McLEAN v NEW ZEALAND POLICE [2022] NZHC 1802

McLEAN v NEW ZEALAND POLICE [2022] NZHC 1802 [25 July 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-09[2022] NZHC 1802BETWEEN BENJAMIN RENATA McLEANAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2022Appearances: J A T Ross for AppellantW T Chapman for RespondentJudgment: 25 July 2022ORAL JUDGMENT OF OSBORNE JIntroduction[1] Benjamin McLean pleaded guilty to and was convicted of seven sets ofoffending, totalling 19 charges, on 19 October 2021 and 23 December 2021. Theseare charges of failing to stop,1 dangerous driving,2 theft,3 breach of community work,4wilful damage,5 breach of a protection order,6 assault on a person in a family1 Land Transport Act 1998, ss 52A(1)(a)(ii), (2), (3), and (6), and 114(2): maximum penalty a finenot exceeding $10,000 and a mandatory disqualification for six months.2 Section 35(1)(b) and (2): maximum penalty three months' imprisonment or a fine not exceeding$4,500 and a mandatory disqualification for six months or more.3 Crimes Act 1961, ss 219 and 223(b), (c) and (d): maximum penalty variously seven years'imprisonment, one year's imprisonment or three months' imprisonment.4 Sentencing Act 2002, s 71(1)(f): maximum penalty three months' imprisonment or a fine notexceeding $1,000.5 Summary Offences Act 1981, s 11(1)(a): maximum penalty three months' imprisonment and a finenot exceeding $2,000.6 Family Violence Act 2018, ss 9, 90(a), and 112(1)(a) and (b) and (3): maximum penalty threeyears' imprisonment.relationship7 and assault with a weapon.8 Mr McLean was sentenced by JudgeBrandts-Giesen to home detention for eight months and two weeks and 80 hours ofcommunity work on 24 March 2022.9 Mr McLean appeals that sentence.Facts[2] Mr McLean committed a number of offences on seven occasions in a sevenmonth period in 2021.[3] The tranches were:(a) Tranche A — four counts of theft (value under $500), driving in adangerous manner (representative), and failing to stop when followedby red and blue flashing lights (representative)(b) Tranche B — theft (value under $500)(c) Tranche C — theft (value over $1,000), theft (value under $500) andbreach of community work.(d) Tranche D — theft (value under $500)(e) Tranche E — assault on person in family relationship, three counts ofcontravening a protection order, wilful damage and assault with aweapon(f) Tranche F — theft (value over $1,000)(g) Tranche G — theft (value between $500 and $1,000).7 Crimes Act, s 194A: maximum penalty two years' imprisonment.8 Section 202C: maximum penalty five years' imprisonment.9 Police v McLean [2022] NZDC 5134.District Court decision[4] Mr McLean accepted two different sentence indications, one from JudgeWalker for tranches A and B of offending, and one from Judge Brandts-Giesen for theother tranches of offending. When Judge Brandts-Giesen sentenced Mr McLean, heconsidered both sentence indications, and also added a home detention sentence inremitting Mr McLean's outstanding fines.[5] The sentence the Judge imposed is reflected in my Table A:Table APart of sentence Description SentenceSentence fortranches C-G(sentence indicationfrom Judge Brandts-Giesen)Leading offences –tranche E of offending(wilful damage, breach ofprotection order x 3,assault with a weapon)18 months' imprisonmentstarting pointUplift for persistentshoplifting+ 4 monthsUplift for past offending + 3 monthsSubtotal 25 monthsDiscount for guilty plea- 25%- 6.25 monthsTotal for tranches C-G18.75 months'imprisonment, convertedto 9 months' homedetentionSentence fortranches A and B(Judge Walkersentence indication)Sentence indication foroffending+ 3 months' home detentionSubtotal 12 months' home detentionDiscount for remorse, timein custody and EM bail,willingness to engage inrestorative justice, issuesraised in cultural report- 2 months' home detentionDiscount for time spent incustody and on EM bail- 2 months' home detentionSentence for currentoffending8 months' home detentionRemission of fines 2 weeks' home detention(served cumulatively)Overall sentence 8 months' and 2 weeks'home detention[6] The Judge also imposed 80 hours of community work rather than imposingdisqualification and imposed reparation of $15 per week to be distributed to thevictims of the offending. His Honour also said that where the offences were notimprisonable, that Mr McLean would be convicted and discharged.