Randall v The King
[2025] NZHC 2332
•18 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-144
[2025] NZHC 2332
BETWEEN JONATHAN JAMES RANDALL
Appellant
AND
THE KING
Respondent
Hearing: 14 August 2025 Appearances:
T Aickin for Appellant
C M Hallaway for Respondent
Judgment:
18 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 18 August 2025 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
RANDALL v R [2025] NZHC 2332 [18 August 2025]
Introduction
[1] Jonathan James Randall pleaded guilty to possession of a Class A controlled drug for supply (namely methamphetamine)1 and possession of a pipe.2 On 21 May 2025, Judge Neave sentenced Mr Randall to three years’ imprisonment.3 He now appeals this sentence on the ground the Judge erred by not taking into account the time spent on electronically-monitored bail (EM bail).
District Court decision
[2] In sentencing Mr Randall on the charges, the Judge adopted a starting point of four years’ imprisonment. Deductions of 15 per cent were given for guilty pleas, 10 per cent for background factors including addiction, and 15 per cent for the breach of his rights given the search which located the evidence giving rise to the charges “to some extent, was illegal.”4 The Judge also adopted a 15 per cent uplift to reflect the appellant’s history of previous offending. The end sentence imposed was three years’ imprisonment.
Principles on appeal
[3] 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.5 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”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
1 Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty life imprisonment.
2 Section 13(1)(a) and (3); maximum penalty one year’ imprisonment.
3 R v Randall [2025] NZDC 11382.
4 At [15].
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[4] The sole ground of appeal advanced by counsel for the appellant, Ms Aickin, concerns the failure by the sentencing Judge to take into account the time Mr Randall spent on EM bail. She explains that, according to the District Court records, the appellant was on EM bail between 14 December 2022 and 6 March 2024, 7 May 2024 and 24 June 2024, and 26 June 2024 and 11 October 2024. The total period spent on EM bail is therefore 19 months and 26 days.
[5] Ms Aickin submits that this is a very lengthy period to be subject to EM bail. She accepts that Judge Elkin found the appellant had breached his EM bail on four occasions, following a disputed bail breach hearing on 30 January 2025. However, these breaches were found to have occurred within a relatively confined period between 23 August and 10 October 2024. Ms Aickin submits that notwithstanding these breaches during the last two months of his EM bail, the appellant was compliant with his strict bail conditions. There was no associated criminal offending.
[6] Ms Aickin points out that 30 to 50 per cent is often afforded for time spent on EM bail, and that 50 per cent is not the upper limit.8 She submits that notwithstanding the appellant’s breaches of his EM bail conditions over a two-month period, an evaluative assessment supports a deduction of at least 30 per cent for time spent on EM bail, the vast majority of which was without incident.
Respondent’s submissions
[7] Ms Hallaway, for the respondent, submits the Judge did not err by not giving a deduction for time spent on EM bail. She submits it was open to the Court to not give a deduction in sentence for this given the compliance issues.
[8] Ms Hallaway highlights the bail breaches were initially denied and submitted that the blatant and repetitive nature of the breaches is highly relevant when
8 Paora v R [2021] NZCA 559 at [53].
considering whether a deduction should be given. In accordance with the case law,9 the respondent submits it was open to the Judge to not give a deduction in the circumstances.
[9] Even if this Court finds a deduction was available to reflect the time spent on EM bail, the respondent submits the failure to do so did not result in a manifestly excessive sentence. Because of the generous deductions given for matters of personal mitigation, the Judge did not err by imposing a sentence of three years’ imprisonment—particularly given the appellant was found in possession of over 100 grams of methamphetamine, and guilty pleas were entered close to trial. Further, the respondent submits it was open to the Judge to impose a higher uplift to reflect the appellant’s relevant previous convictions.
Analysis
[10] Section 9(2)(h) of the Sentencing Act 2002 provides that time spent on EM bail must be considered by the court when sentencing an offender. Section 9(3A) provides that, in taking into account that the offender spent time on EM bail, the Court must consider:
(a)the period of time that the offender spent on bail with an EM condition; and
(b)the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and
(c)the offender’s compliance with the bail conditions during the period of bail with an EM condition; and
(d)any other relevant matter.
[11] It is common ground that no reference was made to the time spent on EM bail by either the sentencing Judge or by defence in their written submissions. As this issue was not raised or considered, I agree it needs to be considered afresh on appeal.
