MASON v NZ POLICE [2022] NZHC 1845

MASON v NZ POLICE [2022] NZHC 1845 [29 July 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-63[2022] NZHC 1845BETWEEN KATIE HARATA MASONAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2022Appearances: RO Gowing and AE de Villiers for the AppellantCA Bourke for the RespondentJudgment: 29 July 2022JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 29 July 2022 at 11.30amRegistrar/Deputy RegistrarDateSolicitors: Gowing & Co Lawyers, WhakatanePollett Legal, TaurangaIntroduction[1] Ms Mason was convicted on charges of dealing in methamphetamine,1possession of methamphetamine,2 possession of cannabis for supply,3 offering tosupply cannabis,4 breach of bail,5 receiving stolen property,6 possession of cannabis,7possession of utensils for methamphetamine8 and supplying methamphetamine.9On 25 March 2022, Judge C J Harding in the District Court at Whakatāne sentencedMs Mason to 10 months' home detention.10[2] Ms Mason appeals against her sentence on the basis that the Judge erred byfailing to give credit for time spent on remand in custody when determining the endsentence of home detention.11[3] The appeal was filed out of time. Counsel for Ms Mason says that the errorwas noticed shortly after the date of sentencing and an application to recall thesentencing decision was filed to correct the error. That application was not scheduledfor hearing until 10 May 2022 at which time the sentencing Judge declinedjurisdiction.12 The Police do not oppose leave to appeal being granted andI accordingly grant leave.The offending[4] Ms Mason's offending came to light as a result of a police investigation codenamed "Operation Kikorangi". Intercepted communications revealed that between1 Misuse of Drugs Act 1975, s 6(1)(c) and (2) (representative charge). Maximum penalty lifeimprisonment.2 Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty life imprisonment.3 Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty eight years' imprisonment.4 Misuse of Drugs Act 1975, s 6(1)(e) and (2) (representative charge). Maximum penalty eightyears' imprisonment.5 Bail Act 2000, s 38(a). Maximum penalty one year's imprisonment or $2,000 fine.6 Crimes Act 1961, ss 246 and s 247(a). Maximum penalty seven years' imprisonment.7 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty three months' imprisonmentand/or $500 fine.8 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year's imprisonment and/or$500 fine.9 Misuse of Drugs Act 1975, s 6(1)(c) and (2) (representative charge). Maximum penalty lifeimprisonment.10 Police v Mason [2022] NZDC 5230.11 To be fair to the Judge, it is not clear if this was brought to his attention at sentencing.12 Under s 177 of the Criminal Procedure Act 2011.June and September 2021, Ms Mason supplied a total of identifiable weights of twoand a half grams of methamphetamine, and on two occasions she offered to supplycannabis of an unidentified amount and value. On 7 September 2021, police searchedMs Mason's property and located various items including a glass methamphetaminepipe, point bags containing 1.09 grams of methamphetamine, and 60 grams ofcannabis head.[5] On 20 December 2021, while Ms Mason was on bail for the above offending,her property was searched again. Police located various items including two glasspipes, approximately one gram of cannabis head, 378 grams of cannabis leaf, and astolen camera. Ms Mason admitted to selling methamphetamine and cannabis sinceher last arrest, and said she had been given the camera by an associate.Sentencing in the District Court[6] After outlining the charges and the facts of the offending, the Judge referred tocounsel's submissions on Ms Mason's role in the offending and the various discountssought. While accepting there was an element of addiction, the Judge did not acceptcounsel's submission that Ms Mason would have been motivated by addiction ratherthan anything else.13[7] The Judge then referred to the mandatory sentencing principles under s 8 ofthe Sentencing Act 2002, and noted that the mitigating factors were Ms Mason's guiltyplea, remorse and her earlier good character.[8] Next, the Judge canvassed the s 27 report prepared on Ms Mason's behalf,noting that its contents were largely "rather better than most of such reports".14 Henoted that Ms Mason went "off the rails" when her partner was imprisoned foroffending, ended up in contact with people "in the drug scene" and became addictedto methamphetamine.1513 Police v Mason, above n 10, at [4].14 At [7].15 At [7].[9] The Judge then outlined the pre-sentence report, which he described as "verypositive".16 The report said that Ms Mason was very remorseful and motivated toaddress the factors that led to her offending. It also assessed her at a low risk ofreoffending, and noted the strong support including from whānau available to her atthe proposed home detention address. The Judge noted the report writer'srecommendation of a sentence of home detention with post-detention conditions,commenting that there seemed to be "significant confidence" that Ms Mason wouldmake good progress in the programmes and counselling available to her.17[10] Against this background, the Judge adopted a starting point of two years'imprisonment for the methamphetamine charges, with an uplift of 12 months for theother offending.18 He gave a 55 percent discount for personal mitigating factors,comprising 10 percent for Ms Mason's addiction, some 10 percent for the s 27 factorsand further discounts for character and rehabilitation together with a guilty plea. TheJudge then uplifted the resulting figure by three months for Ms Mason's "blatant"offending while on bail, coming to an end sentence of 19 months' imprisonment.19[11] The Judge said that this end sentence should "unusually, but in [Ms Mason's]case appropriately, be converted to home detention".20 While noting that courts arereluctant to give a home detention sentence at the address from which the offendingoccurred or close by, the Judge considered that the support available at the address andMs Mason's determination to stop offending ameliorated this concern.[12] The Judge therefore sentenced Ms Mason to 10 months' home detention withthe standard and special conditions laid out in the pre-sentence report, together withvarious post-detention conditions. The Judge also made an order for the destructionof the utensils and the drugs.16 Police v Mason, above n 10, at [8]. I have read the report and endorse that description.17 At [10].18 At [12].19 At [13].20 At [13].Approach on appeal[13] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed and that a different sentence should beimposed.21 A material error requiring correction will be established if the sentence ismanifestly excessive or wrong in principle.22 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples.23The appellant's submissions[14] Counsel for Ms Mason accept that the Judge's starting point and discounts wereappropriate. The sole issue on appeal is whether the Judge erred in failing to givecredit for time Ms Mason spent on remand in custody (and if so, what effect that timeon remand should have on the end sentence of home detention).[15] Counsel submit that at the time of sentencing, Ms Mason had been remandedin custody for approximately three months. They say that due to an oversight, thisfactor was not taken into consideration when calculating the end sentence and, as aresult, an incorrect sentence was imposed. Counsel submit that the Court must taketime spent on remand into account at sentencing, and that on the approach taken bythis Court in R v Tarau, the three months Ms Mason spent on remand equates to asix-month term of imprisonment.24 They submit that deducting those six months fromthe Judge's end sentence of 19 months' imprisonment results in a sentence of13 months' imprisonment, to be substituted with a sentence of six months and twoweeks' home detention, being the appropriate sentence.[16] I sought further submissions from counsel on a recent decision of Downs J inVakapora v Police, in which the Judge reviewed a number of earlier decisions of thisCourt (and the Court of Appeal) concerning the manner in which pre-sentence remandin custody ought to be reflected in a sentence of home detention.25 Counsel maintained21 Criminal Procedure Act 2011, s 250.22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].23 At [36].24 Relying on R v Tarau [2018] NZHC 2595.25 Vakapora v Police [2022] NZHC 493.their position that the correct approach is that taken in Tarau (that is, doubling the timespent on remand, deducting it from the sentence of imprisonment, then halving thatfigure to reach the home detention sentence). Counsel submitted that if it is acceptedthat one month of home detention is equivalent to one month of imprisonment, then itfollows that equal credit for time spent in custody should be given. In this respect,they submit that the Court in Vakapora failed to consider s 86 of the Parole Act 2002,which provides that the release date in a short-term sentence is the date on which theoffender who is subject to the sentence has served half of it.[17] Counsel also queried the reasoning in Kidman v R, in which the Court ofAppeal declined to mandate a particular approach to credit for time spent on remandin custody when determining the term of a sentence of home detention.26 Counselsubmit that the fact Parliament has not provided for credit in respect of home detentionin the same manner as a sentence of imprisonment does not mean the courts do nothave the jurisdiction to do so.The respondent's submissions[18] Ms Bourke for the respondent acknowledges that the Judge erred in failing totake into account time spent on remand in calculating the sentence of home detention,but submits that it is open for this Court to determine that the end sentence wasnevertheless not manifestly excessive.[19] Counsel emphasises that the Court of Appeal has held that the approach todiscounts for time spent on remand in the context of home detention is an evaluativeone.27 Ms Bourke submits that time spent on remand should be deducted from thecalculated term of imprisonment before it is commuted to home detention, not fromthe sentence of home detention.28 Ms Bourke contends that any deduction should notexceed the time spent in custody, relying on this Court's decisions in Saunders v Policeand Closey v Police.29 On this basis, she submits that the preferred methodology is todeduct the time spent on remand (three months) from the end sentence of26 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.27 Citing Kidman v R, above n 26, at [14].28 Relying on Laloni v R [2015] NZCA 55 at [14].29 Saunders v Police [2015] NZHC 1964 at [26]; and Closey v Police [2020] NZHC 990 at [18].imprisonment (of 19 months) for a total of 16 months, then commute this to a sentenceof eight months' home detention. Counsel submits that this effectively reflects the"two equals one" methodology as termed by Downs J in Vakapora.30[20] Counsel further submits that counsel for Ms Mason appears to be effectivelyadvocating for a "one for one" approach discussed in Vakapora, on the basis that thehome detention sentence should reflect the effective term of imprisonment (and thepoint at which the offender would have been released from custody, had the sentencenot been commuted to home detention). Counsel highlights that while the Court inVakapora did not explicitly refer to s 86 of the Parole Act, Downs J considered theissue of home detention being a substitute for a sentence of imprisonment in relationto the rationale for the one to one approach, which demonstrates that the Judge wasaware of the relevant principles. Counsel further notes that the Sentencing Act doesnot equate the sentences of imprisonment and home detention, and the hierarchy ofsentences under s 10A of the Act places home detention as a less restrictive sentencethan imprisonment.Relevant law – credit for time spent on remand[21] As will be evident from the above summary of the parties' submissions, theyare agreed that the Judge ought to have given credit for time Ms Mason spent onremand in custody when sentencing her to home detention. However, the authoritieshave taken differing views on how this credit ought to be applied – both in terms ofthe size of the credit and when it should be applied.[22] In terms of the size of the credit, some decisions have deducted half the remandperiod from the home detention sentence on the basis that, as home detention istypically half of the equivalent prison sentence, it is consistent to allow half of the timeserved on remand in custody to be factored into the final sentence (the "two equalsone" approach).31 Other decisions have taken the view that every month on remand is30 Vakapora v Police, above n 25.31 Laloni v R, above n 28, at [14] (although the Court did not articulate its reasons for adopting thisapproach); Wharrie v R [2019] NZHC 633 at [30]–[33]; and Vakapora v Police, above n 25, at[28]. See also Parkinson v Police [2019] NZHC 1710; McMillan v Police [2019] NZHC 3323 at[43]; Closey v Police, above n 29, at [35]; and Gotty v R [2020] NZHC 2035 at [18], in which theCourt appeared to endorse the "one to one" approach by deducting the full period of remand fromthe term of imprisonment, but nevertheless deducted the full amount from the term ofequivalent to a month of home detention because if the sentence were not commutedto home detention there would be an automatic credit to the sentence on a one for onebasis (the "one for one" approach).32[23] In Kidman v R, the sentencing Judge had failed to take into account six monthsspent on remand in calculating a sentence of home detention.33 The Judge indicatedthat he would have reduced the six-month home detention sentence to four and a halfmonths to reflect this factor, but declined to resentence. On appeal, it was argued thatthe "one for one" approach was mandatory. The Court of Appeal declined to mandateany particular approach, commenting that an "evaluative approach" should be taken.34However, the Court did not hold that one for one should never be employed.35[24] Subsequently, in Longman v Police, Simon France J took the view that one forone is the "default position", stating:36[9] In my view the clear default position is that full credit should be given.This is where it is important to note the distinction from EM bail. There theanalysis is what reduction to a prison term should be made for restrictive pre-sentence arrangements that do not involve jail. Here, the analysis is whatadjustment should be made to a home detention sentence, the length of whichis fixed by reference to a sentence of imprisonment, for time actually spent injail in effect serving the same sentence. Seen that way, full equivalence shouldbe the norm. Although arising in a different area, I suggest this outcome of fullequivalence is consistent with the tenor of the Supreme Court decision inBooth v R where the Court emphasised the need for pre-sentence detention tobe applied effectively to all sentences.[25] A number of subsequent decisions have cited the reasoning in Longman inadopting the one for one approach.37 However, in Vakapora v Police, Downs J queriedthe approach in Longman, stating:38imprisonment, then halved the resulting figure to reach the sentence of home detention, effectivelyresulting in a "two equals one" outcome. See the discussion at [27] below.32 Longman v Police [2017] NZHC 2928 at [9]; Kirk v R [2019] NZHC 3361; R v Tai [2021] NZHC2769; Paul v Police [2021] NZHC 1924; Pou v Police [2021] NZHC 1068; and Harrison v Police[2022] NZHC 345.33 Kidman v R, above n 26, at [15].34 At [15]–[16].35 As noted by Downs J in Vakapora v Police, above n 25, at [20].36 Longman v Police, above n 32.37 For example, Pou v Police, above n 32; Paul v Police, above n 32; and Kirk v R, above n 32; andsee Parkinson v Police, above n 31; and McMillan v Police, above n 31, but see my comments atn 31 above and [27] below.38 Vakapora v Police, above n 25, at [25] (footnotes omitted).These views command respect. However, the Supreme Court's decision inBooth v R was concerned with the effect of pre-sentence detention on asentence of imprisonment. More particularly, Booth was concerned with theinterpretation of s 90 of the Parole Act; a provision not engaged here.Furthermore, Longman does not cite Kidman or [Laloni]. It is not obvious,therefore, why "the default position is that full credit should be given".[26] Turning to the issue of when the credit ought to be applied, some decisionshave deducted the time spent on remand only after converting the sentence ofimprisonment to one of home detention.39 Others have made the deduction from thesentence of imprisonment before it is converted to home detention.40[27] The Court of Appeal's decisions in Laloni v R, Diaz v R and Williams v R areexamples of the latter approach, though Laloni differs from the others in one importantrespect.41 In Laloni, the defendant had been on remand for nine months. The Courtdeducted three months from the end sentence of imprisonment (which was 21 months).The resulting figure (18 months) was then halved to give a sentence of nine months'home detention. As Downs J noted in Vakapora, this approach is consistent with twoequals one.42 Some High Court decisions have followed this same approach whilesimultaneously endorsing the "one for one" methodology.43 For example, inParkinson v Police, the Court cited Simon France J's reasoning in Longman indeducting the full period on remand from the end sentence of imprisonment – but thenhalved the resulting sentence in reaching a home detention sentence.44 As noted, thiseffectively results in a two equals one outcome, and thus arguably does not give the"full credit" referred to in Longman.39 Longman v Police, above n 32, at [14]; Kirk v R, above n 32, at [9]; Stridom v Police [2019] NZHC354 at [50]; Slade v Police [2020] NZHC 3396 at [26]–[33]; Paul v Police, above n 32, at [10]–[14]; R v Tai, above n 32, at [38]; and Whichman v R [2022] NZHC 1223 at [28]–[29].40 Laloni v R, above n 28, at [14]; Saunders v Police, above n 29, at [26]; Parkinson v Police, aboven 31; McMillan v Police, above n 31, at [43]; Closey v Police, above n 29, at [35]; and Gotty v R,above n 31, at [18].41 Laloni v R, above n 28; Diaz v R [2021] NZCA 426; and Williams v R [2021] NZCA 333.42 Vakapora v Police, above n 25, at [22]. Although as Downs J noted, the defendant had been onremand for nine months, yet the deduction was three months, not four and a half months.43 See for example Parkinson v Police, above n 31; Gotty v R, above n 31; Wharrie v R, above n 31;McMillan v Police, above n 31; and Closey v Police, above n 29. Churchman J noted thisdivergence in the case law in Slade v Police, above n 39, at [27]–[32].44 Parkinson v Police, above n 31, at [19]–[20] and [23].