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.10 As the Court of Appeal identified in Tutakangahau v R, quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".11 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.1210 Criminal Procedure Act 2011, s 250(2) and (3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[8] Mr Ross, on behalf of Mr McLean, submits that the Judge failed to give anadequate discount for Mr McLean's time served in custody and on electronicallymonitored (EM) bail. He submits the sentence should be reduced to four months'home detention (not including the remission of fines). The rest of the sentence is notchallenged.[9] Mr Ross observes that Mr McLean spent 151 days remanded in custody priorto sentencing between 12 May 2021 and 18 June 2021, and between 12 October 2021and 1 February 2022. Mr Ross cites authority to the effect that a sentencing Judgemust fully take into account time spent on remand and allow a discount for a sentenceof home detention.13 He therefore submits that a five-month discount ought to havebeen given for time spent on remand, instead of the, at most, two-month discount givenby the District Court Judge.[10] Mr McLean also spent seven weeks and two days on EM bail, from 1 February2022 until his sentencing on 24 March 2022. Mr Ross submits that this is a mandatorymitigating factor for sentencing.14 He submits, citing authority,15 that generally areduction equating to less than half the time spent on EM bail with restrictiveconditions is an appropriate discount. Mr Ross submits that it is unclear on the Judge'sdecision how much of a discount was for Mr McLean's time spent on EM bail, butnevertheless such allowance as was given was too little. He suggests the appropriatediscount would be one month.[11] Overall, Mr Ross suggests that the sentence of 10 months' home detention, inkeeping the two-month discount for remorse and the cultural report factors, ought tohave been reduced by six months to reflect the time spent in custody and on EM bail.13 Te Aho v R [2013] NZCA 47; Ropiha v R [2013] NZCA 60; Longman v Police [2017] NZHC 2928;and Trainor v Police [2022] NZHC 1022.14 Citing Sentencing Act, s 9(2)(h).15 Wharrie v R [2019] NZHC 633; R v Rose [2017] NZHC 1488; Parata v R [2017] NZCA 48;R (CA528/2016) v R [2017] NZCA 210; Chea v R [2016] NZCA 207; R v Mihaka [2014] NZHC2921; Prattley v Police [2014] NZHC 486; and Keown v R [2010] NZCA 492.This would produce an end sentence of four months' and two weeks' home detention,including the cumulative two week period for the remission of fines.Respondent's submissions[12] Mr Chapman, for the Police, accepts that the discount applied gave insufficientrecognition of the time spent in custody. He accepts that there should have been afive-month discount to reflect the five months Mr McLean spent in custody.[13] Mr Chapman contests the discount Mr McLean should get to reflect the periodhe spent on EM bail. He submits that having regard to the Judge's comments regardingremorse and the matters contained in the cultural report, that the initial reduction oftwo months would be appropriate to reflect these matters and the time spent on EMbail.[14] Mr Chapman submitted that, from the 12 month point in my Table A, MrMcLean should have received a five-month discount for his time spent on remand anda two-month discount to reflect his remorse, cultural factors and time spent on EMbail. This would result in an end sentence of five months' and two weeks' homedetention, including the home detention period for the remission of fines.Analysis[15] There is some confusion what discounts the Judge gave for Mr McLean's timein custody and time on EM bail. His Honour said:[12] Combining your apparent remorse, a time in custody and EM bail,your willingness to engage in restorative justice even though that was notaccepted, and the issues raised in the cultural report, I reduce the 12 monthsto 10 months' home detention. That is a substantial reduction but I realise thepersonal background that you have been brought up in, although at 38 it ishigh time that you put that behind you.[13] It has also been suggested to me that I should give you a furtherdiscount for time that you have spent in custody and on EM bail. I disagreewith the one-to-one ratio which has been suggested, because even a remand isnot the same as being a sentenced prisoner, and even being on EM bail is notthe same as being on remand, let alone sentenced. However, I will reduce thehome detention by two months so that we get to eight months.