REREKURA v NEW ZEALAND POLICE [2021] NZHC 273

REREKURA v NEW ZEALAND POLICE [2021] NZHC 273 [24 February 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-21[2021] NZHC 273BETWEEN PETER REREKURAAppellantAND NEW ZEALAND POLICERespondentHearing: 15, 18 February 2021Appearances: Mr Rerekura, Appellant in person, 15, 18 February 2021Mr T Cheng for the Appellant on 18 February 2021J Kang for the RespondentJudgment: 24 February 2021JUDGMENT OF DUFFY JThis judgment is delivered by me on 24 February 2021 at 4:30 pm.....................................................Registrar / Deputy RegistrarSolicitors:Meredith Connell, AucklandAnd to:The AppellantMr T Cheng[1] The appellant, Peter Rerekura, was convicted and sentenced by Judge Glubbin the Waitakere District Court for offences of aggravated assault, reckless driving andfailing to stop.1 For the aggravated assault, Mr Rerekura received a sentence of sevenmonths' imprisonment to be served cumulatively on his "current sentence". For eachof the remaining offences he received sentences of two months' imprisonment to beserved concurrently with the seven month sentence. He now appeals againstconviction and sentence for the aggravated assault.[2] The appeals are brought out of time and require leave of this Court. Thecircumstances that have triggered the appeals were not known to Mr Rerekura untilwell after time for bringing the appeals had expired. Further, there is merit in thearguments he makes. Accordingly, I am satisfied there is a proper basis for grantingleave to appeal out of time.[3] Mr Rerekura's complaint about how matters were dealt with in the DistrictCourt centres on the effect of the imposition of a cumulative sentence and his lack ofknowledge as to how that sentence would operate. In short, had the sentence beenimposed concurrently, Mr Rerekura would have been released from prison last year.Because the sentence was imposed cumulatively, the sentence will not expire until 23April 2021. Mr Rerekura was not aware of this at the time he accepted a sentenceindication. Neither were his lawyer or the sentencing Judge. The question is whetherthese circumstances warrant the intervention of this Court on appeal. To understandthe complaint, it is necessary to recall the legal context in which Mr Rerekura camebefore Judge Glubb.Background to the entry of guilty pleas an sentence on 21 July 2020[4] Mr Rerekura was sentenced to a total of nine years and six months'imprisonment on 8 March 2012.2 This represents an aggregate of cumulativesentences he received from Potter J in this Court. There were cumulative sentencesfor three sets of offending. In addition, Mr Rerekura was re-sentenced following thecancellation of a sentence of home detention for other offences. Because criminal1 Police v Rerekura DC Waitakere CRI-2020-090-000987 (21 July 2020).2 R v R [2012] NZHC 479.history is a relevant consideration for sentencing purposes, it is helpful to set out thevarious offences and the sentence structure.First set of sentences[5] On each of the four charges of injuring his daughter with intent to injure,Mr Rerekura was sentenced to four years, three months' imprisonment. He alsoreceived two concurrent sentences of one year's imprisonment for assault on a child.Second set of sentences[6] On a charge of unlawfully taking a motor vehicle, he received a sentence ofthree months' imprisonment to be served cumulatively on the other sentences imposed.Third set of sentences[7] On a charge of aggravated robbery, Mr Rerekura was sentenced to four yearssix months' imprisonment. This sentence was imposed cumulatively on the sentencesof four years, three months' imprisonment in the first set above and the sentence ofthree months' imprisonment in the second set.[8] Also, in the third set of sentences, Mr Rerekura received sentences of threemonths' imprisonment on two charges of unlawfully taking a motor vehicle; onemonths' imprisonment on two charges of driving while disqualified (and a six monthdisqualification for driving). He was convicted and discharged on one offence offailing to stop for red/blue lights.Fourth set of offences[9] These were offences of driving with excess breath alcohol (EBA) third orsubsequent offence (maximum sentence two years' imprisonment) and possession ofcannabis. Mr Rerekura had initially received a sentence of home detention for theseoffences and had served one and a half months of that sentence before he came beforePotter J for sentence on the other offences. His imprisonment on those offences meanthe could no longer complete the home detention sentence and was therefore requiredto be re-sentenced. Potter J accepted the Crown's suggestion of six months'imprisonment for the EBA charge and imposed a three month concurrent sentence forthe possession of cannabis charge.3 These two sentences were to be servedconcurrently but they were cumulative on the sentences for the other three sets ofoffending.