DERMOT GREGORY NOTTINGHAM v R [2020] NZSC 74

DERMOT GREGORY NOTTINGHAM v R [2020] NZSC 74 [31 July 2020]NOTE: HIGH COURT ORDER IN [2014] NZHC 550 PROHIBITINGPUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFDEFENDANTS IN [2014] NZHC 550 AND [2014] NZHC 1848 REMAINSIN FORCE.NOTE: DISTRICT COURT ORDER IN [2018] NZDC 15368 PROHIBITINGPUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF T, C, H, BAND M REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 83/2019[2020] NZSC 74BETWEEN DERMOT GREGORY NOTTINGHAMAppellantAND THE QUEENRespondentHearing:Furthersubmissions:28 May 20206 July 2020Court: William Young, Glazebrook, O'Regan, Ellen France andWilliams JJCounsel: Appellant in personC A Brook for RespondentJudgment: 31 July 2020JUDGMENT OF THE COURTA The appeal against sentence is allowed. The sentence of12 months' home detention imposed by the Court ofAppeal is varied by replacing that sentence with a sentenceof eight and a half months' home detention with a start dateof 30 July 2019.B Having served more than 12 months' home detention,Mr Nottingham has served that part of his sentence. Thestandard and special post-detention conditions imposed bythe Court of Appeal remain in place for the remainder ofthe 12-month and six-month post-detention periodsrespectively.C The remaining period of community work to be served byMr Nottingham is remitted.____________________________________________________________________REASONS(Given by Ellen France J)Table of ContentsPara NoIntroduction [1]Background [4]The case on appeal [17]The statutory scheme [23]Our assessment [34]Result [52]Introduction[1] Mr Nottingham was convicted after a jury trial of two charges of publishinginformation in breach of suppression orders1 and five charges of criminal harassment.2He was sentenced by the trial Judge, Judge Down, to a term of 12 months' homedetention and 100 hours of community work.3 Mr Nottingham appealed againstconviction and sentence to the Court of Appeal. The Solicitor-General appealedagainst sentence.[2] By the time the appeal to the Court of Appeal was heard, Mr Nottingham hadserved three and a half months of his sentence of home detention.4 His appeal wasunsuccessful but the Court of Appeal allowed the Solicitor-General's appeal againstsentence.5 The Court quashed the part served sentence of home detention and imposeda sentence of 12 months' home detention together with 100 hours of community work.1 Criminal Procedure Act 2011, s 211(1).2 Harassment Act 1997, s 8(1).3 R v Nottingham [2018] NZDC 15373 [Sentencing remarks]. The sentence of community workwas applied to the breach of name suppression which occurred first in time.4 The Court of Appeal granted Mr Nottingham bail and his home detention was suspended on9 November 2018, pending determination of his appeal to that Court.5 Nottingham v R [2019] NZCA 344 (Wild, Thomas and Muir JJ) [CA judgment].[3] The issue on appeal is whether the Court erred in imposing a term of homedetention on Mr Nottingham which would mean that, in total, he would serve 15 anda half months' home detention. The issue arises because s 80A(3) of theSentencing Act 2002 provides that while a sentence of home detention "may be forsuch period as the court thinks fit", the period "must not be for less than 14 days ormore than 12 months". The effect of the upper limit of 12 months raises two initialquestions in this case. The first question is whether the Court of Appeal hadjurisdiction to impose a sentence of 12 months' home detention given Mr Nottinghamhad already served some time on home detention. The second question is whether, ifthe Court had jurisdiction, it was nonetheless contrary to policy to impose a sentencethat had the practical effect that Mr Nottingham would serve more than 12 months'home detention. If the Court of Appeal's sentence was beyond jurisdiction or wascontrary to policy, there arises a third question about what steps this Court should nowtake.Background[4] The charges relating to the suppression orders concerned orders for permanentname suppression made in relation to the two young men charged with assaultingStephen Dudley.6 Mr Dudley subsequently died. The Crown case at trial was thatMr Nottingham published, or had published, an article on the blog known as LaudaFinem (LF) which included photographs and names of the two young men. Thecriminal harassment charges also concerned publications on the LF blog. Thepublications related to five complainants, T, C, H, B and M, each of whom had crossedpaths with Mr Nottingham in some way.[5] In sentencing Mr Nottingham, the trial Judge proceeded on the basis of thefollowing factual findings in relation to the charges:7(a) Mr Nottingham either was LF (in other words the leading mind of thatblog) or he was so intimately related to it that it was proper to concludethat he provided information and draft articles to that blog knowingand intending that they would be published.6 R v M [2014] NZHC 1848; and R v Q [2014] NZHC 550.7 Summary taken from the CA judgment, above n 5, at [81].(b) Publication and other intimidating and harassing conduct was eithercarried out by Mr Nottingham himself or at his direction and he knewhis conduct was likely to cause the individuals involved to fear fortheir safety or that of family members.(c) Although Mr Nottingham may, at least initially, have reasonablybelieved he had legitimate grievances in respect of the complainants,he elected to pursue these, not by lawful and reasonable means, butby personal attacks on an "anything goes" basis.[6] The Court of Appeal accepted those findings were consistent with the jury'sverdicts.[7] Turning then to the respective approaches to sentencing, as will be seen, thekey difference between the approach taken by the trial Judge and that in the Court ofAppeal was that the Court of Appeal considered the starting point should have beenapproached on the basis that cumulative rather than concurrent sentences wereappropriate for the lead offences of criminal harassment.8[8] In determining the appropriate starting point on the criminal harassmentcharges, the trial Judge saw the offending in relation to C and T as the most serious,justifying a starting point of 12 months' imprisonment for one of those charges. Theother four charges individually were seen as possibly justifying a starting point ofsomewhere between six and 12 months' imprisonment. Adopting concurrentsentences for each of these four charges with uplifts of three months each brought theoverall starting point for the harassment charges to 24 months' imprisonment.9[9] The breaches of suppression orders were treated as "blatant [and]contemptuous".10 Nonetheless, the Judge considered they were not the most seriousexamples of this type of offending and adopted a starting point of three months for thefirst breach, uplifted by a further month to reflect the second breach.118 The Judge considered that cumulative sentences for each of the seven charges would result in asentence which was disproportionate with the gravity of the offending and with Mr Nottingham'spersonal circumstances.9 The maximum penalty for these offences is 24 months' imprisonment: Harassment Act, s 8(2).10 Sentencing remarks, above n 3, at [50].11 The maximum penalty for these offences is six months' imprisonment: Criminal Procedure Act,s 211(4)(a).[10] A four-month discount from the combined total starting point of 28 months'imprisonment was given to reflect Mr Nottingham's various health problems.12 TheJudge considered his health issues meant that a sentence of imprisonment would bemuch harder for him than for his average counterpart. The discount of four monthsbrought the Judge to a final figure of 24 months' imprisonment which meant that thesentence of home detention was available. The Judge considered home detention wasappropriate and sufficient to meet the justice of the case, noting that it also providedopportunities for rehabilitation because of the option to impose restrictive conditions.The sentence of 12 months' home detention and 100 hours of community work wasimposed.[11] The Court of Appeal considered that the Judge's approach ultimately resultedin allowing an excessive adjustment to reflect totality. While various approaches wereavailable, the Court considered the better approach was:13 to have started with a series of cumulative sentences properly reflecting theseverity of the individual harassment charges, with a further cumulativesentence for the breach of suppression charges (treated concurrently asbetween themselves), subject to an overall totality adjustment and then with adeduction for ill health (if allowed).[12] The Court accepted the submission from the Solicitor-General that theoffending against C and T each justified a 12-month starting point, and that cumulativesentences of six months in relation to the offending against B, five months in relationto the offending against H, and five months in relation to the offending against M wereappropriate.[13] The Court agreed with the Judge that the breach of suppression offences "weresufficiently interconnected and similar in kind" so as to attract concurrent sentences.14On a concurrent basis, a starting point of five months' imprisonment for this offendingbefore any totality adjustment was seen as appropriate. When the five months'imprisonment was added to the starting point adopted for the criminal harassmentoffending, this led to a total figure for all of the offending in the order of 45 months'imprisonment. From that figure, the Court considered a discount of 10 months was12 The Judge also noted that this would have been Mr Nottingham's first sentence of imprisonment.13 CA judgment, above n 5, at [99].14 At [101].appropriate to reflect the totality of the offending along with a discount of four monthsfor Mr Nottingham's ill health. That would have led to a sentence of 31 months'imprisonment.[14] However, the Court said that in resentencing Mr Nottingham it was necessaryto take into account the three and a half months of home detention he had served.Providing a seven-month discount for this factor brought Mr Nottingham's sentenceto 24 months' imprisonment, which as the Court said, was "a level where the Court[was] obliged to consider home detention".15 The Court decided home detention wasan appropriate sentence, particularly having regard to the following factors:16(a) Mr Nottingham's physical and mental health, which we considerwould make the consequences of imprisonment disproportionatelysevere;(b) the opportunity [for] direct participation in rehabilitative programmes,as recognised by the Judge; and(c) the ability to protect the interests of the complainants and thecommunity by the imposition of restrictive conditions of internetaccess, again as recognised and directed by the Judge.[15] As to the final structure of the new sentence, the Court considered that s 85(3)of the Sentencing Act directing consideration of totality was applicable "because theimposition of a series of short cumulative home detention sentences would fail toreflect the seriousness of each offence".17 Concurrent sentences were accordinglyimposed.[16] The Court did not see any reason to depart from the 100 hours of communitywork that the Judge had imposed on the first breach of suppression charge. Thatsentence was confirmed. As a result, the existing (part served) sentence of homedetention was quashed. What the Court described as a "new" sentence of 12 months'home detention (with identified concurrent home detention sentences) plus 100 hoursof community work was imposed, subject to the same (special and standard)conditions as imposed by the District Court.1815 At [112].16 At [112].17 At [113].18 At [120].The case on appeal[17] The difference in the position of the parties is stark and can be simply stated.[18] Mr Nottingham says that he could not lawfully be required to serve more than12 months' home detention. That period is the maximum term. He has served thatterm and should be released.19 Alternatively, if the Court of Appeal was able to imposea term of 12 months' home detention, it should not have done so because of thestatutory direction to impose the least restrictive sentence that is appropriate in thecircumstances.20 Mr Nottingham emphasised in his submissions that the pre-sentencereport writer said that community detention would be sufficient punishment and thatcommunity work was not suitable given Mr Nottingham's health issues.[19] The respondent's position is that there was no lawful bar to the approach takenby the Court of Appeal and nor was that approach inconsistent with policy. Indeveloping this case, the respondent says, first, that the maximum of 12 months' homedetention is not the maximum penalty for the offence. In any event, it is said thatMr Nottingham was never subject to a sentence of more than 12 months' homedetention at any one point in time. Because the Court of Appeal quashed the previousterm and imposed a new term, the fresh sentence which started on the date it wasimposed is within jurisdiction and the old sentence ceased to exist. Mr Nottinghamhas not, as matters have transpired, served the home detention in one unbroken period.In this respect, the respondent submits that if the Court of Appeal could not impose afresh term of 12 months' home detention, the only option was to impose a term ofimprisonment. That result would not fit the principle of imposing the least restrictiveoutcome, which suggests that the respondent's position that a sentence of 12 months'home detention was within the Court's jurisdiction is correct.[20] Further, the respondent says that the approach adopted by the Court of Appealwas the only way to take into account the time Mr Nottingham had served on home19 On Mr Nottingham's calculations, the 12 months expired on 9 April 2020. This Court grantedMr Nottingham bail pending the hearing of this appeal on 24 April 2020: Nottingham v R [2020]NZSC 39. Mr Nottingham says he has completed about 60 hours of community work and he seeksremittal of the remaining 40 hours and the six-month special post-detention conditions as a creditfor the period beyond 12 months which he has served on home detention.20 Sentencing Act 2002, s 8(g).detention. Any other approach would either result in time served not being taken intoaccount or in double counting.21 The respondent draws a comparison with a sentenceof imprisonment where time served in custody prior to sentence is taken into accountby the Department of Corrections.22 Because time spent serving a sentence of homedetention is not "pre-sentence detention" as defined in s 91 of the Parole Act 2002, theDepartment of Corrections may not take it into account.[21] Finally, the respondent submits that if Mr Nottingham had not served time onhome detention prior to the Court of Appeal hearing, the appropriate sentence was31 months' imprisonment and that would have been the sentence imposed. Leave hasnot been granted to challenge that part of the Court of Appeal's judgment.23[22] We assess these competing contentions after summarising the statutoryscheme.The statutory scheme[23] To put matters in context, it is helpful to note first the evolution of the sentenceof home detention. Originally, the Parole Board could grant home detention to personssentenced to imprisonment for 24 months or less so long as the court granted leave toapply.24 Under that regime home detention was not a sentence in itself, but rather away of serving a sentence of imprisonment. However, from 2007, home detention hasbeen a standalone sentence in its own right.25[24] The second contextual matter to note is that the 2007 amendmentsdemonstrated what has been described as a "discernible legislative policy of keepingoffenders within the community wherever appropriate".26 As we have noted, unders 8(g) of the Sentencing Act, the court must impose "the least restrictive outcome that21 The respondent's submission about the risk of double counting is explained further at [37] below.22 Parole Act 2002, ss 90 and 91. See Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.23 Leave to appeal was granted on the question of "whether the Court of Appeal was correct to imposethe maximum period of home detention in circumstances where the offender had already served aperiod of home detention in relation to the offending": Nottingham v R [2020] NZSC 23 at [3].The Court originally declined leave to appeal but that decision was recalled and leave was granted.24 The change is discussed by the Court of Appeal in R v Hill [2008] NZCA 41, [2008] 2 NZLR 381at [19]–[20]. See also Criminal Justice Reform Bill 2006 (93-1) (explanatory note) at 5.25 Sentencing Amendment Act 2007, s 44.26 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [17].is appropriate in the circumstances", reflecting the hierarchy of sentences and ordersas set out in s 10A.[25] The hierarchy in s 10A "reflects the relative level of supervision andmonitoring of, and restrictions imposed on, an offender under each sentence ororder".27 From the least restrictive to the most restrictive, the relevant hierarchy is asfollows:28(a) discharge or order to come up for sentence if called on:(e) sentence of home detention:(f) sentence of imprisonment.[26] If the court is lawfully entitled to impose a sentence of home detention, it mayonly do so if the conditions specified in s 15A(1) of the Sentencing Act are met.Relevantly, the sentence is only available where the court would otherwise sentencethe offender to a term of 24 months' imprisonment or less. The conditions in s 15A(1)are as follows:(a) the court is satisfied that the purpose or purposes for which sentenceis being imposed cannot be achieved by any less restrictive sentenceor combination of sentences; and(b) the court would otherwise sentence the offender to a short-termsentence of imprisonment.[27] A "short-term sentence" has the same meaning as in s 4(1) of the Parole Act.29Under that section, a short-term sentence is relevantly defined as a sentence ofimprisonment that is:(a) a determinate sentence of 24 months or less imposed on or after thecommencement date; or(b) a notional single sentence of 24 months or less; or27 Sentencing Act, s 10A(1).28 Section 10A(2).29 Sentencing Act, s 4(1) definition of "short-term sentence".[28] The Sentencing Act also prescribes the permitted combinations of sentences.30[29] The key section for present purposes is s 80A. Under that section, a court maysentence an offender to a sentence of home detention if:31(a) the offender is convicted of an offence punishable by imprisonment;or(b) the offender is convicted of an offence and the enactment prescribingthe offence expressly provides that a sentence of home detention maybe imposed on conviction.[30] Section 80A(2) sets out a number of preconditions for the imposition of asentence of home detention which include a suitable home detention residence. Inaddition, before imposing a sentence of home detention, a court is obliged to considerthe pre-sentence report prepared by a probation officer.32[31] We set out s 80A(3) in full. That section provides that:A sentence of home detention may be for such period as the court thinks fit,but must not be for less than 14 days or more than 12 months.[32] Section 80A is subject to s 80B.33 Section 80B deals with concurrent andcumulative sentences of home detention. Under s 80B(1), where a court imposeshome detention on an offender who is already subject to a sentence of home detention,"the sentences must be served concurrently unless the court directs that they are to beserved cumulatively". Where a court imposes cumulative sentences of home detentionor imposes one or more sentences of home detention on someone "who is alreadyserving a sentence of home detention, the total term of the sentences of home detentionmust not be more than 12 months".34[33] Finally, the Sentencing Act makes provision for the commencement and thetermination of a sentence of home detention. Under s 80X(1), a sentence of homedetention begins on the day it is imposed except where the start date is deferred under30 Section 19. See also s 20 which provides guidance about certain sentence combinations.31 Section 80A(1).32 Section 80A(2A).33 Section 80A(6).34 Section 80B(2).ss 20A(2)(b) (dealing with the imposition of a second sentence) or 80W (the ability ofthe court to defer the start date for up to two months on humanitarian grounds or wheredeferral is in the interests of justice). Under s 80Z(1), a sentence of home detentionends when either "(a) the offender reaches his or her detention end date; or (b) a courtcancels the sentence". The "detention end date" means the date on which an offendersubject to home detention is no longer subject to detention conditions.35Our assessment[34] The wording of s 80A(3) is clear that the maximum term of a sentence of homedetention is 12 months.36 On its face, this is the maximum that can be imposed inrelation to an offence whether or not the sentence is served in a continuous period.[35] That this is the correct interpretation is supported by s 80B dealing with theimposition of concurrent and cumulative sentences.37 As the respondent accepts, thatsection is consistent with the notion that an offender should not be serving prolongedperiods of home detention.38[36] This approach in our view is also supported by the rationale for reference to amaximum of 12 months. As we have noted, a court will only be able to impose homedetention if the court considers that a sentence of 24 months' imprisonment or less isavailable. If that is the position, the maximum that the offender would serve is12 months' imprisonment because the Parole Act currently provides for release afterserving half of a short-term sentence.39 On the respondent's approach, an offendercould nonetheless serve more than 12 months' home detention. That outcome isinconsistent with the correlation between the two periods. Accordingly, we do notagree with the respondent that the rationale for the 12-month limit is consistent with35 Section 4(1) definition of "detention end date".36 The effect of the wording does not appear to have received much consideration in the authorities.In Hill, above n 24, it appears the Court saw the term as imposing a maximum: at [19]. See alsoTialata v New Zealand Police [2017] NZHC 3096 at [39]; and Box v Police [2018] NZHC 286at [36].37 As the respondent notes, s 80B is not engaged in this case.38 There is a similar idea apparent in s 80K(5) dealing with the cancellation of a sentence ofimprisonment and substitution of a sentence of home detention.39 Parole Act, s 86(1). This is the position unless the sentence is imposed for a stage-2 offence otherthan murder for which an order under s 86C(4)(b) of the Sentencing Act has been made: sees 86(1A) of the Parole Act.the respondent's position. Further, while it is true that 12 months' home detention isnot the maximum penalty for the present offending, that is not the point given the clearwording in s 80A(3).[37] The respondent argues that if the reference to 12 months' home detention istreated as imposing a maximum there is a risk of double counting. That is because theCourt of Appeal had already taken into account the time served on home detention ingetting to the point where home detention was available. If that assessment leads, ashere, to a term of 12 months there would be no other way of reducing that term withoutagain taking into account the time served. Alternatively, as we have noted above, therespondent says that in cases like the present, imprisonment would have to be imposedand this would have the effect that the court is not imposing the least restrictivesentence.[38] Neither of these possible outcomes means that the clear words of the sectionmean something else. Obviously, time served on home detention will have to be takeninto account by the court on a sentence appeal if the sentence is altered. But if, in thepresent case, a term of imprisonment had been imposed that would only be becausethe Court of Appeal considered that imprisonment was, in fact, the appropriatesentence.40[39] This issue is only, in any event, going to arise on a successful Solicitor-Generalappeal. In that situation, the court does have some discretion and courts are cautiousbefore imposing a term of imprisonment on an offender who has been serving anon-custodial sentence. That fact is illustrated by R v Cossey, a decision of the Courtof Appeal referred to by the respondent.41 In that case the Court declined to impose aterm of imprisonment on Mr Cossey on a Solicitor-General appeal, although the Court40 See Sentencing Act, s 16(2) which provides that the court must not impose a sentence ofimprisonment unless it is satisfied that the relevant purposes and principles of sentencing cannotbe achieved by any other sentence.41 R v Cossey [2019] NZCA 104.agreed with the Solicitor-General that the sentence of home detention imposed by thesentencing Judge was manifestly inadequate.42[40] Accordingly, on our approach, the Court of Appeal did not have jurisdiction toimpose more than a further eight and a half months' home detention on Mr Nottinghamso as to make a total time served of 12 months' home detention. On this basis, we donot need to address the second issue regarding policy.43[41] The only remaining question is what steps the Court should now take.[42] On this question, the respondent submits that if we reach the view that theimposed sentence of 12 months' home detention was unavailable, the matter shouldbe remitted to the Court of Appeal to consider the impact of its error and reconsiderits decision on the Solicitor-General's appeal. It is submitted that this would bestpreserve the parties' positions. Alternatively, this Court could invite furthersubmissions as to disposition following the release of this judgment.[43] Mr Nottingham opposes remittal back. He submits that this Court mayconsider no detention was necessary and that health issues at the time ruled outcommunity work. Alternatively, he submits, this Court could conclude thatcommunity work was the proper sentence and that the period of home detention servedis sufficient to fulfil any order for community work.[44] The further delays that would result from remittal back are not in our viewpalatable. Mr Nottingham was originally sentenced on 26 July 2018. Two courts haveconcluded home detention was appropriate. Mr Nottingham has served just over12 months on home detention and has completed, as we understand it, about 60 hoursof the 100 hours of community work imposed. In those circumstances, regardless of42 The Court said that the term of imprisonment imposed would be in the range of 24 to 27 monthsonce the Court took into account the period of almost one year that Mr Cossey spent on homedetention. Nevertheless, the Court declined to impose a term of imprisonment for a variety ofreasons, including the fact that the probation officer had reported relatively positively onMr Cossey's progress and the passage of time since the offending. See similarly R v Johnson[2010] NZCA 168 at [31]–[34].43 See above at [3].the underlying merits, it would not now be appropriate to impose a term ofimprisonment.44 There is no point in further submissions from the parties.[45] Having reached the view that it would not now be appropriate to impose a termof imprisonment, we need to take steps to get to the position where Mr Nottingham'ssentence of home detention does not exceed the maximum term. The fact a sentenceof home detention starts on the date it is imposed poses something of a conundrum forthe Court in determining what steps we now take.45 With this prospect in mind, theparties provided further submissions on the scope of the power of the Court on asecond appeal to vary a sentence or any part of a sentence.[46] The relevant provisions are ss 250, 251, 256 and 257 of the Criminal ProcedureAct 2011. Under s 250(2), the first appeal court must allow an appeal, if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[47] Where an appeal is allowed by the first appeal court, s 251(2) provides that:(2) The first appeal court must, within the limits allowed by law,—(a) set aside the sentence and impose another sentence (whethermore or less severe) that it considers appropriate; or(b) vary the sentence, vary any part of the sentence, or vary anycondition of the sentence; or(c) remit the sentence to the court that imposed it and direct thatcourt to take any action of a kind described in paragraph (a)or (b) as specified by the first appeal court.[48] Section 256(2) provides that a second appeal court must allow a second appeal,if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.44 As noted above at [21] and n 23, leave to appeal was granted only in respect of the question as tothe jurisdiction to impose a term of home detention longer than 12 months.45 Sentencing Act, s 80X, discussed above at [33].[49] The effect of s 257(2) is that this Court, as a second appeal court that isallowing a second appeal, can exercise the powers of the first appeal court includingthe powers under s 251.[50] The main point of the respondent's further submissions is that there is adifference between imposing a substantively different sentence, either of a differentlength or type, and changing the conditions under which the sentence will be served.The former is encompassed within the words "impose another sentence" and the lattercomes within the words "vary the sentence, vary any part".[51] We envisage that distinction will generally reflect the approach to s 251 but notinvariably so. In particular, given the sentence of 12 months' home detention wasoutside the Court of Appeal's jurisdiction, we see no reason why the power to varycannot apply to enable this Court to vary the sentence imposed to bring it to that whichwas within the power of the Court of Appeal. We do so by varying the length of thesentence and backdating the sentence start date to 30 July 2019. The standard andspecial post-detention conditions will need to remain in place for the remainder of the12-month and six-month post-detention periods respectively.46 We acceptMr Nottingham's submission that the remaining community work should be remitted.We do so because he has now served a period of home detention which is longer thanthe statutory maximum.Result[52] For these reasons, the appeal against sentence is allowed. The sentence of12 months' home detention imposed by the Court of Appeal is varied by replacing thatsentence with a sentence of eight and a half months' home detention with a start dateof 30 July 2019. Having served more than 12 months' home detention,Mr Nottingham has served that part of his sentence. The standard and specialpost-detention conditions imposed by the Court of Appeal remain in place for the46 If Mr Nottingham wishes to apply for a variation of his post-detention conditions, he will have todo so in accordance with the procedure set out in s 80R of the Sentencing Act.remainder of the 12-month and six-month post-detention periods respectively. Theremaining period of community work to be served by Mr Nottingham is remitted.Solicitors:Crown Law Office, Wellington for Respondent