R v TAKAMORE [2020] NZHC 1328

R v TAKAMORE [2020] NZHC 1328 [12 June 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-035-1361[2020] NZHC 1328THE QUEENvAARON TAKAMOREHearing: 12 June 2020Appearances: G J Burston for Crown (via AVL)J C Hannam for Defendant (via AVL)S Nicholls and K Herbert for Department of Corrections (viaAVL)Re-sentencing: 12 June 2020SENTENCING NOTES OF THOMAS J(APPLICATION TO CANCEL AND SUBSTITUTE SENTENCE)[1] Mr Takamore appears today in relation to the application by the Department ofCorrections (the Department) to cancel the sentence of 12 months' home detentionimposed on 13 September 2019.1 The Department seeks that the sentence be cancelledand substituted with imprisonment.Background[2] On 13 September 2019, I sentenced Mr Takamore to 12 months' homedetention in respect of one charge of aggravated burglary. I arrived at that sentence1 R v Takamore [2019] NZHC 2315.by assessing a starting point of five years, taking into account the seriousness of theoffending, reduced to four years to reflect Mr Takamore's lesser participation in theoffending. I then considered mitigating factors personal to Mr Takamore, being hispersonal circumstances and cultural factors, remorse, time in custody on remand andhis guilty plea to arrive at a sentence of 24 months' imprisonment before consideringwhether a sentence of home detention was appropriate.[3] I noted that, from the outset, the Crown had recognised that Mr Takamore'scase was one in which home detention would be appropriate. Mr Takamore wassentenced to home detention at the address assessed as suitable, together with specialand standard detention and post-detention conditions.[4] In November 2019, and without the matter having been referred to me,Mr Takamore's home detention address was changed to that of his mother.Mr Takamore left the address without the Department's consent, leading to his beingremanded in custody on 19 January 2020. The Department then applied to cancel thesentence and for Mr Takamore to be resentenced to imprisonment.[5] In March 2020, Mr Takamore was convicted of two charges of breach of thesentence of home detention. On 19 March, I dismissed the Department's applicationto cancel the sentence of home detention, the effect of which was that Mr Takamore'ssentence of home detention imposed on 13 September 2019 continued to run. Thehome detention address reverted to the original home detention address.[6] On 8 May 2020, the occupant of the home detention address requestedMr Takamore's removal. He has been in custody since that date.[7] Despite numerous attempts, no suitable address for home detention isavailable. Mr Takamore no longer seeks a continuation of the home detention sentenceand is prepared to serve the balance of his sentence as a short term of imprisonment.Mr Hannam confirms that an updated presentence report is not sought.[8] I also note that Mr Takamore appears by AVL from the Whanganui Prison. Wehave just gone down to COVID-19 Alert Level 1. In the usual course, Mr Takamorewould attend in person for sentencing. It has been agreed today, and specificallyMr Takamore agrees, for sentencing to take place by his appearance through AVL.[9] Mr Takamore was given his second strike warning on 21 March 2019. Thismeans that he will serve any sentence of imprisonment without parole or early release.2The law[10] On being satisfied there are grounds for the application for cancellation of ahome detention sentence, the Court may cancel the sentence and substitute any othersentence (including home detention) that could have been imposed at the time ofconviction.3[11] When determining a substitute sentence, the Court must take into account theportion of the original sentence that remains unserved at the time of the order.4 TheCourt may, at the same time, cancel any sentence of community work that the offenderis serving concurrently with the sentence of home detention.5[12] In considering an application to re-sentence, the Court must focus on thesentence that could have been imposed at the time the original sentence was passed.6Any need to sanction a failure to comply with the original sentence is relevant whenan offender is charged with breach of the original sentence but it is not relevant to theconsideration of a substituted sentence.7 In Morgan v R, the Court of Appealconsidered an appeal against a substituted sentence of eight months' imprisonmentwhere the original sentence was 150 hours of community work. It was apparentMr Morgan had no intention of performing the hours, having completed only four.The Court of Appeal said:[14] Where imprisonment is imposed in substitution for a community-based sentence, there will inevitably be a greater degree of hardship for theoffender. That is legitimate. In such a case, the offender will have had thebenefit of a less restrictive alternative than imprisonment but will have failedto take advantage of it. The re-sentencing Judge is likely to weigh the various2 Sentencing Act 2002, s 86C(4).3 Section 80(f)(4)(d).4 Section 80G(2).5 Section 80G(1)..6 Morgan v R [2008] NZCA 232, at [13].7 Morgan v R [2008] NZCA 232, at [13].purposes and principles of sentencing in a way that is different to that whichoccurred on the first sentencing. For example, where the community basedsentence was imposed because the sentencing Judge placed particular weighton the offender's rehabilitation, that factor may assume less weight onre-sentencing given the offender's failure to comply with the community-based sentence.