White v New Zealand Police [2016] NZHC 1786

White v New Zealand Police [2016] NZHC 1786 [3 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000135[2016] NZHC 1786BETWEEN JAMES CAMERON WHITEAppellantAND NEW ZEALAND POLICERespondentHearing: 7 June 2016Appearances: DJ Ratima for AppellantET Fletcher for RespondentJudgment: 3 August 2016JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 3 August 2016 at 12 middayPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSummary[1] James Cameron White was sentenced by Judge Mahon at the Manukau District Court on 24 March 2016 for:1(a) two charges of male assaults female, for offences committed on 20 August 2015 and 7 January 2016 respectively;(b) one charge of intimidating behaviour, committed on 20 August 2016;(c) one charge of breach of a protection order (physical abuse of a protected person), committed on 8 January 2016;(d) one charge of resisting a constable, committed on 8 January 2016; and(e) two charges of breach of a supervision order.[2] He was sentenced to concurrent terms of imprisonment leading to aneffective total end sentence of 15 months' imprisonment.[3] Mr White now appeals his sentence on the basis that the Judge erred in not taking into account a period of pre-sentence detention in 2015. He says the sentence should have been structured in a way which allowed his pre-sentence detention to be credited as time served under s 90 of the Parole Act 2012.Factual background[4] On 20 August 2015, Mr White and his partner (the complainant) were drinking at home and had an argument. He placed both hands on her shoulders to stop her getting up; there was a struggle of some kind. When the complainant went to a neighbouring house to get away from him, Mr White followed her yelling abusesuch as, "Tell the bitch to come outside or I will hurt her." As a result of thisincident, Mr White was charged with assault with intent to injure and threatening to1 Police v White [2016] NZDC 5080.kill. On 24 August 2014, the Manukau Family Court imposed a final protection order on Mr White.[5] Mr White was refused bail at his first appearance on 20 August 2015 and he remained in custody until 23 November 2015 when he was due to be tried by a judge sitting alone. The trial was adjourned, however, because the complainant did not appear at court. Mr White was granted bail pending a judge-alone trial scheduled for 22 February 2016.[6] While on bail, Mr White was charged with two breaches of a post-release supervision order, by failing to report to his probation officer and breaching a condition that he should not associate with his partner.[7] On 7 January 2015, while still on bail, Mr White was drinking at a park with the complainant and a friend. He became jealous when the complainant talked about a friendship with another male. Mr White picked up her handbag and threw it on the ground. He then grabbed the complainant by the back of her head and then pushed her, causing her to fall to the ground. He then held her by the back of the neck and dragged her along the ground for about five metres, at which point the friend intervened. Mr White ran away and hid. The Police located Mr White in the bush using a Police helicopter, and when police approached him, he was aggressive and resisted arrest. As a result of these incidents, he was charged with male assaults female, breach of a protection order and resisting arrest.District Court[8] At some point before his trial, Mr White's initial charge of assault with intentto injure was amended to a charge of male assaults female, and his charge of threatening to kill was amended to a charge of intimidating behaviour.[9] On 22 February 2016, Mr White pleaded guilty to all charges (as amended) and was remanded in custody until 24 March 2016 for sentence. At sentencing, Judge Mahon took the second charge of male assaults female (on 7 January 2016) as the lead offence and adopted a starting point of 12 months' imprisonment. He thenuplifted the sentence by nine months to take into account the aggravating factors personal to Mr White, including his 113 previous convictions over the past 16 years.[10] The Judge then gave a discount of four months to reflect Mr White's guilty plea and a further month for remorse. The Judge therefore calculated Mr White's effective end sentence for the lead charge of male assaults female to be 15 months'imprisonment. He noted that this end sentence was "at the bottom end of the range of discretion" available in Mr White's case.[11] The Judge gave sentences on the other charges to be served concurrently,including a sentence of 6 months' imprisonment for the first charge of male assaults female (on 20 August 2015).Approach to appeal[12] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[13] In any other case, the Court must dismiss the appeal.2 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The Court of Appeal has also held that despite s 250making no express reference to "manifestly excessive", this principle is "well-engrained" in the Court's approach to sentence appeals.3 This is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.42 Criminal Procedure Act 2011, s 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].4 Ripia v R [2011] NZCA 101 at [15].[14] I note that this appeal was filed out of time. The District Court decision was given on 24 March 2016. The appeal was filed in the High Court on 26 April 2016. The reason given for the appeal being late is that counsel was trying to have the matter dealt with administratively by the sentencing Judge. However, counsel was informed belatedly that there was no jurisdiction for the sentencing Judge to vacate the sentence and substitute a new one. I accept this explanation is adequate and, there being no opposition from the respondent, I grant leave to appeal.5Appellant's submissions[15] The sole ground of appeal is that the sentence is manifestly excessive as the three months that the Mr White spent in custody prior to being released on bail was not recognised as a factor justifying a discount in the sentence.