VAKAPORA v POLICE [2022] NZHC 493

VAKAPORA v POLICE [2022] NZHC 493 [18 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000034[2022] NZHC 493BETWEEN NGAMARE VAKAPORAAppellantAND NEW ZEALAND POLICERespondentHearing: 14 March 2022Counsel: DP Nairn for AppellantBA Mugisho for RespondentJudgment: 18 March 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 18 March 2022 at 1 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Manukau.DP Nairn, Auckland.The appeal[1] Ngamare Vakapora received a sentence of five months' home detention.Mr Vakapora contends the sentence is manifestly excessive because the Judge failedto adequately take into account the time he spent: (a) in custody, before sentencing;and (b) on electronically monitored bail.[2] The law in relation to (a) is in something approaching flux.Principle[3] An appeal in this context must be allowed if there is an error in the sentenceand a different one should be imposed.1Background[4] Mr Vakapora committed several offences.[5] On 5 July 2020, he drove while unlicensed. Five days later, he failed to answerPolice bail for that offence. In the early hours of 16 August 2020, Mr Vakapora andtwo others went into a 24-hour laundromat. There, the defendants smashed a hole inthe wall surrounding a money change machine. The defendants removed the machineand put it into a getaway vehicle. It was worth $12,000 and contained approximately$10,000 (in coins). Three days later, Mr Vakapora was a passenger in a car stoppedby Police. He had a methamphetamine pipe, 1.1 grams of cannabis and two .22 calibrebullets. (The driver had a .22 calibre pistol.) Overnight 20 November 2020,Mr Vakapora and another burgled a home in South Auckland. The pair stole itemsworth between $200–$300.[6] Mr Vakapora was sentenced 18 January 2022 for: driving while unlicensed;failing to answer Police bail; two offences of burglary; possession of cannabis;possession of a methamphetamine pipe; and unlawful possession of ammunition.21 Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.2 Police v Vakapora [2022] NZDC 554.[7] Judge K Tan adopted a starting point of 28 months' imprisonment on the twoburglary offences; added nothing for the remaining charges; then discounted thesentence by 25 percent for Mr Vakapora's guilty pleas and remorse. This left a notionalsentence of 21 months' imprisonment, or 10 and a half months' home detention.[8] Mr Vakapora had been in custody for a little over eight months. He also spentsix months on electronically monitored bail. About these, the Judge said:3I then turn my mind as to whether I should give you any credit for the timethat you spent on remand in custody and your lawyer emphasises the time thatyou spent on EM bail. I am less inclined to give you a significant credit onthe EM bail, but in terms of the time that you spent on remand, there shouldbe a credit for you in relation to that. In terms of the 10 and a half months, Itake off a further five and a half months, which leaves you with a finalsentence of home detention of five months.The case for Mr Vakapora[9] On behalf of Mr Vakapora, Mr Nairn contends s 90 of the Parole Act 2002required the Judge to deduct the time on remand: 8.25 months. Mr Nairn argues thesame section meant the deduction was necessarily 8.25 months, leaving a homedetention sentence of 2.25 months. From this "balance", Mr Nairn submits the Judgeshould have made a further discount for time on electronically monitored bail, leavingeither a very short sentence of home detention or no sentence at all.Analysis[10] I begin with the easy aspect of the appeal. Section 90 of the Parole Act did notrequire the Judge to do anything for the simple reason it did not apply to the case.Section 90 is concerned with the administration of prison sentences, and moreparticularly, how time on remand is calculated in relation to a sentence ofimprisonment. This is the responsibility of the Department of Corrections.[11] Section 90 needs to be understood in context with s 82 of theSentencing Act 2002. Section 82 precludes a Court from taking into account time onremand when determining the length of a sentence of imprisonment. ThisParliamentary command exists because time on remand is administratively deducted3 Police v Vakapora, above n 2, at [17].from a sentence of imprisonment. Again, this is the responsibility of theDepartment of Corrections.[12] A sentence of home detention is not a sentence of imprisonment, and nolegislative provision determines what effect time on remand has on a sentence of homedetention. Therein lies at least a part of the problem—the issue has fallen to the Courtsto determine.[13] The problem is arguably compounded by the Sentencing Act. As its nameimplies, the Sentencing Act governs the imposition of terms of imprisonment andhome detention. A home detention sentence is only available if the defendant wouldreceive a sentence of or less than 24 months' imprisonment.4 But, the maximum lengthof a home detention sentence is 12 months.5 So, if a Court is minded to impose atwo-year term of imprisonment, but also minded to substitute a home detentionsentence because the defendant has, say, good rehabilitative prospects, the maximumsentence is 12 months' home detention. Necessarily then, when imposing homedetention, a Court must halve the term of imprisonment to reach the correspondingterm of home detention. So, in this context, two months of imprisonment equals onemonth of home detention. For ease of reference, I call this "two equals one".[14] This leaves open what should be done if the defendant has been in custodybefore a sentence of home detention is imposed. Consistent with what I have saidabove, one approach is to halve the remand period and deduct it from the term of homedetention, on the basis two equals one here also.