Wilson v Police

[2018] NZHC 1352

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-123

[2018] NZHC 1352

BETWEEN

AARON WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	[On the papers]
Counsel:	D Niven for Appellant B Finn for Respondent
Judgment:	8 June 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 8 June 2018 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

David Niven, Barrister, Auckland Meredith Connell, Auckland

WILSON v NEW ZEALAND POLICE [2018] NZHC 1352 [8 June 2018]

[1]    Mr Wilson appeals his sentence on the basis of a straightforward error of arithmetic, the District Court Judge omitting to subtract for time spent in custody prior to sentence. The Crown accepts the error, and does not oppose the appeal.

[2]    Mr Wilson seeks an extension of time for the filing of this appeal, on grounds of his mental illness, lack of legal advice, and the interests of justice generally. The extension is not opposed, and is granted in the circumstances.

[3]    Mr Wilson pleaded guilty to numerous charges for which he was sentenced to 24 months’ imprisonment on 5 July 2017. On 10 October 2017, that sentence was substituted to ten months’ home detention, to be served from that date onwards.

[4]    In making this substitution, however, the Judge did not factor in the time Mr Wilson spent on remand before he was sentenced – from 14 January 2017 to his sentencing on 5 July 2017, a period of approximately six months.

[5]    It is not disputed this was an oversight. In making an order cancelling a sentence of imprisonment and substituting home detention, the Court is required to take into account the portion of the original sentence that remains unserved.1 Pre- sentence detention – including detention on remand – is deemed as time served.2 The facts of this case are materially similar to Kopa v Police, where Ellis J allowed the appeal and substituted a reduced sentence, taking a “relatively robust approach to the maths”.3

[6]I am minded to do similarly.

[7]    I allow the appeal. I quash the sentence of 10 months’ home detention, and substitute a sentence of 3 months’ home detention, commencing 10 October 2017.

—Jagose J

1      Sentencing Act 2002, s 80K(6).

2      Parole Act 2002, ss 90-91.

3      Kopa v Police [2017] NZHC 1244 at [6]-[7].