflect that allowance. This results in an effective starting point of a sentence of 27 months’ imprisonment.8
8 Forty-eight months less 25 per cent for personal and cultural factors and remorse, and a 25 per cent discount for a guilty plea.
Period on remand
[15] As at 29 May 2020, Mr Takamore had spent 231 days in custody in connection with the charge of aggravated burglary. This included time in custody prior to conviction and pending sentence, time in custody pending re-sentence and time in custody between the application to cancel the home detention sentence and determination of that application. Those periods will be taken into account by the Department for the purposes of determining Mr Takamore’s release date.9 The Court must not take these periods into account in determining the length of Mr Takamore’s sentence of imprisonment.10
[16] The Department will not, however, take into account the time Mr Takamore has spent on home detention (179 days) in determining his release date.
Adjustment for time spent on home detention
[17] Home detention is usually calculated by dividing in two the period arrived at by the Court as a short sentence of imprisonment. This is because a defendant is automatically released after having served half the sentence. However, Mr Takamore is subject to a second strike warning and any sentence of imprisonment must be served without parole or early release.
[18] Mr Takamore has served 179 days or effectively six months on home detention. This would equate to a short term of imprisonment of 12 months. If approached that way, Mr Takamore’s sentence of imprisonment would be calculated by deducting 12 months from the effective starting point of 27 months, resulting in a sentence of 15 months (one year, three months).
[19] Alternatively, if Mr Takamore receives credit for the 179 days only, he has 649 days of his sentence left, or one year and nine months.
9 Parole Act 2002, ss 82 and 86.
10 Sentencing Act 2002, s 82.
[20] The Department’s position is that it is for the Court to determine how to adjust Mr Takamore’s sentence of imprisonment to account for the time he has already spent on home detention.
[21] In Mr Hannam’s submission, for Mr Takamore, the Court should be mindful of the fact that Mr Takamore completed half the sentence of home detention. There was virtually no engagement with the Community Probation Service, meaning the special conditions of a psychological assessment and alcohol and drug counselling were not fulfilled. Mr Hannam also urges me to take into account the fact that Mr Takamore will serve the entirety of his sentence. In Mr Hannam’s submission, the intention of the home detention sentence was to facilitate Mr Takamore’s rehabilitation and it was not entirely Mr Takamore’s fault that the sentence did not succeed.
[22] Mr Hannam submits that the Court should impose a sentence of one year and three months’ imprisonment, with a cumulative sentence of seven to fourteen days in respect of Mr Takamore’s outstanding sentence of community work, where he has 64 hours outstanding.
[23] Mr Burston, for the Crown, accepts that Mr Takamore’s sentence of home detention is being cancelled through no substantial fault of his own and that fact could arguably reflect that he has greater rehabilitative prospects worthy of credit. Mr Burston still supports the original sentence of home detention.
[24] Mr Burston acknowledges that a sentencing court may consider the impact of release eligibility when sentencing to avoid manifest injustice for a second strike offender.11 Despite those acknowledgements, Mr Burston submits that Mr Takamore should be eligible for a 1:1 exchange ratio credit in respect of the time he spent on home detention. He does, however, submit that proportionality is the overall consideration.
11 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49, see [52]–[59] and [77]–[79].
Assessment
[25] I have not changed my position in relation to the appropriate sentence for Mr Takamore. It was appropriate that he be sentenced to home detention rather than a determinate sentence of imprisonment. Through no substantial fault of his own, his offending will now be caught by the repeat serious violent offender regime.
[26] It is appropriate to remember that Mr Takamore’s sentence of home detention was intended to be rehabilitative and that there were encouraging signs that he had a genuine desire to, and was trying to, rehabilitate. Ultimately, however, the necessary environment and supports were not there. I say that recognising that Mr Takamore presents with challenges.
[27] This case highlights the challenges faced by offenders in situations similar to Mr Takamore’s. That is, those who are trying to break from a past history of offending and genuinely seek rehabilitation. It is in their best interests and in the best interests of the community for them to receive a sentence short of imprisonment.12 There is, however, often no appropriate accommodation or support to enable them to do so.
[28] It is, in my assessment, appropriate to recognise that Mr Takamore completed half his sentence of home detention. He did so in challenging circumstances – not only the nature of the accommodation but also the fact that, exacerbated by the COVID-19 pandemic, he was unable to participate in the rehabilitative measures which both he and the Court intended. He is entitled to receive credit for that. Because Mr Takamore was suitable for home detention, he avoided the impact of being on a second strike. In contrast, the substituted sentence of imprisonment will need to be served in full.
[29] I am satisfied Mr Takamore’s case should be considered on that basis. That is, he has completed half his sentence. I must take into account the portion of the original sentence that remains unserved – that portion is one-half of the sentence.
12 The safety of the community is also a relevant purpose under s 7(1)(g) of the Sentencing Act.
[30] The period of 12 months’ home detention was calculated on the basis of 24 months’ imprisonment being the nominal end sentence I arrived at after considering relevant mitigating factors. As Mr Takamore has served half his sentence, there is therefore 12 months remaining. Added to that is the three-month credit for time he spent in custody on remand, which was applied when calculating his home detention sentence. The result is a substituted sentence of 15 months or one year and three months’ imprisonment. Standing back and considering Mr Takamore’s position, I am satisfied that is the appropriate substituted sentence. Although this can be considered a somewhat mathematical approach, it is an evaluative one. It is an appropriate result in these particular circumstances where the real need for a substituted sentence comes from the unavailability of a suitable home detention address rather than a strident refusal to comply with a sentence, as was the case in R v Morgan. I stress again that Mr Takamore was originally given a home detention sentence to reflect his genuine desire to rehabilitate. Circumstances outside his control should not count against him when assessing his substituted sentence.
[31] There is also the need to deal with the outstanding community work. That sentence is cancelled and a cumulative sentence of two weeks’ imprisonment imposed.
Result
[32] The Department’s application is granted. Mr Takamore’s sentences of home detention and community work are cancelled. In substitution, Mr Takamore is sentenced to one year, three months and two weeks’ imprisonment.
[33] It is appropriate that standard and special release conditions apply. They are those recommended by the Probation Officer as follows:
(a)Mr Takamore is to attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a Probation Officer;
(b)Mr Takamore is to attend an assessment for a departmental programme/maintenance group, and attend, participate in and adhere to
the rules of the programme/maintenance group as directed by a Probation Officer; and
(c)Mr Takamore is not to have contact or otherwise associate with any victim of his offending, directly or indirectly, unless with the prior written approval of a Probation Officer.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington
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