Slade v Police

[2020] NZHC 3396

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-483-19

[2020] NZHC 3396

BETWEEN

RYAN ANDREW SLADE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 December 2020

Counsel:

R J Leith for Appellant

H R Hancock for Respondent

Judgment:

17 December 2020

JUDGMENT OF CHURCHMAN J

[1]    Mr Slade (the appellant) appeals a sentence of six months’ home detention that was imposed in the Whanganui District Court by Judge Smith, along with six months post-detention conditions, two fines of $250 and a disqualification from driving for 25 months.1 This was for a charge of driving whilst disqualified (third or subsequent), two charges of dangerous driving and two charges of failing to stop.2

[2]    He appeals that sentence on the ground that it was manifestly excessive. The appellant says that the Judge failed to account for the five months that he spent on remand in prison and that his home detention sentence should be reduced accordingly, leaving him with one month’s home detention.

1      Police v Slade [2020] NZDC 23832.

2      Land Transport Act 1998, ss 32(1)(a) and 32(4) (maximum penalty two years’ imprisonment or

$6,000 fine), 35(1)(b) (maximum penalty three months’ imprisonment or $4,500 fine), and 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2) (maximum penalty $10,000 fine).

SLADE v NEW ZEALAND POLICE [2020] NZHC 3396 [17 December 2020]

[3]    The respondent acknowledges that the Judge did not make any adjustment to reflect the time spent on remand but submits that overall the sentence is not manifestly excessive because the starting point taken by the Judge in respect of the driving while disqualified charge of 12 months, was too low.

[4]    I have concluded that the appeal should be allowed. The Judge does not appear to have given any discount or credit for these five months, and the case law indicates that full credit should be given for pre-sentence time on remand when a sentence of home detention is imposed.

[5]    The starting point taken by the Judge was appropriate and, unless there is an adjustment for the time spent on remand, the end sentence will be manifestly excessive. I now set out my reasons for those conclusions.

Background

Factual background

[6]    At about 10.15 am on 12 July 2020, the appellant was seen driving in a motor vehicle and police conducted a query of the vehicle. The appellant turned down a street 20 kms above the speed limit before overtaking a vehicle. The police activated their sirens and lights to stop him, but he did not stop, accelerating to speeds of over 100 km/ph. He failed to stop and give way at two stop signs. The police lost sight of him. This gave rise to one dangerous driving charge and one failing to stop charge.

[7]    At about 10.58 am the same day, police activated their lights and siren to stop him, but the appellant again did not stop. The police initiated a pursuit. The appellant fled police, reaching speeds of 100 km/ph and continued through a red light at an intersection. He avoided a tyre deflation device. He was located shortly after at his home address and was arrested. The vehicle was found at another address and impounded. This gave rise to the rest of the charges.

District Court decision

[8]    The Judge set out the relevant facts of the offending, and then acknowledged the differing submissions as to an appropriate starting point. Counsel for the

respondent submitted in favour of a starting point of 12 months’ imprisonment for the two separate charges of driving while disqualified, with an uplift of two months each for the two dangerous driving charges, as well as a disqualification from driving for two years. Counsel opposed commuting the sentence to one of home detention. Counsel for the appellant submitted that a starting point of 11-14 months’ imprisonment was appropriate, with an end sentence of between eight to 10.5 months’ imprisonment, commuted to four to five months’ home detention.

[9]    The Judge then acknowledged the appellant’s s 27 cultural report, which traversed the appellant’s history as a child and the significant factors that led to his emotional and psychological traumas.

[10]   Acknowledging the lead charge as being driving while disqualified (third or subsequent) and that this was the appellant’s ninth conviction, the Judge applied a starting point of 12 months’ imprisonment. This was uplifted by two months for each of the dangerous driving charges, and as the other charges were not considered to warrant an uplift, this led to a final starting point of 16 months.

[11]   The Judge applied a full 25 per cent discount for the appellant’s guilty pleas, leading to an end sentence of 12 months’ imprisonment. The Judge considered that having read the cultural report, the appellant would be in a better position to improve himself and prevent re-offending in a home detention environment, rather than in prison. The sentence was therefore commuted to six months’ home detention, with a number of conditions during and post the detention. The appellant was also fined $500 (fines of $250 for each failure to stop) and disqualified from holding or obtaining a drivers’ licence for 25 months.

