BROADHURST v NEW ZEALAND POLICE [2017] NZHC 498

BROADHURST v NEW ZEALAND POLICE [2017] NZHC 498 [17 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000005[2017] NZHC 498BETWEEN CASEY BROADHURSTAppellantAND NEW ZEALAND POLICERespondentHearing: 14 March 2017Appearances: C M Yardley for AppellantS J Mallet for CrownJudgment: 17 March 2017JUDGMENT OF DUNNINGHAM J[1] The appellant, Mr Broadhurst, had on 3 June 2016 been sentenced by Judge Couch to 10 months' home detention for two charges of receiving, one charge of breach of a protection order, and one charge of breach of supervision conditions.1[2] That sentence came up for reconsideration on an unopposed application for review lodged on 26 October 2016, because the appellant had not complied with the conditions of home detention. The appellant then spent close to two months on remand until, on 19 December 2016, Judge Mackaskill imposed, in lieu of theprevious sentence of home detention, a sentence of 16 months' imprisonment which included an additional six months which had previously been credited for reparation matters, but which had apparently not been paid.21 Police v Broadhurst [2016] NZDC 10154.2 Department of Corrections v Broadhurst [2016] NZDC 25981.[3] The appeal against sentence is mounted on the basis that the sentence imposed by Judge Mackasill was manifestly excessive. However, as was clarified at the oral hearing, the real issue was whether the Judge should have taken into account the time the appellant spent on remand before the 19 December sentencing, or whether the prison authorities should have regard to it in deciding when Mr Broadhurst would be eligible for parole. It was accepted that if the latter was thecase, then the Judge's decision could not be challenged for being manifestlyexcessive.[4] A second ground of appeal, which related to whether the Judge erred in assuming that the appellant was required to pay $29,000 in reparation but had failed to do so, was not pursued at hearing.Principles on appeal[5] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that, in the event, a different sentence should be imposed.3Judge Mackaskill's decision[6] Judge Mackaskill referred to the sentencing by Judge Couch. He dismissed an argument that because a breach of home detention charge had been withdrawn, the Court could still exercise its discretion to again impose home detention, although presumably for a lengthier period. He considered that that overlooked the fact of non-compliance, and that the appellant had initially consented to the cancellation of the sentence.[7] As the application was not for resentencing per se, the Judge declined toentertain the appellant's further submissions about factors said to be relevant to hisoffending. He deferred to Judge Couch's methodology. Five of the 10 months'home detention had been served, leaving five months remaining. Applying orthodox3 Criminal Procedure Act 2011, ss 250(2) and 250(3).sentencing principles in reverse, he transmuted that to 10 months' imprisonment. He then added a further six months which had initially been credited on the understanding that $29,000 in reparation had been paid, when it had not.[8] That led to the Judge imposing a final sentence of 16 months' imprisonment.He acknowledged that some credit for time spent on remand would be appropriate,but that that was "not for [him] to take into calculation today". The inference is that he considered that to be a matter for the prison authorities.Time spent on remand[9] The appellant submits that the prison authorities take the view that, whilst credit for time spent on remand is directed by the Sentencing Act 2002 in caseswhere the remand is "pre-sentence detention", those circumstances do not apply hereas the appellant had been subject to the community-based sentence of home detention when he was re-sentenced. Accompanying the appellant's submissionswas a copy of Mr Broadhurst's complaint about the prison authorities' calculation ofhis date of eligibility for release and the reply received from the prison authorities. Their reply says, in substance, that it was for the Judge to take time spent on remand into account, if appropriate, when assessing the sentence, and the two months hespent in remand was not treated as "pre-sentence detention"[10] As the respondent says, the question is whether time the appellant spent on remand was properly a matter for the consideration of the Judge, or should be treated by the prison authorities as pre-sentence detention. That turns on the correct interpretation of the relevant provisions of the Sentencing Act 2002 and, whererelevant, the provisions of the Parole Act 2002, as they apply to the appellant'sparticular circumstances.[11] As the respondent identifies, the prison authority has, in its letter, implicitly invoked s 80ZB of the Sentencing Act 2002, which provides as follows:80ZB Time ceases to run in certain circumstancesFor the purpose of calculating how much time an offender who is subject to a sentence of home detention has served,–(a) time ceases to run on the sentence during any period between the date on which an application under section 80F(1)(a) is lodged andthe date on which the application is determined by the court; but(b) some or all of the period between those dates may be regarded by the court as time served, as the court thinks appropriate in the circumstances, after taking into account–(i) the extent (if any) to which the offender has complied with any detention conditions; and(ii) the amount of time (if any), that the offender has spent in custody.