[16] Given the uncertainty of which discounts are given for which factors, it isappropriate on appeal to determine what appropriate discounts would be for:(a) the time spent on custodial remand;(b) the time spent on EM bail; and(c) collectively Mr McLean's remorse and willingness to engage inrestorative justice and the issues raised in his cultural report.Period of remand in custody[17] It is clear Mr McLean should, on the basis of the normal approach, receive afive-month discount for his time spent in custodial remand. As noted by Simon FranceJ in Longman v Police, credit is given for time spent on custodial remand because it isseen as time spent serving the sentence which is later imposed by the Court.16 HisHonour went on to say:17In 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 theanalysis is what reduction to a prison term should be made for restrictive pre-sentence arrangements that do not involve jail. Here, the analysis is whatadjustment should be made to a home detention sentence, the length of whichis fixed by reference to a sentence of imprisonment, for time actually spent injail in effect serving the same sentence. Seen that way, full equivalence shouldbe the norm. Although arising in a different area, I suggest this outcome offull equivalence is consistent with the tenor of the Supreme Court decision inBooth v R where the Court emphasised the need for pre-sentence detention tobe applied effectively to all sentences.Period of EM bail[18] However, as acknowledged by counsel, the situation is different for time spenton EM bail. As Simon France J in Longman observed:[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.First, even the most restrictive EM bail is not the same as serving time in jail;it is still considerably less restrictive. Second, there are many variables16 Longman v Police, above n 13, at [8].17 At [9] (footnote omitted).including length of time on EM bail, conditions, and compliance. Within a 24hour curfew situation there can be considerable variance in the amount ofabsences permitted such as to mean that two apparently similar sets ofconditions have operated vastly differently.[7] Credit for time spent on EM bail is considered when fixing theappropriate length of any sentence of imprisonment. It is a mitigating factorthat is assessed in the same way and at the same time as factors such asremorse, guilty plea and rehabilitative efforts. It feeds into the appropriatelength of the sentence.(footnote omitted)[19] The fact that a one-for-one discount is not the appropriate way to reflect timespent on EM bail has recently been affirmed by the Court of Appeal in Paora v R,where that Court notes that s 30Q of the Bail Act 2000 provides that a defendant onEM bail is not in custody.18 There is no arithmetical formula to determine whatdiscount is appropriate for time spent on EM bail; it is a purely evaluative exercise.19That said, it is recognised that an allowance should be given when a significant periodis spent on EM bail without breach.20 The Court of Appeal in Paora v R noted thatpercentages range usually from 30 to 50 per cent, and that an allowance of up to 50per cent is not uncommon. This is not an upper limit.21[20] As noted by Simon France J in Longman v Police, s 9 of the Sentencing Actrequires a judge to consider time spent on EM bail as a mitigating factor to sentencing.Subsection (3A) provides that the Court must consider the period of time spent on EMbail, the relative restriction of the EM conditions, particularly considering thefrequency of the offender's authorised absences, the offender's compliance with theEM conditions, and any other relevant matter.[21] In this case, Mr McLean spent 51 days on EM bail. This is not a long periodof time. In Longman, one month's credit was given to reflect two-and-a-half monthson EM bail.22 In McKeeman v Police, no discount was given for 39 days spent on EM18 R v Paora [2021] NZCA 559 at [45](a).19 At [46]; and Tamou v R [2008] NZCA 88 at [18]–[19].20 Chea v R, above n 15, at [111].21 R v Paora, above n 18, at [53].22 Longman v Police, above n 13, at [13].bail.23 It is important to consider the time spent on EM bail in conjunction with theother factors.[22] Mr McLean's EM bail conditions were relatively restrictive. He had a 24-hourcurfew and was not to leave the property he was bailed to without the prior approvalof the Department of Corrections. This approval could be granted for a number ofappointments. He also had non-association conditions with the victim of the familyviolence offending, other than for restorative justice purposes. This Court has not beentold how often, if at all, Mr McLean left the EM bail address to attend suchappointments. He also had to present himself if called upon by the Police. He wasnot to consume alcohol or drugs (other than medication prescribed to him) and was tosubmit to alcohol and drug testing as required by the Police. He does not appear tohave breached these conditions in any way.