[10] Before his conviction and sentence on 21 July 2020, Mr Rerekura's sentenceend date was 23 September 2020. This informs me that by 21 July 2020, the only livesentence for the sets of cumulative sentences imposed by Potter J in 2012, was the sixmonths' imprisonment sentence for the EBA charge.Release from prison and subsequent events[11] Mr Rerekura was released on parole on 17 February 2020.[12] On 26 February 2020, he was arrested on the charges for which he wasconvicted and sentenced by Judge Glubb. Also, on 26 February 2020 an interim recallorder from parole was made by the New Zealand Parole Board. A final recall orderwas subsequently made on 21 April 2020.[13] The District Court file shows that Mr Rerekura first came before the DistrictCourt on the latest offending on 26 February 2020. On 4 May 2020 the Record ofHearing shows that he entered not guilty pleas and was remanded in custody to 21 July2020 for a sentence indication hearing. No date was allocated for a Judge alone trial.Hearing on 21 July 2020[14] A transcript of the hearing on 21 July 2020 shows that Mr Rerekura, who wasthen represented by Mr Eastwood, came before Judge Glubb at 2:46pm.4 Thetranscript of the legal discussion before the Judge reveals that Mr Rerekura attendedthe Court hearing by video link. The sentencing indication of seven months'imprisonment on the lead charge of aggravated assault was given.3 Above n 2, at [79].4 The transcript was filed by the Crown in the judicial review proceedings brought by Mr Rerekura:Rerekura v Prison Director Auckland South Corrections Facility HC Auckland CIV-2020-404-002254 (21 December 2020). It was admitted into evidence with the consent of Mr Rerekura andthe respondent.[15] The Judge then advised Mr Rerekura that he would have the opportunity todiscuss the sentence indication by telephone with Mr Eastwood. However, before thishappened, Mr Eastwood asked the Judge if the proposed sentence would be concurrentor cumulative. The Judge said it would be cumulative on the "current sentence". TheJudgethen said he had given two thirds discount, which was a reference to the discountmentioned in the sentence indication to account for the time spent in custody followingrecall from parole. The exchange is recorded as follows:MR EASTWOOD:And that would be concurrent with the existing sentence? It wouldn't becumulative or it's concurrent.THE COURT:No, it would be cumulative,MR EASTWOOD:On theTHE COURT:His current sentence.MR EASTWOOD:On the current sentence?THE COURT:Mhm. But I've given an allowance, in any event, for that two thirds discount.All right?MR EASTWOOD:All right.THE COURT:All right, so I'll just stand it down and Mr Eastwood will talk to you, and I'llcome back to you shortly Mr Rerekura. Thank you.COURT ADJOURNS: 2:54 PM[16] The Court recommenced at 3:02pm when Mr Eastwood advised the JudgeMr Rerekura would plead guilty to the charges based on the sentencing indication.There was some further brief exchange between the Judge and Mr Eastwood. MrRerekura waived his right to a pre-sentence report and then the sentencingcommenced.Structure of sentence indication and sentence[17] In the sentencing indication the Judge identified aggravating factors being adegree of premeditation in terms of the manner of Mr Rerekura's driving, and the riskassociated with driving to both the community and the victim specifically. There wasalso the prolonged nature of the police pursuit, and the fact that the victim of the assaultwas a sworn police officer acting in the execution of his duties. The Judge identifiedaggravating factors personal to Mr Rerekura being his previous conviction history, andthe fact that he offended whilst on parole. The Judge saw no mitigating factors.[18] The police had sought a global starting point of 12 months' imprisonment forthe offending with an uplift for previous offending and a discount for the guilty pleas.Mr Eastwood sought a starting point in the range of six to eight months' imprisonmentwith a discount for the guilty pleas, leading to a possible four month end sentence.[19] The Judge adopted a starting point of ten months' imprisonment for theaggravated assault charge. He uplifted that by two months for the driving relatedoffending, and one month for previous convictions. He described the one month upliftfor previous convictions as generous, given Mr Rerekura's criminal history. Hementioned: nine convictions for violence, four for burglary, three for unlawfully takinga motor vehicle, two for aggravated robbery, and one for rape. As to drivingconvictions there were three for driving whilst disqualified, two for failing to stop anda breach of home detention. With the uplift the Judge came to a sentence of 13 months'imprisonment. He then gave Mr Rerekura a discount of 20 per cent for his guilty pleawhich he calculated from the 13 months, which brought the sentence down to 10.4months. The Judge noted that Mr Rerekura had spent five months on recall. The Judgewas aware Mr Rerekura would not get any credit for that time spent in prison. TheJudge said he would give a discount for the guilty plea of 20 per cent.