GERRARD v POLICE [2016] NZHC 3130

GERRARD v POLICE [2016] NZHC 3130 [19 December 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000134[2016] NZHC 3130BETWEEN AARON KYLE GERRARDAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2016Appearances: A Bailey for the AppellantD J Orchard for the RespondentJudgment: 19 December 2016JUDGMENT OF NATION J[1] On 23 November 2016, the appellant (Mr Gerrard) was, on an application to cancel his sentence of imprisonment and impose home detention, sentenced to eightmonths' home detention.1 Mr Gerrard appeals against that sentence on the basis there was an error in the sentence. He argues that, in fixing the term of the home detention sentence, the Judge should have had regard to his mandatory entitlement to be released once he had served half the prison sentence.Background[2] As set out in the submissions of Mr Gerrard's counsel, Mr Bailey, therelevant background was as follows: 29 April 2016 – the appellant was arrested and remained in custody until sentencing;1 New Zealand Police v Gerrard [2016] NZDC 24719. 26 July 2016 – the appellant was sentenced to 25 months' imprisonmentby the District Court; 1 November 2016 – this Court allowed the appellant's sentence appeal and reduced the sentence to 23 months' imprisonment with leave toapply for home detention;2 23 November 2016 – the appellant's application to substitute the sentence for imprisonment was granted by the District Court. The appellant was re-sentenced to eight months' home detention; and 1 December 2016 – the appellant was arrested for breaching his home detention sentence. He was remanded in custody (and currently remains in custody).Jurisdiction[3] Mr Gerrard appeals as of right.3 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there was an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.[4] On an appeal, the focus is on the correctness of the end result, rather than necessarily the process by which it was reached.Submissions for appellant[5] Mr Bailey submitted that this appeal against the length of the sentence of home detention could have real consequences for Mr Gerrard.[6] At present, Mr Gerrard remains subject to that home detention sentence.42 Gerrard v Police [2016] NZHC 2616.3 Criminal Procedure Act 2011, s 244.4 Hawkins v Chief Executive, Department of Correction [2015] NZHC 1001 at [17]; Sentencing Act 2002, s 80Z.[7] Mr Gerrard is now liable to be resentenced if it is established that he was in breach of the sentence of home detention. The Court may then determine a substitute sentence under s 80F(4)(d) of the Sentencing Act 2002.[8] In determining any sentence in substitution for a breached sentence of home detention, the District Court must take into account the portion of the original sentence that remains unserved at the time of the order.5 In these circumstances, the appeal cannot be considered moot.[9] Mr Bailey referred to the usual practice adopted by sentencing courts when considering a sentence of home detention as an alternative to prison, i.e. imposing a term that was equal to half the term of imprisonment that would otherwise have been imposed. He acknowledged there was no legislative or other requirement that made this practice mandatory.[10] Mr Bailey said that, in this instance, in arriving at the appropriate term, the Judge had to apply s 80K(6) of the Sentencing Act. It provides:When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.[11] Mr Bailey submitted that, at the time the substituted sentence was imposed, Mr Gerrard had been in prison effectively for some seven months of his 23 month sentence. Pursuant to s 86(1) of the Parole Act 2002, he was entitled to release (as of right) after serving half that sentence of 23 months. With the sentence of imprisonment, Mr Gerrard would have had to remain in prison for approximately 4.75 months until approximately 13 April 2017.[12] Mr Bailey submitted that the Judge made an error in failing to have due regard to the release date on his sentence of imprisonment. He submitted, as I accept was the case, that the Judge took into account the 16 months of the prison sentence remaining after giving Mr Gerrard credit for the seven months he had already served. The effect of this, applying the usual approach, was to require Mr Gerrard to be5 Sentencing Act 2002, s 80G(2).subject to home detention until 22 July 2017 which was approximately three months after the time he would have been due for release from his prison sentence.[13] Mr Bailey argued that, in these circumstances, the Judge's approach hadresulted in an injustice. He argued that, if this was not corrected on an appeal, when the District Court comes to consider what sentence should be substituted in the circumstances of the alleged breach, that injustice could be perpetuated given the need at that time for the District Court to take into account the portion of the original home detention sentence that remained unserved.Submissions for the Crown[14] Ms Orchard did not oppose the appeal and indicated the Crown was inclined to accept there had been an error which had to be corrected on appeal.Discussion[15] I accept the appeal cannot be considered moot.[16] I discussed with counsel my concern that Mr Bailey was effectively arguing that, in determining the length of a sentence of home detention in substitution for a sentence of imprisonment, the Court should be basing that on the term of imprisonment that would actually be served in prison rather than the term of imprisonment itself.[17] A sentence of home detention can be imposed only where an offender would otherwise be serving a short-term sentence of imprisonment.6 A short term of imprisonment is defined as a sentence of imprisonment for two years or less.7 If the Sentencing Act had always to be applied in the way Mr Bailey argued was necessary, it would mean that, because of the mandatory release date at half the sentence, in fixing the term of a sentence of home detention, the sentencing Judge would always have to fix that term taking into account not just the length of the prison sentence6 Section 15A(1)(b).7 Parole Act 2002, s 4(1).that would otherwise be imposed but the anticipated period of actual detention. That would always be one-half of the actual term of imprisonment that was imposed.[18] Section 80A(3) states "A sentence of home detention may be for such period as the court thinks fit, but must not be for less than 14 days or more than 12 months."