Stridom v Police

[2019] NZHC 354

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-4

[2019] NZHC 354

BETWEEN

PIETER CONJE STRIDOM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 March 2019
Appearances:	R D Stone for the Appellant C R Stuart for the Respondent
Judgment:	6 March 2019
Reissued:	12 March 2019

JUDGMENT OF COOKE J

[1]        On 23 January 2019 Mr Stridom was sentenced before Judge Adeane in the District Court at Hastings to two years one months’ imprisonment in respect of the following charges:1

(a)Two charges of burglary;2

(b)One charge of theft between $500–$1000;3

(c)One charge of receiving stolen goods over $1000;4

1      Police v Stridom [2018] NZDC 1108.

2      Crimes Act 1961, s 231(1)(a) and s 66, maximum penalty 10 years’ imprisonment.

3      Sections 219 and 223(c), maximum penalty 1 years’ imprisonment.

4      Sections 246 and 247, maximum penalty 7 years’ imprisonment.

STRIDOM v NEW ZEALAND POLICE [2019] NZHC 354 [12 March 2019]

(d)One charge of unlawfully taking a motor vehicle;5

(e)One charge of driving while disqualified (third offence);6

(f)One charge of possession of methamphetamine pipes;7

(g)Two charges of using a document for pecuniary advantage;8

(h)One charge of possession of a knife in a public place.9

[2]        Mr Stridom appeals his conviction on the grounds there were two mistakes in the District Court decision in relation to the sentence, and the appellate court is entitled to consider the sentence afresh. He argues that the end sentence was within the range of home detention, and that this is the sentence the Court should impose.

[3]        The Police accept that mistakes were made in the District Court decision, but the mistakes were not material so as to justify a different sentence.

Factual background

[4]        Mr Stridom is 30 years old and lives in Hastings. On 8 March 2018 he drove to Havelock North to meet his co-defendant, Ms Brown. Mr Stridom remained in the car while Ms Brown walked up the driveway at an address and climbed in through the open window, taking numerous items of value including jewellery and electronics, valued at approximately $20,000. Mr Stridom then drove Ms Brown back to her address, dropped her off and took the stolen goods with him to sell.

[5]        On 13 March 2018 Ms Brown picked up Mr Stridom from his address in Hastings. They drove past an address where they saw the occupants leaving the house. Ms Brown parked the car at the end of the driveway. Both Ms Brown and Mr Stridom

5      Section 226(1), maximum penalty 7 years’ imprisonment.

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

$6,000 fine.

7      Misuse of Drugs Act 1975, s 13(1)(a) and (3), maximum penalty 1 years’ imprisonment or $500 fine.

8      Crimes Act 1961, s 228(b), maximum penalty 7 years’ imprisonment.

9      Section 202A(4)(a), maximum penalty 3 years’ imprisonment.

exited the car and approached the house. Ms Brown found an open window, reached in and unlocked the door. Once inside Ms Brown took numerous items of value, including a wallet, a laptop, jewellery, clothing, sunglasses and watches. She returned with the stolen items to the car where Mr Stridom was waiting for her. They left and went back to Ms Brown’s address. There they divided the property between themselves, including a stolen wallet with a number of debit and credit cards belonging to the victim.

[6]        A short time later Mr Stridom and Ms Brown drove to the Mobil Service Station where they purchased $69.90 worth of goods using a stolen debit card. Later Ms Brown entered the Z Service Station in Windsor and purchased more items using the stolen debit card, totalling $72.99. Then the defendants drove to a Caltex Service Station, where Mr Stridom attempted to purchase cigarettes, but the debit card declined.

[7]        On or about the 13 March 2018 Mr Stridom and Ms Brown were driving through Hastings. They stopped at a road when they noticed an open gate at an address. Mr Stridom and Ms Brown walked up to the front door. Mr Stridom picked up a pair of running shoes lying next the front door. He then returned to the car with the shoes. Ms Brown stole a set of golf clubs and brought them back to the car. Later that day Mr Stridom sold the stolen golf clubs to the Buy4Less store in Hastings for

$100.

[8]        Between 13 and 14 April 2018 there was a burglary at another address in Taradale. A large amount of property was taken including a computer, a coffee machine, an antique clock, jewellery, electronics and a Toyota car valued at $2500.

[9]        On 24 April 2018 Hastings Police executed a search warrant at Mr Stridom’s address in Hastings. Police located stolen property from the burglaries at the above addresses. Police also located a number of glass pipes used to smoke methamphetamine. Mr Stridom was located and arrested for the offending. At the time of arrest Mr Stridom was wearing the stolen running shoes and Police located a large fold-down hunting knife and a silver envelope knife in his backpack.

[10]      When spoken to Mr Stridom admitted receiving the stolen property from the first address referred to above but denied having anything to do with the burglary. He admitted waiting in the car for Ms Brown while she committed the burglary at the second address, but denied knowing what she was doing or having any involvement. He admitted using the stolen debit card to purchase goods at Mobil and the attempted purchase at Caltex. In relation to the burglary at the third address, Mr Stridom explained he never went into the address with Ms Brown but admitted to receiving the stolen running shoes and selling the golf clubs.

[11]      There is other offending for which Mr Stridom was sentenced. On 3 March 2018 at around 4.50 am Mr Stridom was driving a Toyota on Shakespeare Road, Napier. Mr Stridom was stopped by Police and enquiries revealed the defendant was a disqualified driver. In explanation Mr Stridom said he was giving his friends a ride. Finally, on 11 April 2018 Mr Stridom was at the District Court at Napier. After setting off metal detectors, his property was searched and two knives were found in his bag. The defendant was detained by court security and held for Police. He told Police he had no other knives or contraband in his bag. Police searched Mr Stridom and found a small black folder with a pipe and other methamphetamine utensils in his bag. In explanation Mr Stridom said he forgot he had those items in his bag and the pipe was not his but belonged to a friend.

District Court decision

[12]      After outlining the facts and the charges the Judge turned to a discussion of sentencing for burglary. He noted for burglary of a dwelling-house, an appropriate range is between 18 months and two and a half years, citing Arahanga v R.10 For this kind of case, “the Court is not entitled to simply lose sight of the effect of this kind of offending on the home owners involved”.

[13]      The  Judge  also  considered  the  position  of  Mr  Stridom’s   co-offender, Ms Brown. Ms Brown had been sentenced to 10 months home detention. Judge Adeane rejected submission of counsel that as a matter of parity, Mr Stridom should receive a similar sentence. Mr Stridom’s co-offender had specific personal

10     Police v Stridom, above n 1, at [8]; and Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

circumstances limited to her case to allow a sentence of home detention and had received a strong warning as to the consequences of further offending.

[14]      The Judge used a starting point of two and a half years’ imprisonment, with a six month uplift for receiving and unlawful taking of the vehicle.11 The other offending (possession of the pipe, fraud charges, driving while disqualified and possession of knives) justified a further two month uplift. This calculated to three years and two months’ imprisonment. Judge Adeane gave a 25% discount for guilty plea and reduced the sentence by three months to take account of 24 weeks spent on EM bail. This gave an end sentence of two years, one months’ imprisonment. Judge Adeane also ordered Mr Stridom pay $500 in reparation ($250 for each burglary charge).

Approach to appeal

[15]      This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[16]      A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.12 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.13

[17]      Mr Stone for Mr Stridom submits that Judge Adeane made material mistakes in his sentencing decision. When considered afresh he submits that the following factors justify an end sentence within the range of home detention:

11 At [12].

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481.

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

(a)a lower starting point should be substituted;

(b)further credit should have been given for time spent on EM bail;

(c)parity with Mr Stridom’s co-offender;

(d)pre-sentence report considerations.

[18]      I will first address the alleged mistakes in the sentencing decision and then go on to discuss whether any mistakes lead to a sentence that was manifestly excessive.

Did Judge Adeane make errors in his sentencing decision?

[19]      First, Mr Stone submits the Judge erred in referring to three burglary charges in his decision when there were in fact two. The Judge refers to “three charges of burgling dwelling-houses” more than once in his judgment.14 This was an error as the charging document related to one of the burglaries had been amended to a charge of theft under ss 219 and 223(c) of the Crimes Act 1961. This is a lesser offence with a maximum penalty of one years’ imprisonment.