[16] In written submissions, Mr White's counsel indicated that the appeal was notaimed at the individual sentences imposed or the discounts recognised per se. Rather, the effect of the sentence is said to be manifestly excessive because it wasinadvertently structured in such a way which meant that, in calculating Mr White'srelease date, the Department of Corrections could not recognise the three month period Mr White spent on remand between 20 August 2015 and 23 November 2015as "pre-sentence detention" for the purposes of s 90 of the Parole Act 2002.[17] Counsel accepts that this result was not an error of Judge Mahon; rather, it was a mistake of counsel for not bringing this matter to the Judge's attention atsentencing. It is submitted that totality adjusted, cumulative sentences totalling 15 months could be imposed instead, which would allow Mr White to have the credit for his initial three months in custody on remand.Respondent's submissions[18] Mr Fletcher, for the respondent, first notes that there was an error in theJudge's arithmetic when calculating the sentence for the lead charge: the Judge's calculation should have resulted in 16 months' imprisonment rather than 15 months.5 Mikus v R [2011] NZCA 298 at [26][19] Mr Fletcher submits that for the purposes of this appeal, the Court should be guided by recent Court of Appeal decisions which addressed the same issues raised in this appeal; those cases are outlined and discussed below. On the basis of those decisions, it is submitted that the appeal should be dismissed because there is noidentifiable error in the Judges' sentence and the total end sentence is not manifestlyexcessive. This is especially true given the arithmetical error.Relevant law[20] The issue in this case is whether Mr White's sentence is manifestly excessiveon the basis that it should have been structured in a way which requires the Department of Corrections to take into account, in calculating Mr White's releasedate under the Parole Act, the three months spent in custody on remand after the first incident.[21] Judge Mahon did not refer to Mr White's pre-sentence detention in his sentencing notes. This is consistent with a prima facie reading of s 82 of the Sentencing Act 2002, which precludes sentencing judges from considering pre- sentence detention when determining a length of sentence:In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act 2002.[22] Section 91(1) of the Parole Act provides a definition of pre-sentence detention:(1) Pre-sentence detention is detention that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—(a) any charge on which the person was eventually convicted; or(b) any other charge on which the person was originally arrested; or(c) any charge that the person faced at any time between his or her arrest and before conviction.The roughly three month period that the appellant spent in prison prior to beinggranted bail in November 2015 falls within the definition of "pre-sentence detention"as it was detention leading to conviction.[23] However, the problem arises for the appellant in this case under s 90 of the Parole Act which provides:(1) For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.(2) When an offender is subject to 2 or more concurrent sentences,—(a) the amount of pre-sentence detention applicable to each sentence must be determined; and(b) the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.[24] In this case, the Judge adopted the second incident of male assaults female which occurred in January 2016 as the lead charge. This offence was committed after the appellant had been released on bail for the first incident. Under s 90(2), the three months spent in prison prior to this release on bail is not applicable to the sentence for the second incident, and will not be taken into account by Corrections when calculating the actual release date. It is relevant to the calculation of the release date for the sentence of six months' imprisonment on the first male assaultsfemale charge, but that is of no practical significance because of the concurrentsentence of 15 months' imprisonment on the second assault charge.Relevant cases[25] The Court of Appeal in Te Aho v R considered similar issues to those in this appeal.6 Mr Te Aho was remanded in custody after being charged with a range of offences against his then girlfriend. While in custody he had extensive contact with witnesses to ensure that they altered their evidence in way that would be favourable to him. This resulted in his being charged with wilfully attempting to pervert the6 Te Aho v R [2013] NZCA 47.course of justice. At sentencing, counsel and the Judge agreed that the lead charge was perverting the course of justice. The Judge imposed concurrent sentences on the other charges. It was later discovered that the structure of the sentence meant that Mr Te Aho had spent 113 days in custody that would not be taken into account by Corrections when determining his release date. He appealed his sentence on this basis. The Court of Appeal held:[28] The fact that the end sentence imposed by Judge Rea did not take into account the 113 days spent by the appellant on remand did no more than reflect what was required by s 82. We do not consider that just because s 90(2)(b) of the Act and the 113 days were not drawn to the attention of Judge Rea an error has been made. The task of sentencing could become considerably more difficult if Judges ignored s 82 and carried out the sort of exercise that is now urged on us. The Court would be asked to anticipate the decision as to the calculation of parole by the persons in charge of the relevant place of detention. Such considerations could unduly complicate the sentencing process.The Court accordingly dismissed the appeal.