Sentencing reports

[12]   The Provision of Advice to Courts (PAC) report indicates that the appellant’s previous conviction history spans some six years, predominantly for dishonesty and serious driving offences, being committed with continued regularity and frequency. As a result, the appellant was assessed as having a high risk of re-offending in a nature that posed a medium risk of harm to others, which was likely to increase if he did not address the key factors of his offending, including an unstructured lifestyle, attitude,

influence of associates supportive of offending, absence of consequential thinking and poor problem-solving skills, and his sense of entitlement and associated behaviour, all of which were underpinned by his misuse of substances.

[13]   The appellant was also assessed as being high risk of harmful use of both methamphetamine and cannabis, and that he would benefit from harm reduction programmes and rehabilitative treatment to address his substance misuse. While the appellant had little pro-social support, he still maintained a relationship with his terminally ill mother, who he considered to be a strong influence.

[14]   According to the report, the appellant had appropriate accommodation where he could serve a community-based sentence, which was suitable for electronic monitoring. Ultimately, while the appellant had a history of non-compliance with community-based sentences, a sentence of home detention was recommended, as it would provide the appellant with an opportunity to address his alcohol and drug use and engage with psychological services to determine treatment and counselling in the community.

[15]   The s 27 cultural report detailed difficulties that the appellant experienced during his upbringing, including the tragic death of his older brother when the appellant was seven years old, the abusive nature and absence of his birth father, experiencing violence throughout his childhood and early difficulties with drugs as a teenager, including synthetic cannabis. It also discussed in detail the appellant’s mental health issues, including depression, suicidal ideations and his struggle to accept the terminal illness of his mother, who appears to be one of the few stable and consistent figures of support in his life.

Position of the parties

The appellant

[16]   As stated, this appeal is brought under a single ground: that the appellant’s sentence was manifestly excessive because the sentencing Judge failed to account for the five months that the appellant spent on remand in prison and that his home detention sentence should be reduced accordingly, so that an end point sentence of one

months’ home detention should have been imposed. Counsel noted that there was no challenge to the other aspects of the sentence.

[17]   Counsel submitted that if the current sentence was maintained, the total period of detention for the appellant would amount to 11 months, being the five months of pre-sentence time in custody, and the six months post-sentence home detention. It was submitted that this would be the equivalent to 22 months’ imprisonment, which would be six months longer than the initial starting point taken by the Judge and close to the maximum penalty for driving while disqualified, which could only be described as manifestly excessive.

[18]Counsel referred to Longman v Police, where Simon France J observed:3

Credit for time spent on EM bail is considered when fixing the appropriate length of any sentence of imprisonment. It is a mitigating factor that is assessed in the same way and at the same time as factors such as remorse, guilty plea and rehabilitative efforts. It feeds into the appropriate length of the sentence.

Credit for time spent on custodial remand is quite different. Conceptually, it has nothing to do with the appropriate length of the underlying stance. Rather, it is time spent serving that sentence for which credit is appropriate. With a sentence of imprisonment, credit is given automatically. With home detention, the Court needs to act to ensure it is given recognition.

In my view the clear default position is that full credit should be given. This is where it is important to note the distinction from EM bail. There the analysis is what reduction to a prison term should be made for restrictive pre- sentence arrangements that do not involve jail. Here, the analysis is what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in jail in effect serving the same sentence. Seen that way, full equivalence should be the norm. Although arising in a different area, I suggest this outcome of full equivalence is consistent with the tenor of the Supreme Court decision in Booth v R where the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences.

[19]   Counsel also referred to Kirk v R, where Woolford J observed that “unlike a sentence of imprisonment, there is no statutory provision that automatically gives credit for time spent in custody when subject to a sentence of home detention. As for time deducted, full equivalence is the norm”.4

3      Longman v Police [2017] NZHC 2928 at [7]-[9] (footnotes omitted).

4      Kirk v R [2019] NZHC 3361 at [7].

[20]   Relying on the above cases, counsel submitted that as full credit was given for the time spent in prison on remand, the same approach of full equivalence should be applied here, meaning that the sentence of six months’ home detention should be quashed and replaced with a sentence of home detention of one month.

