Sanford v Police

[2020] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-008/009/010

[2020] NZHC 344

BETWEEN

SHARN KAREN SANFORD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Counsel:

T Frazer-Rata for Appellant

B D Tantrum & J V Barry for Respondent

Judgment:

2 March 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 March 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

SANFORD v POLICE [2020] NZHC 344 [2 March 2020]

Introduction

[1]                   Ms Sanford has pleaded guilty to 14 charges.1 On 28 August 2019, she was sentenced to 23 months’ imprisonment by Judge Glubb in the District Court at Auckland.2 On 19 December 2019, the Judge substituted the sentence of imprisonment for a sentence of eight months’ home detention and 100 hours’ community work.3

[2]The Judge said:

[1]   Today, as I have indicated, I have determined that it is appropriate that I grant the application for substitution of sentence. I note that you have served some four months in custody since 28 August and I give you credit for that. I reduce that 23 months by four months in consequence and I then convert that to a home detention sentence and halve it in consequence. I come down to eight months’ home detention and I also impose 100 hours of community work.

[3]                   The sentence is appealed on the ground that the Judge erred by not taking into account the time the appellant had spent on remand, and hence imposed a manifestly excessive sentence. The Crown supports the appeal. Both the appellant and Crown agree that four months’ home detention is an appropriate sentence. Both Crown and defence agree that this appeal can be dealt with on the papers.

[4]                   By the time of Ms Sanford’s re-sentencing on 19 December 2019 she had spent seven months and 12 days in custody. This should have been deducted from the home detention sentence, recognising that Ms Sanford would have served half of her sentence in prison before being paroled.4 Ms Sanford had therefore spent the equivalent of a 14 month and 24 day sentence in prison. Her remaining sentence at that point was therefore eight months and six or seven days. Without a compelling reason to deviate from the usual sentencing approach, this should have equated to four months’ home detention. The Judge expressly said he was halving the sentence in reducing it to home detention: clearly the Judge’s error of omitting to take account of the time Ms Sanford had spent in custody while on remand was inadvertent.5

1      Police v Sanford [2019] NZDC 16937 at [1].

2      Police v Sanford [2019] NZDC 16937 at [39].

3      Police v Sanford [2019] NZDC 26428

4      Pursuant to the Parole Act 2002, s 86(1), and in accordance with Shepherd v R [2018] NZCA 232. The same approach was taken in Tasi v Police [2019] NZHC 2186, Wilson v Police [2018[ NZHC 1352, and Kopa v Police [2017] NZHC 1244.

5      Police v Sanford [2019] NZDC 16937 at [1].

[5]                   To allow the appeal I must be satisfied in accordance with s 250 of the Criminal Procedure Act 2011 that an error occurred in imposing the sentence, and that a different sentence should be imposed.6

[6]                   An appeal can be allowed either because the sentence was manifestly excessive or wrong in principle.7 In Tutakangahau v Police the Court of Appeal provided that the concept of “manifestly excessive” is a means of examining the significance of the error in a sentence, to decide whether a different sentence should be imposed.8 The court’s focus should be on the final sentence imposed rather than its component parts or how the sentence was eventually reached. It is clear that the sentence here is manifestly excessive: it is twice the appropriate sentence.

[7]                   Accordingly I allow the appeal, and order that the sentence of eight months’ home detention be quashed and substituted with a sentence of four months’ home detention. The 100 hours’ community work element of the original sentence is left unchanged.

Paul Davison J

6      Criminal Procedure Act 2011 s 250(2).

7      R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

8      Tutakangahau v R [2014] NZCA 279 3 NZLR 482.