HENRY v NEW ZEALAND POLICE [2018] NZHC 394

HENRY v NEW ZEALAND POLICE [2018] NZHC 394 [13 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000021[2018] NZHC 394BETWEEN JASON HENRYAppellantAND NEW ZEALAND POLICERespondentHearing: 5 March 2018Appearances: Mireama Houra for the AppellantAnnabel Linterman for the RespondentJudgment: 13 March 2018JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 13 March 2018 at 3:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The appellant, Jason Henry, was sentenced to 14 months' imprisonment in theAuckland District Court after pleading guilty to a range of predominantly property anddishonesty charges.[2] Leave was granted for him to apply for home detention if a suitable addressbecame available. That occurred and Mr Henry was re-sentenced by a different Judgeto a term of eight months' home detention.[3] He now appeals on the basis that the substituted sentence should have beenseven months' home detention or, alternatively, the substituted sentence ought to havetaken account of time served.Factual backgroundThe offending[4] This is an unorthodox sentence appeal. It is not concerned with whether theJudge erred in his assessment of the offending or the circumstances of the offender.Rather, the complaint is that the Judge did not comply with the requirements of theSentencing Act 2002 ("the Act") when substituting a sentence of home detention.Despite this, it is helpful to briefly set out Mr Henry's offending.[5] The relevant offending occurred over the space of one year between June 2016and June 2017.[6] On 9 June 2016 Mr Henry was found driving a $27,000 BMW in Manurewa.The car had been stolen six months earlier. It had an incorrect registration sticker andinside the car a methamphetamine pipe was found. Mr Henry was charged withreceiving the car and possession of the pipe.[7] Six months later, on 13 December 2016, Mr Henry unlawfully took a mountainbike in Newmarket after cutting through the lock using bolt cutters. He was chargedwith unlawfully taking the bicycle and possessing instruments for the purpose oftaking a vehicle.[8] The following day he took another bicycle from Britomart. Then five monthslater, on 5 May 2017, he took a bicycle from Panmure.[9] In addition to this offending he faced two charges of breach of bail on9 September and 2 December 2016.Procedural history[10] Mr Henry pleaded guilty to all charges and appeared for sentence beforeJudge P A Cunningham on 10 October 2017. She sentenced him to 14 months'imprisonment but granted leave to apply for home detention should a suitable addressbecome available.1[11] When a suitable address became available two and a half months laterMr Henry applied for the sentence of imprisonment to be substituted for one of homedetention. The application came before Judge E P Paul on 22 December 2017.2 TheJudge sentenced Mr Henry to eight months' home detention.District Court decisionsJudge Cunningham's decision[12] Although Ms Houra, for Mr Henry, takes no issue with Judge Cunningham'sapproach on sentence it is helpful for present purposes to examine how the endsentence of 14 months' imprisonment was arrived at.[13] Judge Cunningham adopted a starting point of 10 months for receiving theBMW, uplifted that by six months to reflect the three charges of taking a bicycle andthen applied a further uplift of one month for the remaining charges (being possessionof the methamphetamine pipe and the two breaches of bail).3 This formulationresulted in a global starting point of 17 months which the Judge uplifted by a further1 Police v Henry [2017] NZDC 23014.2 Department of Corrections v Henry [2018] NZDC 29457.3 While not explicitly mentioned, it can be inferred the Judge also considered the possession ofinstruments charge in fixing a starting point.two months to reflect Mr Henry's previous convictions. She then applied a five monthdiscount for the guilty plea arriving at an end sentence of 14 months' imprisonment.[14] Judge Cunningham considered Mr Henry's personal mitigating factors. Sheobserved that he would benefit from some intervention for his alcohol and drug issuesas well as a tikanga Māori programme. She did not apply a discount for these factorsbut did comment that she would have sentenced Mr Henry to a term of home detentionhad a suitable address been available. In that event she granted him leave to apply forhome detention.Judge Paul's decision[15] On 22 December 2017, Mr Henry applied for home detention substitutionbecause a suitable address had been found.[16] Judge Paul was satisfied that the statutory requirements of s 80K of the Act hadbeen met. He cancelled Mr Henry's sentence of imprisonment and re-sentenced himto home detention for a period of eight months in respect of each charge. In doing sohe noted that he took into account the period Mr Henry had already served in prison.4Jurisdiction[17] This is a first appeal against sentence. The appeal must be allowed if the Courtis satisfied that for any reason there is an error in the sentence imposed, and a differentsentence should be imposed.5 The touchstone is whether the sentence imposed ismanifestly excessive.6[18] The focus is on the sentence imposed, rather than the process by which it wasreached.7 But as the Court of Appeal also stated in Tutakangahau v R:8" However, we need to acknowledge that there may be cases, although notcommon, where what has gone wrong is such as to require correction albeitthe sentence imposed is within range. A straightforward example is where an4 Department of Corrections v Henry above n 2 at [3].5 Criminal Procedure Act 2011, s 250(2).