HALL v NEW ZEALAND POLICE [2020] NZHC 1988

HALL v NEW ZEALAND POLICE [2020] NZHC 1988 [7 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-404-000237[2020] NZHC 1988BETWEEN LANCE CLINTON HALLApplicantAND NEW ZEALAND POLICERespondentHearing: 3 August 2020Appearances: R N Roy for the ApplicantJ M Phillips for the RespondentJudgment: 7 August 2020JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 07 August 2020 at 3.00pmRegistrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Manukau, AucklandCrown Solicitor, AucklandIntroduction[1] Mr Hall pleaded guilty in the District Court to four charges of male assaultsfemale.1 He was sentenced on 14 February 2020 to 17 and a half months'imprisonment.2 He appeals against that sentence. The essential basis of his appeal isthat the District Court Judge erred by failing to apply a discount to reflect the timeMr Hall served in custody as a recalled prisoner prior to sentencing. Mr Hall says that,as a consequence of this error, the sentence was manifestly excessive.[2] The appeal was filed out of time. Mr Hall sought an extension of time toappeal. The Crown did not oppose an extension, and I grant it.Factual background[3] In 2009 Mr Hall was sentenced to 12 years' imprisonment on two charges ofsexual violation by rape, three charges of male assaults female, and one charge ofthreatening to kill or do grievous bodily harm.3 This was imposed cumulatively on asentence of two years and four months' imprisonment for wounding with intent toinjure which Mr Hall was already then serving.[4] Mr Hall was released on parole on 8 July 2018. He committed the currentoffending between 9 September and 11 December 2018.[5] The summary of facts describes four incidents. In the first, Mr Hall hit thevictim (his then-partner) twice in the face using the back of his hand, causing her ablack eye. In the second, Mr Hall struck the victim with a closed fist to the head whilehe was driving and she was in the passenger seat, continuing as she cowered in thefoot-well. In the third, Mr Hall became enraged and hit the victim repeatedly on thelegs using a belt. He then struck her with the belt buckle four to five times, connectingwith her back, the back of her neck, her head and her hands as she attempted to shieldherself. In the fourth, Mr Hall hit the victim in the face with an open hand, giving her1 Crimes Act 1961, s 194(b). Maximum penalty of two years' imprisonment.2 Police v Hall [2020] NZDC 2616.3 See Hall v R [2010] NZCA 72 at [15].a swollen and black eye. At the time the summary of facts was written the victim wasstill experiencing headaches, blurred vision and unsteadiness on her feet.[6] On 10 January 2019 Mr Hall was taken into custody pursuant to an interimrecall order. A final parole recall order was made on 25 March 2019.[7] Mr Hall pleaded guilty to the four charges. By the time of his sentencing on14 February 2020 he had been in custody, on recall, for a little over 13 months.[8] Mr Hall's history of offending dates back to 1987. Mr Hall has appeared forsentencing on 16 occasions prior to the present charges. His serious offending appearsto have begun in the early 2000s, resulting in short sentences of imprisonment for drugoffending, violating a protection order (by possessing a firearm), violent offending anddriving offending, as well as longer sentences (of four years' imprisonment) formethamphetamine and violent offending. The 2008 sexual violence offendingdiscussed above resulted in the sentence of 12 years' imprisonment with a minimumnon-parole period of six years.District Court decision[9] Judge Bennett described the "assaults and the level of violence" involved inthe offending as "awful".4 She took the assault with the belt as the lead charge, settinga starting point of 18 months' imprisonment.5 She imposed uplifts of four months forthe three other charges and four months for Mr Hall's "very poor prior record ofprevious offending".6 This produced a sentence, prior to any mitigating factors, of 26months.7[10] The Judge reduced that by five per cent for Mr Hall's willingness to participatein a restorative justice process.8 This took the sentence down to 24 and a half months.She then deducted 25 per cent for Mr Hall having pleaded guilty early "as soon as the4 Police v Hall [2020] NZDC 2616 at [2].5 At [4].6 At [5].7 At [6].8 At [7]–[8].charges were amended" and following a change of counsel.9 She rounded thisdeduction down to six months, and said that this left Mr Hall with an end sentence of17 and a half months' imprisonment.10 This contained an arithmetical error: a sixmonth deduction should have left an end sentence of 18 and a half months.[11] Regarding the time Mr Hall had already spent in custody on recall, the Judgesaid:[11] I am aware now that you have in fact been in custody for a period ofsome 14 months, and it is likely that this would mean immediate release, wereyou not a recalled prisoner. It does, however, pave the way for you to go toyour parole hearing unencumbered by an outstanding sentencing exercise.Standard of appellate review[12] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.11 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.12Matters not contested[13] Neither Mr Hall nor the Crown contests the starting point imposed by theJudge, which was 18 months' imprisonment on the lead charge, uplifted by fourmonths for the three other charges. There is no tariff case for male assaults femaleoffending.13 But, having had regard to other cases, I agree that the starting point waswithin the available range.14[14] Nor does either party challenge the Judge's uplift of four months for Mr Hall'sprior convictions. Again, I agree that that uplift was within range.9 At [8]–[10].10 At [10].11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].12 At [36].13 R v Reihana CA143/03, 3 July 2003 at [43].14 R v RHB [2012] NZHC 2879; and BIA v Police [2012] NZHC 192.[15] Neither party challenges the percentage discounts that the Judge applied: fiveper cent for willingness to engage in restorative justice, and 25 per cent for the earlyguilty plea. I likewise do not perceive any basis for departing from those percentages.However, there was disagreement between Mr Hall and the Crown as to how thosediscounts should be applied under the Court of Appeal's recent judgment in Moses vR.15 Neither counsel drew attention to the arithmetical error, which I identified above,in the Judge's deduction of the discount for the guilty plea.Mr Hall's challenge to the sentence[16] Mr Hall's appeal has a narrow focus. He challenges the sentence on the basisthat the Judge failed to take account of the 13 months that he spent in custody on recallprior to sentencing. Counsel for Mr Hall, Mr Roy, submits that the Judge erroneouslyunderstood that the time Mr Hall spent in custody was pre-sentence detention.16 Hesays that the Judge therefore considered that she could not take that time into accountin determining the length of Mr Hall's sentence.17 Mr Roy submits that time incustody on recall is not pre-sentence detention. The Judge was therefore permitted totake it into account. Relying on several authorities, Mr Roy says that the Judge shouldhave taken it into account by applying a further discount to the sentence.[17] Mr Roy goes so far as to submit that the Judge's intention was that Mr Hall'ssentence should already have been completed at the date of sentencing. He thereforesubmits that if the appeal were allowed and a different sentence imposed, theappropriate substitute sentence would be a conviction and discharge, thereby fulfillingwhat is said to be the Judge's intention.[18] Ms Phillips for the Crown agrees that the time that Mr Hall spent in custodyon recall is not pre-sentence detention, though she does not accept that the Judgemisunderstood the position. Ms Phillips also accepts that the Courts do frequentlyallow a discount to reflect time in custody on recall. But she says that a discount isonly "generally" – not always – applied, and that is usually where the breach of parole(which led to the recall) has resulted in an uplift in sentence. In addition, Ms Phillips15 Moses v R [2020] NZCA 296 at [46].16 In terms of s 91 of the Parole Act 2002.17 By reason of s 82 of the Sentencing Act 2002.says that the extent of the discount must be tailored to the circumstances of each case.Here, because the Judge did not apply any uplift for the breach of parole, and becauseof the nature of Mr Hall's offending (historic and current), no discount wasappropriate.[19] Alternatively, Ms Phillips says that if any discount is to be applied, it needs tobe accompanied by an uplift to reflect Mr Hall's offending on parole. She submits anuplift of six months would be within range. The net result of any discount and uplift,she says, would be that the Judge's sentence was not manifestly excessive.DecisionThe legal framework[20] Under s 90 of the Parole Act 2002 "pre-sentence detention", as defined in s 91of that Act, counts as time served towards any sentence of imprisonment subsequentlyimposed. A corollary is that, in determining the length of any sentence ofimprisonment, the Court must not take into account any period during which theoffender was on pre-sentence detention: Sentencing Act 2002, s 82.[21] The position is different for time spent in prison on recall prior to sentencing.Such time on recall is, by s 91(5) and (6) of the Parole Act, excluded from the meaningof pre-sentence detention. It therefore does not count as time served towards anysentence of imprisonment subsequently imposed. Equally, however, the restriction ins 82 of the Sentencing Act does not apply. This means that a Court may, in determininga sentence, take time on recall into account.18 Indeed, the authorities that I refer tobelow show that a Court generally should take time on recall into account, by applyinga discount to the sentence, in order to avoid any element of double punishment.