Richardson v The the Queen

[2022] NZHC 2093

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-213

[2022] NZHC 2093

BETWEEN

GREGORY ZACHARIAH RICHARDSON

Appellant

AND

THE QUEEN

Respondent

Hearing:	On the papers
Appearances:	S D Withers and V I Tava for Appellant C Wilkinson for Respondent
Judgment:	23 August 2022

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 23 August 2022 at 11 am.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

RICHARDSON v R [2022] NZHC 2093 [23 August 2022]

[1]    Mr Richardson pleaded guilty in the District Court to charges of assaulting a person with whom he was in a family relationship, resisting police, assaulting a police officer and wilful damage. On 13 May 2022, Judge B A Gibson sentenced Mr Richardson to three months home detention and ordered him to perform 100 hours of community work.1 He also imposed post-detention conditions for a period of six months.

[2]    Mr Richardson appeals on the basis that the sentence the Judge imposed is manifestly excessive. After the appeal was set down for hearing I issued a minute seeking the assistance of counsel for the respondent regarding one aspect of the appeal. I also held a telephone conference with counsel on 22 August 2022. This resulted in counsel reaching agreement that the appeal must be allowed. The fixture on 23 August 2022 was accordingly vacated and I propose to determine the appeal on the papers.

The offending

[3]    The charge of wilful damage related to offending that occurred on 22 October 2020. On this occasion Mr Richardson had been placed inside a police vehicle. He proceeded to kick the centre console of the vehicle, causing the air conditioning unit to crack and cave in.

[4]    The remaining charges were laid following an incident that occurred on 16 February 2021. On that date Mr Richardson became involved in an argument with his former partner whilst they were at his address. This escalated into physical violence, with Mr Richardson kicking his former partner in the tailbone. This caused her to cry out in pain and fall to the ground. Mr Richardson then demanded she leave his property and she did so.

[5]    A neighbour heard the commotion and called the police. When they arrived, Mr Richardson was aggressive and abusive towards them. He slammed a door on a police officer’s hand, causing the glass in the door to break and injuring the officer’s left index finger and palm. He then resisted attempts by the police to place handcuffs on him.

1      R v Richardson [2022] NZDC 11482.

The sentence

[6]    Mr Richardson pleaded guilty to the charges after receiving a sentence indication from Judge Gibson on 15 September 2021. This informs the basis on which the Judge proceeded at sentencing.

[7]    The Judge selected a starting point of five months imprisonment on the lead charge of assault on a person in a family relationship. He added a three month uplift to reflect the remaining charges, together with an uplift of one month to reflect previous convictions for similar offending.

[8]    The Judge then applied a discount of two months to reflect guilty pleas and one month to reflect time spent on electronically monitored bail. This resulted in an end sentence of six months imprisonment which the Judge converted to three months home detention. He also sentenced Mr Richardson to 100 hours community work.

The appeal

[9]    Mr Richardson advanced his appeal on several grounds. However, the ground that must succeed relates to the fact that Mr Richardson spent approximately five months in custody following his arrest. Counsel agree the Judge ought to have taken this factor into account once he concluded a sentence of home detention was appropriate. Otherwise, Mr Richardson would receive no credit for the time he had spent in custody.

[10]   There are varying approaches as to how to deal with this issue when sentencing an offender to home detention or community detention after having spent time in custody on remand. These were examined recently in Vakapora v Police.2

[11]   An offender who is sentenced to two years imprisonment or less is automatically released after serving one-half of the sentence.3 The time spent in custody on remand is therefore the equivalent of serving a sentence twice as long. A commonly adopted approach is therefore to deduct double the period spent in custodial

2      Vakapora v New Zealand Police [2022] NZHC 493 at [14]–[28].

3      Parole Act 2002, s 86(1).

remand from the end sentence of imprisonment. The period then remaining is converted to a sentence of home detention. This is sometimes referred to as the “two for one” approach.

[12]   Applying that approach in the present case leads to the sentence of six months imprisonment being completely extinguished. The Judge obviously anticipated that this may be the outcome in the following passage from his sentence indication:

[3] My sentence indication is a sentence of imprisonment but the sentence will be less than two years and I am obligated to consider alternatives to imprisonment and subject to a satisfactory pre-sentence report I would and, if there is any sentence time left to be served in terms of the notional sentence of imprisonment I would be considering an electronically-monitored sentence subject to an appropriate address and the content of the pre-sentence report.

(Emphasis added)

[13]   In other cases the sentence of home detention will be reduced by the actual time the offender has spent in custody on remand. This is referred to as the “one for one” approach. In the present case that approach would result in Mr Richardson’s end sentence being reduced to one months imprisonment before the sentence is converted to one of home detention.

[14]   At sentencing, however, either the issue was not raised with the Judge or he omitted to deal with it. It is plainly necessary to correct the position on appeal. I consider it appropriate to apply the “two for one” approach because it provides consistency with the principle that offenders are only required to serve one-half of a short sentence of imprisonment.

Result

[15]   The sentence of three months home detention is quashed, as is the sentence of community work. In their place Mr Richardson is sentenced to six months imprisonment on the charge of assaulting a person with whom he was in a special relationship. On each of the remaining charges he is sentenced to one months imprisonment, with all sentences to be served concurrently. This means he will be eligible for immediate release.

[16]   I make an order under s 18 (1) of the Parole Act 2002 that Mr Richardson is to be subject to the following special release conditions:

(a)To remain engaged in the Wings Trust programme.

(b)Not to possess or consume alcohol or other non-prescribed drugs.

(c)Not to contact directly or indirectly the victims of the offending.

(d)To inform the probation service of commencement and/or change of employment.

[17]   The above conditions are to be applicable for a period of six months from the date of this judgment.

Lang J