O’ROURKE v NEW ZEALAND POLICE [2018] NZHC 2792

O'ROURKE v NEW ZEALAND POLICE [2018] NZHC 2792 [29 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-286[2018] NZHC 2792BETWEEN CLIFTON O'ROURKEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 October 2018Appearances: R Karena for AppellantR Gibbs for RespondentJudgment: 29 October 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr O'Rourke pleaded guilty in the District Court to three charges of burglary,one charge of theft and one charge of receiving stolen property. The offendinginvolved the burglary of commercial premises and the theft of commercial items.[2] On 31 August 2018, Judge D J Harvey sentenced Mr O'Rourke to eight monthshome detention.1 Mr O'Rourke appeals against sentence on the basis that the Judgefailed to take into account time he had spent on remand both in custody and on EMbail subject to a 24 hour curfew. On Mr O'Rourke's behalf, Ms Karena submits theseomissions led to an end sentence that was manifestly excessive.The sentence[3] There was no challenge on the appeal to the manner in which the Judgeconstructed his sentence other than in relation to the omissions to which I havereferred.[4] The Judge took a starting point of 18 months imprisonment on one of theburglary charges. He then added an uplifted of six months to reflect the remainingcharges. The Judge added a further uplift of two months to reflect the fact that theoffending occurred whilst Mr O'Rourke was on bail for similar offending. He thenadded one month to reflect the fact that Mr O'Rourke has numerous convictions foroffending of this type. This produced a starting point of 27 months imprisonmentbefore taking into account mitigating factors.[5] The Judge allowed a discount of 25 per cent to reflect guilty pleas. Thisreduced the sentence to 20 months imprisonment. The Judge then converted this tothe end sentence of eight months home detention. He did not give any reason forimposing a sentence of that length rather than one of ten months, as would ordinarilybe the case when a sentence of 20 months imprisonment is converted to a sentence ofhome detention. Although there is no mandatory principle requiring a reduction ofthis order, it is commonly used to reflect the fact that a short sentence of imprisonmentresults in immediate release after serving one-half of the sentence. An offender1 New Zealand Police v O'Rourke [2018] NZDC 18372.sentenced to home detention, on the other hand, is required to serve the whole of thesentence.Decision[6] It is not surprising the Judge did not refer to the issues now advanced on appealin his sentencing remarks because counsel for Mr O'Rourke did not advance them asfactors justifying a discount. Nor were they referred to in her sentencing submissions.[7] Although the pre-sentence report and EM bail assessor's report referred to thefact that Mr O'Rourke had been on EM bail, they did not set out the duration of theperiod on remand. As a result, the Judge cannot be criticised for not turning his mindto the issue of whether or not a discount ought to have been applied to reflect the factthat Mr O'Rourke was subject to restrictive EM bail conditions between 26 Februaryand 30 August 2018.[8] To guard against the possibility that the omissions produced a manifestlyexcessive sentence, I have undertaken a re-calculation of the sentence that wouldordinarily be imposed taking into account the period on remand in custody or on EMbail. There is no criticism of the ultimate starting point of 27 months imprisonment,and I proceed from that point.[9] A discount may be given for time spent subject to restrictive EM bailconditions. The Court has a discretion to reduce the sentence to reflect that factorwhere it is satisfied it has had a significant impact on the offender's liberty. In thepresent case I consider a sentencer would apply a reduction of around two to two anda half months to reflect the fact that Mr O'Rourke had been subject to restrictive EMbail conditions for a period of approximately six months.[10] This produces a sentence of around 24 months imprisonment before taking intoaccount guilty pleas. There is no dispute that a discount of 25 per cent was warrantedto reflect these. This reduces the sentence to one of 18 months imprisonment.[11] Given that a sentence of home detention was to be imposed, it would then benecessary for the sentencer to take into account the fact that Mr O'Rourke had spent35 days in custody. This is equivalent to approximately two months imprisonmentbecause an offender serving a short-term sentence is released after serving one-half ofthe sentence. This would reduce the sentence to one of 16 months imprisonment. Thatwould be converted to a sentence of eight months home detention, being the sentencethe Judge ultimately imposed in the present case.[12] Using a different method, I have therefore reached exactly the same end resultas the Judge. It follows that the sentence of eight months home detention was notmanifestly excessive.Result[13] The appeal against sentence is dismissed.Lang JSolicitors:Kayes Fletcher Walker, ManukauCounsel:R Karena, Barrister, Auckland