CAREY v NEW ZEALAND POLICE [2023] NZHC 2970

CAREY v NEW ZEALAND POLICE [2023] NZHC 2970 [24 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-516[2023] NZHC 2970BETWEEN JAYDEN HAYES CAREYAppellantAND NEW ZEALAND POLICERespondentHearing: 24 October 2023Appearances: A S R Kashyap for AppellantH Brown for RespondentJudgment: 24 October 2023JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by Justice LangOn 24 October 2023 at 3.30 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:A S R Kashyap, AucklandKayes Fletcher Walker, Auckland[1] Mr Carey pleaded guilty in the District Court to numerous charges involvingdishonesty offences, dangerous driving and being in unlawful possession of a pistoland ammunition. On 9 May 2023, Judge S J Lance sentenced Mr Carey to one yeareight months imprisonment on all charges.1 The Judge granted Mr Carey leave toapply for home detention.2[2] On 9 August 2023, Judge Lance granted an application by Mr Carey to havehis sentence of imprisonment converted to a sentence of home detention.3 The Judgeordered Mr Carey to serve a sentence of 12 months home detention.[3] Mr Carey appeals against sentence on the basis that the sentence of 12 monthshome detention is manifestly excessive. He says the Judge erred by failing to takeaccount of the fact that the original sentence had been one of 20 months imprisonmentand that he had already served three months of that sentence when he appliedsuccessfully for the sentence to be converted to one of home detention.[4] Mr Carey requires leave to bring the appeal out of time but the respondent doesnot oppose leave being granted. I grant leave accordingly.[5] The narrow scope of the appeal means that it is not necessary for me to traversethe details of Mr Carey's offending. I therefore turn directly to the points raised onappeal.The sentence of 12 months home detention[6] Ordinarily, a sentence of imprisonment is converted to a sentence of homedetention that is equivalent to one-half of the prison sentence. This reflects the factthat an offender serving a sentence of imprisonment of two years or less is releasedautomatically after serving one-half of the sentence. An offender serving a sentenceof home detention must serve the whole sentence.1 New Zealand Police v Carey [2023] NZDC 9113.2 At [25].3 New Zealand Police v Carey [2023] NZDC 22851.[7] In Moeller v R, Simon France J held that in determining the length of asubstituted sentence of home detention the Court should have regard to the statutoryrelease date rather than the sentence expiry date.4 In the case of a short term sentencethe statutory release date will fall on the date when the offender completes one-half ofthe sentence.5 That date will take into account any time spent in custody on remand.6In Moeller, Simon France J noted that a substituted sentence of home detention neednot necessarily be one-half of the end sentence of imprisonment and that a longersentence may be imposed.7 In general, however, I consider that this issue would needto be addressed explicitly at sentencing or when a substituted sentence of homedetention is imposed. Reasons would need to be given to justify departure from theusual approach. I note that a failure to give reasons for a departure from the "halving"method was considered to be an error in Gerrard v Police.8[8] In the present case the Judge did not articulate the sentence of home detentionto be imposed on Mr Carey. It is necessary to go to the paperwork generated followingthe hearing to discern the sentence that he imposed. Nor did the Judge give anyreasons for his decision not to follow the usual course and sentence Mr Carey to theequivalent of one-half of the prison term that would be otherwise appropriate.[9] In addition, the Judge ought to have given Mr Carey credit for the time he hadalready served in custody. He gave no reasons for not doing so.[10] The Crown agrees the appeal must be allowed. It calculates that Mr Careyspent a total of 151 days in custody before being sentenced. He then served 99 daysof the sentence imposed on 9 May 2023. This means he spent a total of 250 days, ornearly nine months, in custody. This is the equivalent of 18 months imprisonment.He only had two months to serve before reaching his statutory release date on10 October 2023.4 Moeller v R [2020] NZHC 1290, [2020] 3 NZLR 726, at [4]-[6].5 Parole Act 2002, s 86(1).6 Section 90(1).7 Moeller v Police, above n 4, at [12].8 Gerrard v Police [2016] NZHC 3130 at [29].Result[11] The appeal against sentence is allowed. The sentence of 12 months homedetention is set aside. In its place I substitute a sentence of two months home detentionon all the charges on which the original sentence was imposed.[12] Counsel should now file a joint memorandum setting out any specialpost-detention conditions that should be imposed._________________________Lang J