[20]      Second, Mr Stone points out that the Judge miscalculated the amount of time Mr Stridom spent on EM bail. The Judge reduced Mr Stridom’s sentence by three months to take account of the 24 weeks spent on EM bail.15 In fact he had spent 34 weeks on EM bail.

[21]      Both these errors are accepted by counsel for the Police, Mr Stuart. However, Mr Stuart submits the errors were not material as the end sentence is not manifestly excessive. Mr Stone argues the errors were material and the Court is justified to consider the sentencing exercise afresh. It is accordingly important to consider the significance of the errors.

14     Police v Stridom, above n 1, at [1], [4], [5] and [12].

15 At [12].

Burglary charges

[22]      The Judge noted that while there is no tariff for burglary of dwelling-houses “there is a coherent and frequently referred to line of authority to the effect that burglary of other people’s dwelling-houses attracts a starting point between 18 months and two and a half years’ imprisonment”, citing Arahanga v R.16 A burglary of three dwelling-houses in the circumstances required a starting point of two and a half years’ imprisonment.17 It would accordingly appear that the number of burglary offences was of significance to this determination.

[23]      Given that the Judge’s error was a material one it is appropriate to consider what the starting point should have been. In Arahanga the Court of Appeal stated that it had “deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied”, but it noted that burglary of domestic residence is a significant aggravating feature.18 Both counsel have directed me to R v Nguyen, where the Court of Appeal provided guidance as to factors to consider when determining the “criminality” of a burglary charge. Gault J said for the Court:19

[17]It is necessary in every case to assess the criminality of the particular offending. As we said in Mako, with reference to aggravated robbery, it is necessary to consider the combination of factors surrounding the offending conduct. In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[18]The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.

[19]Organisation of groups or rings for the purpose of a business in the theft and sale of goods is a factor which will increase criminality.

16     Police v Stridom, above n 1, at [8].

17 At [12].

18     Arahanga v R, above n 10, at [78].

19     R v Nguyen CA110/01, 2 July 2001 at [17]–[19].

[24]      Mr Stone also referred to the following authorities to assist with determining whether the sentence was manifestly excessive:

(a)Van Wyk v Police:20 This involved five charges of burglary of houses under construction. The District Court Judge identified the risk of confrontation was low given the house was still under construction.21 A starting point of 18 months was adopted, which was upheld on appeal.

(b)Graham v Police:22 This involved one charge of burglary of a dwelling- house. The District Court Judge adopted a starting point of two years after considering the following factors: the interior of the property had been vandalised; the offenders had consumed alcohol and methamphetamine prior to the offending; the burglary had occurred at night; and items of high value had been taken.23 The sentence was quashed, but the High Court held the Judge was entitled to take a starting point of two years’ imprisonment.

[25]The following authorities also assist in assessing an appropriate starting point:

(a)R v Sherlock:24 This involved three burglaries of residential properties with a total value of $45,000. The offending was within two months of the defendant’s release from prison. The sentencing judge adopted a starting point of four years. This was upheld on appeal.

(b)Borthwick v Police:25 This involved three charges of burglary of residential properties. All the burglaries took place during the day. The victim was at home on one of the occasions. There was no forced entry,

20     Van Wyk v Police [2018] NZHC 2858

21 At [4].

22     Graham v Police [2016] NZHC 1696.

23 At [10].

24     R v Sherlock [2008] NZCA 555.

25     Borthwick v Police [2014] NZHC 2772.

but items were stolen to the value of over $3000. A starting point of 18 months’ imprisonment was upheld on appeal.26

(c)McFall v Police:27 This involved two charges of burglary. Both charges arose from burglaries committed during the day with items of value taken. On both occasions the defendant had smashed a window to gain entry. The District Court Judge adopted a starting point of two years, six months’ imprisonment.28 On appeal, the High Court replaced the starting point with one year, nine months’ imprisonment taking into account there were two burglaries, both of which were domestic properties; the risk of confronting the occupants; the fact the burglaries happened during the day; and the nature of the items taken.29

(d)Stepanicic v R: This involved two charges of burglary of residential premises. Both burglaries took place at night when the victims were home. Items stolen included clothing, keys, wallets and electronics and the victim impact statements reveal there was a significant effect on the peace of mind of the occupants. On appeal the High Court held the appropriate starting point was two years’ imprisonment.30

[26]      Mr Stone submitted that the circumstances of this case suggested a starting point of only two years. Mr Stuart accepted that two years six months used by the Judge was on the high side, or top end of the available range. But he argued that the first burglary alone would have been sufficient to justify a two year starting point given the premeditation, the organised nature of the offending, Mr Stridom’s key role reflected in his sale of the stolen goods, and the value of the stolen goods. The subsequent similar offending justified the two and a half year starting point, or at least brought it within that range.

26 At [28].

27     McFall v Police [2015] NZHC 2095.

28 At [11].

29 At [32].

30     Stepanicic v Police [2017] NZHC 1882 at [9].

[27]      There was some debate on the respective roles of Mr Stridom and Ms Brown in the offending. Whilst Mr Stridom’s sale of the stolen property might suggest a more significant role, it is noteworthy that Ms Brown was sentenced for additional burglary charges, including charges occurring before the offending involved here. It seems to me, therefore, that Mr Stridom and Ms Brown should be treated as having an equivalent role.

[28]      Given the relevant circumstances and the general pattern of previous cases, in my view a starting point of two and a half years was too high. In the present case, the offending took place during the day. The occupants were not at home and there was no forced entry. On the other hand, the properties were residential and the combined value of the items taken in the burglaries was significant, valued at over $20,000. I accept the submission of Mr Stone that the offending here was a coordinated series of offences by the same offenders. Mr Stridom had a key role as he drove the vehicle to the target neighbourhoods and appears to have acted as “lookout” in waiting outside or at the car for Ms Brown on both occasions.

[29]      It is my view that the present case is equivalent to McFall and Stepanicic, but more serious than Borthwick and McCall. I consider a starting point of two years is appropriate. The starting point adopted by the Judge was too high, and is likely explained by his error in relation to the number of burglary charges involved.

EM bail period

[30]      The Judge also erred in the calculation of the amount of time spent on EM bail. Mr Stridom spent 34 weeks (7 and a half months) on EM bail. Judge Adeane reduced the sentence by three months to take account of 24 weeks spent on EM bail.31 Time spent on EM bail is a mandatory mitigating factor under s 9(2)(h) of the Sentencing Act 2002. Section 9(3A) provides a list of factors to consider when determining an appropriate reduction for EM bail:

(3A)In taking into account that the offender spent time on bail with an EM condition

under subsection (2)(h), the court must consider—

31     Police v Stridom, above n 1, at [12].

(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.

…

[31]      Again it is appropriate to  consider  the  deduction  that  should  be  given.  Mr Stone submits that a reduction closer to the time actually spent on EM bail should be allowed. This submission is not in line with the authorities. The reduction should not be the equivalent on the time spent on EM bail,32 nor is it a mathematical formula.33 An evaluative assessment of all the circumstances is required.34 In view of these authorities I also do not accept Mr Stuart’s suggestion to use the conversion factor adopted by the Judge (i.e. halve the amount of time spent on EM bail to get the reduction period).

[32]      Some assistance can be derived from previous cases, although the particular facts and circumstances are clearly critical to the evaluation. In Schuster v R the Judge gave a reduction of 3 months to account for eight months spent on EM bail with “stringent conditions”.35 In Beckham v R, a reduction of six months was given for an eight month 24-hour EM bail.36

[33]      Mr Stridom spent just short of eight months on EM bail. The pre-sentence report says Mr Stridom has complied with all requirements and restrictions of his EM bail conditions. He was only entitled to absences from his address for the following reasons: appointments with legal counsel; medical appointments; Work and Income appointments; programme counselling treatment; any government community probation appointments. He was also not allowed to invite any person onto the

32     R v Faisandier CA185/00, 12 October 2000 at [30].

33     R v Tamou [2008] NZCA 88 at [19].

34     R v Tamou, above n 33, at [19]; Keown v R [2010] NZCA 492 at [12]; and Rangi v R [2014] NZCA 524 at [10].

35     Schuster v R [2011] NZCA 343 at [7] and [12].

36     Beckham v R [2013] 1 NZLR 613.

property and in particular to have no contact with Ms Brown either directly or indirectly.37 In these circumstances I consider a reduction of five months is appropriate. Again that is materially higher than the three months adopted by the Judge.