[15] Other approaches are also possible. An argument could be made that everymonth on remand should be the equivalent of a month of home detention because ifthe sentence were not commuted to home detention, the administrative deductionwould see a one-for-one deduction. And, this should follow through to a sentence ofhome detention because such a sentence is a substitute for imprisonment, it being4 Sentencing Act 2002, s 15A.5 Section 80A(3).available only when the defendant would receive a sentence of imprisonment.6 I callthis approach "one-for-one".[16] The one-for-one approach was advocated as mandatory in the leading case ofKidman v R.7 Mr Kidman received a sentence of 10 and a half months' homedetention. He argued the Judge failed to properly discount his six months on remand.More particularly, Mr Kidman argued the Judge should have treated every remandmonth as equivalent to a month of home detention, meaning the Judge should havededucted six months from the sentence.[17] As will be apparent, Mr Kidman's argument was essentially that now raised byMr Vakapora.[18] The Court of Appeal rejected the argument for three reasons. First, itconsidered if Parliament had intended this approach, it would have legislatedaccordingly.8 Second, the approach could operate "to the disadvantage of convictedpersons".9 Third, it considered "a more evaluative approach"10 consistent with that inan analogous area, discount for electronically monitored bail; and a better fit for thesentence of home detention, which the Court said had "a distinctly rehabilitativecomponent to it".11[19] However, the Court allowed the appeal and remitted the sentence to theDistrict Court for consideration as Mr Kidman had also been on bail while awaitingthe outcome of the appeal. That too needed to be considered.[20] Before moving on, it is important to be clear what Kidman holds. Kidmanholds something in the nature of an evaluative approach is required, withoutidentifying with particularity what that involves. Moreover, Kidman rejects one-for-one, but only as a mandatory approach. The Court did not hold one-for-one shouldnever be employed.6 Sentencing Act, s 15A(1)(b).7 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.8 At [15].9 At [15].10 At [16].11 At [16].[21] In Laloni v R, the defendant argued the sentencing Judge failed to consider histime on remand and electronically monitored bail when imposing 10 and a halfmonths' home detention.12 He urged the Court of Appeal to deduct three months fromthe sentence. The Court declined to do so, saying "we did not consider thisappropriate".13 Instead, the Court deducted three months from the term ofimprisonment that was to be converted to home detention—21 months—leaving anotional sentence of 18 months' imprisonment, hence a nine-month term of homedetention. The appeal was allowed, and a nine-month home detention sentencesubstituted.[22] The Court's approach appears consistent with two-equals-one and its earlierdecision in Kidman, but that case was not cited. Moreover, on close reading, theCourt's methodology remains unclear. The defendant had been on remand for ninemonths, yet the deduction was three months, not four and a half months.[23] This brings me to Longman v Police.14 Adam Longman received a sentence ofseven months' home detention. He too argued the sentencing Judge failed toadequately provide for time on remand and electronically monitored bail. TheDistrict Court settled on a sentence of 20 months' imprisonment, which necessarily, itconverted to 10 months' home detention. The Court then deducted three months fortime on remand and electronically monitored bail.[24] Simon France J held the correct approach to Mr Longman's remand time wasone-for-one. The Judge said:15In my view the clear default position is that full credit should be given. Thisis 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 offull equivalence is consistent with the tenor of the Supreme Court decision in12 Laloni v R [2015] NZCA 55.13 At [14].14 Longman v Police [2017] NZHC 2928.15 At [9]–[10] (footnote omitted).Booth v R where the Court emphasised the need for pre-sentence detention tobe applied effectively to all sentences.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.[25] These views command respect. However, the Supreme Court's decision inBooth v R was concerned with the effect of pre-sentence detention on a sentence ofimprisonment.16 More particularly, Booth was concerned with the interpretation of s90 of the Parole Act; a provision not engaged here. Furthermore, Longman does notcite Kidman or Lanoli. It is not obvious, therefore, why "the default position is thatfull credit should be given".17[26] Mr Mugisho for the respondent helpfully identified other developments incareful submissions. In the recent decisions of Williams v R18 and Diaz v R,19 theCourt of Appeal employed one-for-one, albeit with little discussion. In neither did theCourt refer to its earlier decisions in Kidman or Laloni.[27] Unsurprisingly then, some High Court judgments use two equals one; others,one-for-one. Cooke J gathered examples of each in R v Tai.20 Grice J's decision inWharrie v R is notable for preferring two equals one.21 Her Honour said, "As homedetention is typically half of the equivalent prison sentence, it is therefore consistentto allow half of the prison time served to be factored into the final sentence".22[28] I respectfully agree with Grice J, especially as Kidman specifically rejectsone-for-one, at least as a mandatory approach. And, as observed, Booth is not on point.16 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.17 Longman v Police, above n 12, at [9].18 Williams v R [2021] NZCA 535.19 Diaz v R [2021] NZCA 426.20 R v Tai [2021] NZHC 2769.21 Wharrie v R [2019] NZHC 633.22 At [32].