Wallace v Police

[2020] NZHC 1280

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000040

[2020] NZHC 1280

BETWEEN

CLINTON NORMAN WALLACE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 June 2020

Appearances:

L Herbke for the Appellant

A S C Alcock for the Respondent

Judgment:

10 June 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 10 June 2020 at 3:30 pm.

Registrar/Deputy Registrar Date:

WALLACE v NEW ZEALAND POLICE [2020] NZHC 1280 [10 June 2020]

Introduction

[1]    The appellant, Clinton Norman Wallace, was sentenced to 16 months’ imprisonment in the Hamilton District Court after pleading guilty to a range of charges. Leave was granted for him to apply for home detention if a suitable address became available. That occurred and Mr Wallace was re-sentenced by a different Judge to a term of six months’ home detention.

[2]    He appeals that sentence on the grounds that it was not discounted for the time he spent on custodial remand.

District Court decision

[3]    Mr Wallace was remanded in custody on 30 September 2019 following his arrest. He remained in custody until his sentencing on 16 December 2019 before Judge J C Down in the Hamilton District Court.1

[4]    The Judge sentenced Mr Wallace to 16 months’ imprisonment. The sentence was comprised as follows:

Offence	Act	Maximum penalty	Sentence
Burglary	Crimes Act 1961, s 231	10 years’ imprisonment	12 months’ imprisonment
Unlawfully takes motor vehicle	Crimes Act 1961, s 226	Seven years’ imprisonment	Four months’ imprisonment (cumulative)
Unlawfully takes motor vehicle	Crimes Act 1961, s 226	Seven years’ imprisonment	Four months’ imprisonment (concurrent)
Theft ($500 to $1000)	Crimes Act 1961, s 223(c)	One year’s imprisonment	Four months’ imprisonment (concurrent)
Theft (under $500)	Crimes Act 1961, s 223(d)	Three months’ imprisonment	Two months’ imprisonment (concurrent)

1      Police v Wallace [2019] NZDC 25500.

Offence	Act	Maximum penalty	Sentence
Offensive use of telephone	Telecommunications Act 1987, s 112	Three months’ imprisonment or fine not exceeding $2000	One month’s imprisonment (concurrent)

[5]    At 16 months, the sentence meets the definition of a short-term sentence.2 Under s 86(1) of the Parole Act 2002 (“the Act”) Mr Wallace would only have to serve eight months of that sentence. He had already served approximately two-and-a-half months’ imprisonment before his sentencing. Accordingly, he would have been released in June.

[6]    Mr  Wallace  was  also  granted  leave  to  apply  for  home  detention.   On  19 February 2020, Judge T R Ingram commuted his remaining sentence to six months’ home detention at Gracegate. The effect of that re-sentencing is that Mr Wallace’s sentence of home detention will end in August; that is two months more than if the original sentence had remained.

Approach to appeal

[7]    I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.3 The focus is on the sentence imposed, rather than the process by which it is reached.4 Although the sentence does not need to be ‘manifestly excessive’, this is a helpful concept when assessing the seriousness of the error.5

Submissions

Appellant submissions

[8]Mr Herbke, for Mr Wallace, submitted that Judge Ingram erred when he stated:

“you have now served two months of your sentence.”

2      Parole Act 2002, s 4(1).

3      Criminal Procedure Act 2011, s 250.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5 At [35].

[9]    In fact he had at that point also spent two-and-a-half months on custodial remand. This is supported by s 90(1) of the Act:

“For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender’s statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.”

[10]   As a result, Mr Herbke submitted that the sentence imposed was manifestly excessive. He claimed that had Mr Wallace known that the release date of home detention would exceed the release date of imprisonment,6 he would not have elected to apply for home detention.

[11]   Mr Herbke suggested that this was a calculation error or omission rather than Judge Ingram specifically turning his mind to imposing a longer sentence of home detention on a principled and reasoned basis. Mr Herbke submitted that while Gracegate provides a supportive living environment with some rules that residents must observe, it is not a rehabilitative centre with dedicated rehabilitative programmes. Thus, the longer sentence was not justified by Mr Wallace needing to complete an intensive rehabilitative course.

