Shepherd v R

[2018] NZCA 232

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA127/2018
 [2018] NZCA 232

BETWEEN	BENJAMIN SHEPHERD Appellant
AND	THE QUEEN Respondent

Court:	French, Duffy and Katz JJ
Counsel:	T M Cooper for Appellant E J Hoskin for Respondent
Judgment: (On the papers)	2 July 2018 at 4 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.

BThe appeal is allowed.

CLeave is reserved for the parties to make any further submissions on post release conditions if they so wish.

DThe sentence of three months and two weeks’ home detention is quashed and replaced with one month’s home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

1. Mr Shepherd was convicted by a jury of male assaults female.  He was sentenced by Judge E M Thomas to 10 months’ imprisonment on 19 December 2017.[1]  He now appeals against that sentence.  Although his notice of appeal was filed out of time, we grant the necessary extension as the delay was not long and the Crown did not oppose.

Facts

[1]R v Shephard [2017] NZDC 29211.

1. On 18 January 2016 Mr Shepherd was seen having a heated argument with his partner in the street.  He was seen straddling her as she lay on the ground, punching her to the head.

Judge Thomas’ sentencing

1. Judge Thomas arrived at a starting point of eight months’ imprisonment.  He then uplifted by two months for Mr Shepherd’s previous convictions, which he noted included convictions for violence.[2]

   [2]At [9] and [10].

2. Mr Shepherd had sought an adjournment of the sentencing so he could have an address assessed for home detention.  This was refused by the Judge.  The reason for this was that Mr Shepherd had failed to attend for a pre-sentence report, so no home detention address had been assessed.[3]

   [3]At [4].

3. While denying the adjournment, Judge Thomas granted Mr Shepherd leave to apply to have his sentence converted to one of home detention once an appropriate report had been made available.[4]

Judge Maude’s decision

[4]At [11]. See Sentencing Act 2002, s 80I.

1. Judge Maude heard Mr Shepherd’s s 80K of the Sentencing Act 2002 application on 28 March 2018.[5]  The Judge granted the application, saying:

   [3]       You are sentenced in lieu of the 10 month sentence of imprisonment now to three months and two weeks’ home detention with six months post release conditions.

Appeal

The uplift

[5]Department of Corrections v Shephard [2018] NZDC 6014.

1. Mr Shepherd contends that the two-month uplift for previous convictions resulted in an end sentence that was manifestly excessive.  He has previous convictions for wilful damage (2014), obscene language (2011) and common assault (2011).  He also has convictions from the 1990s for resisting police and threatening language.[6]

   [6]These dates relate to the offending, not the convictions.

2. Mr Shepherd submits that these are not serious offences, and what amounted to an uplift of 25 per cent of the starting point was excessive in the circumstances.

3. The Crown agrees the uplift was excessive and that an end sentence of eight months’ imprisonment was appropriate.  The Crown accepts Mr Shepherd does not have a violent criminal history.

4. We agree.  A sentence of eight months’ imprisonment was appropriate given the dissimilarity of Mr Shepherd’s prior convictions to the relevant offending and their relative lack of seriousness.

The commutation to home detention

1. Mr Shepherd takes issue with Judge Maude’s calculation of time served for the purposes of commuting the prison sentence to home detention.[7]  For its part, the Crown says the method of calculation is a matter of discretion.  The Crown does however acknowledge that because the appropriate term of imprisonment was in fact eight months, Mr Shepherd was in any event entitled to a lesser period of home detention than that imposed by Judge Maude.  That in turn means having regard to the passage of time that Mr Shepherd will have now served of the appropriate sentence, thus rendering issues about the method of computation moot.

   [7]See Sentencing Act, s 80K(6).

2. In the circumstances, we consider the appropriate course of action is to adopt the conventional practice of fixing terms of home detention at half the length of the period of imprisonment.  At the time the prison sentence was commuted to home detention, Mr Shepherd had already served around three months: that is, three quarters of the time he would have spent in prison.[8]  If he had served three quarters of the equivalent home detention sentence he would have had one month’s home detention left.

   [8]If the appropriate eight months had been imposed: Parole Act 2002, s 86(1).

3. The parties did not raise any issues with the post release conditions imposed by Judge Maude.  We reserve leave for the parties to make any further submissions on that issue if they so wish.

Result

1. The application for an extension of time is granted.

2. The appeal is allowed.  Mr Shepherd’s commuted sentence of three months and two weeks’ home detention is quashed and replaced with one month’s home detention.

Solicitors:
Crown Law Office, Wellington for Respondent