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].7 At [36].8 At [36].explicit arithmetical error has occurred and would have been corrected if ithad been drawn to the attention of the sentencing judge at the time. In thosecircumstances, we expect the appeal court will impose the corrected sentence,giving effect to the sentencing judge's intentions."Analysis[19] Judge Cunningham's power to grant leave for substitution is found under s 80Iof the Act. Section 80K then provides for applications for cancellation andsubstitution:"80K Application for cancellation of sentence of imprisonment andsubstitution of sentence of home detention(1) An offender who is subject to a short-term sentence ofimprisonment and who has leave to apply for cancellation ofa sentence of imprisonment and substitution of a sentence ofhome detention under section 80I may apply to the court atany time.(2) An application must be served as soon as practicable on thechief executive of the Department of Corrections.(3) An application must be accompanied by a pre-sentence reportupdated in accordance with section 80L.(4) On application under subsection (1), the court may, if satisfiedof the matters in section 80A(2), cancel the sentence ofimprisonment and substitute a sentence of home detention.(5) A sentence of home detention substituted under subsection (4)may be for any period the court thinks fit, but must not be lessthan 14 days or more than 12 months.(6) When substituting a sentence of home detention, the courtmust take into account the portion of the original sentence thatremains unserved at the time of the order.(8) A sentence of imprisonment that is cancelled under thissection is a custodial sentence for the purposes of any otherenactment."[20] In this context it is worthy of note that the sentencing decision as to whetherhome detention is, in principle, the proper sentence is made by the Judge who grantsleave under s 80I.9 The sentencing decision on an application to cancel a sentence of9 Gamble-Mackesy v Department of Corrections [2015] NZHC 1568 at [28].imprisonment and substitute it for one of home detention under s 80K is simply todetermine whether the matters in s 80A(2) are satisfied.10[21] However, the use of the word "may" in s 80K(4) provides the Court with aresidual discretion to decline to substitute a sentence of home detention. While inpractice this may be a relatively infrequent occurrence the discretion nonethelessexists because supervening circumstances may give effect to a change renderingsubstitution inappropriate.11[22] In the present case there is no suggestion of a material change in Mr Henry'scircumstances; no new information had come to light following Judge Cunningham'ssentencing. There were no supervening circumstances which might have operated torender home detention inappropriate.[23] Mr Henry's complaints in the present case are that the substituted sentenceshould have been seven months' home detention or, alternatively, should have takenaccount of the time served between 10 October and 22 December 2017 (being 73 daysor approximately two and a half months).[24] I shall deal with each of these issues in turn, though I observe at the outset thatin the present appeal the two grounds are interrelated.Should a sentence of seven months' home detention have been imposed?[25] Ms Houra submits that the usual practice adopted by sentencing Courts whenconsidering home detention as an alternative to imprisonment is to impose a termwhich is equal to half the term of imprisonment which would otherwise have beenimposed. The rationale for this practice is that home detention is only available whereoffenders would otherwise be sentenced to a short term sentence of imprisonment.12Short term sentences are sentences of imprisonment of 24 months or less.13 Under theParole Act 2002 the release date for those serving a short term of imprisonment is the10 At [28].11 At [88].12 Sentencing Act 2002, s 15A.13 Parole Act 2002, s 4.date on which they have served half of their sentence.14 The practice of fixingsentences of home detention at half the length of the period of imprisonment involvesan acknowledgement that the offender, if they were instead serving a sentence ofimprisonment, would be eligible for release at the half way point.[26] This convention is, however, not prescribed by the legislation. It is a judicialpractice which recognises the practicalities of the operation of the Parole Act.Ms Houra properly acknowledges as much. Nonetheless, she says that in the absenceof an explanation for not following the convention Judge Paul should have adoptedthe usual practice. His failure to do so amounts to reversible error.[27] As noted, there is no immutable or rigid mathematical formula which the lawrequires be applied when substituting a sentence of home detention. That point wasmade emphatically by the Court of Appeal in R v Bisschop.15 There, counsel hadsubmitted that the home detention imposed was manifestly excessive because itexceeded half the term of imprisonment. The Court disagreed, observing:"[18] Nevertheless, Counsel accepted that "halving" is not a matter of law.We do not accept that any mathematical process should be adopted. Theproper approach, consistent with R v Tamou [2008] NZCA 88, is an evaluativeassessment of all the circumstances. While the maximum period of homedetention that can be imposed (12 months) equates with the maximum periodan offender sentenced to a short-term sentence of imprisonment is required toserve, it does not automatically follow that the appropriate term of homedetention will be half the appropriate sentence of imprisonment in every case.Once the jurisdiction to impose home detention exists through what otherwisewould have been a short-term prison sentence, then the home detention term,if granted, is to be fixed after an overall assessment of all factors relevant tothe offender, and consistent with the purposes and principles of the SentencingAct, including imposing the least restrictive sentence appropriate.