MOELLER v R [2020] NZHC 1290

MOELLER v R [2020] NZHC 1290IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-10[2020] NZHC 1290BETWEEN JOSEPH WILLIAM MOELLERAppellantAND THE QUEENRespondentHearing: 8 June 2020 (AVL)Counsel: N L Laird for AppellantA D H Colley for RespondentJudgment: 10 June 2020JUDGMENT OF SIMON FRANCE J[1] One of the available sentencing outcomes recognised in the Sentencing Act2002 (the Act) is that an offender may be sentenced to imprisonment on what is knownas a short-term sentence (two years or less),1 but given leave to apply for the sentenceto be changed to one of home detention.2 This usually occurs when home detentionwould be the sentencing outcome but for the lack, at the time of sentencing, of asuitable address.[2] This was the case with Mr Moeller, who received a 23-month sentence ofimprisonment but was given leave to apply for home detention.3 He was also givenhis second strike warning.4 Six weeks later a suitable address became available andhe applied for the term of imprisonment to be cancelled and home detention1 Sentencing Act 2002, s 4(1); and Parole Act 2002, s 4(1).2 Sentencing Act 2002, s 80K.3 R v Moeller [2020] NZDC 4850.4 Sentencing Act 2002, s 86C.substituted.5 This occurred and the District Court imposed a home detention term of226 days.6 This was the remaining number of days left on Mr Moeller's custodialsentence of 23 months, after taking into account credit for remand spent in custody.Mr Moeller appeals the length of that term, submitting it should be half the length.[3] Section 80K of the Act sets out the process to be applied when an applicationis made to cancel a sentence of imprisonment and substitute one of home detention.The first step is to determine the sustainability of the proffered address. That beingsatisfactory, the second step is to determine the length of the substituted homedetention sentence. Concerning length, s 80K(5) and (6) provide:(5) A sentence of home detention substituted under subsection (4) may befor any period the court thinks fit, but must not be less than 14 days ormore than 12 months.(6) When substituting a sentence of home detention, the court must takeinto account the portion of the original sentence that remains unservedat the time of the order.[4] In accordance with subs (6), the Court will normally be provided with a figurebased on what is known as the sentence release date. This is the date on which theoffender must be released from prison (as opposed to the date on which the sentencewill formally expire), and will already reflect credit for any applicable pre-sentencecustodial remand time and the time served since sentencing. That figure will normallybecome the period of the substituted home detention sentence.[5] By way of explanation, home detention sentences only occur when a defendantwould otherwise be sentenced to what the Act calls "a short-term sentence", which isa sentence of 24 months or less. A key feature of a short-term sentence is that there isno parole eligibility (which normally arises after one-third of a sentence) but there ismandatory release after one-half of the sentence.7 The practice has developed that thelength of the alternative home detention sentence should, as a general rule, be theequivalent of the number of days a defendant would actually serve in prison. This isachieved by imposing a home detention sentence that is half the indicated sentence of5 Sentencing Act 2002, s 80K.6 Moeller v R ]2020] NZDC 7288.7 Parole Act 2002, s 86(1).imprisonment, thereby reflecting the prisoner would only serve half of that short-termsentence.[6] The figure provided under s 80K(6), because it focuses on the sentence releasedate (as opposed to the sentence expiry date), already reflects the halving adjustment.As noted, it also reflects credit available for time served so both the key influences onthe home detention sentence length are already accommodated. For this reason thes 80K(6) figure will normally be the home detention sentence length.[7] The difference with second strike sentences is that the s 80K(6) figure, basedon the sentence release date, will reflect the time served credit, but not the halvingrule. This is because second strike short-term sentences of imprisonment are nothalved; the prisoner must serve all of the sentence and the sentence release date reflectsthat.8[8] The issue presented by this case is whether the different parole rule that appliesto second strike sentences of imprisonment should also influence the length of a homedetention sentence imposed in its place. The District Court Judge's figure here of226 days reflects an affirmative answer. However, in Mangi v R, this Court answeredthe question differently.9 It was there reasoned that the second strike parole rules applyonly to "determinate sentences of imprisonment",10 and there was no reason otherwiseto depart from the normal halving practice.