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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wallace v Police

Details

AGLC: Wallace v Police [2020] NZHC 1280
Case: [2020] NZHC 1280
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Clinton Norman Wallace appealed against his sentence of six months' home detention imposed by Judge T R Ingram in the Hamilton District Court. Wallace had previously been sentenced to 16 months' imprisonment, which would have resulted in his release in June, but he was re-sentenced to six months' home detention which would result in his release in August. Wallace argued that the sentence should have been discounted for the time he spent on custodial remand, which amounted to over two months. The Crown accepted that Wallace had served over two months in pre-sentence detention but argued that the method of calculation was a matter of judicial discretion.

Moore J held that the orthodox approach in converting a sentence of imprisonment to home detention was to halve it, as an offender is generally eligible for release halfway through their prison sentence. However, the proper approach was an evaluative assessment of all the circumstances. Judge Ingram intended to adopt the halving convention but was not alerted to the correct position by either the prosecutor or Wallace's counsel. It followed that Judge Ingram was led into error, and s 250(b) of the Criminal Procedure Act 2011 required Moore J to consider whether a different sentence should be imposed. Moore J found that 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. The post-release conditions should remain intact.

The appeal was allowed. The sentence of six months' home detention was quashed and substituted with a sentence of three-and-a-half months' home detention.

Orders