O’BRIEN v NEW ZEALAND POLICE [2018] NZHC 2644

O'BRIEN v NEW ZEALAND POLICE [2018] NZHC 2644 [11 October 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-58[2018] NZHC 2644BETWEEN KARL FRANCIS O'BRIENAppellantAND NEW ZEALAND POLICERespondentHearing: 2 October 2018Appearances: H R Hancock and K M Kedder for AppellantA W M Britton for RespondentJudgment: 11 October 2018JUDGMENT OF GRICE J(Appeal against sentence)[1] Mr O'Brien was sentenced to 15 months' imprisonment, with an indication thata suitable address would allow him to serve the term on home detention. The Judgeconverted the home detention option to a sentence of seven and a half months.[2] The charges that Mr O'Brien was convicted on, after pleas of guilty, were onecharge of burglary and possession of instruments for burglary arising from events on5 January 2018 and one charge of burglary arising from events on 20 January 2018.[3] Mr O'Brien appeals his sentence on the grounds it was manifestly excessive asthe Judge erred by:(a) Failing to provide a discrete discount to the starting point for time spenton electronically monitored (EM) bail;(b) Failing to provide a discrete discount to the end sentence of homedetention for time spent on pre-sentence detention; and(c) Providing a disproportionate global discount for both time spent on EMbail and pre-sentence detention.[4] The Crown oppose the appeal on the basis the end sentence was not manifestlyexcessive, but do concede the Judge was incorrect when he failed to give discretediscounts for time spent on EM bail and pre-sentence detention.The offending[5] On the morning of 5 January 2018, Mr O'Brien was at the Kiwi Rail substationin Lower Hutt. He was dressed in a high-visibility vest and had a hacksaw. He enteredthe substation through a small hole in the fence, and then attempted to take somecopper wiring. He left the enclosed yard when he was disturbed by a Kiwi Railemployee. The employee caught up to him and asked what he was doing. Mr O'Brienreplied "taking the metal". He was discovered a short time later by police by his carclose to his home. A search of the car revealed an orange hacksaw and yellow highvisibility vest. Mr O'Brien denied the offending to the police.[6] On the morning of 20 January 2018, Mr O'Brien was at the Briscoe's in LowerHutt. The store was closed to the public at the time, but Mr O'Brien rolled under thelocked gate at the back of the store where the goods are delivered. He tried to priseopen a door but failed. In explanation to the police he told them it was not him and hehad a bad back.The sentencing[7] The Judge gave a sentencing indication on 20 June 2018. He took the startingpoint of 20 months for the lead charge of burglary. He allowed a discount of 15 percent for the guilty pleas. This was converted into a three-month discount, taking theadjusted starting point to 17 months. The Judge then gave a credit of two months forthe time Mr O'Brien spent in custody and on electronically monitored bail. Thisresulted in an end point of 15 months imprisonment. The Judge then noted he wouldconvert that to a sentence of seven and a half months home detention if a suitableaddress was available. Mr O'Brien accepted this sentencing indication and pleadedguilty. Mr O'Brien was remanded to appear on 27 July 2018 for sentencing. A pre-sentence report was directed.[8] When the matter came up for sentencing on 27 July 2018 Mr Hancock, forMr O'Brien, put in a submission directing the Court's attention to Longman v Policeas authority to support further credit being given to reflect Mr O'Brien's time incustody and on EM bail.1 Longman supported giving full credit for time in custodyon an end sentence of home detention.2 Mr Hancock, submitted that having spent onemonth in custody Mr O'Brien was entitled to a two-month discount for time in custodyand the time on EM bail should be separately acknowledged.[9] The time that Mr O'Brien had spent on EM bail was five months. Mr Hancocksubmitted a discount of two months off the end sentence should be deducted for that.Standard of appeal[10] Mr O'Brien brings his appeal under s 250 of the Criminal Procedure Act 2011.That provides that an appeal against sentence is an appeal against a discretion, andtherefore, must only be allowed if the Court is satisfied that first there has been (forany reason) an intrinsic error in the sentence imposed and secondly a different sentenceshould be imposed.3 The focus is on the final sentence and whether that was in theavailable range, rather than the exact process by which it was reached.4 As articulatedin R v Peters:5[13] As this Court has indicated on many occasions, the issue whether asentence is manifestly excessive or manifestly inadequate or inappropriatemust be examined in terms of the sentence actually passed rather than theprecise process by which it is reached. Thus, if a sentence might be theproduct of a starting point which is itself manifestly excessive but is in theresult ameliorated by allowances made for mitigating factors so as ultimatelyto be brought to a point of acceptability, this Court will be disinclined tointervene through concern over any particular component. This is very muchsuch a case here.1 Longman v Police [2017] NZHC 2928.2 At [8] – [9].3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.4 Ripia v R [2011] NZCA 101 at [15].5 R v Peters CA12/03, 14 May 2003 at [13].Submissions and analysis[11] Mr O'Brien submits that the Judge fell into error when he failed to applydiscrete discounts for EM bail and pre-sentence detention. Specifically, the Judgefailed to:(a) Give a discrete discount to the starting point for EM bail;(b) Give a discrete discount to the final sentence for pre-sentence detention.