VAN DER SLUYS v POLICE [2022] NZHC 2891

VAN DER SLUYS v POLICE [2022] NZHC 2891 [3 November 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-000022[2022] NZHC 2891BETWEEN JOSHUA JAN VAN DER SLUYSAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersJudgment: 3 November 2022JUDGMENT OF NATION J[1] Mr van der Sluys appealed against his sentence of home detention, inparticular, the length of it.[2] The Crown accepts there was an error in the sentence and the term of homedetention needs to be reduced. If the appeal is allowed in the way the Crown agreesis appropriate, Mr van der Sluys will have served the appropriate period of homedetention. For that reason, counsel have agreed the appeal needs to be dealt withurgently and the appeal can be dealt with on the papers. I now do so.[3] At the age of 35, Mr van der Sluys appeared on a number of dishonesty charges,including burglary.[4] A District Court Judge assessed an appropriate starting point of 42 months'imprisonment for the offending, with a discount of 25 per cent for guilty pleas. Oncea pre-sentence report had been obtained, another Judge considered further discountswere appropriate. He gave a 15 per cent discount because of aspects of Mr van derSluys' personal history and certain difficulties he has had to deal with. In addition,this Judge considered a further five per cent discount for remorse was appropriate,particularly because of what had happened in restorative justice and what Mr van derSluys said when appearing for sentence.[5] The Judge arrived at a sentence of 23.1 months' imprisonment. The Judgeconsidered home detention would be an appropriate sentence, particularly to help withrehabilitation. Consistent with the approach that home detention should be for halfthe period of the sentence of imprisonment, Mr van der Sluys was sentenced to 11months and two weeks' home detention.[6] The appeal was brought on the grounds the sentence had failed to take intoaccount the six months that Mr van der Sluys had been in custody before he wassentenced. The Judge was aware Mr van der Sluys had been in custody. He referredto it as being some punishment Mr van der Sluys had already received for hisoffending. Had Mr van der Sluys been sentenced to imprisonment, the time he spentin custody on the charges would have been treated as time served so as to effectivelyreduce the length of time Mr van der Sluys would have spent in prison following hissentencing.[7] With the sentence of home detention imposed, there was not the sameacknowledgement or account taken of the time Mr van der Sluys had already spent incustody.[8] With reference to a judgment of Simon France J in Longman v Police, theCrown agreed the accounting for time spent in custody should have been to the extentof the full amount of that period of imprisonment, i.e. six months.1[9] Mr van der Sluys, through his counsel, also sought that the sentence should bereduced by six months to five months and two weeks' home detention.1 Longman v Police [2017] NZHC 2928.[10] For those reasons, an error was made on sentencing. The sentence imposed issquashed. In substitution, Mr van der Sluys is sentenced to home detention for a periodof five months and two weeks on the same conditions as were imposed with theoriginal sentence. There also remains the order for him to pay reparation in the sumof $35,000 as originally ordered.Solicitors:Montrose Chambers, InvercargillCrown Solicitor, Invercargill.