(emphasis added)[12] The application for variation or cancellation of the sentence of home detention under s 80F(1)(a) was made on 26 October 2016 and granted on that day. In the notes of Judge Garland in relation to Mr Broadhurst's appearance that day, herecorded that Mr Broadhurst "also appears before the Court in relation to anapplication for cancellation of the sentence of home detention. That is not opposed. Accordingly, the application is granted".4[13] The fact the sentence was cancelled is reiterated in a minute of Judge Garland which issued on 3 November 2016, and recorded:[3] The defendant consented to the application for cancellation of the sentence of home detention being granted. I therefore granted the application and remanded the defendant to a date for resentencing.[14] The fact the sentence was cancelled on 26 October 2016, is also recorded in Judge Mackaskill's sentencing notes where he says that, on 26 October 2016 "theapplication not being opposed, it was granted and the sentence of home detentionwas cancelled".5[15] It appears, therefore, that the prison authorities have taken the view, erroneously, that the date on which the application for cancellation was determined was on 19 December 2016 when the appellant was sentenced by Judge Mackaskill. That is implicit in the prison authorities' reply to Mr Broadhurst's complaint where they say:4 Department of Corrections v Broadhurst [2016] NZDC 21675 at [1].5 Department of Corrections v Broadhurst, above n 2, at [1].this basically means remand is not deemed time served on a review sentencebecause the offender will still have been subject to the originalcommunity based sentence whilst in custody. They were therefore not in pre- sentence detention, ie detention that occurs pending sentence.[16] The short point is that, from 26 October 2016 onward, the appellant did not remain subject to the community-based sentence initially imposed. That sentence had been cancelled. Pursuant to s 80Z of the Sentencing Act, the appellant ceased to be subject to a sentence of home detention and was in pre-sentence detention.[17] The present case is distinguishable from the case in Hawkins v Chief Executive of Department of Corrections, which concerned time spent on remand after an application was made under s 80F(1) to cancel the offender's sentence.6 In that case, the defendant had served time on remand following the application but prior to its "determination", where the initial sentence was cancelled and the new sentence imposed. In those circumstances, Mander J was:7satisfied that the period spent in custody between the date of applicationand its determination does not constitute pre-sentence detention for the purpose of calculating release dates under ss 90 and 91 of the Parole Act.Mander J referred to s 80Z and the fact that the offender remained subject to the earlier sentence of home detention until cancelled. Logically, and consistent with the statutory scheme, the detention could not, within the meaning of s 91 of the Parole Act, relate to "a stage during the proceeding leading to the conviction or pending sentence".8[18] The crucial point of difference between the present case and Hawkins is that in the latter, cancellation and substitution occurred simultaneously, and after the period on remand. Here, cancellation occurred before any period of remand, so during that remand the appellant was not "subject" to the earlier sentence of homedetention. The proper characterisation of that period is that the appellant was onremand "pending sentence".6 Hawkins v Chief Executive of Department of Corrections [2015] NZHC 1001.7 At [16].8 At [17].[19] Since the appellant was not still subject to an earlier sentence whilst onremand, the only reasonable alternative is that he was on "pre-sentence" detentionwithin the meaning of s 91 of the Parole Act 2002. Therefore, in accordance with s 82 of the Sentencing Act, the Judge was correct to decline to take it into account when determining the length of a sentence of imprisonment, as he was asked to do.Conclusion[20] Accordingly, there was no error in the Judge's approach to sentencing and theappeal on this ground is dismissed.[21] That said, Mr Broadhurst has been successful in asserting that the period of pre-sentence detention between 26 October 2016 and 19 December 2016 should be taken into account in determining his eligibility for release, as s 90(1) of the Parole Act 2002 applies. The prison authorities should give the appellant credit for the time spent on remand after the sentence was cancelled on 26 October 2016.[22] For this reason, a copy of this decision should be provided to the Departmentof Corrections, to be referred to the appropriate person at the Christchurch Men'sPrison. For the avoidance of doubt, though, I observe that there is no criticism of prison authorities in this. The point was technical and required a careful review of the Court file in this particular case to clarify the position.Solicitors:C M Yardley, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch