LONGMAN v POLICE [2017] NZHC 2928

LONGMAN v POLICE [2017] NZHC 2928 [28 November 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECRI 2017-485-51[2017] NZHC 2928BETWEEN ADAM JOHN LONGMANAppellantAND NEW ZEALAND POLICERespondentHearing: 28 November 2017Counsel: K Preston for AppellantJ M OʼSullivan for RespondentJudgment: 28 November 2017JUDGMENT OF SIMON FRANCE J[1] Mr Longman appeals a sentence of seven months' home detention.1 The basisof the appeal is that insufficient credit was given for time spent on electronicallymonitored (EM) bail prior to sentencing, and for time spent on custodial remand priorto sentencing. The respondent submits sufficient credit has been given, but contendsalternatively the current overall outcome is a lenient sentence which should not beadjusted.Facts[2] Mr Longman pleaded guilty to charges of burglary, breaching releaseconditions and breaching community work conditions. The burglary concernedcommercial premises. Mr Longman and two others entered a yard, disabled the power1 New Zealand Police v Longman [2017] NZDC 20707.and broke into an office. There they disabled the surveillance cameras. About onethousand dollars in cash was taken. The offenders then went outside, took tools froma workshop and took a truck which they loaded with stolen property. The truck wasabandoned elsewhere with the stolen property missing. Earlier, while in the office theoffenders poured milk over most surfaces and ransacked it. The stolen property wasvalued at just under $38,000.[3] Mr Longman has a significant criminal history. He has around 70 previousconvictions dating back 14 years. Since June 2014 he has 15 convictions, all but oneof which merited a term of imprisonment (for some home detention was the ultimateoutcome). This offending is largely property focused and relevantly includes twoburglaries and three breaches of conditions.[4] The District Court took a starting point of two years for the burglary. Therewere then added three months for the other offending, and a three month uplift for pastoffending. A totality adjustment offset one of those three month periods leading to a27 month starting point reduced by 25 per cent for a guilty plea to 20 months. Thiswas converted to 10 months' home detention, which was then reduced by a globalthree month figure to reflect time on EM bail and time in custody. The respectiveperiods Mr Longman served were four and a half months' pre-sentence custody andtwo and a half months EM bail.Discussion[5] The appeal puts in issue two conceptually different periods – time spent on EMbail and time spent on custodial remand. It is important to recognise the inherentdifferences to ensure appropriate credit is given. These differences mean the relevanceof each period falls to be assessed at different points in the sentencing process.[6] Time spent on EM bail is a mandatory consideration when setting theappropriate sentence (ss 9(2)(h) and 9(3A) of the Sentencing Act 2002). Theauthorities make it clear that it is not a matter of arithmetical equivalence.2 First, even2 See, for example, 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 88 at [19].the most restrictive EM bail is not the same as serving time in jail; it is stillconsiderably less restrictive. Second, there are many variables including length oftime on EM bail, conditions, and compliance. Within a 24 hour curfew situation therecan be considerable variance in the amount of absences permitted such as to mean thattwo apparently similar sets of conditions have operated vastly differently.[7] Credit for time spent on EM bail is considered when fixing the appropriatelength of any sentence of imprisonment. It is a mitigating factor that is assessed in thesame way and at the same time as factors such as remorse, guilty plea andrehabilitative efforts. It feeds into the appropriate length of the sentence.[8] Credit for time spent on custodial remand is quite different. Conceptually, ithas nothing to do with the appropriate length of the underlying stance. Rather, it istime spent serving that sentence for which credit is appropriate. With a sentence ofimprisonment, credit is given automatically. With home detention, the Court needs toact to ensure it is given recognition.[9] In my view the clear default position is that full credit should be given. Thisis where it is important to note the distinction from EM bail. There the analysis iswhat reduction to a prison term should be made for restrictive pre-sentencearrangements that do not involve jail. Here, the analysis is what adjustment should bemade to a home detention sentence, the length of which is fixed by reference to asentence of imprisonment, for time actually spent in jail in effect serving the samesentence. Seen that way, full equivalence should be the norm. Although arising in adifferent area, I suggest this outcome of full equivalence is consistent with the tenorof the Supreme Court decision in Booth v R where the Court emphasised the need forpre-sentence detention to be applied effectively to all sentences.3[10] In terms of the timing when this matter is to be considered, s 82 of theSentencing Act and s 90 of the Parole Act 2002 amount to a legislative direction thata court is to disregard time served where the ultimate sentence is imprisonment.Logically, therefore, consideration of credit for time served only arises once a decision3 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.is reached that the sentence will be home detention. At that point the Court is freedfrom the legislative constraint because the time is no longer automatically credited.