DOIDGE v NZ POLICE [2021] NZHC 3195

DOIDGE v NZ POLICE [2021] NZHC 3195 [26 November 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000067[2021] NZHC 3195BETWEEN JORDAN MARK DOIDGEAppellantAND NEW ZEALAND POLICERespondentMemoranda K Basire for AppellantS M H McManus for RespondentJudgment: 26 November 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 26 November 2021 at . pmRegistrar/Deputy RegistrarDate:Introduction[1] In a judgment I gave on 30 August 2021 (the appeal judgment)1 I allowed theappeal of the appellant Mr Doidge against a two years four and a half monthsimprisonment sentence imposed on him in the District Court on 4 charges of stealingmotor vehicles and three charges of receiving stolen motor vehicles. In that decisionI quashed the District Court's sentence and imposed an electronically monitoredsentence of 11 months' home detention on certain conditions.[2] Counsel for the appellant has now filed memoranda dated 23 September 2021and 16 November 2021 relating to the appeal judgment. Counsel for the respondenthas filed a memorandum in response dated 15 November 2021.[3] The upshot of the memoranda filed by counsel for the appellant involves thecontention that there was an arithmetical error in the 11 months' home detentionsentence ordered in the appeal judgment. The error occurred in that I had allowed nocredit for the period of 15 weeks from 18 May 2021 to 30 August 2021, leading up tohis sentencing and appeal, during which the appellant had been in custody. Theappellant's position is that this 15 week period represents time spent serving hissentence and this Court is required to take it into account on appeal when the outcome(as it was) is conversion of the original sentence of imprisonment to one of homedetention.[4] This is opposed by the respondent. In the memorandum in response filed bycounsel for the respondent, it is suggested that the appellant's present request amountseffectively to a second appeal and as such it is an appeal which should be filed in theCourt of Appeal. Accordingly the respondent maintains there is no jurisdiction for thisCourt to now reconsider credits that might have been available to Mr Doidge in hisultimate end sentence, and my earlier decision in the appeal judgment should simplyremain.1 Doidge v New Zealand Police [2021] NZHC 2256.Jurisdiction issue[5] Turning first to the jurisdiction issue raised by Ms McManus for the Crown,she notes initially that appeals to the High Court are governed by both the High CourtRules 2016 and the Criminal Procedure Act 2011. She goes on to contend thatamending Mr Doidge's home detention sentence now to account for time spent incustody is simply a second appeal and is one that should be filed in the Court ofAppeal. For reasons that I outline below, I disagree.[6] Turning now to the High Court Rules, as a formal record of my judgement hasbeen sealed as I understand it, a possible rule of some relevance here is r 11.10 of theHigh Court Rules. This allows a judgment or order to be corrected if it either "containsa clerical mistake or error arising from an accidental slip or omission or "is drawnup so that it does not express what was decided and intended." I leave on one sidewhether or not this Court may have jurisdiction to entertain the request made on behalfof Mr Doidge in terms of this rule.[7] Instead, and generally, on this jurisdiction question as I see it, there are threeother possible avenues for exploring a possible amendment to Mr Doidge's sentence,the first being under s 180 of the Criminal Procedure Act, the second under the inherentjurisdiction of this Court and the third obviously being by way of an appeal to theCourt of Appeal under s 225 of the Criminal Procedure Act.[8] I now turn to consider the first two of these.Section 180 Criminal Procedure Act 2011[9] It is clear from this provision that the Criminal Procedure Act allows the Courtto correct a sentence that is described as "erroneous":180 Court may correct erroneous sentence(1) If any sentence is one that could not by law be imposed, or if the courtdoes not impose a sentence that is required by law to be imposed, thecourt may impose a new sentence—(a) on the application of either of the parties or, as provided insection 181, the chief executive of the Department ofCorrections; or(b) on its own motion.(2) The decision of the court may be made,—(a) if sentence was imposed in the High Court, by the High CourtJudge who imposed the sentence or, if that Judge is notavailable, by any High Court Judge; or [10] The authors of Adams on Criminal Law suggest that s 180(1) may be utilised"where there has been an error in the calculation of the end sentence".2[11] The Court of Appeal in Paekau v R dealt with an appeal where an arithmeticalerror by the Judge had led to him imposing an end sentence of seven yearsimprisonment rather than the proper sentence which should have been imposed of sixyears and two months imprisonment.3 There the Court of Appeal held:[12] This is a matter which could have been dealt with in the District Court.Section 180 of the Criminal Procedure Act allows for the correction of anerroneous sentence by the sentencing court. We understand that trial counselfiled a memorandum in the District Court on 6 November 2019, seeking tohave the matter recalled, but did not receive a response.