Vakapora v Police
[2022] NZHC 493
•18 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000034
[2022] NZHC 493
BETWEEN NGAMARE VAKAPORA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 March 2022 Counsel:
DP Nairn for Appellant
BA Mugisho for Respondent
Judgment:
18 March 2022
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 18 March 2022 at 1 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau. DP Nairn, Auckland.
VAKAPORA v POLICE [2022] NZHC 493 [18 March 2022]
The appeal
[1] Ngamare Vakapora received a sentence of five months’ home detention. Mr Vakapora contends the sentence is manifestly excessive because the Judge failed to adequately take into account the time he spent: (a) in custody, before sentencing; and (b) on electronically monitored bail.
[2]The law in relation to (a) is in something approaching flux.
Principle
[3] An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.1
Background
[4]Mr Vakapora committed several offences.
[5] On 5 July 2020, he drove while unlicensed. Five days later, he failed to answer Police bail for that offence. In the early hours of 16 August 2020, Mr Vakapora and two others went into a 24-hour laundromat. There, the defendants smashed a hole in the wall surrounding a money change machine. The defendants removed the machine and put it into a getaway vehicle. It was worth $12,000 and contained approximately
$10,000 (in coins). Three days later, Mr Vakapora was a passenger in a car stopped by Police. He had a methamphetamine pipe, 1.1 grams of cannabis and two .22 calibre bullets. (The driver had a .22 calibre pistol.) Overnight 20 November 2020, Mr Vakapora and another burgled a home in South Auckland. The pair stole items worth between $200–$300.
[6] Mr Vakapora was sentenced 18 January 2022 for: driving while unlicensed; failing to answer Police bail; two offences of burglary; possession of cannabis; possession of a methamphetamine pipe; and unlawful possession of ammunition.2
1 Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.
2 Police v Vakapora [2022] NZDC 554.
[7] Judge K Tan adopted a starting point of 28 months’ imprisonment on the two burglary offences; added nothing for the remaining charges; then discounted the sentence by 25 percent for Mr Vakapora’s guilty pleas and remorse. This left a notional sentence of 21 months’ imprisonment, or 10 and a half months’ home detention.
[8] Mr Vakapora had been in custody for a little over eight months. He also spent six months on electronically monitored bail. About these, the Judge said:3
I then turn my mind as to whether I should give you any credit for the time that you spent on remand in custody and your lawyer emphasises the time that you spent on EM bail. I am less inclined to give you a significant credit on the EM bail, but in terms of the time that you spent on remand, there should be a credit for you in relation to that. In terms of the 10 and a half months, I take off a further five and a half months, which leaves you with a final sentence of home detention of five months.
The case for Mr Vakapora
[9] On behalf of Mr Vakapora, Mr Nairn contends s 90 of the Parole Act 2002 required the Judge to deduct the time on remand: 8.25 months. Mr Nairn argues the same section meant the deduction was necessarily 8.25 months, leaving a home detention sentence of 2.25 months. From this “balance”, Mr Nairn submits the Judge should have made a further discount for time on electronically monitored bail, leaving either a very short sentence of home detention or no sentence at all.
Analysis
[10] I begin with the easy aspect of the appeal. Section 90 of the Parole Act did not require the Judge to do anything for the simple reason it did not apply to the case. Section 90 is concerned with the administration of prison sentences, and more particularly, how time on remand is calculated in relation to a sentence of imprisonment. This is the responsibility of the Department of Corrections.
[11] Section 90 needs to be understood in context with s 82 of the Sentencing Act 2002. Section 82 precludes a Court from taking into account time on remand when determining the length of a sentence of imprisonment. This Parliamentary command exists because time on remand is administratively deducted
3 Police v Vakapora, above n 2, at [17].
from a sentence of imprisonment. Again, this is the responsibility of the Department of Corrections.
[12] A sentence of home detention is not a sentence of imprisonment, and no legislative provision determines what effect time on remand has on a sentence of home detention. Therein lies at least a part of the problem—the issue has fallen to the Courts to determine.
[13] The problem is arguably compounded by the Sentencing Act. As its name implies, the Sentencing Act governs the imposition of terms of imprisonment and home detention. A home detention sentence is only available if the defendant would receive a sentence of or less than 24 months’ imprisonment.4 But, the maximum length of a home detention sentence is 12 months.5 So, if a Court is minded to impose a two-year term of imprisonment, but also minded to substitute a home detention sentence because the defendant has, say, good rehabilitative prospects, the maximum sentence is 12 months’ home detention. Necessarily then, when imposing home detention, a Court must halve the term of imprisonment to reach the corresponding term of home detention. So, in this context, two months of imprisonment equals one month of home detention. For ease of reference, I call this “two equals one”.
[14] This leaves open what should be done if the defendant has been in custody before a sentence of home detention is imposed. Consistent with what I have said above, one approach is to halve the remand period and deduct it from the term of home detention, on the basis two equals one here also.