The respondent

[21]   Counsel for the respondent accepted that full credit should be allowed for the appellant’s five months spent in pre-sentence detention, but submitted that the starting point taken by the Judge was at the lower end of the range available, and the aggravating features of the offending could have justified a greater uplift, which would lead to an end sentence of four months’ home detention.

[22]   In terms of the starting point, counsel referred to the case of Opetaia v Police, where Moore J made a useful observation as to the assessment of starting points for driving while disqualified offences:5

…the number of previous convictions for driving while disqualified or driving while suspended is strongly and directly relevant in assessing the starting point for this kind of offending. While a mathematical or formulaic approach is not to be commended, a starting point of 10 months’ imprisonment, albeit at the top end of the range, may be appropriate for an eighth conviction. The fact that multiple convictions are sentenced together will inevitably justify the imposition of a harsher sentence.

[23]   Counsel submitted that this case was analogous to Affleck v Police, which concerned an unsuccessful appeal against a starting point of 20 months’ imprisonment for a 10th conviction of driving whilst disqualified.6 In that case, Mander J noted that the previous convictions had all occurred within a four-year period, which increased the seriousness of the offending.7 As a result, it was counsel’s position that the starting point of 12 months’ imprisonment in the current case was on the lower end of the range available.

[24]   Counsel then submitted that the starting point could have been increased to a greater amount, namely through an uplift of four months each for the additional

5      Opetaia v Police [2015] NZHC 2532 at [38].

6      Affleck v Police [2017] NZHC 3220.

7 At [15].

dangerous driving charges, and an additional uplift of four months for the related driving offending, the appellant’s previous driving history and offending whilst subject to a sentence. This would lead to a total of 24 months’ imprisonment, which would be reduced by 25 per cent for the guilty plea, commuted to nine months of home detention, and then reduced again by five months to take into account the appellant’s pre-sentence detention.

Approach on appeal

[25]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.8 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9

Relevant law and analysis

[26]   The observations of Simon France J in Longman, set out at [18] above, are relevant to this case. They highlight the important distinction between pre-sentence time spent on EM bail as opposed to remand in custody, and indicate that full equivalence or full credit should be granted for the latter. In that case, Simon France J referred to the case of Booth v R, where he noted that the Supreme Court emphasised the need for pre-sentence detention to be accounted for effectively to all sentences.

[27]   Simon France J’s approach in Longman has been followed and cited with approval in a number of High Court cases. However, there appears to be a divergence in the manner in which this approach is applied.

[28]   Two recent cases of Kirk v R (discussed at [19] above) and Parkinson v Police affirm the observations of Simon France J in Longman but apply his reasoning in different ways. In Parkinson v Police, Clark J acknowledged that while a fully equivalent reduction in time served may not be appropriate for EM bail, it should be

8      Tutakangahau v R [2014] NZCA 279.

9      Ripia v R [2011] NZCA 101 at [15].

the norm for a discount to a sentence of home detention when pre-sentence custody time has been served:10

Full equivalence should be the norm, however, when assessing what reduction there should be to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment. That is because, with a sentence of imprisonment, the prisoner will automatically obtain credit for time spent on custodial remand and that time will be deducted from the sentence that is served. For this reason, in determining the length of any sentence of imprisonment, the Court is not to take into account any part of the period during which an offender was on presentence detention. But where the sentence of imprisonment is to be supplanted with home detention the Judge will have to take into account the time spent in custodial remand to ensure full credit is given for that time.