9 R v Bidois [2009] NZCA 426; R v Bishop [2009] NZCA 265; and Murray-MacGregor v R [2011] NZCA 66.
[12] There is no automatic right to a deduction for time remanded on EM bail. In R v Bidois, the Court declined to give a deduction for around nine months spent on EM bail following four bail breaches.10 Likewise, in R v Bishop, the Court declined to give a deduction for four and a half months spent on EM bail following four bail breaches.11
[13]In Murray-MacGregor v R, the Court held:12
An evaluative exercise of all the circumstances is necessary to determine whether or not there should be a credit and, if so, the extent. These are discretionary considerations. Given the underlying premise of compliance with the restrictive bail regime, breaches of bail will usually be a highly relevant consideration.
[14] In Murray-MacGregor the Court declined to give a deduction for time on restrictive bail conditions. In reaching that conclusion the Court took account of a number of factors including that the period of bail was not particularly lengthy (around seven months); for almost three months he was at home with his partner and children; and he was in breach of his 24-hour curfew on several occasions.
[15] There is no guideline about the deduction which should be afforded to a defendant for time spent on EM bail in New Zealand, although the court noted in Paora v R,13 that percentages ranging between 30 and 50 per cent are often used. Ms Aicken submits the following cases may be of assistance:
(a)Hall v R:14 a 50 per cent credit was given for time spent on EM bail (18 months) in addition to separate 15-month credit for rehabilitative steps take while on EM bail;
(b)Hohipa v R:15 a 12-month credit was given for time spent on EM bail (14 months), equating to 15 per cent of the starting point; and
10 R v Bidois, above n 9.
11 R v Bishop, above n 9.
12 Murray-MacGregor v R, above n 9, at [19].
13 Paora v R, above n 8, at [53].
14 Hall v R [2020] NZCA 183.
15 Hohipa v R [2015] NZCA 485.
(c)Paora v R:16 a 10-month credit was given for time spent on restrictive EM bail without breach (70 per cent of a 14-month period), and no credit was given for the time on EM bail when in breach of his conditions.
[16] Ms Hallaway also refers to Agar v R, where the Court gave a modest credit of three months (just over 10 per cent), due to the lengthy period the appellant was remanded on EM bail (26 months), despite several breaches and generally poor compliance.17
[17] I do not consider Bidois, Bishop and Murray-MacGregor are of particular assistance here. Mr Randall’s period of EM bail was far longer than that in any of these cases where no deduction was given following breaches.
[18] I also do not consider Hall or Hohipa to be particularly helpful here as in each of those cases there were no issues of compliance on EM bail.
[19] Agar provides more assistance given the similar period of time spent on bail (26 months) and the presence of breaches. However, the Court of Appeal in Agar noted that the appellant’s compliance was poor, and while not entirely clear from the judgment, this poor compliance appears to have been throughout the period of bail, and the appellant’s failure to comply with bail had followed a failure to comply with home detention conditions on two occasions.
[20] In contrast, the bail breaches here occurred in quick succession at the tail end of Mr Randall’s bail and after he had shifted to a new bail address. I think it appropriate to give a deduction to recognise the time spent on reasonably restrictive EM bail prior to the period where he breached, as was done in Paora. Mr Randall spent 17 months on EM bail prior to any recorded bail breaches. This is not an insignificant period. However, in light of the blatant and repetitive nature of the breaches in August to October 2024, I consider that a deduction of 30 per cent for the
16 Paora v R, above n 8.
17 Agar v R [2021] NZCA 350.
earlier EM bail period would be appropriate. This equates to a deduction of six months.
[21] Finally, I turn to Ms Hallaway’s submission that the sentence cannot be considered manifestly excessive due to the deductions given for other matters of personal mitigation. However, I do not consider these other deductions to be overly generous. While the guilty pleas were entered close to trial, they immediately followed a change of counsel and, as the sentencing Judge noted, this delay appears justified given the findings of the pre-trial arguments. The uplift of 15 per cent for previous convictions is at the higher end of the available range. This is not a case where, despite not accounting for the time spent on EM bail, the end sentence was within range.
Result
[22] I allow the appeal. On the charge of possession of a Class A controlled drug for supply, the sentence of three years’ imprisonment is quashed and replaced with a sentence of two years and six months’ imprisonment. All other sentences remain undisturbed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
T Aickin, Barrister, Christchurch
0
8
1