Ware v Police

[2021] NZHC 3320

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-44

[2021] NZHC 3320

BETWEEN

RHYS WARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 December 2021 (VMR)

Counsel:

P J Mooney for Appellant

J M Marinovich for Respondent

Judgment:

6 December 2021

JUDGMENT OF ELLIS J

[1]    On 11  October  2021,  Mr  Ware  was  sentenced  in  the  District  Court  to 10 months’ home detention, after pleading guilty to one charge of burglary on the first day of his trial.1 He now appeals that sentence.

[2]    Appeals against sentence are governed by s 250 Criminal Procedure Act 2011. Such an appeal should only be allowed if the Court is satisfied that there was an error in the sentence imposed or a different sentence should have been imposed. It is trite that, when considering if the sentence imposed is manifestly excessive, the focus is on the end result, not the process by which the sentence was reached.2

[3]    In this case, the Crown accepts by the Crown that the sentencing Judge erred by not taking into account as a mitigating factor the time Mr Ware had spent on

1      Police v Ware [2021] NZDC 20136.

2      But see, for example, Ripia v R [2011] NZCA 101 at [15].

WARE v NEW ZEALAND POLICE [2021] NZHC 3320 [6 December 2021]

EM bail and by understating the time he had also spent in custody on remand. So the questions on appeal are:

(a)whether these errors resulted in an end sentence that is outside the available range; and

(b)if so, what sentence should be substituted.

Background

The offending

[4]Briefly put:

(a)on Monday 26 October 2020, between 11 am and 4.05 pm, Mr Ware

was at 17 Holford Street, Westown, New Plymouth;

(b)while one of the residents and her family were out for lunch, he gained entry to the house by breaking a bedroom window and climbing through it;

(c)once inside, Mr Warr ransacked the house, taking food, a stereo, a TV and Freeview set, a laptop, an iPhone 6, and a wallet containing a driver’s licence and two debit cards;

(d)he left the house, taking those items with him.

[5]    The cell phone and laptop have since been returned to her through someone who knew Mr Ware. The other things taken have not been recovered.

[6]Mr Ware was arrested and charged with burglary (by day, $500–$5,000).

Previous convictions

[7]    Mr Ware’s criminal history includes five convictions for burglary (three for burglary under $500, one for $500–$5,000, and one for over $5,000). Over the last

13 years he has also accrued convictions for aggravated robbery, five for shoplifting, four for receiving, eight for theft/theft ex-car, and eight for using a document for pecuniary advantage.³

The sentencing

[8]    After taking into account Mr Ware’s previous relevant convictions, the Judge adopted a starting point of 24 months’ imprisonment.4 He afforded a discount of one month for Mr Ware’s late guilty plea.  The Judge  then converted  the sentence  of  23 months’ imprisonment into one of 11 and a half months’ home detention. From that, the Judge deducted six weeks to take account of “six weeks in custody”. The end sentence was therefore 10 months’ home detention.

Relevant law

Accounting for time spent on EM bail

[9]    Under s 9(2)(h) Sentencing Act 2002 (the Act) the Court must take into account as a mitigating factor the time the offender spent on bail with electronic monitoring. And s 9(3A) provides that, in doing so, the Court must consider the length of time spent on EM bail, the relative restrictiveness of EM bail, the offender’s compliance and any other relevant matter.

[10]   The way in which the Courts comply with this obligation has been the subject of appellate discussion on a number of occasions. For present purposes I need refer only to the decision in Parata v R.5 In that case Mr Parata challenged the adequacy of a four-month credit for 10 months of restrictive EM bail. The Court of Appeal said:

[10]      Mr Tomlinson acknowledges that the credit given by Lang J is in accordance with several decisions of this Court. Those decisions indicate equivalence is not required, but a modest discount may be appropriate. However, it is submitted this approach is incorrect and should be revisited. Mr Tomlinson focuses on the parallels between the sentence of home detention (a substitute sentence for imprisonment where equivalence in terms of quantum is often recognised) and EM bail, where the conditions

3      Mr Ware has other convictions for drugs, driving, breaching court orders and violence.

4      Although not made explicit in his notes, I proceed on the assumption that the Judge adopted the 22-month starting point contended for by counsel for Mr Ware, uplifted by two months for his previous convictions.

5      Parata v R [2017] NZCA 48.

of the detention are the same as home detention but where the credit given is much less than one-for-one.

[11]      We do not agree the current approach is flawed. The correct comparison is between the circumstances of EM bail and pre-trial remand in custody. They are not the same. Without downplaying the restrictive nature of EM bail when it involves a 24-hour curfew, there are nevertheless many facilities available to a person on bail which are denied to a remand prisoner. It can be appropriate to recognise, as the law presently does, the restrictive nature of some prolonged EM bail situations but it would not be legitimate to recognise equivalence.

[12]      The legislation directs that a one-for-one credit against any resulting jail sentence be given for pre-sentence custodial remand. That is no doubt because the conditions are largely the same as post-sentence imprisonment. Parliament has not done so for EM bail. Rather, it has simply made the time spent on EM bail a mandatory consideration, something the long line of authority in this Court is consistent with.

[13]      A further factor is that care is needed to avoid potential abuse. Were equivalence to be granted for EM bail, the incentives to extend the period of bail as a means of serving a sentence cannot be ignored (for example, where the EM bail period is ultimately ended by a guilty plea).

[14]      We accept that there is considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail. However, home detention as a substitute for imprisonment is a legislative choice. It is for Parliament to alter matters if the long-established approach to EM bail is considered incorrect.

[15]      In the present case Mr Parata spent 10 months on 24-hour curfew. Credit of four months was not in our view inadequate although we accept a higher figure would not necessarily be wrong. Mr Parata’s case is not, however, helped by having on one occasion breached his conditions.

[11]              As Mr Marinovich submitted, a review of other cases suggests that the “rule of thumb” (subject to competing considerations such as non-compliance) appears to involve a 2:1 ratio—namely a sentencing discount reflecting around half the time spent on EM bail. The cases referred to by Mr Mooney also generally reflected this approach.

Accounting for time spent in custody on remand

[12]              Section 82 of the Act provides that in determining the length of a sentence of imprisonment to be imposed, the Court must not take into account any pre-sentence detention as defined in s 91 of the Parole Act 2002. But s 82 applies only when a sentence of imprisonment is to be imposed; the position is different if the sentence is

one of home detention. In that case, the Courts have taken time spent on remand into account when determining the end sentence.

Timing issues

[13]              There was some discussion at the hearing before me about the point during the sentencing exercise at which discounts for time spent on EM bail and time spent in custody should be taken into account.

[14]              Mr Mooney submitted that the discounts should be applied globally, after the decision to convert to home detention has been made, which in the present case would mean that Mr Ware’s end sentence of 10 months’ home detention should be reduced by around six months (50 per cent of the eight and a half months’ time spent on    EM bail and two months for 9 weeks in custody).

[15]By contrast, Mr Marinovich submitted that:

(a)time spent on EM bail is a mitigating factor personal to the offender which should be taken into account in the normal way in arriving at the end sentence, and—where the end sentence is one of imprisonment— before any consideration of home detention; but

(b)time spent in custody on remand should be deducted (on a more or less day for day basis) from the end home detention sentence.

[16]              Mr Mooney of course agreed with the second of these propositions, which is demonstrably correct. That is because it is only if a decision in favour of home detention has been made that there is a need for the Court to take account of time in custody. So it is only the first proposition that is contested here.

[17]              In support of his submission that time spent on EM bail should also be taken into account at this point, Mr Mooney referred me to the recent decision of this Court in Tai v R, which also involved the question of discounts for time spent in custody on

remand and for time on EM bail.6 After indicating (by a rather more circuitous route than the one I have just articulated) his agreement with the proposition that time spent in custody on remand should be deducted from the end home detention sentence,

Cooke J said:7

[39] I also need to address the fact that you have spent approximately seven months on electronically monitored bail. In Longman v Police Justice Simon France observed that the credit given for the period on EM bail was conceptually different from the credit given for time spent on remand. He explained that the period of EM bail was to be assessed in the overall sentencing exercise as required by s 9(2)(b) and (3A) of the Sentencing Act rather than being a credit given against the sentence imposed. I respectfully doubt there is such a clear conceptual distinction when the Court is imposing a home detention sentence, however. The Court of Appeal in Kidman treated both matters as part of the overall discretion. When the Court is imposing a home detention sentence the exercise contemplated by s 9(2)(b) and 9(3A) arises when the Court is considering the length of the period of home detention under s 80A(3) or the period of community detention under s 69B(2). This decision is ultimately evaluative rather than mathematical. Considering the credit for the period on remand is also assessed under these subsections. As the Court of Appeal said in Kidman in both situations the Court is required to address what credit should be given for the prior periods of restriction in the overall sentencing exercise.

[18]              After noting that a period spent on EM bail “may less frequently involve a credit on a month for month basis” and should not be a purely mathematical exercise, the Judge went on:

[41]      You have been on electronically monitored bail on restrictive terms since 5 March 2021, although the conditions have been varied from time to time. That is some seven months on reasonably restrictive bail with a curfew. But it would not be appropriate to give you a full month for month credit, as this might lead to a situation where the period of home detention was too small, or even non-existent. This is not consistent with the desirability of imposing a sentence that ensures the continuation of rehabilitation and reintegration.

[42]      The ultimate question is the appropriate length of time the home detention in the circumstances of your case taking into account the period already spent on EM bail and remand. In my view the period of home detention should be for a period of three months from now. This means that the credit I give you for your seven months on EM bail and five months on remand is around nine months.

6      Tai v R [2021] NZHC 2769.

7      Emphasis added.

[19]              To the extent these dicta suggest that the length of time spent on EM bail can be taken into account after the decision to convert to EM bail is made, I am respectfully unable to agree with them, for the reasons that follow.

[20]              As s 9(2)(h) and s 9(3A) of the Act make clear, time spent on EM bail is a mitigating personal factor that is to be taken into account when adjusting the starting point and arriving at the appropriate end sentence. To suggest that it should be taken into account after a decision to convert to home detention is made would be akin to suggesting that a guilty plea discount should somehow be taken into account at that stage. It confounds the idea that, in many cases, a defendant will only pass the home detention threshold as a result of an application of such discounts.

[21]              Nor do I read the decision in Kidman as warranting a different approach. That case was concerned with how time spent in custody prior to sentence should be taken into account in a (rather complicated) home detention sentencing process. The Court referred to time spent on restrictive bail only in passing, and in the following way:

[16] Moreover, in R v Tamou this Court held that a discount for time served on electronic bail could be taken into account as part of an overall evaluative process rather than by reference to a rigid mathematical formula. That seems to us to be the correct approach where home detention is imposed, and it is an approach which this Court has previously adopted in this context. Home detention has a distinctly rehabilitative component to it, which tells against the imposition of a rigid discount (whether “one for one” or something similar), in favour of a more evaluative approach.

[22]              I do not agree that this passage can be taken as suggesting that restrictive bail is an evaluative consideration that is at play after a decision to convert to home detention is made. As just noted, the Court in Kidman was concerned with recognising pre-sentence detention in the sentencing process. Moreover, if reference is made to the decision in Tamou itself, it is clear that this is not so.8 Not only was Tamou not concerned with home detention at all, but in that case the Court said:

[18] This Court in R v Faisandier CA185/00 12 October 2000 indicated at

[28] that there may be a need for a Judge, in determining mitigating factors, to reflect the fact of a restrictive bail regime which would not otherwise be taken into account in the manner in which a sentence of imprisonment was calculated. The possibility was affirmed recently in R v Cristia [2008] NZCA 19.

8      R v Tamou [2008] NZCA 88.

[19] None of the cases have adopted an arithmetic approach and that is understandable. It is difficult to equate time spent on even restricted bail with time spent as a remand prisoner. What is required is an evaluative assessment of all the circumstances which are involved. There will be occasions when no allowance is required at all, as demonstrated by the very different fact situation in R v Nichols CA406/02 16 June 2003.

[23]              In other words, and as is now expressly recognised in s 9(2)(h) and s 9(3A),9 time spent on restrictive bail is a mitigating factor to be taken into account as part of the process of arriving at an end sentence (of imprisonment). The “evaluative” component of that exercise is different from the “evaluative” process involved in determining whether to convert to home detention at all, in terms of s 80A, and the length of any such sentence, under s 80A(3).

[24]              As will become evident later in this judgment (at [28] and [29] below), the points just made are not idle ones. The difference between the Tai approach and the approach I prefer can make a significant difference in a sentence involving home detention.

How should the appropriate discount be assessed?

[25]              The most recent and comprehensive analysis of how to account in sentencing (generally) for time spent on EM bail can be found in Paora v R.10 After noting that  s 9(2)(h) had been inserted in 2013 and turned what was a relevant but not compulsory factor into a mandatory consideration in the sentencing calculation, the Court of Appeal said:

[45]We make several points about s 9(2)(h):

(a)it is to be contrasted with s 90 of the Parole Act 2002 in which the legislature has prescribed one-for-one credit for time spent on custodial remand. Section 30Q of the Bail Act 2000 provides that a defendant on EM bail is not in custody.

(b)the legislature has singled out EM bail for mandatory consideration, indicating that the State’s ability to monitor compliance is important.

(c)the legislation does not preclude credit for other restrictive conditions of bail; and

9      It may be noted in passing that the decision in Tamou (and, indeed, the decision in Kidman) predates the insertion in 2013 of s 9(2)(h) and s 9(3A) into the Sentencing Act 2002.

10     Paora v R [2020] NZCA 559.

(d)credit for EM bail, or other restrictive bail conditions, remains an evaluative decision for the sentencing court.

[26]The Court went on:

[46]      In Tamou v R, this Court observed that none of the cases had adopted an arithmetical approach to credit for restrictive bail conditions, noting that it is difficult to equate time spent on restrictive bail with time spent as a remand prisoner. The Court held that what is required is an evaluative assessment of all the circumstances.