[12] In the present case involving Mr Doidge unfortunately, an error occurred in themiscalculation of the correct conversion of his sentence to one of home detention.This calculation error resulted in an erroneous sentence being imposed which, as theCourt of Appeal in Paekau noted, was one that could be dealt with in this Court as thesentencing Court in terms of s 180 Criminal Procedure Act.2 Simon France (ed) Adams on Criminal Law — Criminal Procedure Act (online ed, ThomsonReuters) at CPA [180.01].3 Paekau v R [2020] NZCA 332, at [11].[13] Accordingly. I am satisfied that, despite a contrary view expressed by counselfor the respondent, jurisdiction does exist under s 180 here for a possible correction ofMr Doidge's sentence.Criminal Procedure Rules 2012[14] It is useful at this point also to have regard to the Criminal Procedure Ruleswhich largely replicate the High Court Rules. Rule 1.6 of the Criminal ProcedureRules provides:1.6 Correction of accidental slip or omission(1) This rule applies if—(a) any judgment or order, or the reasons for any judgment or order,contain a clerical mistake or an error arising from anyaccidental slip or omission (whether the mistake, error, slip, oromission was made by an officer of the court or not); or(b) any judgment or order is so drawn up as not to express whatwas actually decided and intended.(2) The court or a Registrar may correct the judgment or order, or thereasons for the judgment or order, —(a) on the court's or Registrar's own initiative; or(b) on an application made for that purpose.[15] In Carrick v Police Davison J issued a Minute in which he applied r 1.6 tocorrect a sentence appeal judgment which incorrectly recorded the appellant'sconvictions:4(5) I correct the judgment accordingly, pursuant to r 1.6 CriminalProcedure Rules 2012 and relying on the Court's inherent jurisdiction.4 Carrick v Police, High Court Auckland, CRI-2017-404-62, 1 June 2017.The relevant paragraph numbers in the corrected judgment are andthe cross-referencing have also been updated. In terms of the analysisat [56], the disorderly behaviour charge now comes to be consideredin the context of the third incident. The net effect of the change is thesame, and the end sentence reached remains unchanged.Inherent jurisdiction[16] Lastly I turn to consider this Court's inherent jurisdiction and how this relatesto the present matter. The Court of Appeal in its decision in R v Smith dealt with anappeal against a conviction and sentence.5 The appeal was dismissed after an ex partehearing of a kind, which was later held to be invalid by the Privy Council. Theappellant applied for a new hearing on the basis the previous invalid hearing was anullity. The Court of Appeal held:6The Court has inherent power to revisit its decisions in exceptionalcircumstances when required by the interests of justice. Such power is part ofthe implied powers necessary for the Court to "maintain its character as a courtof justice." Recourse to the power to reopen must not undermine the generalprinciple of finality. It is available only where a substantial miscarriage ofjustice would result if fundamental error in procedure is not corrected andwhere there is no alternative effective remedy reasonably available. Withoutsuch response, public confidence in the administration of justice would beundermined.[17] In R v Dodd7 Duffy J held she had jurisdiction to recall the a judgmentimposing a sentence on Mr Dodd, on the basis the sentence referred to the criminalhistory of the offender's brother and was therefore incorrect. Based on the offender'sbrother's criminal history, the starting point of the sentence had been uplifted by twomonths. Duffy J noted she would be prepared to correct the error "if persuaded that Ihad jurisdiction to do so".8[18] Although the Judge in that case felt that neither s 180 of the Criminal ProcedureAct nor r 1.6 of the Criminal Procedure Rules might apply to the circumstances there,she found that the Court's inherent jurisdiction did apply and its role was to fill thegaps not covered by legislation, [at 25]. She also held that her conclusions regarding5 R v Smith [2003] 3 NZLR 617 (CA).6 Above n 5, at [36].7 R v Dodd [2019] NZHC 667.8 At [2].s 180 and r 1.6 did not provide any bar to the use of the inherent jurisdiction in a casesuch as in the one facing her.[19] Although I do not necessarily share Duffy J's views with respect to theapplication of s 180 of the Criminal Procedure Act or r 1.6 of the Criminal ProcedureRules, here I accept that this Court's inherent jurisdiction in any event does allow thecorrection of any sentencing error that may be determined in a case like the present,providing such irregularity is satisfactorily established by Mr Doidge, and the Crownrespondent (as it has) has had sufficient opportunity to address this Court on theexercise of the correction power.[20] For all these reasons I conclude that jurisdiction does exist in this case tocorrect Mr Doidge's judgment either in terms of s 180 of the Criminal Procedure Actor by way of application of the inherent jurisdiction this Court holds.Should the Court consider time spent remanded in custody and if so, what is thecorrect deduction?