[28] The Court of Appeal took a different approach again in Diaz v R andWilliams v R.45 The Court doubled the time spent on remand and deducted it from theend sentence of imprisonment, citing the rationale that "[a]n offender who is sentencedto a short term of imprisonment becomes eligible for parole after he or she has servedone half of the sentence imposed."46 The Court then halved the resulting sentence toreach a sentence of home detention, citing the same rationale. This approach results,albeit by a different route, in a one for one outcome. It is consistent with Lang J'sapproach in Tarau, on which counsel for Ms Mason relies.47Analysis[29] There is no dispute that an error was made in the sentence in the District Court,in not discounting the sentence of home detention to reflect Ms Mason's pre-sentencetime in custody. The question is whether a different sentence ought to be imposed,and if so, what.[30] On the current state of the authorities, including relevant Court of Appealdecisions, I proceed on the basis that the only matters that are binding on me are thatdetermining the length of time of a sentence of home detention is an evaluativeexercise, and that the so-called "one for one" approach is not mandatory.48[31] I deal first with the issue of when the credit for time on remand in custodyought to be applied when determining the appropriate length of a sentence of homedetention. In my view, the preferable approach is to make the deduction aftercommuting the end sentence of imprisonment to one of home detention. This isconsistent with the statutory directive in s 82 of the Sentencing Act that the Court mustnot take into account time spent on remand in custody when determining the length ofa sentence of imprisonment. In this regard, I respectfully agree with Simon France J'sremarks in Longman that:4945 Diaz v R, above n 41; and Williams v R, above n 42.46 Diaz v R, above n 41, at [50]; and Williams v R, above n 41, at [26]. With respect, this propositionis incorrect. An offender is released (not merely eligible for release) on the date on which theyhave served half of that sentence: Parole Act 2002, ss 6(2), 51(2) and 86(1).47 Although neither appellate decision referred to Tarau.48 Kidman, above n 26.49 Longman v Police, above n 32.[10] In terms of the timing when this matter is to be considered, s 82 of theSentencing Act and s 90 of the Parole Act 2002 amount to a legislativedirection that a court is to disregard time served where the ultimate sentenceis imprisonment. Logically, therefore, consideration of credit for time servedonly arises once a decision is reached that the sentence will be home detention.At that point the Court is freed from the legislative constraint because the timeis no longer automatically credited.[32] In addition, there is perhaps an element of artificiality in determining that asentence of imprisonment should be commuted to home detention, and then "reachingback" to adjust that sentence of imprisonment to reflect pre-sentence custody.50 WhileI accept that such an approach has been taken in some appellate decisions, the Courtin those cases did not expressly discuss the merits of the competing approaches.[33] I therefore proceed on the basis that the credit for time spent on remand incustody is to be deducted from the term of home detention, not the term ofimprisonment before it is halved to reach the home detention sentence.[34] Having resolved this preliminary issue, I must nevertheless go on to considerwhether to take (or at least adopt as a starting point) a one for one approach or a twoequals one approach. As can be seen from [27] and [28] above, both outcomes areavailable on the authorities, regardless of the point at which the Court applies thecredit.[35] I can see merit in both approaches. A two for one approach recognises that asentence of imprisonment and a sentence of home detention are not the same and arenot intended to be the same. In those circumstances, and as Ms Bourke observed inher oral submissions, any perceived "unfairness" in the two for one approach simplyreflects that home detention is not the equivalent of imprisonment and in the hierarchyof sentences, is a less restrictive sentence. On the other hand, the rationale for the onefor one approach is that an offender sentenced to a sentence of home detention, whichis itself based on a term of imprisonment, should ultimately be in no worse position(in terms of the length of their home detention sentence) than if the sentence ofimprisonment had not been commuted to home detention.5150 See a similar observation made by Campbell J in Harris v Police [2022] NZHC 345 at [26], n 20,where the Judge described such an approach as "opaque".51 A simple example illustrates the perceived "unfairness". If by adopting the required sentencingapproach, an end sentence of 24 months' imprisonment is arrived at, it is then open to the Judge[36] Recognising that neither approach is wrong, I prefer an approach which, atleast as a starting point, reflects a one for one credit. While the duration of a homedetention sentence is usually calculated by reference to half of the term ofimprisonment, that is something different, in my view, to also halving a "credit" tothat sentence of imprisonment. The one for one approach more appropriatelyacknowledges an offender's time spent, pre-sentence, in the most restrictiveenvironment possible in the hierarchy of sentencing. It is not apparent to me whyrecognition of that pre-sentence restriction should be materially different dependingon whether the offender is ultimately to serve a short-term sentence as one ofimprisonment or one of home detention.52[37] Nevertheless, the Court of Appeal is clear that the ultimate outcome is anevaluative exercise. The question therefore always remains the appropriate period ofhome detention for the purposes of s 80A(3) of the Sentencing Act, in light of all therelevant sentencing principles and the circumstances of the case, including the timespent on remand in custody.[38] On this basis, I consider the appropriate starting point is that a three monthcredit is to be applied to Ms Mason's 10 month sentence of home detention to reflectthe time she spent in pre-sentence custody. From this starting point, I turn to theevaluative exercise that is required.[39] The respondent did not suggest that even if a one for one credit for Ms Mason'stime spent in custody were to be adopted, there were nevertheless circumstances whichmeant the full three-month discount was not appropriate. In the absence of any factorsto commute that sentence to home detention. If the Judge nevertheless decides not to commutethe sentence, and the offender had spent four months on remand in custody, the offender would bereleased after spending a further eight months in custody (being required to serve only half of theshort term sentence, and receiving a one for one credit for pre-sentence custody). If the Judgedecided, however, that it was appropriate to commute the 24 month sentence of imprisonment tohome detention, the starting point would be a 12 month term of home detention. Adopting a onefor one credit for the time spent on remand in custody, the home detention sentence would be oneof eight months, and therefore equivalent to the point at which the offender would have beenreleased from custody had the sentence not been commuted to home detention. Conversely, if atwo for one approach were adopted, the home detention sentence would be 10 months, andaccordingly the offender would be subject to a sentence of home detention for two further monthsthan the equivalent in the sentence of imprisonment scenario.52 Noting in the former case, the recognition will be automatic in the context of the Department ofCorrections setting the offender's release date, while in the latter, it is to be taken into account bythe Court when setting the duration of a home detention sentence.pointing to a lesser discount being warranted, I take into account the statutory directivethat I am to impose the least restrictive outcome that is appropriate in thecircumstances.53 This weighs in favour of full credit for pre-sentence custody beinggiven to Ms Mason. Such an approach also reflects, in my view, the rehabilitativefocus of the home detention sentence, and the conditions of that sentence imposed bythe Judge and set out at [15] of his sentencing notes. There is no suggestion that anyof those conditions (and in particular, Ms Mason's attendance at relevant programmes)will be implicated if a one for one credit is given.[40] There will accordingly be an order that Ms Mason's sentence of 10 months'home detention is quashed and replaced with a sentence of seven months' homedetention. All other conditions of sentence imposed by the District Court are to remainthe same.[41] For completeness, had I adopted a "two for one" approach, such thatMs Mason's term of home detention would have been reduced by only one and a halfmonths, I do not consider reducing the sentence by that amount would have been"tinkering". In the context of a sentence of 10 months' home detention, this wouldhave reflected a 15 per cent reduction.Result[42] The appeal is allowed.[43] Ms Mason's sentence of 10 months' home detention is quashed and replacedwith a sentence of seven months' home detention. All conditions of that sentencereferred to at [15] of the District Court Judge's sentencing notes are to remain thesame.____________________________Fitzgerald J53 Sentencing Act 2002, s 8(g).