TRAINOR v POLICE [2022] NZHC 1022

TRAINOR v POLICE [2022] NZHC 1022 [12 May 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-52[2022] NZHC 1022BETWEEN ANDREW STEVEN TRAINORAppellantAND NEW ZEALAND POLICERespondentHearing: 12 May 2022Appearances: T Nicholls for AppellantL Fiennes for RespondentJudgment: 12 May 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 12 May 2022 at 3 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Mr Andrew Trainor was sentenced in the District Court at Christchurch to 18months' imprisonment on charges of driving while disqualified (third or subsequent),unlawful taking of a motor vehicle, theft of items from a car, assault of a police officer,and refusing a request for a blood specimen.1 Judge Brandts-Giesen granted leave toMr Trainor to apply to have his sentence commuted to home detention if a suitableaddress to serve such a sentence became available.[2] Some two months later an address became available, and Judge Duggangranted Mr Trainor's application to have the sentence commuted.2 In doing so, theJudge stated "you will be able to serve the balance of your sentence, 11 months, onhome detention". Mr Trainor appeals the length of the home detention imposed on thebasis the substituted period of 11 months did not adequately take into account the twomonths he had already served of the prison term imposed by Judge Brandts-Giesen,nor the five months he spent on custodial remand prior to being sentenced.Analysis[3] The Crown accepts the re-sentencing of Mr Trainor has gone awry. Asobserved by Ms Fiennes, it is likely the Judge's reference to the balance of the sentencebeing 11 months' was to the remaining period of imprisonment (not the period of homedetention that Mr Trainor would have to serve) after deducting the seven monthsMr Trainor had spent in custody. It may well have been the Judge's expectation thatthis figure would be converted to home detention by halving the length of the prisonterm that would otherwise apply, but that was not expressly said. In any event, asMs Fiennes also acknowledged, such an interpretation may still not result in thecorrect outcome.[4] While the amount of home detention to be substituted for imprisonment is anevaluative exercise,3 ordinarily it involves halving the sentence of imprisonment thatwould otherwise be served. This reflects that the maximum length of a home detentionsentence is limited to 12 months, whereas a short-term sentence of imprisonmentwhich renders an offender eligible for home detention can be as much as two years.1 New Zealand Police v Trainor [2021] NZDC 24483.2 Department of Corrections v Trainor [2022] NZDC 3184.3 R v Bisschop [2008] NZCA 229 at 17; and Ashby v Police [2015] NZHC 1900.Additionally, a sentencing court is obliged to be cognisant of the time an offender hasspent on remand in custody prior to imposing a sentence of home detention.4 Unlikea sentence of imprisonment where credit for time spent on custodial remand isautomatically calculated by the Corrections Department, with a sentence of homedetention the court itself needs to ensure pre-sentence detention is given recognition.5However, the approach that has been taken to that exercise has varied.6[5] For the purpose of this appeal, the Crown accepts the approach taken by thisCourt in Longman v Police should be followed and full credit extended to Mr Trainor.7In that case Simon France J observed when deducting three months for time spent onremand and electronically monitored bail from a sentence of 10 months' homedetention: Here, the analysis is what adjustment should be made to a home detentionsentence, the length of which is fixed by reference to a sentence ofimprisonment, for the time actually spent in jail in effect serving the samesentence. Seen that way, full equivalence should be the norm. Althougharising in a different area, I suggest this outcome of full equivalence isconsistent with the tenor of the Supreme Court decision in Booth v R wherethe Court emphasised the need for pre-sentence detention to be appliedeffectively to all sentences.(footnote omitted)[6] It follows that when commuting Mr Trainor's sentence of imprisonment tohome detention, the length of his pre-sentence custodial remand and the period ofimprisonment already served should be fully taken into account. This amounts to justover seven months in custody.8[7] In Diaz v R, the Court of Appeal held the time spent in custody shouldeffectively be doubled to account for the offender having otherwise been sentenced to4 Doidge v Police [2021] NZHC 3195 at [21].5 Longman v Police [2017] NZHC 2928 at [8].6 For a discussion of varying approaches to the calculation of time spent on custodial remand whenimposing a sentence of home detention see Vakapora v Police [2022] NZHC 493.7 Longman v Police, above n 5, at [9].8 Mr Trainor spent four months and 22 days on pre-sentence remand (from 29 July 2021 to10 December 2021) and two months and 12 days from 10 December 2021 to his release on homedetention on 22 February 2022.a short term of imprisonment for which they would be eligible for parole after havingserved half of such a sentence:9Mr Diaz has already spent six months in custody. An offender who issentenced to a short term of imprisonment becomes eligible for parole after heor she has served one half of the sentence imposed.