[9] A contrary view was expressed in Tialata v Police where it was observed therationale underlying the halving rule did not apply for second strike offences, becausethe equivalent of the time the prisoner would actually serve in prison is the fullfigure.11[10] Both views, with respect, obviously have merit. The issue arises because homedetention as a substitution for a second strike sentence of imprisonment is often not agood fit. The two schemes – home detention and short-term sentences – work together8 Sentencing Act 2002, s 86C(4).9 Mangi v R [2018] NZHC 2732.10 Sentencing Act 2002, s 86C(4).11 Tialata v Police [2017] NZHC 3096 at [39].in part because the maximum lengths match. A 24-month sentence of imprisonmentis a 12-month sentence in actual time. That is also the maximum length of a homedetention sentence. Broad equivalence can be achieved.[11] The second strike rules distort that. Mr Moeller provides an example. Thetime he has left to serve only arises because he has an unusually lengthy period ofremand credit (being 14 and a half months). But imagine he had none and the samething had happened – a 23-month sentence of imprisonment, six weeks to find asuitable address and then a substituted home detention sentence. The s 80K(6) figurewould be around 21 months which is of course nine months longer than the availablemaximum home detention sentence.12 Equivalence is not in these circumstancespossible.[12] Section 80K(5) requires the Court to impose the length of sentence it thinks fit,thereby affording flexibility. Halving remains a reasonable basis; it represents anacknowledgment of the time the offender would serve in prison if he or she had notbeen subject to the second strike regime. It cannot be any sort of mandatory rule.13There may be, for example, circumstances in the underlying offending that suggestsomething more than half was appropriate, notwithstanding the second strike regimedoes not apply.[13] In the present case I accept the sentencing Court did not identify any featuresthat would support Mr Moeller serving longer than a non-second-strike offender wouldfor the same offending. I would therefore halve the time remaining. But for the matternow to be discussed, I would allow the appeal and substitute a home detention sentenceof three and a half months.14[14] The Crown supported the appeal on a different basis, arguing that the correctanswer was zero days left of sentence. This submission is driven by the amount oftime served credit Mr Moeller has. At sentencing it was around 13 months; by thetime of the s 80K resentencing it was 14 and a half months.12 Sentencing Act 2002, s 80A(3).13 As this Court has noted: see Gerrard v New Zealand Police [2016] NZHC 3130 at [23].14 This is at the day of resentencing.[15] The Crown submits, and I agree, the normal approach at sentencing is toidentify the length of the home detention sentence, and then adjust it to account fortime already served in prison. Given the rationale of achieving equivalence this is thecorrect sequence. If the time served is deducted from the home detention sentencelength, on, for example, a one-for-one basis, a day in prison is treated as the same as aday spent on home detention. There is no absolute rule about giving one-for-onecredit, but it provides a sound starting point.[16] The Crown observes here that had Mr Moeller had a suitable address on theday of sentencing, it is likely he would have been discharged because the time alreadyspent in jail exceeds the maximum length of a home detention sentence. It reasonsfrom this that on the resentencing he should not be any worse off because there wasno address available at the time of sentencing.[17] It is not, however, necessarily correct that Mr Moeller would have beendischarged at the original sentencing. As a second strike offender, he still had10 months to serve of his sentence. On one view of it, a sentence of 10 months' homedetention would still reasonably be available. This is to return, though, to the issuealready discussed which is to what extent should the second strike rules influence thestructure of the home detention sentence.[18] The District Court did not consider this issue at the time of sentencing, becauseit was not actually imposing home detention. It is not helpful at this stage to speculatewhat might have been done, although I think it far from clear that Mr Moeller wouldhave been discharged as if he was not a second strike offender and had served hissentence.[19] The sentencing Court imposed the sentence structure it did. If the sentence isaltered to one of three and a half months' home detention it will mean, in relation to asecond strike sentence of 23 months' imprisonment, Mr Moeller has served 14 and ahalf months in prison, and three and a half months on home detention. I do not regardthat outcome as manifestly excessive.[20] The appeal is allowed. The sentence of home detention of 226 days iscancelled and in its place I impose a sentence of three and a half months.____________________Simon France JSolicitors:Laird Legal Services, New Plymouth for AppellantCrown Law Office, Wellington for Respondent