WALLACE v NEW ZEALAND POLICE [2020] NZHC 1280

WALLACE v NEW ZEALAND POLICE [2020] NZHC 1280 [10 June 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000040[2020] NZHC 1280BETWEEN CLINTON NORMAN WALLACEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 June 2020Appearances: L Herbke for the AppellantA S C Alcock for the RespondentJudgment: 10 June 2020JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 10 June 2020 at 3:30 pm.Registrar/Deputy RegistrarDate:Introduction[1] The appellant, Clinton Norman Wallace, was sentenced to 16 months'imprisonment in the Hamilton District Court after pleading guilty to a range ofcharges. Leave was granted for him to apply for home detention if a suitable addressbecame available. That occurred and Mr Wallace was re-sentenced by a differentJudge to a term of six months' home detention.[2] He appeals that sentence on the grounds that it was not discounted for the timehe spent on custodial remand.District Court decision[3] Mr Wallace was remanded in custody on 30 September 2019 following hisarrest. He remained in custody until his sentencing on 16 December 2019 before JudgeJ C Down in the Hamilton District Court.1[4] The Judge sentenced Mr Wallace to 16 months' imprisonment. The sentencewas comprised as follows:Offence Act MaximumpenaltySentenceBurglary Crimes Act 1961,s 23110 years'imprisonment12 months'imprisonmentUnlawfullytakes motorvehicleCrimes Act 1961,s 226Seven years'imprisonmentFour months'imprisonment(cumulative)Unlawfullytakes motorvehicleCrimes Act 1961,s 226Seven years'imprisonmentFour months'imprisonment(concurrent)Theft ($500 to$1000)Crimes Act 1961,s 223(c)One year'simprisonmentFour months'imprisonment(concurrent)Theft (under$500)Crimes Act 1961,s 223(d)Three months'imprisonmentTwo months'imprisonment(concurrent)1 Police v Wallace [2019] NZDC 25500.Offence Act MaximumpenaltySentenceOffensive useof telephoneTelecommunicationsAct 1987, s 112Three months'imprisonment orfine not exceeding$2000One month'simprisonment(concurrent)[5] At 16 months, the sentence meets the definition of a short-term sentence.2Under s 86(1) of the Parole Act 2002 ("the Act") Mr Wallace would only have to serveeight months of that sentence. He had already served approximately two-and-a-halfmonths' imprisonment before his sentencing. Accordingly, he would have beenreleased in June.[6] Mr Wallace was also granted leave to apply for home detention. On19 February 2020, Judge T R Ingram commuted his remaining sentence to six months'home detention at Gracegate. The effect of that re-sentencing is that Mr Wallace'ssentence of home detention will end in August; that is two months more than if theoriginal sentence had remained.Approach to appeal[7] I must allow the appeal against sentence if I am satisfied that there has been anerror in the sentence imposed for any reason and that a different sentence should beimposed.3 The focus is on the sentence imposed, rather than the process by which itis reached.4 Although the sentence does not need to be 'manifestly excessive', this isa helpful concept when assessing the seriousness of the error.5SubmissionsAppellant submissions[8] Mr Herbke, for Mr Wallace, submitted that Judge Ingram erred when he stated:"you have now served two months of your sentence."2 Parole Act 2002, s 4(1).3 Criminal Procedure Act 2011, s 250.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 At [35].[9] In fact he had at that point also spent two-and-a-half months on custodialremand. This is supported by s 90(1) of the Act:"For the purpose of calculating the key dates and non-parole period of asentence of imprisonment (including a notional single sentence) and anoffender's statutory release date and parole eligibility date, an offender isdeemed to have been serving the sentence during any period that the offenderhas spent in pre-sentence detention."[10] As a result, Mr Herbke submitted that the sentence imposed was manifestlyexcessive. He claimed that had Mr Wallace known that the release date of homedetention would exceed the release date of imprisonment,6 he would not have electedto apply for home detention.