[10] We therefore allowMr Diaz a credit of 12 months for the time he has already spent in custody.This would take the sentence to one of 11 months' imprisonment [the originalsentence being one of 23 months' imprisonment]. Applying the samerationale, an end sentence of 11 months' imprisonment commutes to asentence of five months and 15 days home detention and this is the sentencewe would impose.[8] Mr Trainor was sentenced to 18 months' imprisonment. When the Court ofAppeal's approach in Diaz is applied for the purpose of commuting that sentence toone of home detention, Mr Trainor would receive a credit of 14 months for the sevenmonths spent in custody. This would reduce the sentence to one of four months'imprisonment which in turn equates to a sentence of two months home detention.Alternatively, and to the same effect, the seven months spent in custody could besubtracted from the nine months' home detention that results from commuting the 18-month prison term to arrive at a final sentence of two months' home detention.[9] As noted, divergent approaches have been taken by appeal courts to thecalculation of credit for time spent in custody when imposing sentences of homedetention. In Kidman v R, the Court of Appeal rejected any particular approach.11 TheCourt held that an evaluative approach is preferable and rejected any mandatoryformula. Another Court of Appeal decision, Laloni v R, suggests a less generousapproach than Diaz.12 In that case, the Court of Appeal deducted the three months theappellant spent on remand and electronically monitored bail from the term ofimprisonment that would otherwise have been imposed. That resulted in a notionalsentence of 18 months' imprisonment and, once converted, an actual sentence of ninemonths' home detention. An approach that may well have been the intent of theDistrict Court in this case.9 Diaz v R [2021] NZCA 426 at [50].10 Parole Act 2002, ss 20(1) and 86(1).11 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.12 Laloni v R [2015] NZCA 55.[10] Referring to the present case, the Crown acknowledges an error occurred in theDistrict Court when commuting the term of 18 months of imprisonment to homedetention, and that the appeal must be allowed. Moreover, the position it takes to therecalculation of the sentence involves applying the approach adopted in Diaz. As aresult, it accepts the time Mr Trainor has served should result in a substitute sentenceof two months' home detention. The alternative to the Crown's concession would beto reduce the notional 18-month term of imprisonment by seven months and convertthat sentence to one of five months and 15 days' home detention. However, I considera comparison between the effective results of these two differing courses illuminating.[11] There can be no dispute the 18-month sentence of imprisonment shouldconvert to a sentence of nine months' home detention. How best then to recognise thatMr Trainor has already been imprisoned for seven months on the charges that are thesubject of this appeal? It needs to be borne in mind that the decision to commute thesentence to home detention is not contested, and that home detention has always beenconsidered the appropriate sentence subject to Mr Trainor locating a suitable addressto serve the sentence. It follows that from the outset the appropriate sentence wasviewed as being nine months' home detention.[12] When assessing the different approaches to recognising time spent in custody,it strikes me that, in the circumstances of this case, seven months' incarceration andtwo months' home detention more accurately reflects the intended sentence of ninemonths' home detention than one of seven months' imprisonment and five and a halfmonths' home detention. The former result achieves an outcome that is comparablewith the intended original sentence. I therefore consider the Crown's concession, thata substitute sentence of two months' home detention should be imposed on the appeal,is a proper one and the course I should adopt.Result[13] In order to take into account the seven months Mr Trainor has spent in custody,the sentence of 11 months' home detention is quashed, and in its place I substitute asentence of two months' home detention. The accompanying six months of post-release conditions remain undisturbed, as does the original order disqualifyingMr Trainor from driving for 15 months.Solicitors:Crown Solicitor, Christchurch