[29] Unlike remand time in the context of home detention, statute addressesdiscounts for time on electronically monitored bail. Section 9(2)(h) of theSentencing Act requires a Court to consider time spent on electronically monitoredbail, which it calls EM bail. Section 9(3A) of the same Act requires the Court toconsider:(a) the period of time that the offender spent on bail with an EM condition;and(b) the relative restrictiveness of the EM condition, particularly thefrequency and duration of the offender's authorised absences from theelectronic monitoring address; and(c) the offender's compliance with the bail conditions during the period ofbail with an EM condition; and(d) any other relevant matter.[30] The Court of Appeal has consistently held discount for electronicallymonitored bail is "an evaluative decision", not an arithmetical exercise.23 Percentages"ranging between 30 and 50 percent are often used, and an allowance of up to50 percent is not uncommon".24[31] This brings us to Judge Tan's treatment of these issues. For ease of reference,I repeat what she said, with annotations for Mr Vakapora's time on remand and bail:25I then turn my mind as to whether I should give you any credit for the time that youspent on remand in custody [8.25 months] and your lawyer emphasises the timethat you spent on EM bail [six months]. I am less inclined to give you a significantcredit on the EM bail, but in terms of the time that you spent on remand, thereshould be a credit for you in relation to that. In terms of the 10 and a half months,I take off a further five and a half months, which leaves you with a final sentenceof home detention of five months.[32] Because the Judge made a global discount, that given for each time speciescannot be known. Plainly, however, the Judge did not employ one-for-one. If herHonour employed two equals one for the custodial remand, the bail discount isapproximately one and a half months. What then of error?23 Paora v R [2021] NZCA 559 at [45].24 At [53].25 Police v Vakapora, above n 2, at [17].[33] I am not persuaded the Judge erred in relation to the discount for time onremand. This appears to have been four months, which is about right using two equalsone. What I said earlier about this topic is applicable here too. I do not repeat it.[34] The discount for time on electronically monitored bail appears a little severethough (25 percent). There is nothing to suggest Mr Vakapora failed to comply withthe conditions of electronically monitored bail. If he had, the Department ofCorrections would presumably not have recommended home detention as theappropriate sentence—which it did in the pre-sentence report. But, the conditions ofMr Vakapora's electronically monitored bail remain elusive. I do not know whetherhis curfew was for 24 hours or some lesser period. So, I know nothing about "therelative restrictiveness" of his bail.26[35] Out of caution, I assume error in relation to this discount and ask, is thesentence manifestly excessive? I make four points.[36] First, there is no complaint about the starting point of 28 months' imprisonmentfor the burglary offences. This impresses as about right, subject to [38].[37] Second, the Judge added nothing for Mr Vakapora's possession of two .22calibre bullets. In Wharerau v Police, the defendant had two .375 rounds of magnumammunition in his pocket.27 A starting point of six months' imprisonment was upheldon appeal.28[38] Third, Mr Vakapora committed both burglary offences while on bail. This is amandatory aggravating factor under s 9(1)(c) of the Sentencing Act, yet the Judge didnot increase the sentence for this aspect.[39] Fourth, it follows the global starting point ought to have been higher by severalto six months. Assuming it was, say, 32 months, and assuming the Judge made thesame deduction for pleas and remorse (totalling 25 percent), this leaves a notionalsentence of 24 months imprisonment, or 12 month's home detention, subject only to26 Sentencing Act, s 9(3A)(b).27 Wharerau v Police [2017] NZHC 72.28 Albeit recognised as top of the range; see [14].the discounts complained of. Expressed another way, a sentence of five months' homedetention for two offences of burglary (committed on bail), unlawful possession ofammunition and other offences, is, on any view, not manifestly excessive evenallowing for differing opinions about both complained discounts.[40] Mr Nairn strongly resisted this conclusion. He argued it was not open to theCourt to examine the sentence this way because Mr Vakapora had "focussed" onparticular discounts in bringing the appeal. This argument is answered by s 250 of theCriminal Procedure Act 2011, which permits a sentence appeal to be allowed only ifthere is both error and a different sentence should be imposed. The argument is alsoanswered by innumerable cases in which appeals have been dismissed despite thepresence of error, because the ultimate sentence was not manifestly excessive. TheCourt of Appeal has made clear s 250 maintains this approach.29 In short, theoverarching concern in a sentence appeal is whether the sentence is too severe (or toolenient), not how it was composed. It follows an appellant cannot confine a Court'sexamination to the area he or she considers important.[41] Mr Nairn also argued if the appeal were dismissed, defence lawyers wouldneed to think carefully about how they advised their clients in relation to a sentence ofhome detention following a long custodial remand. Mr Nairn said some defendantsmay prefer a sentence of imprisonment given the administrative deduction of timeserved (on a one-for-one basis).[42] I think this unlikely. Mr Vakapora's circumstances are a useful illustration. IfMr Vakapora had said to the Judge he wanted a sentence of imprisonment rather thanhome detention, that sentence would have been 21 months. TheDepartment of Corrections would have deducted 8.25 months as time served. So, theeffective sentence would have been 12.75 months' imprisonment. Instead,Mr Vakapora received a sentence of five months' home detention.29 Tutakangahau v R, above n 1.Result[43] The appeal is dismissed...Downs J