[12] I will deal with both of these points individually in turn.Discount for EM bail[13] Counsel argues that the Judge should have given Mr O'Brien a discrete two-month discount for the time spent on EM bail.[14] Section 9(2)(h) of the Sentencing Act 2002 (the Act) notes the Court must takeinto account time spent on EM bail as a mitigating factor. This is further specifiedunder s 9(3A) which notes that the Court must consider:(a) The period of time spent on EM bail;(b) The relative restrictiveness of the EM condition, including thefrequency and duration of the offenders authorised absences from therelevant address;(c) The offender's compliance with their bail conditions during this period;and(d) Any other relevant matter.[15] The reduction given to recognise time spent on EM bail is not a matter ofarithmetical equivalence,6 but it is the submission of Mr O'Brien that the Judge didnot turn his mind to the factors set out in s 9(3A) of the Act.[16] In terms of what the extent of the reduction should have been, Mr O'Briensubmits that the standard conditions of EM bail are like those of home detention. Bailcan, in some cases, be more restrictive than home detention as any absence from theaddress when subject to a 24-hour curfew will need to be approved by the Departmentof Corrections. Mr O'Brien was subject to such a 24-hour curfew and complied withit well. He had a number of approved absences, and commenced approvedemployment for which he was allowed absences. The Crown submits that this showsit was not the most restrictive form of EM bail as he was allowed absences for work.[17] Mr O'Brien was on EM bail for five months and submits it would be consistentwith the appropriate case law for a discount of two months to be imposed. Accordingto the case law cited by counsel for Mr O'Brien, it appears the allowance for reductionsequate in general terms to half the time spent of EM bail where restrictive conditionsare imposed.7Discount for presentence detention[18] Credit for time spent in pre-sentence detention requires separate recognitionby the Court when imposing a sentence of home detention.8 This discount is to beapplied when the sentence is converted from one of imprisonment to home detention.9[19] Section 82 of the Sentencing Act 2002 provides that presentence detentioncannot be taken into account when determining the length of a sentence ofimprisonment as it will be deemed time served by the Department of Corrections, but6 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 a [110]; Keown v R[2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA at[19].7 R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka[2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]8 Longman v Police, above n 1, at [8].9 At [8] – [9].there is no equivalent provision for home detention sentences.10 This is why it falls tothe Court to fix and take into account in sentencing.[20] In Longman, Simon France J confirmed the need for a sentencing Judge toensure that credit for time on custodial remand be accounted for.11 He noted it isconsistent with the Supreme Court decision in Booth to give full credit for time spentin custody when imposing a sentence of home detention.12 It is the submission ofMr O'Brien's counsel that as a sentence of home detention is typically half that of ashort term of imprisonment (due to the function of s 86 of the Parole Act 2002), areduction of half the prison time served should have been given.[21] This argument suggests the Judge should have given a discount of one monthoff the final sentence of home detention to also take account the two months ofpresentence detention served in prison.Crown's response[22] The Crown accept that the discount of two months' imprisonment given by theJudge was low if it was meant to recognise EM bail and pre-sentence detentionseparately. They do not oppose the argument that the two discounts should have beenrecorded separately.[23] The fundamental submission of the Crown is that the final sentence of sevenand a half months home detention is not manifestly excessive. Mr O'Brien has 29previous convictions for dishonesty offending – five of which were for burglary. It isalso of note that Mr O'Brien was on bail when he committed the first burglary. Aseparate uplift could have, but was not, applied for this.[24] Therefore, the Crown says the final sentence imposed cannot be seen asmanifestly excessive and seven and a half months' home detention was appropriate inthe circumstances.10 R v Rose, above n 7, at [58].11 Longman v Police, above n 1, at [8].12 At [9]; Booth v R [2016] NZSC 127, (2017) 1 NZLR 223.Conclusion[25] Having reviewed the facts of the matter, the circumstances of the burglariesinvolved, which were clearly premeditated and involved the use of tools specificallyobtained for the purpose of the burglaries, and the significant number of previousdishonesty offences, I conclude the final sentence was within the appropriate range.[26] It is clear that the Judge should have recorded discounts for pre-sentencedetention and EM bail. However, a one for one consideration for time spent on EMbail is not required. I believe standing back and looking at the final sentence imposed,it was not manifestly excessive despite the error in the process leading to the Judge'sconclusion.[27] Accordingly, the appeal is dismissed._________________Grice JSolicitors:Public Defence Service, Wellington