[26] A similar situation arose in Booth v R.7 Mr Booth was convicted on two counts of sexual violence against a former partner (B) and one count of assault against a former partner (F). He was arrested on charges relating to F in July 2012 and was remanded in custody. He was later charged with other offences against B in May 2013. He was sentenced in February 2015. In sentencing, the Judge imposed concurrent sentences and took a charge of sexual violation against B as the lead charge. The effect of this was that the time spent in pre-sentence detention prior to be charged in relation to B did not count as time served for the purposes ofcalculating his parole date. Mr Booth's counsel submitted that the sentence shouldbe altered as the Judge would have imposed a different sentence had the 'time served' issue been raised at sentencing. It was also submitted that a cumulativesentence should have been imposed rather than a concurrent sentence.[27] The Court of Appeal found that it was not open for them to intervene. The District Court Judge was entitled to adopt the structure he chose and there was no suggestion that the end sentence was manifestly excessive: 87 Booth v R [2015] NZCA 603.8 At [30].The approach of this Court is that it cannot intervene in respect of a sentence that is otherwise in accordance with the Sentencing Act merely because time spent on remand will not be counted as pre-sentence detention.[28] A permanent bench of the Court of Appeal recently considered similar issues in Marino v Chief Executive of the Department of Corrections, albeit in the context of a habeas corpus application.9 The appellant in that case had also been in custody for a period of time before committing what his sentencing Judge considered to bethe "lead offence". At sentencing, concurrent sentences were imposed on allcharges. When calculating the appellant's release date, the Department ofCorrections deducted only the pre-sentence detention time served for the lead offence. The appellant unsuccessfully applied for habeas corpus in the High Courton the basis that, when calculating the appellant's release date, Corrections shouldhave included the pre-sentence detention time for his initial charges.[29] The Court of Appeal dismissed Mr Marino's appeal from the High Court decision, holding that his release date was correctly calculated using the relevant provisions in the Parole Act. The Court, however, made several pertinent comments. It said that s 82 of the Sentencing Act would arguably not preclude a judge from taking into account pre-sentence detention for which an offender would not get credit under s 90 of the Parole Act.10 It also indicated a willingness to re-examine the approaches taken in Booth and Te Aho.11 These issues, however, were ultimately not decided as they were not necessary to dispose of the appeal.[30] I note that the Supreme Court has granted leave to appeal in both Booth andMarino on questions which are directly relevant to the issues in this case.12 The hearings are scheduled for early July. For the reasons given below, I do not considerit necessary, to give just consideration to Mr White's case, to await the Supreme9 Marino v Chief Executive of the Department of Corrections [2016] NZCA 133.10 At [28].11 At [29].12 In Booth v R [2015] NZSC 43, the approved question is: whether the sentencing Judge wascorrect to structure the appellant's sentence in the way that he did, particularly as that sentencestructure means that the time that the appellant spent on remand does not count towards his total period of imprisonment served or for parole eligibility purposes. In Marino v The Chief Executive of the Department of Corrections [2016] NZSC 52, the approved question is: Did the Court of Appeal err in its interpretation of ss 90 and 91 of the Parole Act 2002 or in the application of those sections to the position of the applicant?Court's views. In any event, there can be no guarantee that the Supreme Court willhave delivered its judgments in time to have any practical effect for this appellant.Analysis[31] Although the current approach to the issue of pre-sentence detention could lead to real injustices, the circumstances of this case mean it is not appropriate forme to interfere with Mr White's sentence.[32] It has not been argued for Mr White that the effective end sentence of 15 months' imprisonment is a manifestly excessive sentence in itself. I do notconsider that it is. Judge Mahon noted that he was imposing a sentence at the bottom end of his available range of discretion and I am not persuaded that the Judge would have imposed an even more lenient sentence had the effect of the statutory regimebeen pointed out to him. Mr White's appalling number of prior convictions, and thefact that the second male assaults female offending occurred while he was on bail (a factor that the Judge did not expressly take into account) indicate that the overalltime which Mr White will ultimately have spent in custody, if the three months'custodial remand is not taken into account, is not manifestly excessive. The Judge'sarithmetical misstep also resulted in his imposing a sentence which was shorter than intended.[33] In any event, Booth and Te Aho are authorities which are binding on this Court. Consistently with the intent and effect of s 82 of the Sentencing Act, it is not open to this Court to intervene in the structuring of sentences for the purpose of recognising pre-sentence detention. Although the Court of Appeal in Marinoindicated a willingness to review Booth and Te Aho in due course, the Court did not undertake that re-examination and it would not be appropriate in this appeal for me to pre-empt that exercise. The "arguable" interpretation of s 82 of the SentencingAct noted by Court does not displace the earlier cases either.Decision[34] I am satisfied Mr White has not suffered any manifest injustice as a result of the statutory effect of the sentence structure. The sentence imposed by the DistrictCourt Judge's decision was not wrong and it is neither necessary nor proper for me impose one which is different.[35] I dismiss the appeal.Toogood J