[20] The Judge referred to authorities which, he said, provide for a two thirdsallowance in such circumstances. Accordingly, he discounted three months from thefive months served on recall on remand. This brought the end sentence indicationdown to seven months' imprisonment. There was also a disqualification from driving.[21] The formal record of the sentencing indication omits any reference to theexchange between the Judge and Mr Eastwood regarding whether the new sentencewould be cumulative or concurrent.[22] The sentencing notes follow the sentence indication. The Judge referred to thesentence indication, stating the end sentence was one of seven months' imprisonmentcumulative on Mr Rerekura's "current sentence". The Judge adopted the sentenceindication and stated he would not repeat the balancing exercise. He then set out ingreater detail than he had in the sentencing indication an account of the summary offacts. The Judge then repeated the starting point, the uplifts for aggravating featuresof the offender and the guilty plea discount. The Judge again referred to the sentenceof seven months' imprisonment which he had reached as being cumulative on MrRerekura's current sentence. He then proceeded to deal with the question of whetherMr Rerekura would be granted leave to convert the sentence to one of home detention,stating as follows:I do not grant leave to convert. It is a short term of imprisonment and it is onethat I have a discretion in appropriate circumstances to do so. I look to theneed for denunciation, deterrence and the need to hold you to account and alsoprotect the community. I am simply not satisfied in the circumstances that aconversion of this sentence is appropriate and I would decline.[23] The Judge next dealt with the two driving offences and the period ofdisqualification from driving which was 30 months starting on 26 February 2020.Corrections intervention post sentence and following events[24] On the day Mr Rerekura was sentenced, the warrant of imprisonment executedby Judge Glubb identified the earlier charge of aggravated robbery (CRN11019002973) as the base charge on which the cumulative sentence for the aggravatedassault was to rest. By 21 July 2020, Mr Rerekura would have completed serving hissentence on the aggravated robbery charge and have been some way towards servingthe sentence on the EBA charge, which was the final cumulative charge imposed in2012 by Potter J.[25] As explained in the affidavit sworn in the judicial review proceeding by KarlVan der Veen, senior advisor sentence calculations employed by the Department ofCorrections (Corrections), under the first warrant of imprisonment that Judge Glubbexecuted Mr Rerekura would have had a sentence expiry date of 21 October 2020 onthe aggravated assault and driving charges.5 This was the sentence expiry date thatCorrections first gave to Mr Rerekura, which is why he took no steps to appeal hissentence within the required time limit.[26] Mr Van der Veen has deposed that it was not until mid-October 2020 thatCorrections staff realised that the warrant of imprisonment for the seven monthsentence was made cumulative on the sentence for the aggravated robbery charge andnot the sentence for the final charge (the EBA charge). Corrections contacted theDistrict Court and on 20 October 2020 a new warrant was executed by Judge Glubbwhich recorded the seven month prison sentence as being cumulative on the EBAcharge (CRN10068000382). The change was made without any notice beforehand toMr Rerekura. The effect was to extend his sentence end date to 21 April 2021. Oncethis came to his attention he took steps to challenge his detention.[27] On 23 November 2020, Mr Rerekura commenced his judicial reviewproceedings against Corrections and the District Court, challenging the lawfulness ofthe revised calculation of the sentence end date. Throughout those proceedings,Mr Rerekura has represented himself with the assistance of another prisoner, ThomasCheng.[28] On 22 December 2020, Walker J issued a minute in which she referred to theaffidavit evidence given by Mr Van der Veen and suggested that, given the explanationfrom Crown counsel regarding the calculation of sentence end dates for cumulativesentences under s 75 of the Parole Act 2002, Mr Rerekura may have to pursue hiscomplaint about the sentence he received on 21 July 2020 by appeal rather thanjudicial review. On 16 January 2021 he filed his notice for leave to appeal out of time.5 This affidavit, which was filed in Rerekura v Prison Director Auckland South Corrections Facility,above n 1, was admitted by consent in this appeal.