[15] Accordingly, while we accept that there must be some proportionalitybetween the sentence originally imposed and the substituted sentence, we donot consider that there can be any strict correlation between them, much lesssome mathematical formula. The essential point is that the substitutedsentence must be one that could properly have been imposed initially; and itmust be imposed against the background that a sentence of community workwas thought initially to be appropriate. In the present case, the appellant'sfailure to make any real effort to comply with the community work sentencemeant that a community based sentence was unsupportable and a sentence ofimprisonment inevitable. But such a sentence had to be imposed against thebackground that a sentence of 150 hours of community work was initially seenas the appropriate sentence.[13] Therefore, while there must be some proportionality between the sentenceoriginally imposed and the substituted sentence, the substituted sentence is notnecessarily arrived at by way of a mathematical calculation taking into account thetime spent on home detention and subtracting that from the nominal sentence ofimprisonment which would have been imposed had the offender not been sentencedto home detention. It remains an evaluative exercise.Assessment of substituted sentence[14] The appropriate approach is to start with the original sentencing decision andthe end point of a nominal sentence of 24 months' imprisonment (prior to consideringhome detention). That sentence, however, included a deduction for time Mr Takamorehad spent on remand. This was because he was being sentenced to home detention asopposed to imprisonment where a deduction for time in custody on remand is a matterfor the Department. It is therefore necessary to make an adjustment to the nominalstarting point in considering this application to reflect that allowance. This results inan effective starting point of a sentence of 27 months' imprisonment.88 Forty-eight months less 25 per cent for personal and cultural factors and remorse, and a 25 per centdiscount for a guilty plea.Period on remand[15] As at 29 May 2020, Mr Takamore had spent 231 days in custody in connectionwith the charge of aggravated burglary. This included time in custody prior toconviction and pending sentence, time in custody pending re-sentence and time incustody between the application to cancel the home detention sentence anddetermination of that application. Those periods will be taken into account by theDepartment for the purposes of determining Mr Takamore's release date.9 The Courtmust not take these periods into account in determining the length of Mr Takamore'ssentence of imprisonment.10[16] The Department will not, however, take into account the time Mr Takamorehas spent on home detention (179 days) in determining his release date.Adjustment for time spent on home detention[17] Home detention is usually calculated by dividing in two the period arrived atby the Court as a short sentence of imprisonment. This is because a defendant isautomatically released after having served half the sentence. However, Mr Takamoreis subject to a second strike warning and any sentence of imprisonment must be servedwithout parole or early release.[18] Mr Takamore has served 179 days or effectively six months on home detention.This would equate to a short term of imprisonment of 12 months. If approached thatway, Mr Takamore's sentence of imprisonment would be calculated by deducting12 months from the effective starting point of 27 months, resulting in a sentence of15 months (one year, three months).[19] Alternatively, if Mr Takamore receives credit for the 179 days only, he has649 days of his sentence left, or one year and nine months.9 Parole Act 2002, ss 82 and 86.10 Sentencing Act 2002, s 82.[20] The Department's position is that it is for the Court to determine how to adjustMr Takamore's sentence of imprisonment to account for the time he has already spenton home detention.[21] In Mr Hannam's submission, for Mr Takamore, the Court should be mindfulof the fact that Mr Takamore completed half the sentence of home detention. Therewas virtually no engagement with the Community Probation Service, meaning thespecial conditions of a psychological assessment and alcohol and drug counsellingwere not fulfilled. Mr Hannam also urges me to take into account the fact that MrTakamore will serve the entirety of his sentence. In Mr Hannam's submission, theintention of the home detention sentence was to facilitate Mr Takamore's rehabilitationand it was not entirely Mr Takamore's fault that the sentence did not succeed.[22] Mr Hannam submits that the Court should impose a sentence of one year andthree months' imprisonment, with a cumulative sentence of seven to fourteen days inrespect of Mr Takamore's outstanding sentence of community work, where he has64 hours outstanding.