[19] The Court of Appeal has confirmed that a sentence of home detention does not have to necessarily be for one-half of the prison sentence that would otherwise be imposed. The term of home detention should be for whatever period the sentencing Judge considers appropriate, having regard to all relevant circumstances.8[20] Despite this, I accept that it is the usual practice of sentencing courts to fix terms of home detention at half the length of the sentence of imprisonment that would otherwise have been imposed. The rationale for this is that, with a short term prison sentence, the offender will have to serve only half the term. On a sentence of home detention, the offender must serve the full term.9[21] Given the discretion which Judges have in fixing the term of home detention, there is no reason why the rule of thumb approach should change. A prisoner does have a mandatory entitlement to release after serving just one-half of a prison sentence of two years or less. A sentence of home detention must be served in full. Subject to the ability of the Court to provide otherwise, an offender subject to a term of home detention of more than six months will be subject to standard post-detention conditions for a period of 12 months from the detention end date.10 Subject to the Court deciding otherwise, an offender sentenced to a term of imprisonment for more than 12 months but not more than 24 months will be subject to the standard conditions until the sentence expiry date.[22] In this instance, on his appeal to the High Court, Mr Gerrard was sentencedto 23 months' imprisonment but was granted leave to apply for home detention. The application for a substituted sentence of home detention was thus made and had to be considered under s 80K. Relevant parts of that section state:8 R v Bisschop [2008] NZCA 229.9 Savage v Police HC Whangarei CRI 2008-488-0001, 14 February 2008.10 Sentencing Act 2002, s 80N(2)(a).(5) A sentence of home detention substituted under subsection (4) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months.(6) When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.[23] I do not consider the wording of s 80K(6) or the context in which it occurs would require the Court to always fix the term of a substituted sentence of home imprisonment at no more than half the remaining term of the sentence of imprisonment that the prisoner is serving. Section 80K(6) requires the Court to take into account the portion of the original sentence that remains unserved. The reference is to the original sentence, not the original sentence and rights to release from that sentence under the Parole Act.[24] Nevertheless, the courts, both at first instance and on appeal, have frequently considered it appropriate to fix an initial term of home detention at half of the short term of imprisonment that would otherwise have been imposed. Similarly, such an approach may often be appropriate when considering applications under s 80K.[25] On a s 80K application, the release date on the prison sentence should thus be a relevant consideration when determining a home detention sentence that is to be imposed in substitution for that prison sentence.[26] In this instance, there were particular circumstances relating to Mr Gerrard'ssituation which made this approach appropriate.[27] Mr Gerrard had effectively served a significant proportion of the prison sentence that was imposed, 16 months of 23 months. During that time, he had been subject to all the particular constraints of a prison sentence, many of which do not apply with home detention. He also did not have the benefits that come with home detention. Having been penalised in that way, it would have been reasonable for him to have retained the benefit of his entitlement to release on having served one-half of his prison sentence.[28] On his original appeal against sentence, it was found the sentence of 25months' imprisonment was imposed in error. Had that error not occurred, he mightwell have been sentenced on 26 July 2016 to home detention. The Department ofCorrection's recommendation had been for a sentence of intensive supervision andcommunity work but had also referred to home detention as a possible option.[29] In fixing the term of eight months, the Judge did not give reasons fordisregarding what would have been the release date on Mr Gerrard's sentence ofimprisonment. Given the normal practice of having regard to the release date and fixing a term of home detention, I consider there was an error in this regard.[30] For those reasons, in the particular circumstances of this case, I accept that an error was made in fixing the term of home detention at eight months and a different sentence should have been imposed.[31] I accordingly allow the appeal to the extent of varying the term of home detention that was imposed by the Judge on 23 November 2016. I confirm the sentence of home detention but vary the term of that sentence to five months.[32] The allowing of this appeal and the substitution of a different term of home detention will not alter the fact Mr Gerrard was subject to a sentence of home detention and a probation officer has applied for an order, under s 80F(4), cancelling the sentence. The appeal is allowed and the new term substituted on the basis the District Court will deal with the s 80F application currently before it, taking into account the portion of the home detention sentence, as now fixed, that remained unserved at the time Mr Gerrard breached the home detention sentence. At that time, Mr Gerrard had served only eight days of the sentence of home detention.[33] The rationale for finding the Judge was in error in fixing the term of home detention will also be relevant if the District Court has to consider the term of a sentence of imprisonment that may be imposed as a result of a breach of the sentence of home detention. If a term of imprisonment is imposed in substitution for the unserved portion of the term of home detention, it may be the term of imprisonment will be for double the unserved portion of home detention. If such a term ofimprisonment were to be imposed, Mr Gerrard will be entitled to release after serving just one-half of it. In such a situation, the Judge will nevertheless have to decide on any substituted sentence with regard to all relevant circumstances. Those circumstances could include the fact that, if Mr Gerrard has not been granted bail, he will have been in prison between his being arrested for breach of the home detention sentence and the time that any substituted sentence is imposed.Solicitors:Raymond Donnelly & Co., ChristchurchAndrew Bailey, Barrister, Christchurch.