[22] If an offender has spent time in custody on recall prior to sentencing, the usualreason for this will be that he or she offended while on parole. Offending while onparole is an aggravating factor that the Court must take into account when sentencing:s 9(1)(c) of the Sentencing Act. It will generally lead to an uplift.18 R v Beri CA91/96, 25 September 1996 at 5 (dealing with the equivalent provision in the CriminalJustice Act 1985).Discounts for time spent in custody on recall[23] The Crown accepts that the courts generally take time on recall into accountby applying a discount. But Ms Phillips submits that such a discount is usually onlyavailable where the offending on parole has resulted in an uplift in sentence. It is onlyin that situation, Ms Phillips suggests, that there might be double punishment (the timeon recall, and then the uplift) and a need for a discount.[24] I do not accept that discounts for time on recall are confined to the situationwhere there has been an uplift for the offending on parole. Nor do I accept that therisk of double punishment arises only in that situation. It is true that in some cases therisk of double punishment, and the consequent discount for time on recall, have beenexplained by reference to the uplift for the offending on parole.19 But most of thecases do not explain the discount in that way,20 and are not explicable on that basis –either because there has been a discount without reference to any uplift,21 or becausethe discount exceeds the uplift.22[25] Ms Phillips referred me to a decision of the Court of Appeal, R v Graham.23She submitted that the Court had refused to reduce the sentence to allow for time spenton recall. Ms Phillips relied on the following passages in the judgment:[21] A grant of parole amounts, as observed by Randerson J in Hart, to alicence during good behaviour. There is no right to release on parole. A grantof parole is a conditional release from custody, subject to a liability of recallif the conditions of release are not observed. If an order for recall is made,then parole ceases, and the offender will be required to serve the balance ofthe sentence (subject to the right to apply for parole again after the paroleeligibility date). Thus, if a paroled prisoner offends while on parole and isrecalled, the impact is on the term of imprisonment imposed for the originaloffending.19 R v Paul CA409/05, 26 April 2006 at [40]; Vernon v R [2010] NZCA 308; and Murphy v Police[2018] NZHC 251 at [25].20 In addition to the cases cited in the next two footnotes, see Te Aho v R [2013] NZCA 47 at [26];and Oliver v R [2014] NZCA 285 (discount for time on recall balanced, but not explained, by anuplift).21 R v Beri CA91/96, 25 September 1996 at 5.22 Tukuafu v R [2015] NZCA 251 at [12]–[13]; Faulkner v R [2016] NZCA 315 at [17]–[18]; Sililotov R [2016] NZCA 328 at [40]; and Thomas v R [2020] NZCA 257.23 R v Graham CA293/05, 14 December 2005.[23] There can be no question of the offender being punished twice for thesame offending. That the later offending may trigger consequences under boththe Parole Act and the Sentencing Act is entirely consistent with the legislativepolicy of the two statutes which were part of the same legislative passage.[26] But those passages were directed at a point different from the one that is inissue here. There the appellant had argued that the recall to prison together with acumulative sentence amounted to double punishment for the same offence, in breachof s 26(2) of the New Zealand Bill of Rights Act 1990. It was that argument that theCourt was addressing in the above passages. The Court was not saying that thereshould be no discount for time spent on recall. The sentencing Judge had allowed sucha discount.24 The Court approved that discount, saying that when the offending resultsin a recall "care needs to be taken that the offender is not unfairly penalised in whatmight be viewed as a double fashion".25[27] I therefore proceed on the basis that time spent on recall should generally beallowed for by a discount. This does not necessarily mean a discount equivalent to thetime on recall. In Thomas v R the Court of Appeal recently approved a discount of 66per cent of the actual time on recall, observing that it was "in line with the discountsapplied in other cases".26 I respectfully agree with that observation. By contrast, MrRoy submitted that the discount could be longer than the time spent on recall. Heacknowledged that none of the authorities supported such an approach to thecalculation of the discount, and I reject it.Was the sentence manifestly excessive?[28] I first deal with Mr Roy's submission that the Judge erroneously understoodthat the time Mr Hall spent in custody was pre-sentence detention. From this Mr Royargued that the Judge's intention was that Mr Hall's sentence should already have beencompleted at the date of sentencing. He submitted that if the appeal were allowed anda different sentence imposed, the appropriate substitute sentence would be aconviction and discharge, thereby fulfilling the Judge's (supposed) intention.24 R v Graham CA293/05, 14 December 2005 at [10].25 At [45].26 Thomas v R [2020] NZCA 257 at [16] and [21].[29] I reject that submission. Had Mr Hall's time in custody on recall counted aspre-sentence detention, Mr Hall would have been eligible for immediate release (onthe subject sentence). The Judge noted that that would have been the position "wereyou not a recalled prisoner".27 In my view the Judge therefore appreciated that MrHall's time in custody on recall was not pre-sentence detention. Moreover, the Judge'sremark does not evince an intention that Mr Hall's sentence should already have beencompleted at the date of sentencing. Had that been the Judge's intention, she wouldhave said so, and a shorter sentence would have been imposed.[30] It is, however, clear that the Judge did not take into account Mr Hall's time incustody on recall. In my view, for the reasons set out earlier, the Judge should havedone so. I do not mean this as a criticism of the Judge. It seems the Judge's attentionwas not directed to the possibility of making such an allowance.[31] Equally, the Judge did not take into account, as an aggravating factor, the factthat Mr Hall's offending occurred while he was on parole. Both counsel agreed thatthere should have been an uplift for this aggravating factor. They differed only as tothe extent of any uplift.[32] I therefore propose to consider an appropriate discount for the time on recall,and an appropriate uplift for the offending on parole. I will then apply the two-stepmethodology set out by the Court of Appeal in Moses. I will finally stand back andconsider whether the end result shows that the sentence was manifestly excessive.[33] As to the discount for the time on recall, I am guided by the Court of Appeal'sapproval in Thomas of a discount of 66 per cent of the actual time on recall. This isin line with the other cases referred to in Thomas. There is nothing in thecircumstances of Mr Hall's time on recall that leads me to depart from that approach.This gives a discount, rounded up, of nine months.[34] As to the uplift for the offending on parole, Ms Phillips says six months wasappropriate. Mr Roy says three months. Ms Phillips relies on Oliver v R, where theCourt of Appeal said that an uplift of nine months for offending on parole would not27 Police v Hall [2020] NZDC 2616 at [11].have been out of range.28 But in Oliver the starting point was a sentence of five years,so the uplift was 15 per cent of the starting point. That would translate to an uplift ofthree months here.[35] Ms Phillips submits that it is appropriate for this uplift to be at the high end ofthe range. This is because Mr Hall reoffended so early after his release on parole, andbecause his offending was of the same nature as the offending for which he had beenon parole (both involving serious violence against women). I accept those points. TheCourt of Appeal in R v Paul said: "It is appropriate for the sentencing Judge todenounce an offender's preparedness to offend in a similar way shortly after releaseon parole."29[36] But in my view four months is at the high end of the range, particularly in lightof the uplift that has already been made of four months for prior convictions. Acombined uplift of eight months for prior convictions and for offending on parolewould be about 36 per cent of the starting point of 22 months. This is in line withcombined uplifts in other serious cases.30[37] This takes me to the two-step methodology set out in Moses. The first stepcalculates the "adjusted starting point", incorporating all aggravating and mitigatingfeatures "of the offence".31 The second step incorporates all aggravating andmitigating factors "personal to the offender", together with any guilty plea discount,which should be calculated as a percentage of the adjusted starting point. The Courtof Appeal said that under this methodology "the court fixes all second-step uplifts anddiscounts by reference to the adjusted starting point".32 The Court made clear that thismethodology did not preclude credit for some mitigating factors being assessed by28 Oliver v R [2014] NZCA 285.29 R v Paul CA409/05, 26 April 2006 at [27].30 Vernon v R [2010] NZCA 308 (32 per cent combined uplift; serious and repeat drug offending);Waterworth v R [2012] NZCA 58 (23 per cent combined uplift; recidivist drug offender); Ellis vR [2012] NZCA 513 (66 per cent combined uplift, described as the absolute top of the range; serialoffender with over 40 dishonesty-related convictions); and Blackmore v R [2014] NZCA 109 (42per cent combined uplift; serial dishonesty offending; over 300 past convictions for dishonesty-related offending; two separate blocks of offending while on parole).31 Moses v R [2020] NZCA 296 at [46]. The Court said, at [6], it used the term "adjusted startingpoint" to signify "that it incorporates all aggravating and mitigating features of the offending".32 Moses v R [2020] NZCA 296 at [47].reference to the product of step 2, where that is appropriate. The Court instanced creditfor time spent on electronically monitored bail.33[38] The parties' written submissions understandably did not address Moses, itbeing such a recent decision. But Mr Roy and Ms Phillips did address Moses in theiroral submissions. One point of disagreement emerged.[39] The disagreement was as to how the "adjusted starting point" should becalculated. Mr Roy submitted that the adjusted starting point should include the upliftsfor prior convictions and for offending on parole, as these were aggravating featuresof the offence. So, on the view that I have taken of those uplifts, Mr Roy said that theadjusted starting point was 30 months (22 plus 4 plus 4). Ms Phillips, by contrast,submitted that the adjusted starting point did not include the two uplifts, because priorconvictions and offending on parole were not aggravating features of the offence. Shesubmitted that they were aggravating factors personal to the offender, and came in atstep 2. She said the adjusted starting point was therefore 22 months.[40] This disagreement has an impact on the absolute amount of the discounts thatshould be allowed for Mr Hall's willingness to engage in restorative justice and forhis early guilty plea. As noted earlier, those discounts total 30 per cent. If the adjustedstarting point is 30 months, the absolute discount is nine months. If 22 months, thediscount is (rounded) six and a half months.[41] In my view Mr Hall's prior convictions and his offending on parole areaggravating factors that are personal to Mr Hall, rather than aggravating factors of theoffence.34 They do not form part of the "adjusted starting point" under Moses. Iacknowledge that Moses may have been primarily directed at the problem, under theearlier three-step methodology, of a guilty plea discount being reduced if an offender'ssentence is already discounted for other mitigating factors.35 But the Court said thatunder the three-step methodology the amount of the guilty plea deduction could beaffected by either "uplifts or discounts for personal circumstances".36 The Court33 At [48].34 Geoff Hall Hall's Sentencing (online ed, LexisNexis) at [I.6.12].35 At [31].36 At [30].therefore had in mind the possible effect on a guilty plea discount of an uplift forpersonal circumstances. The Court was clear that under the new two-stepmethodology such uplifts applied at step 2, and that the guilty plea discount (and anyother percentage discount) should be calculated as a percentage of the adjusted startingpoint.37[42] The adjusted starting point is therefore 22 months, and the absolute discountfor willingness to engage in restorative justice and for the guilty plea is six and a halfmonths.[43] As noted earlier, Moses acknowledges that some discounts may come after step2, because they are not appropriately calculated by reference to the adjusted startingpoint. This is true of the discount for the time on recall. This discount is a functionof the time on recall, not a function of the adjusted starting point. It is analogous tothe example in Moses of time spent on electronically monitored bail.[44] In my view, therefore, an appropriate sentence is calculated as follows:(a) An adjusted starting point of 22 months.(b) Uplifts of eight months (four months each for the prior convictions andthe offending on parole).(c) A discount of six and a half months for willingness to engage inrestorative justice and the early guilty plea.(d) A discount of nine months for the time spent on recall.[45] This produces a sentence of fourteen and a half months. This is three months,or almost 20 per cent, less than the sentence below. In my view the sentence belowwas manifestly excessive. Although the excess arose primarily because the Judge wasnot asked to consider a discount for time on recall, the sentence should nonetheless besubstituted with a lesser sentence.37 At [46]–[47].Result[46] I grant an extension of time to appeal. I allow the appeal. I quash the sentenceof 17 and a half months' imprisonment and substitute a sentence of 14 and a halfmonths' imprisonment.______________________Campbell J