Countervailing considerations

[34]      These errors by themselves do not mean that the sentence was manifestly excessive. As indicated the focus is whether the offence was within an available range rather than the exact process by which it was reached.

[35]      In that context there are two countervailing considerations that suggest that factors considered by the Judge could have resulted in a longer sentence.

Uplift for other offending

[36]      First, the error made by the Judge in concluding that there were three burglary charges also means that the theft charge was not taken into account by him when determining the uplift for other offending.

[37]      The Judge uplifted six months for one charge of receiving over $1000 and one charge of unlawful taking of a motor vehicle. He uplifted a further two months for the other offending (two fraud charges, one charge of driving while disqualified, one charge of possession of knives and one charge of possession of methamphetamine pipes). Given the Judge was mistaken as to the number of burglary charges, a further uplift for theft between $500–$1000 was also required.

[38]      Mr Stone argues the total uplift of eight months for further offending was excessive. He submits “when considered in totality” an uplift of six months was the most that could be justified. Mr Stuart submits that, for this combination of offending, the uplift could have been closer to 12 months’ imprisonment. Mr Stuart argues the two month uplift in relation to the fraud and driving whilst disqualified charges was “appropriate in order to account for totality”. He provided authorities for guidance on

37     Police v Stridom [2019] NZDC 27398 [EM bail decision].

uplifts. They included uplifts for receiving (R v Lasike and Ellis v R),38 unlawfully taking a vehicle (Gideon v Police and R v Rolleston),39 driving while disqualified (Candler v Police),40 and fraud (Horrell v Police and Doctor v Police).41

[39]      These authorities seem to me to be of limited use given the holistic nature of the assessment undertaken by the Judge. Instead I estimate that if the Judge had correctly included the charge for theft, the uplift would have been a further two months

— a total uplift of 10 months. I consider this proportionate to the gravity of overall offending.42

Discount for guilty plea

[40]      The second feature is that the Judge allowed a 25 per cent discount for       Mr Stridom’s guilty plea.

[41]      As Mr Stuart submitted, whilst there were some guilty pleas entered early by Mr Stridom, the majority were not with the guilty pleas for the most serious charges being entered 195–200 days after the first appearance, and in the week before trial. I recognise that the third burglary charge was only amended to be a theft charge at this stage, and that the District Court had not given a sentencing indication at a prior stage. Nevertheless in the circumstances a discount of 25 per cent seems to me to be too high. A discount of 20 per cent seems more appropriate.

Was the end sentence manifestly excessive?

[42]Given all the above considerations, I calculate the proper sentence as follows:

(a)Starting point: two years imprisonment;

(b)Uplift of eight months for receiving, theft, and unlawful taking of a motor vehicle;

38     R v Lasike, HC Auckland CRI-2004-44-7103, 7 September 2006; and Ellis v R [2012] NZCA 513.

39     Gideon v Police [2014] NZHC 1065; and R v Rolleston [2018] NZHC 2656.

40     Candler v Police [2018] NZHC 1414.

41     Horrell v Police [2016] NZHC 820; and Doctor v Police [2017] NZHC 1084.

42     Sentencing Act 2002, s 85(2).

(c)Uplift of two months for other offending (fraud charges, possession of knives, and possession of methamphetamine pipes);

(d)20 per cent guilty plea discount;

(e)Further reduction of five months to take account of 34 weeks spent on EM bail.

[43]      This results in an end sentence of one year 10 months. This is only three months shorter than the sentence of two years one month imposed by the District Court. Given the focus on the end sentence, is that difference sufficient to show that the sentence imposed was manifestly excessive?

[44]      In the circumstances of this case I have concluded that it is. There were two errors in the sentencing decision that resulted in the sentence being higher than it should have been. Whilst the countervailing considerations reduce the impact of those errors to only a three month period, that three month period takes the ultimate sentence within the range where home detention could be imposed.

[45]      On the question of home detention there is a suggestion that the Judge may not have been in favour. He said:43

[9]        Obviously with sentencing falling in the range to which I have referred, home detention is a frequent topic in sentencing of this kind. It is of course necessary that the sentence be two years' imprisonment or less as an end sentence before that can be entertained, but there are other interests including the safety of the community and denunciation and deterrents of certain categories of offending which all have their place in the calculation.