[23] Given these factors, a discount of 40 per cent would have been appropriate toaccount for the period on EM bail, which would come to around three weeks.Remorse and cultural issues[24] The Court next needs to consider the appropriate discount for remorse and theissues raised in the cultural report. The sentencing Judge accepted that Mr McLeanwas remorseful, despite comments made in his pre-sentence report suggestingotherwise. The Judge recognised that Mr McLean had also offered to make amendsthrough reparation payments and requested a referral for restorative justice. Those arefactors to be taken into account under s 10 of the Sentencing Act.[25] Mr McLean's cultural report detailed the domestic violence his father inflictedon his mother for the first five years of his life, his disconnection from his whakapapaand mātauranga Māori, his diagnosis and struggle with ADHD from a young age, hisalcohol and drug abuse, and his gang connections through his father. As noted by thesentencing Judge, the report is supported by a number of sources, not just from MrMcLean's self-assessment. Cultural background factors are relevant to the sentencing23 McKeeman v Police [2022] NZHC 1033 at [8].exercise insofar as they reduce the culpability of the offender. As noted by the Courtof Appeal in Waikato-Tuhega v R:24In short, the assessment of a nexus between the offender's background and theoffending should not be a mechanical exercise with a high threshold of proofbut an overall assessment, assisted by evidence available, under s 27 andgenerally, of how personal circumstances might have contributed toculpability or offending.[26] In this case, I am satisfied that Mr McLean should have received a discount toreflect his cultural background and his offers of reparation and restorative justice. Anappropriate discount would be 15 per cent, in other words the same discount as theJudge arrived at for those matters.Calculation of end sentence[27] The next issue is the calculation of the end sentence. As seen in recent casesin this Court,25 the Court has considered the discount for time spent on custodialremand at different stages of the sentencing exercise, either at the aggravating andmitigating factor of the offender stage, or after the end sentence of home detention isset. Where it is undertaken at the aggravating and mitigating factor stage ofsentencing, the time spent on custodial remand needs to be notionally doubled, toreflect the fact that an offender would only spend half of the period of a sentence ofshort duration in custody.26 I will adopt that approach here, as it is clear that the timespent on EM bail needs also to be considered at that stage.27 I also must adopt thetwo-stage approach identified in R v Moses.28 This necessitates a reformulation of thesentence imposed by the sentencing Judge, which is reflected in my Table B:24 Waikato-Tuhega v R [2021] NZCA 503 at [51].25 Trainor v R, above n 13; and Doidge v Police [2021] NZHC 3195.26 Doidge v Police, above n 25, at [25].27 Longman v Police, above n 13, at [14]; and R v Paora, above n 18, at [65].28 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.Table BDescription SentenceSentence indication for tranches C-G ofoffending (excluding guilty pleadiscount)25 months' imprisonmentSentence indication for tranches A and B(excluding guilty plea discount)8 months' imprisonmentTotal starting point 33 months' imprisonmentAggravating and mitigating features ofthe offender:- 25% for guilty plea- 15% for cultural factors and remorse- 10 months for time spent (5 months) oncustodial remand- 3 weeks for time spent on EM bail- 24 months' imprisonment (rounded)Subtotal 9 months' imprisonmentConversion to home detention 4 months' and 2 weeks' homedetention+ 2 weeks for remission of finesEnd sentence 5 months' home detention[28] Therefore, the end sentence of detention would be one of five months' homedetention.Order[29] I order:(a) the sentence of eight months and two weeks' home detention is quashedand it is replaced by a term of five months' home detention;(b) all other conditions attaching to home detention remain in place; and(c) the other aspects of the sentence, namely the orders as to communitywork and reparation remain in place.Osborne JSolicitors:Crown Solicitor, InvercargillCopy to: J A T Ross, Barrister, Invercargill