[29]   In Parkinson, Clark J reduced the sentence by the equivalent time the appellant spent in pre-sentence detention (11 weeks) from the end sentence of imprisonment (17 months’ imprisonment), which was then commuted to 8.5 months’ home detention.11 Conversely, in Kirk v R, Woolford J reduced the sentence by 4.5 months (to reflect the time spent in custody pre-sentence) after the sentence had been commuted to one of home detention. Similarly, in Stridom v Police, Cooke J took the full two months served through pre-sentence custody off the end sentence of home detention, after it had been commuted from a sentence of imprisonment, with His Honour reasoning that:12

The two months served can be treated as equivalent to a four month prison sentence, being the equivalent period of two months' home detention. That should be deducted from the 11 months so that the ultimate sentence now imposed is nine months' home detention.

[30]   In Longman, Simon France J applied a 4.5-month discount (equivalent to the time served in pre-sentence custody) after the sentence was commuted to one of home detention.13

[31]   However, a number of cases have followed the approach of Clark J in Parkinson. In Gotty v R (citing Clark J in Parkinson v Police) Wylie J observed that the approach from Longman ensures equality of treatment for offenders in that where

10     Parkinson v Police [2019] NZHC 1710 at [19]. See also Adams on Criminal Law (Online ed, Thomson Reuters) at SA9.23A.

11     At [22]-[23].

12     Stridom v Police [2019] NZHC 354 at [50].

13 At [14].

a sentence of imprisonment is imposed, the offender automatically obtains credit for all of the time spent on custodial remand; all of the time spent is deducted from the sentence to be served.14 Thus, where a sentence of imprisonment is commuted to a sentence of home detention, the sentencing Judge should ensure that full credit is given for the time spent in remand by deducting it from the calculated term of imprisonment before it is commuted to a sentence of home detention.15

[32]   A similar approach was taken in Wharrie v R, McMillan v Police and Closey v Police, where the time spent in custody was deducted from the sentence of imprisonment, before being commuted to home detention.16 In McMillan, Dunningham J specifically noted that deduction is to be made from the nominal end sentence of imprisonment before the length of home detention sentence is set.17

Conclusion

[33]   I prefer the approach taken by Cooke J in Stridom v Police. The five months served by the appellant is effectively the equivalent of a 10-month prison sentence. If Mr Slade serves one month of home detention that will properly account for the time that he spent in custody.

Was the starting point for the lead offence too low?

[34]Of the five charges faced by the appellant, only three were imprisonable.18

[35]   The maximum penalty for a charge of disqualified driving (third or subsequent) under s 32(1) of the Land Transport Act 1998 is two years’ imprisonment. The maximum penalty for each of the dangerous driving charges is three months’ imprisonment. All of the offences with which the appellant was charged also provide

14     Gotty v R [2020] NZHC 2035 at [18].

15 At [18].

16     Wharrie v R [2019] NZHC 633 at [32]-[33]; McMillan v Police [2019] NZHC 3323 at [43]-[44];

and Closey v Police [2020] NZHC 990 at [35].

17 At [43].

18     The two charges of failing to stop are punishable by fine only.

for disqualification from holding or obtaining a driver’s licence for various periods.19 There is no challenge to this aspect of the sentence.

[36]   The Judge correctly noted that the lead charge was the disqualified driving charge. He also noted that it was the appellant’s ninth conviction and that he was obliged to take into account the prior convictions.

[37]   He started at 12 months’ imprisonment for the disqualified driving alone. To that, he cumulatively added two months for each of the dangerous driving charges. That is two-thirds of the maximum for each such offence. This led him to a combined starting point of 16 months’ imprisonment. This needs to be measured against the maximum starting for the lead offence of 24 months’ imprisonment.

[38]   In addition to the term of imprisonment for the three offences for which imprisonment was available, the appellant was fined $250 on each of the two failing to stop charges. The Court also has to have regard to these penalties in assessing the overall sentence.

[39]   While the starting point of 12 months in respect of the driving while disqualified charge might properly be described as lenient, it must be considered in conjunction with the cumulative sentences totalling four months for the dangerous driving charges. If these sentences had been concurrent rather than cumulative, then the Crown’s position would have been stronger.