[10]      Mr Stridom has been on bail for a long time. He has largely performed adequately. He has favourable family circumstances, but in the context of those, he is an underachiever whose future in the community brings as many questions as it does assurances and answers.

[46]      It seems to me, however, that home detention was an appropriate sentence in the present case. Home detention is available if the court would otherwise sentence the offender to a short-term sentence of imprisonment (defined under s 4(1) of the Parole Act 2002 as a sentence of 24 months or less) under s 15A(1)(b) of the

43     Police v Stridom, above n 1.

Sentencing Act 2002. There is no presumption in favour of home detention being imposed.44 It is ultimately a matter of discretion and an “evaluative assessment of all the circumstances” is required.45

[47]      It is my view that a sentence of home detention is appropriate in this case. This conclusion is based on the following factors:

(a)Mr Stridom has not previously served a sentence of imprisonment, and has a relatively limited criminal record with 12 previous convictions. These convictions represent small scale offending, including one conviction for breach of community work; driving while disqualified; exceeding blood alcohol limit; breach of local liquor ban and theft ex car. They also mainly took place some time ago (2006–2008) except for offending relating to driving while disqualified in 2011 and 2017.

(b)Mr Stridom has complied with all conditions of his EM bail. This demonstrates he is likely to comply with a sentence of home detention.

(c)The home detention conditions while being on EM bail appear to have addressed the methamphetamine problems that may have had a significant influence on Mr Stridom committing the offending in the first place. The fact that Mr Stridom has been stabilised by these conditions suggest that their continuation will assist in successful rehabilitation.

(d)The nature of the leading burglary charges was at the lower end of a scale of seriousness. While the property stolen was high value, there was a small chance of encountering the occupants and the burglaries happened during the day.

(e)The pre-sentence report recommended a sentence of community detention and assessed his likelihood of re-offending at medium, but

44     R v Stacey [2002] NZCA 465 at [21].

45     R v Risschop [2008] NZCA 229 at [18]–[19].

his risk at harm towards others as low with no previous violent offending convictions. As to the charge for possession of a knife in a public place, this was not during the burglaries but on a separate occasion and Mr Stridom advised this was not for protection but “handy” to have.

[48]      I also note that Ms Brown received a sentence of home detention, although I do not accept Mr Stone’s arguments based on the desirability of parity in sentencing. There are material differences between Ms Brown and Mr Stridom, including circumstances that were personal to her.

[49]      It seems to me that a sentence of home detention is appropriate to address   Mr Stridom’s circumstances. He has not previously served a term of imprisonment. He is clearly in danger of engaging in conduct that could lead him to offending leading to terms of imprisonment. In a sense the sentence of home detention may be a last opportunity for him to avoid this being his future. In my view he should be given the opportunity to avoid that course.

[50]      Bearing in mind the calculated sentence of one year 10 months it seems to me that a starting point of 11 months home detention is appropriate. There is, however, one additional factor. Mr Stridom served one month on remand before being granted EM bail, and he has also served approximately one month of the sentence imposed by the District Court. This time is not taken into account in imposing the sentence, and neither will it be part of the calculations conducted in relation to an offender serving prison time. I accept Mr Stone’s submission based on Longman v New Zealand Police that these periods of imprisonment need to be taken into account when imposing the period of home detention.46 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.

46     Longman v New Zealand Police [2017] NZHC 2928 at [8].

Conclusion

[51]      For these reasons it seems to me that the errors made by the Judge have led to a manifestly excessive sentence as a sentence of nine months’ home detention should now be imposed rather than a sentence of two years one months’ imprisonment.

[52]      Accordingly the appeal is allowed and a sentence of nine months’ home detention is imposed in substitution for the sentence of two years and one months’ imprisonment. The orders for reparation imposed by the District Court Judge are to remain. The special conditions of home detention are:

(a)To attend an assessment for alcohol and drug counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(b)Undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.

(c)To reside at the specified address and not move to any new residential address without the prior written approval of a Probation Officer.

Cooke J

Solicitors:

Souness Stone Law Partnership, Hasting for Appellant Crown Solicitor, Napier for Respondent