[11] Mr Herbke suggested that this was a calculation error or omission rather thanJudge Ingram specifically turning his mind to imposing a longer sentence of homedetention on a principled and reasoned basis. Mr Herbke submitted that whileGracegate provides a supportive living environment with some rules that residentsmust observe, it is not a rehabilitative centre with dedicated rehabilitativeprogrammes. Thus, the longer sentence was not justified by Mr Wallace needing tocomplete an intensive rehabilitative course.Crown submissions[12] Ms Alcock, for the Crown, accepted that at the time Mr Wallace was sentencedby Judge Ingram he had served two months' imprisonment of Judge Down's sentencebut he had also spent over two months in pre-sentence detention. However, the Crownsays the method of calculation is a matter of judicial discretion and in any event theend sentence was not manifestly excessive.Discussion[13] The orthodox approach in converting a sentence of imprisonment to homedetention is to halve it, as an offender is generally eligible for release half way throughtheir prison sentence. However, this convention is not prescribed by legislation.7 The6 See Parole Act 2002, s 86(1).7 R v Bisschop [2008] NZCA 229.proper approach is an evaluative assessment of all the circumstances.8 Section 80K(6)of the Sentencing Act 2002 requires the Court to take into account the portion of theoriginal sentence that is yet to be served at the time the sentence is converted to oneof home detention.[14] The discrepancy here is a matter of two-and-a-half months. The Court will notinterfere with a sentence where it would amount to tinkering. However, the Court hasin the past quashed a home detention sentence and replaced it with a relatively shortersentence to take into account "time served".9[15] This approach may be contrasted with cases where the Judge has specificallyconsidered s 80K(6) but nonetheless imposed a sentence of home detention whichexceeded half the time.10 I am satisfied that Judge Ingram intended to adopt thehalving convention but was not alerted to the correct position by either the prosecutoror Mr Wallace's counsel (who was not Mr Herbke). Denied of the true position it isunsurprising the Judge understated the time Mr Wallace had, by that point, been incustody. It thus follows I am satisfied that the Judge was led into error. As aconsequence, s 250(b) of the Criminal Procedure Act 2011 requires me to considerwhether a different sentence should be imposed.[16] I have considered whether, notwithstanding the error, the sentence shouldstand. There are aspects of the offending, particularly the burglary and the theft of thelaptop, which are troubling and might have justified a longer sentence of homedetention. Mr Wallace abused the trust others placed in him. He exploited theirgoodwill and generosity of spirit in order to steal from them to support hismethamphetamine addiction. The owner of the laptop made a victim impact statement.She described how the loss of the device, on which she had stored photographs of herlate partner, had affected her. She has needed medical intervention. She said she couldnot stop crying; that she panicked over how her daughter would cope with the newsthat her last visual links with her father had been lost. This deep sense of loss wasaggravated by the actions of Mr Wallace who the victim described as "taunting" her8 At [18].9 Kopa v Police [2017] NZHC 1244; Wilson v Police [2018] NZHC 1352; Tasi v Police [2019]NZHC 2186; Baillie v Police [2020] NZHC 155.10 Henry v Police [2018] NZHC 394 at [35].by agreeing to recover the laptop but taking no steps to do so and threatening her viatext messages. Ultimately the laptop was recovered through the assistance ofMr Wallace's family.[17] Against these negative factors, the pre-sentence report is generally positive.While it recorded some sense of "self-entitlement" on Mr Wallace's part, it alsorevealed a degree of insight and expressed some optimism that Mr Wallace, despitehis lengthy criminal history, may be turning a corner.[18] However, I cannot overlook the self-evident truth that had Mr Wallace knownthat the re-sentencing would have the unintended effect of him actually spending moretime in custody than if he had continued his sentence of imprisonment, he would nothave applied to be re-sentenced. He would have been released on 30 May 2020. Thatis compelling in my view.[19] In order to prevent further injustice I am satisfied the original sentence of homedetention should be quashed with immediate effect and a sentence of three-and-a-halfmonths' home detention imposed, based on a "rough and ready" calculation of the timeserved. That should have the effect of an immediate release. I am satisfied the post-release conditions should remain intact.Result[20] The appeal is allowed.[21] The sentence of six months' home detention is quashed and substituted with asentence of three-and-a-half months' home detention.Moore JSolicitors:Mr Herke, AucklandCrown Solicitor, Hamilton