[15] Other approaches are also possible. An argument could be made that every month on remand should be the equivalent of a month of home detention because if the sentence were not commuted to home detention, the administrative deduction would see a one-for-one deduction. And, this should follow through to a sentence of home detention because such a sentence is a substitute for imprisonment, it being
4 Sentencing Act 2002, s 15A.
5 Section 80A(3).
available only when the defendant would receive a sentence of imprisonment.6 I call this approach “one-for-one”.
[16] The one-for-one approach was advocated as mandatory in the leading case of Kidman v R.7 Mr Kidman received a sentence of 10 and a half months’ home detention. He argued the Judge failed to properly discount his six months on remand. More particularly, Mr Kidman argued the Judge should have treated every remand month as equivalent to a month of home detention, meaning the Judge should have deducted six months from the sentence.
[17] As will be apparent, Mr Kidman’s argument was essentially that now raised by Mr Vakapora.
[18] The Court of Appeal rejected the argument for three reasons. First, it considered if Parliament had intended this approach, it would have legislated accordingly.8 Second, the approach could operate “to the disadvantage of convicted persons”.9 Third, it considered “a more evaluative approach”10 consistent with that in an analogous area, discount for electronically monitored bail; and a better fit for the sentence of home detention, which the Court said had “a distinctly rehabilitative component to it”.11
[19] However, the Court allowed the appeal and remitted the sentence to the District Court for consideration as Mr Kidman had also been on bail while awaiting the outcome of the appeal. That too needed to be considered.
[20] Before moving on, it is important to be clear what Kidman holds. Kidman holds something in the nature of an evaluative approach is required, without identifying with particularity what that involves. Moreover, Kidman rejects one-for- one, but only as a mandatory approach. The Court did not hold one-for-one should never be employed.
6 Sentencing Act, s 15A(1)(b).
7 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.
8 At [15].
9 At [15].
10 At [16].
11 At [16].
[21] In Laloni v R, the defendant argued the sentencing Judge failed to consider his time on remand and electronically monitored bail when imposing 10 and a half months’ home detention.12 He urged the Court of Appeal to deduct three months from the sentence. The Court declined to do so, saying “we did not consider this appropriate”.13 Instead, the Court deducted three months from the term of imprisonment that was to be converted to home detention—21 months—leaving a notional sentence of 18 months’ imprisonment, hence a nine-month term of home detention. The appeal was allowed, and a nine-month home detention sentence substituted.
[22] The Court’s approach appears consistent with two-equals-one and its earlier decision in Kidman, but that case was not cited. Moreover, on close reading, the Court’s methodology remains unclear. The defendant had been on remand for nine months, yet the deduction was three months, not four and a half months.
[23] This brings me to Longman v Police.14 Adam Longman received a sentence of seven months’ home detention. He too argued the sentencing Judge failed to adequately provide for time on remand and electronically monitored bail. The District Court settled on a sentence of 20 months’ imprisonment, which necessarily, it converted to 10 months’ home detention. The Court then deducted three months for time on remand and electronically monitored bail.
[24] Simon France J held the correct approach to Mr Longman’s remand time was one-for-one. The Judge said:15
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
12 Laloni v R [2015] NZCA 55.
13 At [14].
14 Longman v Police [2017] NZHC 2928.
15 At [9]–[10] (footnote omitted).
Booth v R where the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences.
In terms of the timing when this matter is to be considered, s 82 of the Sentencing Act and s 90 of the Parole Act 2002 amount to a legislative direction that a court is to disregard time served where the ultimate sentence is imprisonment. Logically, therefore, consideration of credit for time served only arises once a decision is reached that the sentence will be home detention. At that point the Court is freed from the legislative constraint because the time is no longer automatically credited.
[25] These views command respect. However, the Supreme Court’s decision in Booth v R was concerned with the effect of pre-sentence detention on a sentence of imprisonment.16 More particularly, Booth was concerned with the interpretation of s 90 of the Parole Act; a provision not engaged here. Furthermore, Longman does not cite Kidman or Lanoli. It is not obvious, therefore, why “the default position is that full credit should be given”.17
[26] Mr Mugisho for the respondent helpfully identified other developments in careful submissions. In the recent decisions of Williams v R18 and Diaz v R,19 the Court of Appeal employed one-for-one, albeit with little discussion. In neither did the Court refer to its earlier decisions in Kidman or Laloni.
[27] Unsurprisingly then, some High Court judgments use two equals one; others, one-for-one. Cooke J gathered examples of each in R v Tai.20 Grice J’s decision in Wharrie v R is notable for preferring two equals one.21 Her Honour said, “As home detention is typically half of the equivalent prison sentence, it is therefore consistent to allow half of the prison time served to be factored into the final sentence”.22
[28] I respectfully agree with Grice J, especially as Kidman specifically rejects one-for-one, at least as a mandatory approach. And, as observed, Booth is not on point.
16 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
17 Longman v Police, above n 12, at [9].
18 Williams v R [2021] NZCA 535.
19 Diaz v R [2021] NZCA 426.
20 R v Tai [2021] NZHC 2769.
21 Wharrie v R [2019] NZHC 633.
22 At [32].
[29] Unlike remand time in the context of home detention, statute addresses discounts for time on electronically monitored bail. Section 9(2)(h) of the Sentencing Act requires a Court to consider time spent on electronically monitored bail, which it calls EM bail. Section 9(3A) of the same Act requires the Court to consider:
(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.
[30] The Court of Appeal has consistently held discount for electronically monitored bail is “an evaluative decision”, not an arithmetical exercise.23 Percentages “ranging between 30 and 50 percent are often used, and … an allowance of up to 50 percent is not uncommon”.24
[31] This brings us to Judge Tan’s treatment of these issues. For ease of reference, I repeat what she said, with annotations for Mr Vakapora’s time on remand and bail:25
I then turn my mind as to whether I should give you any credit for the time that you spent on remand in custody [8.25 months] and your lawyer emphasises the time that you spent on EM bail [six months]. I am less inclined to give you a significant credit on the EM bail, but in terms of the time that you spent on remand, there should be a credit for you in relation to that. In terms of the 10 and a half months, I take off a further five and a half months, which leaves you with a final sentence of home detention of five months.
[32] Because the Judge made a global discount, that given for each time species cannot be known. Plainly, however, the Judge did not employ one-for-one. If her Honour employed two equals one for the custodial remand, the bail discount is approximately one and a half months. What then of error?
23 Paora v R [2021] NZCA 559 at [45].
24 At [53].
25 Police v Vakapora, above n 2, at [17].
[33] I am not persuaded the Judge erred in relation to the discount for time on remand. This appears to have been four months, which is about right using two equals one. What I said earlier about this topic is applicable here too. I do not repeat it.
[34] The discount for time on electronically monitored bail appears a little severe though (25 percent). There is nothing to suggest Mr Vakapora failed to comply with the conditions of electronically monitored bail. If he had, the Department of Corrections would presumably not have recommended home detention as the appropriate sentence—which it did in the pre-sentence report. But, the conditions of Mr Vakapora’s electronically monitored bail remain elusive. I do not know whether his curfew was for 24 hours or some lesser period. So, I know nothing about “the relative restrictiveness” of his bail.26
[35] Out of caution, I assume error in relation to this discount and ask, is the sentence manifestly excessive? I make four points.
[36] First, there is no complaint about the starting point of 28 months’ imprisonment for the burglary offences. This impresses as about right, subject to [38].
[37] Second, the Judge added nothing for Mr Vakapora’s possession of two .22 calibre bullets. In Wharerau v Police, the defendant had two .375 rounds of magnum ammunition in his pocket.27 A starting point of six months’ imprisonment was upheld on appeal.28
[38] Third, Mr Vakapora committed both burglary offences while on bail. This is a mandatory aggravating factor under s 9(1)(c) of the Sentencing Act, yet the Judge did not increase the sentence for this aspect.
[39] Fourth, it follows the global starting point ought to have been higher by several to six months. Assuming it was, say, 32 months, and assuming the Judge made the same deduction for pleas and remorse (totalling 25 percent), this leaves a notional sentence of 24 months imprisonment, or 12 month’s home detention, subject only to
26 Sentencing Act, s 9(3A)(b).
27 Wharerau v Police [2017] NZHC 72.
28 Albeit recognised as top of the range; see [14].
the discounts complained of. Expressed another way, a sentence of five months’ home detention for two offences of burglary (committed on bail), unlawful possession of ammunition and other offences, is, on any view, not manifestly excessive even allowing for differing opinions about both complained discounts.
[40] Mr Nairn strongly resisted this conclusion. He argued it was not open to the Court to examine the sentence this way because Mr Vakapora had “focussed” on particular discounts in bringing the appeal. This argument is answered by s 250 of the Criminal Procedure Act 2011, which permits a sentence appeal to be allowed only if there is both error and a different sentence should be imposed. The argument is also answered by innumerable cases in which appeals have been dismissed despite the presence of error, because the ultimate sentence was not manifestly excessive. The Court of Appeal has made clear s 250 maintains this approach.29 In short, the overarching concern in a sentence appeal is whether the sentence is too severe (or too lenient), not how it was composed. It follows an appellant cannot confine a Court’s examination to the area he or she considers important.
[41] Mr Nairn also argued if the appeal were dismissed, defence lawyers would need to think carefully about how they advised their clients in relation to a sentence of home detention following a long custodial remand. Mr Nairn said some defendants may prefer a sentence of imprisonment given the administrative deduction of time served (on a one-for-one basis).
[42] I think this unlikely. Mr Vakapora’s circumstances are a useful illustration. If Mr Vakapora had said to the Judge he wanted a sentence of imprisonment rather than home detention, that sentence would have been 21 months. The Department of Corrections would have deducted 8.25 months as time served. So, the effective sentence would have been 12.75 months’ imprisonment. Instead, Mr Vakapora received a sentence of five months’ home detention.
29 Tutakangahau v R, above n 1.
Result
[43]The appeal is dismissed.
……………………………..
Downs J
12
8
0