Crown submissions

[12]   Ms Alcock, for the Crown, accepted that at the time Mr Wallace was sentenced by Judge Ingram he had served two months’ imprisonment of Judge Down’s sentence but he had also spent over two months in pre-sentence detention. However, the Crown says the method of calculation is a matter of judicial discretion and in any event the end sentence was not manifestly excessive.

Discussion

[13]   The orthodox approach in converting a sentence of imprisonment to home detention is to halve it, as an offender is generally eligible for release half way through their prison sentence. However, this convention is not prescribed by legislation.7 The

6      See Parole Act 2002, s 86(1).

7      R v Bisschop [2008] NZCA 229.

proper approach is an evaluative assessment of all the circumstances.8 Section 80K(6) of the Sentencing Act 2002 requires the Court to take into account the portion of the original sentence that is yet to be served at the time the sentence is converted to one of home detention.

[14]   The discrepancy here is a matter of two-and-a-half months. The Court will not interfere with a sentence where it would amount to tinkering. However, the Court has in the past quashed a home detention sentence and replaced it with a relatively shorter sentence to take into account “time served”.9

[15]   This approach may be contrasted with cases where the Judge has specifically considered s 80K(6) but nonetheless imposed a sentence of home detention which exceeded half the time.10 I am satisfied that Judge Ingram intended to adopt the halving convention but was not alerted to the correct position by either the prosecutor or Mr Wallace’s counsel (who was not Mr Herbke). Denied of the true position it is unsurprising the Judge understated the time Mr Wallace had, by that point, been in custody. It thus follows I am satisfied that the Judge was led into error. As a consequence, s 250(b) of the Criminal Procedure Act 2011 requires me to consider whether a different sentence should be imposed.

[16]   I have considered whether, notwithstanding the error, the sentence should stand. There are aspects of the offending, particularly the burglary and the theft of the laptop, which are troubling and might have justified a longer sentence of home detention. Mr Wallace abused the trust others placed in him. He exploited their goodwill and generosity of spirit in order to steal from them to support his methamphetamine addiction. The owner of the laptop made a victim impact statement. She described how the loss of the device, on which she had stored photographs of her late partner, had affected her. She has needed medical intervention. She said she could not stop crying; that she panicked over how her daughter would cope with the news that her last visual links with her father had been lost. This deep sense of loss was aggravated by the actions of Mr Wallace who the victim described as “taunting” her

8 At [18].

9      Kopa v Police [2017] NZHC 1244; Wilson v Police [2018] NZHC 1352; Tasi v Police [2019] NZHC 2186; Baillie v Police [2020] NZHC 155.

10     Henry v Police [2018] NZHC 394 at [35].

by agreeing to recover the laptop but taking no steps to do so and threatening her via text messages. Ultimately  the  laptop  was  recovered  through  the  assistance  of  Mr Wallace’s family.

[17]   Against these negative factors, the pre-sentence report is generally positive. While it recorded some sense of “self-entitlement” on Mr Wallace’s part, it also revealed a degree of insight and expressed some optimism that Mr Wallace, despite his lengthy criminal history, may be turning a corner.

[18]   However, I cannot overlook the self-evident truth that had Mr Wallace known that the re-sentencing would have the unintended effect of him actually spending more time in custody than if he had continued his sentence of imprisonment, he would not have applied to be re-sentenced. He would have been released on 30 May 2020. That is compelling in my view.

[19]   In order to prevent further injustice I am satisfied the original sentence of home detention should be quashed with immediate effect and a sentence of three-and-a-half months’ home detention imposed, based on a “rough and ready” calculation of the time served. That should have the effect of an immediate release. I am satisfied the post- release conditions should remain intact.

Result

[20]The appeal is allowed.

[21]   The sentence of six months’ home detention is quashed and substituted with a sentence of three-and-a-half months’ home detention.

Moore J

Solicitors:

Mr Herke, Auckland Crown Solicitor, Hamilton