[19] Home detention is not the same as imprisonment. It is no longer asentence of imprisonment given the removal of the definition that was in s4(1) of the Sentencing Act. The person is not in custody. Conditions may beonerous and restrictive but not to the same extent as imprisonment. "Halving"ignores the reality that prison is more onerous than home detention, but homedetention is itself a serious sentence which imposes major restrictions onliberty."14 Parole Act 2002, s 86.15 R v Bisschop [2008] NZCA 229.[28] This conclusion is consistent with the effect of s 80A(3) of the Act whichprovides that a sentence of home detention may be for a period "as the Court thinksfit", but no less than 14 days and no more than 12 months.[29] In my view, the Judge's failure to follow sentencing convention cannot amountto an error of principle in these circumstances. Ms Houra sought to rely on Gerrard vPolice.16 There, Nation J found the release date on the prison sentence is a relevantconsideration when substituting a sentence of home detention and that in thecircumstances the "rule of thumb" approach should have been adopted.17 In my view,nothing in what Nation J said was intended to recast the Court of Appeal's reasoningin Bisschop. In Bisschop the Court acknowledged that what was called for was anoverall assessment of relevant factors and that a strict mathematical approach is notappropriate. In Gerrard the relevant factors importantly included that the appellanthad served 16 of the 23 months of his term of imprisonment. Naturally, this justifieda more generous approach in setting the duration of home detention. The present caseis materially different from Gerrard.[30] As Ms Linterman, for the Police, submits more is required on the part of theappellant than to simply point to what is claimed to be a mathematical error. Ms Hourahas not particularised the factors she relies on as to why the imposition of an eightmonth sentence of home detention amounted to an error, except submitting the Judgefailed to take account of time served. That leads conveniently to the second ground ofappeal.Should the substituted sentence have taken account of time served?[31] Ms Houra relies on s 80K(6). This provision requires the Judge at re-sentencing to take into account the portion of the original sentence which remainsunserved at the time of the order. Mr Henry had served approximately two and a halfmonths in prison, of a total term of 14 months, by the time Judge Paul substituted hissentence.16 Gerrard v Police [2016] NZHC 3130.17 At [25] to [26].[32] However, the s 80K(6) requirement falls well short of mandating the Court toreflect that circumstance in a mechanical or formulaic way. As Nation J observed inGerrard:"[23] I do not consider the wording of s 80K(6) or the context in which itoccurs would require the Court to always fix the term of a substituted sentenceof home imprisonment at no more than half the remaining term of the sentenceof imprisonment that the prisoner is serving. Section 80K(6) requires theCourt to take into account the portion of the original sentence that remainsunserved. The reference is to the original sentence, not the original sentenceand rights to release from that sentence under the Parole Act."[33] In support of this submission Ms Houra relies on Kopa v Police.18 Mr Kopawas sentenced to 13 months' imprisonment but was granted leave to apply for homedetention which he then did. A sentence of five months and 21 days' home detentionwas substituted. It was accepted that the Judge erred in calculating the length of thesubstituted sentence by not taking into account the 87 days Mr Kopa had served incustody.[34] Ellis J allowed the appeal observing that while the Court is required to haveregard to the portion of the original sentence which remains unserved s 80K does notrequire precise mathematical conversion. However, she added that it was difficult tosee why, absent some special circumstances, the substitution would not be based on atleast a rough arithmetical exercise and, if such an approach is not undertaken, onewould expect reasons to be given.19[35] However, Kopa is a quite different case from the present because it wasaccepted the Judge was in breach of s 86K(6); he failed to take into account any of thetime served in custody on remand. That is not the case here, where the Judge expresslyobserved he took into account time served.[36] In her submissions, Ms Linterman drew my attention to eight cases, includingauthorities relied on by Ms Houra, to demonstrate that not only is there no blanket rule18 Kopa v Police [2017] NZHC 1244.19 At [4].as to substitution but that in at least half of the cases cited no reasons were given fordeparting from convention.20[37] While I agree with Ellis J that reasons to depart from the usual conventionmight, for best practice reasons, be expected to be given I do not accept the failure togive reasons is fatal, particularly in the present case, where the disparate and discreteoffending took place over an extended period.[38] In these circumstances it cannot be said that the Judge erred.[39] In the absence of identifiable error the first of the cumulative requirementsunder s 250 of the Criminal Procedure Act 2011 has not been satisfied. On that groundthe appeal must fail.Result[40] The appeal is dismissed.Moore JSolicitors/Counsel:Ms Houra, WhangaroaCrown Solicitor, Auckland20 See Gerrard v Police, above n 176; R v Purukamu HC Whangarei CRI-2010-027-001483,2 December 2010; White v Police HC Napier CRI-2010-441-00051, 16 December 2010;Sherriff v R HC Napier CRI-2008-010-2367, 4 September 2008; Batt v Police HC ChristchurchCRI-2010-409-000157, 26 August 2010; R v Bisschop, above n 15; and R v Bishop HC GisborneCRI-2010-016-2882, 21 October 2011.