[23] Mr Burston, for the Crown, accepts that Mr Takamore's sentence of homedetention is being cancelled through no substantial fault of his own and that fact couldarguably reflect that he has greater rehabilitative prospects worthy of credit.Mr Burston still supports the original sentence of home detention.[24] Mr Burston acknowledges that a sentencing court may consider the impact ofrelease eligibility when sentencing to avoid manifest injustice for a second strikeoffender.11 Despite those acknowledgements, Mr Burston submits that Mr Takamoreshould be eligible for a 1:1 exchange ratio credit in respect of the time he spent onhome detention. He does, however, submit that proportionality is the overallconsideration.11 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49, see [52]–[59] and [77]–[79].Assessment[25] I have not changed my position in relation to the appropriate sentence forMr Takamore. It was appropriate that he be sentenced to home detention rather thana determinate sentence of imprisonment. Through no substantial fault of his own, hisoffending will now be caught by the repeat serious violent offender regime.[26] It is appropriate to remember that Mr Takamore's sentence of home detentionwas intended to be rehabilitative and that there were encouraging signs that he had agenuine desire to, and was trying to, rehabilitate. Ultimately, however, the necessaryenvironment and supports were not there. I say that recognising that Mr Takamorepresents with challenges.[27] This case highlights the challenges faced by offenders in situations similar toMr Takamore's. That is, those who are trying to break from a past history of offendingand genuinely seek rehabilitation. It is in their best interests and in the best interestsof the community for them to receive a sentence short of imprisonment.12 There is,however, often no appropriate accommodation or support to enable them to do so.[28] It is, in my assessment, appropriate to recognise that Mr Takamore completedhalf his sentence of home detention. He did so in challenging circumstances – notonly the nature of the accommodation but also the fact that, exacerbated by theCOVID-19 pandemic, he was unable to participate in the rehabilitative measureswhich both he and the Court intended. He is entitled to receive credit for that. BecauseMr Takamore was suitable for home detention, he avoided the impact of being on asecond strike. In contrast, the substituted sentence of imprisonment will need to beserved in full.[29] I am satisfied Mr Takamore's case should be considered on that basis. That is,he has completed half his sentence. I must take into account the portion of the originalsentence that remains unserved – that portion is one-half of the sentence.12 The safety of the community is also a relevant purpose under s 7(1)(g) of the Sentencing Act.[30] The period of 12 months' home detention was calculated on the basis of24 months' imprisonment being the nominal end sentence I arrived at after consideringrelevant mitigating factors. As Mr Takamore has served half his sentence, there istherefore 12 months remaining. Added to that is the three-month credit for time hespent in custody on remand, which was applied when calculating his home detentionsentence. The result is a substituted sentence of 15 months or one year and threemonths' imprisonment. Standing back and considering Mr Takamore's position, I amsatisfied that is the appropriate substituted sentence. Although this can be considereda somewhat mathematical approach, it is an evaluative one. It is an appropriate resultin these particular circumstances where the real need for a substituted sentence comesfrom the unavailability of a suitable home detention address rather than a stridentrefusal to comply with a sentence, as was the case in R v Morgan. I stress again thatMr Takamore was originally given a home detention sentence to reflect his genuinedesire to rehabilitate. Circumstances outside his control should not count against himwhen assessing his substituted sentence.[31] There is also the need to deal with the outstanding community work. Thatsentence is cancelled and a cumulative sentence of two weeks' imprisonment imposed.Result[32] The Department's application is granted. Mr Takamore's sentences of homedetention and community work are cancelled. In substitution, Mr Takamore issentenced to one year, three months and two weeks' imprisonment.[33] It is appropriate that standard and special release conditions apply. They arethose recommended by the Probation Officer as follows:(a) Mr Takamore is to attend an alcohol and drug assessment, and attend,participate in and complete any treatment or counselling directed by aProbation Officer;(b) Mr Takamore is to attend an assessment for a departmentalprogramme/maintenance group, and attend, participate in and adhere tothe rules of the programme/maintenance group as directed by aProbation Officer; and(c) Mr Takamore is not to have contact or otherwise associate with anyvictim of his offending, directly or indirectly, unless with the priorwritten approval of a Probation Officer.Thomas JSolicitors:Crown Solicitor's Office, Wellington