Wharrie v R

[2019] NZHC 633

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-12

[2019] NZHC 633

BETWEEN

ANDREW WHARRIE

Appellant

AND

THE CROWN

Respondent

Hearing:

22 March 2019

Appearances:

E J Forster for Appellant

A R T Garrick for the Crown

Judgment:

29 March 2019

JUDGMENT OF GRICE J

Background

[1]    Mr Wharrie was sentenced to five months home detention, three months post- detention conditions, and eight months’ disqualification on charges of breaching a protection order1 and intentional damage.2 He appeals his sentence imposed by the District Court at Wellington on 16 November 2018.3

[2]    Mr Wharrie appeals his sentence on the grounds it was manifestly excessive because the Judge erred by:

(a)Failing to provide a discrete discount to the starting point for time spent on electronically monitored (EM) bail;

1      Domestic Violence Act 1995, ss 19(1)(a)–(b), 29(1)(b) and 49(3). Maximum penalty of three years’ imprisonment.

2      Crimes Act 1961, s 269(1). Maximum penalty of 10 years’ imprisonment.

3      R v Wharrie [2018] NZDC 27375.

WHARRIE v THE CROWN [2019] NZHC 633 [29 March 2019]

(b)Failing to provide a discrete discount to the end sentence of home detention for time spent on pre-sentence detention; and

(c)Providing a disproportionate global discount for both time spent on EM bail and pre-sentence detention

[3]    The Crown argue the EM bail and pre-sentence detention discounts do not need to be equivalent to the time actually spent on EM bail or in remand. No error was made it says.

Leave to appeal

[4]    Mr Wharrie was sentenced on 16 November 2018 and filed his notice of appeal on 14 March 2019. This appeal is out of time.4 The Crown does not consent to leave for appeal being granted. Mr Wharrie explained in an affidavit before this Court that he only received the sentencing notes on 27 February 2019. Mr Forster, counsel for Mr Wharrie, was not contacted until 7 March 2019. The appeal was filed a week after that date. The delay in this case is relatively short and explained.5 It is, therefore, in the interests of justice that leave be granted.6

Background

The offending

[5]    On 27 May 2018, a final protection order was made against Mr Wharrie in the Masterton Family Court naming the complainant (Mr Wharrie’s wife) as the protected person.

[6]    On the morning of 3 August 2018, Mr Wharrie and the complainant had a verbal disagreement about the continued existence of the protection order and other personal matters.

4      Criminal Procedure Act 2011, s 248(2).

5      R v Lee [2006] 3 NZLR 42 (CA) at [115].

6      R v Knight [1998] 1 NZLR 583 (CA) at 587.

[7]    At midday both parties left their farm property and drove toward Masterton. Mr Wharrie began slowing his car in the left lane of traffic. The complainant moved to overtake him. As she did this he intentionally swerved his car, colliding with her left rear passenger door. The complainant managed to stay in control of her car and increased her speed to get away from him.

[8]    Mr Wharrie sped up, closing in on her car from behind. As they approached a corner, Mr Wharrie shunted the complainant’s car from behind. This caused her to lose control of her car. She rolled her car several times, coming to a stop upside down, facing the wrong way on the road. Mr Wharrie pulled over nearby and got out.

[9]    Mr Wharrie went over to her car, opened her door and told her to get out. She was unable to get out, however, due to the damage her car had sustained. Mr Wharrie made no effort to assist her.

[10]   Once the complainant was out of the car, Mr Wharrie said to her “It looks like we’ll need to get you a new car”. He also said he would call the emergency services.

[11]   The complainant only suffered superficial injuries but was traumatised by the incident. Mr Wharrie denied the accusations, holding the complainant had simply overtaken him and lost control of her car. He was found guilty.

The sentencing

[12]   The sentencing judge noted the need to denounce Mr Wharrie’s conduct, deter him and others from similar offending and the importance of holding Mr Wharrie accountable for the harm caused to the complainant and the public at large.7

[13]   The Judge considered cases which had similarities with  the  present.  In Clark v R, an end sentence of six months’ imprisonment was approved for tailgating at speed and three deliberate collisions with a car.8 The second case was Williams v Police in which an end sentence of 10 months’ imprisonment was imposed for

7      R v Wharrie, above n 3.

8      Clark v R CA442/97, 20 November 1997.

tailgating and side-swiping a car, followed by threatening with beer bottles.9 The third case was Waenga v R in which a starting point of three years’ imprisonment was upheld for endangering transport and reckless driving by swerving into oncoming traffic at 100 to 120 kilometres per hour and hitting four cars.10

[14]   The Judge considered the facts in the present case fell between Clark v R and Waenga v R. His Honour noted that the aggravating factors of the offending included the potential to cause serious harm to the victim and others, that the complainant was a protected person and that the car had to be written off. The Judge adopted a starting point of 18 months’ imprisonment.

[15]The Judge applied the following discounts:

(a)A two-month discount was applied to recognise the $10,000 emotional harm payment made by the defendant.

(b)A one-month good character discount was applied, noting only a single drink driving conviction dating back to 1984.

(c)A one-month discount was applied for time spent in custody and on electronically monitored bail (EM bail).

From a resultant total of 14 months’ imprisonment, a further four-month reduction was allowed as a 25 per cent guilty plea discount.

[16]The total sentence imposed was therefore 10 months’ imprisonment.

[17]   The Judge then turned to consider home detention. He found the assessed address in Hastings, some way from the complainant, was appropriate. The Judge then sentenced Mr Wharrie to five months’ home detention.

[18]   The Judge also imposed special release conditions, including attendance and completion of an appropriate family violence prevention programme to be determined

9      Williams v Police HC Christchurch CRI-2007-209-000067, 29 March 2007.

10     Waenga v R [2018] NZHC 865.

by a probation officer. A further condition was not to contact, directly or indirectly, the complainant without prior written approval of the probation officer. These conditions were to apply for three months following release.

[19]   The Judge ordered Mr Wharrie make the $10,000 emotional harm payment to the complainant and disqualified him from driving for eight months from the date of the judgment.

Standard of appeal

[20]   Mr Wharrie has brought his appeal against sentence under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason):

(a)an intrinsic error in the sentence imposed; and

(b)a different sentence should be imposed.11

[21]   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.12 The summary in R v Peters is useful:13

[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

Submissions and analysis

[22]   Mr Wharrie submits that the Judge fell into error by failing to apply discrete discounts for EM bail and pre-sentence detention. Specifically, the Judge failed to:

11     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

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

13     R v Peters CA12/03, 14 May 2003 at [13].

(a)Give a discrete discount to the starting point for EM bail;

(b)Give a discrete discount to the final sentence for pre-sentence detention.

[23]I will now deal with both of these points.

Discount for EM bail

[24]   Mr Wharrie says that the Judge should have given Mr Wharrie a discrete discount for the 47 days spent on EM bail.

[25]   Section 9(2)(h) of the Sentencing Act 2002 (the Act) requires the Court to take into account time spent on EM bail as a mitigating factor. In assessing a discount for time spent on EM bail, the Court must consider:14

(a)The period of time spent on EM bail;

(b)The relative restrictiveness of the EM condition, including the frequency and duration of the offenders authorised absences from the relevant address;

(c)The offender’s compliance with their bail conditions during this period; and

(d)Any other relevant matter.

[26]   Mr Wharrie says that a two-month discount would have been sufficient to account for that matter.

[27]   The reduction given to recognise time spent on EM bail is not a matter of arithmetical equivalence.15 However, Mr Wharrie submits that the Judge did not turn his mind to the factors set out in s 9(3A) of the Act.

14     Sentencing Act 2002, s 9(3A).

15 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 at [110]; Keown v R [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA at [19].

[28]   Previous case law suggests a reduction equating to less than half the time spent on EM bail where restrictive conditions are imposed as an appropriate discount.16   Mr Wharrie has spent just under two months on EM bail. A one-month discount, equivalent to a two-week home detention discount, is consistent with previous cases.

Discount for presentence detention

[29]   Section 82 of the Sentencing Act 2002 provides that presentence detention cannot be taken into account when determining the length of a sentence of imprisonment. It will be deemed time served by the Department of Corrections. There is no equivalent provision in relation to home detention sentences.17

[30]   Credit for time spent on pre-sentence detention does require separate recognition by the Court when imposing a sentence of home detention.18 This discount is to be applied when the sentence is converted from one of imprisonment to home detention.19

[31]   It falls to the Court to fix the discount to take into account in sentencing. There is no mathematical formula. The length of remand will be considered as part of the evaluation to determine the end sentence.20 However, following Booth v R the consistent approach appears to be to give full day for day credit for time spent on remand.21

[32]   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 in the final sentence.

16 R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka [2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]; Parata v R [2017] NZCA 48 at [12] and [15]; Chea v R [2016] NZCA 207 at [109] and [111]; Keown v R [2010] NZCA 492 at [15]–[16].

17     R v Rose, above n 16, at [58].

18     Longman v Police [2017] NZHC 2928 at [12].

19 At [10].

20     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; R v Ford [2008] NZCA 64; R v Stempa

[2008] NZCA 254; Laloni v R [2015] NZCA 55.

21     Longman v Police, above n 18, at [9] citing Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

[33]   Applying that discount would have resulted in a discount of one month off the final sentence of home detention to take account of the two months of presentence detention served in prison. This is on the basis he served 58 days in prison, pre- sentence.22

[34]   The Crown argues there was no error as mathematical equivalence is not required for either EM bail or pre-sentence detention discounts. It submits that the Court of Appeal decision in Kidman deals with the calculation of pre-sentence detention periods.23 In that case the Court noted pre-sentence detention should be taken into account when sentencing an offender to home detention, but the discount was at the Court’s discretion. The Crown pointed to comments of the Court in Kidman as follows:24

[15]  Dealing first with the point of principle, even if we had the power to  do so we do not consider that we should require sentencing judges to take account of time served in the way suggested by Mrs Hunt. Parliament has not felt the need to legislate an approach, as it has for finite sentences of imprisonment. Further, as Mrs Hunt ultimately accepted in oral argument, such an approach might, at least in some cases, operate to the disadvantage of convicted persons. For example, if a discretionary approach is retained, a judge may take time served into account in order to bring a person’s end sentence down below two years so that home detention can be considered. The approach advocated by Mrs Hunt would prevent this.

…

[19] However, there is the further consideration that the appellant has been on bail since 19 October 2010 awaiting the outcome of this appeal. We are unclear as to the conditions on which she was granted bail but they, and the period of bail, may be relevant in the present context. For this reason, and because there is some difference between the parties as to exactly how much time the appellant has spent on home detention, we consider that the best course is to quash the sentence of six months home detention imposed at the second stage of the appellant’s sentencing and remit the matter to the District Court for re-consideration in light of this judgment. The appellant will, of course, be entitled to the benefit of the period that she has already spent on home detention in respect of the second stage of her sentencing whatever new term is imposed.

22     Mr Forster, suggested a four-month discount. This is incorrect. The period of time spent in custody is halved, rather than doubled, when calculating a home detention discount.

23     Kidman v R, above n 20.

24     Kidman v R, above n 20.

[35]This the Crown says was applied in a subsequent Court of Appeal decision

Laloni, where the Court said:25

[10] It was of course the appellant’s own conduct that resulted  in  his remand in custody following his earlier release on bail. That factor however should not disentitle him from the normal allowance, which is made to reflect time spent  in  custody  when  imposing  a  sentence  of  home  detention.  Ms Cooper, while submitting that the end sentence of 10 and a half months’ home detention could not be characterised as clearly excessive, conceded that some credit could have been allowed for time spent on remand in custody.

[36]   It was entirely up to the Judge to make the discount evaluation in his discretion and he did so. I agree with the Crown’s submissions in this regard. Despite the emphasis that Mr Forster places on Longman it does not indicate a required position of 1:1 equivalence as he submitted. The excerpts from Kidman and Laloni set out above illustrate the evaluative principle involved in discounts of this nature.

[37]   That being said, in Longman the High Court followed in principle  a  Supreme Court decision in Booth. In Longman the Judge said that it was more consistent to account for time spent on remand in custody day for day when sentencing to home detention.26 In my view Longman merely points out a more consistent approach which gives some direction to the Court in the exercise of its discretion in pre-sentence detention discounts. This is supported by the reference in Longman to “full equivalence [being] the norm” rather than a requirement.27

[38]   I accept that the judge did not undertake the exercise of calculating separate discounts due to the different nature of EM bail and pre-sentence detention discounts as recognised in Longman.28 By grouping the EM bail and pre-sentence detention discounts together an error was made.

Manifestly excessive

[39]   The Crown argues that the seriousness of this case means the end sentence reached is not manifestly excessive even if an error was made.

25     Laloni v R [2015] NZCA 55.

26     Longman v Police, above n 18, citing Booth v R, above n 21.

27     Longman v Police, above n 18, at [9].

28 At [12].

[40]In his decision, the Judge reviewed three cases:29

[4]        In Clark v R an end sentence of six months was upheld for offending involving tailgating at speed and deliberate colliding into the victim’s car three times.³⁰ Unlike in this case, the victim did not end up losing control of her car.

[5]        In Williams v Police an end sentence of 10 months’ imprisonment imposed on charges of dangerous driving and intentional damage involving tailgating and side-swiping, followed by threatening with beer bottles, was not disturbed on appeal.³¹

[6]        In Waenga v R a starting point of three years’ imprisonment was upheld on charges of endangering transport and reckless driving involving swerving into oncoming traffic at 100 to 120 kilometres per hour and hitting four vehicles one after the other.³²

[7]        Your offending is not as serious as the offending in Waenga v R but I consider it to be more serious than the offending in Clark v R.

[41]The Judge said he agreed with the Crown that the offending fell between

Williams and Waenga and took a starting point of 18 months. This was appropriate.

[42]   An additional discount equivalent to two months imprisonment, or one month of home detention, is not material in light of the total punishment imposed and the seriousness of the offending. The sentence is not manifestly excessive, especially in light of the width of discretion in the length of EM bail discounts.

Conclusion

[43]   Mr Wharrie was correct in his submission that an error was made in that separate discounts for presentence detention and EM bail should have been considered. However, in the circumstances the sentence is not manifestly excessive.

[44]I dismiss the appeal.

Grice J

29     R v Wharrie [2018], above n 3.

30     Clark v R CA442/97, 20 November 1997.

31     Williams v Police, above n 9.

32     R v Waenga, above n 10.