[11] Against that background I turn to the present case.[12] The Court gave a global credit of three months. For the reasons given, Iconsider separate consideration was required. In relation to EM bail, Mr Longmanspent two and a half months on a 24 hour curfew. There were four approved absencesand no breaches.4[13] I do not accept the appellant's submission that credit of two and a half monthsshould be given. That is inconsistent with the decided cases. As was pointed out inParata, what one is determining here is the amount of reduction to a term ofimprisonment that is merited.5 Two and a half months is not a particularly long periodof EM bail, and I consider a one month credit sufficient. With that short length of EMbail, credit at all is far from inevitable.[14] In terms of credit for time served, the Court identified 20 months as theunderlying term of imprisonment. That should now be adjusted to 19 months to reflectthe EM bail credit, leaving a home detention term of nine and a half months.Consistent with the earlier discussion, at this point recognition should be given to thefour and a half months spent on custodial remand meaning the correct home detentionfigure is five months. However, before confirming that as the outcome of the appealit is necessary first to address the respondent's position that, whatever errors might beidentified, the existing sentence of seven months' home detention is not a manifestlyexcessive sentence.[15] The respondent challenges as unduly lenient the ultimate starting point of twoyears and three months' imprisonment. The first aspect of that is to query the startingpoint of two years for the burglary whilst acknowledging that it was the figuresuggested by the police prosecutor. I agree it is at the bottom of what one might expect,4 I observe as a general proposition that there is often insufficient information at sentencing. If anoffender wishes credit for EM bail, the details of that bail including length, conditions andbreaches should be given to the Court. That information was given here.5 Parata, above n 2, at [11].but note the respondent refers to R v Gage where the Court of Appeal described a twoyear two month starting point for a similar offence involving $45,000 worth of goodsas well within range.6 That suggests this figure was available.[16] The respondent's primary submission concerns the treatment of the two breachcharges.7 By making a totality adjustment it is submitted the Court effectively gaveno penalty at all for that offending. The community work sentence, and the releaseconditions, were significant components of the previous sentence. Mr Longman didnot turn up to do his community work. Nor did he maintain a residence at which hecould be contacted, meaning the Department could not reach him regarding thecommunity work (100 hours) or the other aspects of the release conditions aimed atrehabilitation. Both aspects of that previous sentence have now been lost withoutMr Longman complying with any of them.[17] I agree with the underlying proposition, and consider the totality adjustmentwas wrong. Two years six months' imprisonment was far from an excessive startingpoint and no adjustment was needed. However, it is not correct to directly link thetotality adjustment to the uplift for previous breaches. It could equally be said to havecancelled out the uplift for previous offences, leaving a three month uplift in place forthe past offences. The reality is that it is just an adjustment down of the final figure,and is not attached to a particular component.[18] Overall, while I agree with the respondent that most components have workedin Mr Longman's favour, it does not lead me to the position where what I consider tobe an error should be not corrected. I am in part influenced by the subject matter ofthe error which is a failure to give credit for time served in jail. I am also in partinfluenced by the reality that the appellant pleaded guilty following a sentenceindication which fixed his culpability at 20 months. I am hesitant to disallow anotherwise meritorious appeal on the basis that the sentence indication figure was light.I consider it arguable (I put it no higher than that) that in those circumstances anopportunity to withdraw the plea should be proffered, and that is not desirable here.6 Gage v R [2014] NZCA 140 at [15].7 Points are made with less force about the guilty plea credit and the size of the uplift for pastconvictions. Whilst another Judge may have taken higher figures, I consider neither to be wrong.Result[19] The appeal is allowed.[20] The sentence of seven months' home detention for burglary is quashed andsubstituted with one of five months' home detention. The conditions are unchanged.[21] The existing sentences of home detention for the two breach charges arequashed and replaced with sentences of one month home detention, such sentences tobe concurrent with each other, and with the burglary sentence.______________________________Simon France J