[47]      In Keown v R, this Court rejected an argument that time spent on EM bail should be calculated in a similar manner to sentences of home detention. The Court pointed out that:

Electronic monitoring, when it is required as a condition of bail, is a means of monitoring compliance with restrictions on movement which are necessarily specified in each case, and may vary from case to case—for example, restriction to a home, or to a home and place of work. Absences for specific purposes may be authorised. The degree of restriction on liberty which is imposed by conditions of bail may vary widely, both in cases where electronic monitoring is imposed as a condition of bail and where it is not.

[48]      And while the degree of restriction on liberty may vary, we observe that electronic monitoring is more likely to be imposed where the conditions of bail are more onerous, the obvious example being confinement to an address for 24 hours a day. There is no doubt that the introduction of EM bail allowed bail to be granted in circumstances where it would otherwise not have been. It is invariably connected to highly restrictive conditions. The mandatory considerations in s 9(3A) make it clear that it is the relative restrictiveness of the electronic monitoring condition, as well as compliance with it which can be monitored and verified, which may justify credit at sentencing for a compliant defendant.

…

[52]      A brief survey of overseas practice suggests that it is usual to permit a credit, the amount of which is discretionary but in practice is less than one- for-one.

[53]      There is no guideline about the discount which should be afforded to a defendant for time spent on EM bail in New Zealand, although percentages ranging between 30 and 50 per cent are often used, and this Court recently noted that an allowance of up to 50 per cent is not uncommon. That is not an upper limit. As we have explained, the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case. Courts have sometimes considered it appropriate to award a discount of more than 50 per cent of time spent on EM bail to reflect its restrictive conditions.

[54]      We note that this Court observed in Parata that were equivalence to be granted for EM bail, offenders would have an incentive to extend the period of bail as a means of serving a sentence. We prefer to regard that not as a

policy reason to deny equivalence but as something which sentencing judges might need to bear in mind if contemplating near-equivalence in any given case if the circumstances warrant it. And any such consideration should also take account of the fact that credit for time spent on EM bail is applied not to the time the prisoner will actually serve, which is determined by the Parole Board, but to the sentence expiry date; that is, it does not take account of parole.

This case

[27]              As noted earlier, the Judge in the present case took 22 months’ imprisonment as his starting point (before accounting for previous convictions). On the basis of my conclusions above, that would then need to be adjusted as follows:

(a)uplifting by two months (as assessed by the Judge) for Mr Ware’s previous convictions; and

(b)discounting by:

(i)one month for the guilty plea (not challenged on appeal);

(ii)a further period that appropriately recognises the eight and a half months spent by Mr Ware on EM bail.

[28]Relevant to (b)(ii) are the following points:

(a)the conditions of Mr Ware’s EM bail were very restrictive; he was on a 24-hour curfew throughout; and

(b)Mr Ware’s compliance during that period, which the PAC report writer described as “above satisfactory” (there are certainly no reported breaches).

[29]              On the basis of the discussion in Paora, it seems to me that a discount of slightly over 50 per cent—five months—would be appropriate here, giving an end

sentence of 18 months’ imprisonment, which would then convert to nine months’ home detention.11

[30]              Once that point is reached, it would then be necessary to take into account the nine weeks spent in custody on remand, essentially on a day by day basis. That would result in an end sentence of seven months’ home detention.12

[31]This can be contrasted with the result that would be arrived at by applying the

Tai approach, where (as I understand it) the calculations would be as follows:

(a)starting point of 22 months’ imprisonment, converted to 11 months’ home detention;

(b)uplift by two months for previous convictions, discounts of five months for time spent on restrictive bail, two months for time in custody on remand, and one month for guilty plea; and

(c)end result of five months’ home detention.

[32]As I have said, however, I consider that approach would be wrong.

[33]              But even a reduction in sentence from 10 to (only) seven months’ home detention (30 per cent) does not qualify as “tinkering”; the difference is material. So the only matter requiring further consideration is whether, nonetheless, the end sentence of 10 months remains within the available range and so should not be disturbed. That was essentially Mr Marinovich’s position on appeal, although it was not my sense it was especially strongly held.

[34]               I confess I find the proposition that the 10-month sentence should stand an unattractive one in light of the clear and undisputed errors here. While I accept that the absence of any tariff decision for burglary makes it possible to argue for a range of starting points with some conviction, the reality is that the District Court Judge

11     No issue having been taken by the Crown with a sentence of home detention here.

12     By contrast, if the approach in Tai were to be adopted,

landed where he did, and the Crown did not seek to argue that he was wrong. I therefore decline to determine this appeal by reference to some different starting point.

Result

[35]              The appeal is allowed. The sentence of 10 months’ home detention is quashed. A sentence of seven months’ home detention is substituted.

Rebecca Ellis J

Solicitors:

Mooney & Webb, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent