NEWTON v DEPARTMENT OF CORRECTIONS & ANOR [2017] NZHC 343

NEWTON v DEPARTMENT OF CORRECTIONS & ANOR [2017] NZHC 343 [6 March 2017]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2017-416-000001[2017] NZHC 343BETWEEN ISAAC JOSEPH NEWTONAppellantAND DEPARTMENT OF CORRECTIONSNEW ZEALAND POLICERespondentsHearing: 2 February 2017Appearances: Eric Forster for the AppellantCameron Stuart for the RespondentsJudgment: 6 March 2017JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 6 March 2017 at 2:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Isaac Newton was sentenced to twenty months' imprisonment after pleadingguilty to one charge of possessing cannabis for supply,1 one charge of offering to sell cannabis,2 one charge of conspiring to sell cannabis3 and one charge of breach of home detention.4[2] The sentence also incorporated re-sentencing Mr Newton for domestic violence convictions for which he had previously been sentenced to 11 months'home detention. At the time of sentencing, he had served half that sentence. Although there was no application before the Court to cancel the sentence of home detention, the Judge determined it ought to be cancelled and converted into imprisonment because Mr Newton had committed the drug offending while on bail and had breached the detention conditions of the existing sentence.[3] Mr Newton appeals against the sentence. The central contention advanced on appeal is that the Judge erred by failing to apply the totality principle.Factual backgroundDrug offending[4] Mr Newton's drug offending came to light after Police analysed textmessages sent from his mobile phone. The charge of conspiracy to sell cannabis arose out of communications which revealed that Mr Newton had arranged for the sale of cannabis tinnies with his housemate over a period of three and a half weeks. Mr Newton also sent message offering to sell cannabis to a number of potential users and a message in which he communicated to another person that he needed to roll up more cannabis tinnies because he only had five left. Those messages provided the evidential bases for the other two drug charges.[5] Although there was insufficient evidence to calculate the total quantity of cannabis involved, it is clear this was low level commercial dealing.1 Misuse of Drugs Act, s 6(1)(f).2 Misuse of Drugs Act, s 6(1)(e).3 Misuse of Drugs Act, s 6(2A).4 Sentencing Act 2002, s 80(5).Breach of home detention[6] Mr Newton was also charged for breaching the detention conditions of his sentence of home detention by failing to take the most direct route home while on approved absence. It appears Mr Newton took his children to school on the way to a Court appearance.District Court decision[7] Judge W P Cathcart, sitting in the District Court at Gisborne, first clarified that the drug offending occurred while Mr Newton was on bail. The Judge considered this to be a seriously aggravating factor. The Judge assessed the drug offending as falling within the lower end of category 2 of R v Terewi and fixed astarting point of 18 months' imprisonment.5[8] The Judge increased the starting point by three months to reflect the fact the offending was carried out while Mr Newton was on bail. The sentence was increased by a further month to take into account the breach of home detention conditions.[9] The Judge then turned to consider the mitigating features personal to Mr Newton. He allowed a two month discount to recognise Mr Newton's "personal circumstances as advanced" and his otherwise good prospects as an employee.[10] The Judge then considered whether he should impose an additional home detention sentence or cancel the current home detention sentence and impose a sentence of imprisonment incorporating the balance of the existing sentence:"[19] In my view, the fact that you have carried out the drug dealingoffending whilst on bail indicates that you defy the Court's authority. Homedetention sentences are for those offenders that the Courts can have confidence would obey such a sentence. The fact that you breached your bail requirements and offended again in this serious way leaves me, in my view, with no option but to cancel your current home detention sentence and to incorporate a further five-month period of imprisonment into the overall sentence."5 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429 (CA).[11] Accordingly, in the end, the Judge cancelled the existing sentence of homedetention and sentenced Mr Newton to 20 months' imprisonment.6Approach on appeal[12] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a difference sentence should be imposed. The principles to be applied under this provision are well known. The focus on appeal is on the end sentence rather than the process by which it was reached.7 An appellate court will not intervene where the sentence imposed is within the range that can be properly justified by accepted sentencing principles.8Appellant's submissions[13] Mr Forster, for Mr Newton, framed the issue on appeal as being whether the Judge should have determined that the totality of the consecutive sentences was excessive and reduced them as he thought proper. Mr Forster points out that Mr Newton had served five and a half months of his existing sentence of homedetention before being sentenced on the new charges to twenty months' imprisonment. The unserved balance of five and half months' home detention madeup five months imprisonment of the 20 month sentence.[14] Mr Forster submits that despite the breach of home detention, Mr Newtonwas "doing well on the sentence"; he had engaged in a rehabilitative course, moved from Wairoa to Napier to separate himself from an unsavoury social circle and maintained full time employment.[15] Mr Forster submits that, given the extent to which cumulative sentences wereimposed, "there was room for a large reduction on account of totality". In thecontext of an appeal against the discretion of a sentencing judge, this is not a propitious submission.6 The Judge imposed a sentence of one month for the breach of home detention to be served concurrently.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [12].8 Woods v Police [2015] NZHC 305 at [33].[16] Mr Forster annexes to his submissions an appendix in which he summarises a number of cases involving similar drug charges. He submits that comparing the present case with those in the table suggests the sentence was manifestly excessive.Crown submissions[17] Mr Stuart, for the Crown, supports the sentence imposed by the Judge. He said the Judge did not err at any stage in the process. Mr Stuart submits that an adjustment for totality is not automatic. It will only be required where the combination of sentences would result in the offender serving a sentence wholly out of proportion to the gravity of the offending.[18] Mr Stuart contends that imposing an uplift of five months' imprisonment forthe cancellation of the balance of Mr Newton's existing sentence of home detentiondid not offend the totality principle. Mr Stuart observes that in order for Mr Newton to serve an equivalent amount of time in custody as he would have served on home detention, the Judge could have doubled the outstanding balance. Mr Stuart refers toGerrard v Police in which Nation J explained:9"If a term of imprisonment is imposed in substitution for the unserved portion of the term of home detention, it may be the term of imprisonment will be for double the unserved portion of home detention. If such a term of imprisonment were to be imposed, [the appellant] will be entitled to release after serving just one-half of it. In such a situation, the Judge will nevertheless have to decide on any substituted sentence with regard to all relevant circumstances."[19] In response to Mr Forster's submission that Mr Newton has made animpressive attempt at rehabilitation, Mr Stuart submits that such issues are not relevant considerations in respect of totality.AnalysisA jurisdictional issue?[20] This issue concerns whether the Judge had the jurisdiction to cancel MrNewton's existing sentence of home detention in the absence of an application by9 Gerrard v Police [2016] NZHC 3130 at [33].one of the parties. Neither counsel raised it in their written submissions nor was it discussed at the hearing. However, in the process of considering this matter, Iformed doubts as to the jurisdictional basis for the Judge's order. After carefulconsideration of the statutory regime established in subpart 2A of Part 2 of theSentencing Act 2002 ("the Act"), I have reached the view that the District Court Judge did not have the requisite jurisdiction.[21] It appears the Court derives its jurisdiction to cancel a sentence of home detention from s 80F(4) which provides:"(4) On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established,—(a) remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or(b) vary the home detention residence; or(c) cancel the sentence; or(d) cancel the sentence and substitute any other sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed."[Emphasis added][22] Assuming no alternative jurisdictional source, a plain reading of this provision tends to suggest that an application is required before the Court has jurisdiction to interfere with an existing sentence of home detention. In this case, such an application could have been made by a probation officer under s 80F(2):"A probation officer may apply for an order under subsection (4) if an offender, who is subject to a sentence of home detention, is convicted of an offence punishable by imprisonment."[23] The conclusion I have reached is supported by a number of other provisions in subpart 2A. The first of these is s 80F(6) which provides that s 72 applies, with any necessary modifications, to an application made under s 80F. Section 72 relevantly provides:"(2) A copy of the application must, either before or as soon as practicable after the application is lodged in the office of the court, be served—(a) on the offender, if the offender is not the applicant; or(b) on the chief executive of the Ministry of Justice, if a Registrar is not the applicant under section 38A; or(c) on the chief executive of the Department of Corrections, if a probation officer is not the applicant under section 54, 54K, 68, or 69I."[24] These requirements go to due process. Parliament may well have intended that offenders facing the same predicament as Mr Newton receive advanced notice that their existing sentence of home detention could be cancelled or varied by the Court.[25] Section 38A(1), which permits the Court to cancel a sentence of reparation, is also relevant:"A court may, on an application under subsection (2) or (3) or on its own initiative,—(a) cancel a sentence of reparation; or(b) cancel a sentence of reparation and substitute any other sentence (including another sentence of reparation) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed."[Emphasis added][26] The words "or on its own initiative" in s 38A(1) are conspicuously absentfrom s 80F(4). Parliament must be taken to have intended this difference in wordingwith the result that the Court's jurisdiction under s 80F(4) is not invoked absent anapplication by one of the parties.[27] There is a further point. Subpart 2A of the Act contains a regime that prescribes the effect of a subsequently imposed sentence of imprisonment on an existing sentence of home detention. The effect differs depending on whether the sentence is more than 12 months. Under s 80ZG, if an offender is subsequentlysentenced to a sentence of imprisonment of 12 months or less the Court is required to either:10(a) order that the sentence of home detention be suspended; or(b) order that the sentence be suspended for the duration of the period in which the offender is detained under the sentence of imprisonment.[28] The importance of the choice is that if the Court makes an order under (b), it may remit, suspend or vary any detention or post-detention conditions of the existing sentence of home detention.11 Under s 80ZGA, however, a subsequent sentence of imprisonment of more than 12 months has the effect of automatically suspending the existing sentence of home detention.[29] The difference between s 80ZG and 80ZGA is critical in the context of s 80ZGC which relevantly provides:"80ZGC Resumption of sentence of home detention(1) This section applies to a sentence of home detention that is suspended under section 80ZG(2) or 80ZGA(2).(2) The sentence of home detention is suspended until the earlier of the following events:(a) it resumes under subsection (3); or(b) it resumes under section 80ZG(6)(c); or(c) it is cancelled under subsection (5).(3) If the sentence or sentences of imprisonment are quashed and that results in the offender no longer being detained under a sentence of imprisonment,—(a) the offender must report to a probation officer as soon as practicable and not later than 72 hours after being released from detention; and(b) the sentence of home detention resumes when the offender has reported as required under paragraph (a).10 Subsection (2).11 Subsection (3).(5) If the sentence of home detention does not resume under section 80ZG(6)(c) or subsection (3), it is cancelled when the offender ceases to be detained under the sentence or sentences of imprisonment."[30] As can be seen, subsection (2) exhaustively determines the ultimate fate of a sentence of home detention which has been suspended pursuant to either ss 80ZG or 80ZGA. A sentence of home detention which has been suspended by a sentence of imprisonment of more than 12 months cannot resume upon the offender's releaseunder s 80ZG(6)(c) because that provision deals with terms of imprisonment of 12 months or less. Accordingly, provided the subsequent sentence is not quashed, subsection (5) determines that such a sentence is cancelled when the offender is released from prison.[31] Seen in this light, the Judge's decision to cancel Mr Newton's existing sentence of imprisonment and impose an additional five months' imprisonment significantly prejudiced Mr Newton's position. The Judge imposed a sentence of 15 months' imprisonment for the active charges before him. Accordingly, under theregime established by subpart 2A of the Act, Mr Newton's existing sentence of homedetention would have been suspended and cancelled upon his release from prison. In other words, Mr Newton was sentenced to spend five months in prison for the balance of his existing sentence of home detention which would have been otherwise suspended and ultimately cancelled after he served his sentence for the fresh offending. For the reasons given, I conclude that the Judge had no jurisdiction to do this in the absence of an application by a probation officer.[32] Despite the lack of submissions on this point, s 250 requires me to allow the sentence appeal if I am satisfied, for any reason, there has been an error and that a different sentence should be imposed. That is the case here. The Judge erred inimposing an additional five months' imprisonment to the sentence reached in respectof the active charges before him. While I can well understand the course the Judge took, particularly without guidance from the Police or counsel, I am nonetheless satisfied that a different sentence should be imposed to cure the effect of his error.[33] I can discern no material error in the way the Judge constructed his sentence for the active charges before him. Accordingly, I will set aside the sentence andimpose a sentence of 15 months' imprisonment. The concern Mr Forster raises inrelation to the totality principle necessarily falls away.Result[34] Mr Newton's appeal against sentence is allowed.[35] The sentence imposed in the District Court is quashed. A sentence of 15months' imprisonment is substituted.[36] Mr Newton's sentence of home detention is reinstated but is suspended pursuant to s 80ZGA of the Act.Moore JSolicitors:Mr Forster, HastingsCrown Solicitor, Gisborne