[40]   I have considered a number of decisions that comment on the appropriate starting point for a driving while disqualified (third or subsequent) conviction, where the defendant has a significant number of previous convictions of this nature. What is apparent is that a relatively broad range of starting points have been applied, and that there is not necessarily a set number of months imposed for nine previous convictions. For example, in Royal v Police, Miller J upheld the maximum two-year sentence of

19 I note that the Judge’s sentencing notes at [11] refer to “two separate charges of driving while disqualified”. It is clear that there was in fact only one charge of driving while disqualified but two charges of driving dangerously.

imprisonment imposed as the starting point by the sentencing Judge for the appellant’s 14th conviction, but acknowledged that sentences varied widely:20

Mr Stevenson argued that Judges routinely adopt much lower starting points than the two years used in this case,  even for recidivist offenders such as  Mr Royal. I accept that lower starting points are sometimes used, but sentences vary widely. The question is whether the sentence was manifestly excessive. There were six charges of driving while disqualified over a short period, and eight previous convictions for doing so. He was subject to release conditions. In these circumstances, it was open to the Judge to take a starting point of two years, the maximum for a single offence, before credit for guilty pleas: R v Butterfield CA100/97 23 July 1997. …

[41]   In Maxwell v Police, Hansen J upheld a starting point of 12 months’ imprisonment for the appellant’s 11th conviction, but accepted that this was at the lower end of the range, and illustrated the wide range of applied starting points for differing numbers of previous convictions:21

The starting point of 12 months was well within the range available to the Judge and, arguably, at the lower end of the range. The High Court decisions referred to by the Crown support that view, as does the Court of Appeal’s decision in Butterfield where a starting point of 18 months was upheld for the eighth and ninth convictions for driving while disqualified. To similar effect in Finch v R the Court of Appeal upheld a 14-month starting point for the appellant's fifth, sixth and seventh offences of driving while disqualified. In another High Court decision, Royal v Police Miller J said that the two-year maximum sentence would be an appropriate starting point when sentencing on the eighth to fourteenth convictions of the appellant for driving while disqualified.

[42]   This was similarly noted in Iwikau v Police, where Williams J upheld a starting point of 10 months’ imprisonment for the appellant’s sixth conviction, but considered it to be at the “top of the range”:22

Mr Iwikau submits that a starting point of 10 months is manifestly excessive because it is nearly triple the starting point for his last offending. Authorities nonetheless suggest a sentence of between six and 10 months was open to the Judge for a seventh offence. The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth conviction warranted a starting point of two months, while an eleventh conviction was held to warrant a starting point at or around the maximum of two years.

20     Royal v Police CRI-2008-454-41, 17 June 2009 (HC) at [22].

21     Maxwell v Police [2013] NZHC 3172 at [11] (footnotes omitted).

22     Iwikau v Police [2013] NZHC 1515 at [13]-[15].

Here, Mr Iwikau has been convicted of driving while disqualified every twelve months or so for the last four years. This is not a case where the offender has relapsed after a long period of non-offending. This is a pattern of reoffending that runs like clockwork.

For these reasons, I consider the starting point to be the top of the allowable range.

[43]   Given the broad range of starting points applied, I therefore consider that the starting point of 12 months in this case was at the lower end of the range, but still available to the Judge.

[44]   The totality of the sentence needs to be looked at, and I am not persuaded that a starting point of 16 months’ imprisonment for the three imprisonable driving offences is inadequate.

[45]   Conversely, if the Crown’s submission as to the appropriate duration of home detention is accepted, that would result, when adding in the time served in custody on remand, to an effective prison sentence of 22 months. I am satisfied that would be manifestly excessive in the circumstances.

Outcome

[46]   The appeal is allowed in part. That part of the sentence imposing six months’ home detention is quashed and replaced with a sentence of one-month home detention. That home detention is to be followed with six months post-detention conditions.

[47]   The conditions of home detention remain unchanged and are as set out at [30] of the Judge’s sentencing notes. All other terms of the sentence including the periods of disqualification and the fines, remain unchanged. The sentence of home detention commenced on 19 November 2020, and the appellant has now completed his sentence and his home detention is at an end.

Churchman J

Solicitors:

Wilkinson Smith Lawyers Limited, Whanganui

Barrister:
Richard John Leith, Whanganui