[29] Given the timeline of relevant events and Mr Rerekura representing himselffrom prison I am satisfied Mr Rerekura has acted expeditiously and has a properexplanation for the appeal being brought out of time.Approach on appealAppeal against conviction[30] In general, where an offender complains that his or her sentence departs froma sentence indication, leave can be sought to withdraw the guilty plea.6 Leave may begiven where the Court is satisfied it is in the interests of justice to do so. This canoccur where the sentence imposed does not meet the expectation generated by thesentence indication. Vacation of the guilty plea therefore remedies the potentialinjustice by returning the defendant to his or her former position.7 However, wheremuch of the sentence has already been served, vacation of the guilty plea is not arealistic option. This is such a case. Mr Rerekura responsibly decided to abandon theappeal against conviction, after I explained his position to him at the hearing.Appeal against sentence[31] Section 250(2) of the Criminal Procedure Act 2011 provides the Court mustallow an appeal against sentence if satisfied that, for any reason, there is an error inthe sentence imposed on conviction and a different sentence should be imposed. Inany other case, the Court must dismiss the appeal.8 In deciding whether to impose adifferent sentence, the Court does not substitute its own view for that of the originalsentencing Judge.9 Rather, it must be shown that the sentence imposed is manifestlyexcessive or wrong in principle.10 The focus is on the end result rather than the processby which the sentence was reached. It is the "appropriateness of the final sentence thatcounts, not how it is made up".11Counsel submissions6 Criminal Procedure Act 2011, s 252.7 See Nuku v R [2016] NZHC 2255 at [21].8 Criminal Procedure Act 2011, s 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].10 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, above n 9, at [30]–[35].11 Hughes v R [2012] NZCA 388 at [29].Submissions for Mr Rerekura as appellant[32] Mr Rerekura was assisted throughout the hearing by his McKenzie friendThomas Cheng, who made submissions on Mr Rerekura's behalf.[33] First, Mr Rerekura contends that Judge Glubb failed to exercise his sentencingdiscretion properly when he imposed a cumulative sentence of seven months'imprisonment, as follows: (a) failure to examine the appropriateness of a cumulativesentence; (b) failure to consider the impact of the combined sentences under thetotality principle; (c) failure to consider whether a concurrent sentence would suffice.[34] Secondly, Mr Rerekura argues that he had arguable defences to the aggravatedassault charge: (a) he had grounds to dispute whether the Police could prove the mensrea element of that charge; and (b) there was double jeopardy because thecircumstances supporting the aggravated assault charge flowed from the recklessdriving charge. The transcript shows these arguments were alluded to by Mr Eastwoodat the sentencing indication stage before Judge Glubb.[35] Mr Eastwood told the Judge that Mr Rerekura accepted the reckless drivingand the failing to stop charges, but was disappointed the police wanted to pursue theaggravated assault charge. The reckless use charge was sufficient to covercircumstances where Mr Rerekura drove off the road onto a grass verge causing apolice officer to jump out of the way. Mr Rerekura says he had no intention of runninginto the police officer.[36] Mr Rerekura contends that he abandoned the potential defences because afterfinding himself recalled from parole following the new charges he wanted themresolved early. The sentence he was recalled to serve expired on 23 September 2020and he did not want to be facing outstanding charges or the prospect of further time incustody at some later date. Hence the attraction of the sentencing indication, whichhe believed would result in a short sentence that allowed his release before the end of2020. Thus, the guilty pleas were entered based on a belief he would be out by 2020.[37] At the sentencing indication hearing, Mr Eastwood alluded to the presence ofarguable defences and the willingness to abandon them and enter guilty pleas if a shortsentence were to be imposed.