[21] I turn now to the substantive issues before me. On these when sentencing adefendant to home detention it is clear the Court is required to take into account thetime a defendant has spent remanded in custody when setting the sentence.9[22] In Longman v Police at [8]–[9] this Court held:Credit for time spent on custodial remand is quite different. Conceptually, ithas nothing to do with the appropriate length of the underlying sentence.Rather it is time spent serving that sentence for which credit is appropriate.With a sentence of imprisonment, credit is given automatically. With homedetention, the Court needs to act to ensure it is given recognition.In my view the clear default position is that full credit should be given Here, the analysis is what adjustment should be made to a home detentionsentence, the length of which is fixed by reference to a sentence ofimprisonment, for the time actually spent in jail in effect serving the samesentence. Seen that way full equivalent should be the norm.9 Longman v Police [2017] NZHC 2928, at [9]; Parkinson v Police [2019] NZHC 1710, Nottinghamv R [2020] NZSC 74, at [38].[23] In Parkinson v Police, Clark J in this Court dealt with an appeal where aDistrict Court Judge failed to give credit for time spent while the offender was incustody, when imposing a sentence of home detention. In doing so she noted:10 full equivalence should be the norm When assessing what reductionthere should be to a home detention sentence, the length of which is fixed byreference to a sentence of imprisonment. That is because, with a sentence ofimprisonment, the prisoner will automatically obtain credit for time spent oncustodial remand and that time will be deducted from the sentence that isserved. For this reason, in determining the length of any sentence ofimprisonment, the Court is not to take into account any part of the periodduring which an offender was on pre-sentence detention. But where thesentence of imprisonment is to be supplanted with home detention the Judgewill have to take into account the time spent in custodial remand to ensure fullcredit is given for that time.(Citations omitted).[24] It is clear therefore, as I see it, that on a successful appeal, where a sentence ofhome detention is imposed, the new sentence should take into account the time anappellant has spent remanded in custody or on home detention, because otherwise itwould not be considered.11[25] Recent Court of Appeal decisions which have allowed appeals againstsentences of imprisonment commuting to home detention, have allowed a discountcalculated at double the period remanded in custody. This is because an offender whois sentenced to a short term of imprisonment becomes eligible for parole after theyhave served half their sentence.12 As the authors of Adams on Criminal Law note:13Because a sentence of home detention is served in full, there is a rule of thumbthat the sentence will normally be one-half of the prison sentence that wouldotherwise have been appropriate. However, this is not automatic, and a longerterm of home detention may occasionally be warranted: Brittin v Police.14In the present case however, I am satisfied that the rule of thumb noted above applies.Ms McManus for the respondent did not endeavour to argue otherwise, nor as I see itwould it have been appropriate to do so here.10 Parkinson v Police, above n 9, at [19].11 Nottingham v R, above n 9, at [38].12 Diaz v R [2021] NZCA 426, at [50]; Williams v R [2021] NZCA 333, at [26].13 Simon France (ed) Adams on Criminal Law – Criminal Procedure Act SA 80A.06.14 Brittin v Police [2017] NZHC 2410, at [59].[26] But, regrettably, in the present case in the appeal judgment, although applyingthe "rule of thumb", I did not take into account the prior period Mr Doidge had beenremanded in custody. This was from 18 May 2021 to 30 August 2021 amounting tosome 14 weeks and six days being approximately 3.5 months.[27] To appropriately take this into account, following the Court of Appealdirections noted above, the proper way to calculate the appropriate discount to whichMr Doidge is entitled here on his end sentence of 22.8 months' imprisonment,15 is asfollows:(a) Subtract from this 22.8 months' imprisonment a total of sevenmonths' imprisonment (being double the 3.5 month period forwhich Mr Doidge was earlier remanded in custody) leaving a totalimprisonment period of 15.8 months; and(b) Divide this 15.8 months' imprisonment period by two to calculate thefinal sentence for home detention representing a figure of 7.9 months.[28] Resulting from all this, the correct deduction for Mr Doidge's time spentremanded in custody here should have been seven months' imprisonment and his finalhome detention sentence should have been for 7.9 months rather than the 11 monthsimposed in the appeal judgment.Result[29] Accordingly, I now recall the appeal judgment, delete para [64] of thatjudgment and reissue the appeal judgment with a replacement para [64] as follows (butthe reissued judgment is otherwise unchanged):15 Determined at [58] of the Appeal judgment.[64] I quash the sentence imposed in the District Court of two years and fourand a half months' imprisonment and, because Mr Doidge has spent from 18May 2021 to 30 August 2021 (being a period of approximately 3.5 months)remanded in custody, I substitute in place of that quashed sentence anelectronically monitored sentence of 7.9 months home detention..Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchBarrister:K Basire, Barrister, Christchurch