[38] Mr Eastwood also referred to the police reluctance to withdraw the aggravatedassault charge. He said that Mr Rerekura wanted the new charges dealt with promptlybecause he had two months to run of his present sentence, with a release date on 23September 2020. Mr Eastwood then submitted that if the aggravated assault chargeremained live it was relevant that no one was injured. He then asked the Judge if hewould give a sentence indication on the aggravated assault charge in this way:"Give him something like – it may not attract time served because he's andMr Mills may be able to help us on this but he's actually a sentenced prisoner.He may not be getting credit for time spent on remand, would that be correct?"[39] Mr Eastwood continued:"He's been sitting on remand for six months. These matters triggered hisremand in custody an application for recall which was successful, but it wasthis incident that triggered it, but he can get no credit for it. He does have arelease date but it's been a long sentence for him."[40] Mr Eastwood then referred to Mr Rerekura having a sterling work record inprison and that work was now available to him in Otorohanga. Mr Eastwood then said:"So I was going to suggest would your Honour be minded to deal with it byway of four months' prison. Maybe a starting point of six to eight months andwe come around to four months that means he would be out on 21 Septemberand he gets released on 23 September."[41] Mr Eastwood went on to reiterate: "There was no assault as such, there was noinjury, the officer didn't suffer injuries either from hitting the vehicle or having to runand fall over". The police prosecutor contested Mr Rerekura's explanation regardingthe aggravated assault, maintaining that police evidence showed Mr Rerekura madetwo attempts to drive towards the police officer. However, this statement is notconsistent with the summary of facts, which refers to one incident of the vehicle beingdriven at a police officer.[42] Thirdly, the uplift for the reckless driving charge was said to be excessivebecause this charge carries a maximum sentence of three months' imprisonment. Theoffence of failing to stop when followed by red/blue flashing lights does not carry aprison sentence.[43] Fourthly, Mr Rerekura argued that based on his understanding that he wouldbe released in late 2020, he waived his right to a pre-sentence report. This meant theJudge was without the assistance of a pre-sentence report, which prejudiced MrRerekura because the relevant sentencing considerations identified in Zhang v Rregarding totality, social, cultural and economic background were not before the Judgeand therefore not able to be considered in sentencing.[44] In summary, it was submitted for Mr Rerekura that the sentence was imposedwithout proper exercise of judicial sentencing discretion. It was apparent from thecircumstances of the sentence indication and the sentencing, that an error of lawoccurred. Whether the sentence was to run concurrently, and the effect of a cumulativesentence were not properly considered. The interests of justice require that thesefactors are now considered afresh. It was also said that much of Mr Rerekura's caselast year was dealt with during the Covid period, when there were no prison visits andit was difficult for prisoners to have legal contact with their lawyers.[45] In relation to whether Mr Rerekura's offending qualified for cumulativesentences under the Sentencing Act, it was said for Mr Rerekura that an approachshould not be followed simply because that was the way things are typically done, itwas important to deal with sentencings on a case-by-case basis, not at 'one size fitsall' basis. In this regard, Mr Rerekura relied on statements from the Court of Appealin Zhang v R.Submissions for the New Zealand Police as respondent[46] The respondent submitted that Judge Glubb had no choice but to impose acumulative sentence. By operation of law, only a cumulative sentence was possible.Here the respondent referred to s 84 of the Sentencing Act and relevant authorities,which show the Courts have consistently held that cumulative sentences areappropriate where two or more sets of offences are unrelated or comprise differentforms of criminality.12 Here the offences comprising the first and second sentenceswere distinct, separate events which were different in nature. The facts comprisingthe first and second sentences were not a connected series of offences and wereseparated by a period of approximately eight years. Accordingly, it would have beencontrary to sentencing principles to impose sentences concurrent with the earliersentences.[47] There was violence with the aggravated assault. Further, the Judge recognisedthe impact of the recall order by making an allowance of three months which, in thecircumstances, was lenient. The sentence would otherwise have been ten months'imprisonment.[48] The imposition of a cumulative sentence was stated in open court during thesentencing indication phase and at a time before Mr Rerekura had entered his guiltypleas. Here, if there was a misunderstanding about the effect of the sentence it wasbetween Mr Rerekura and Mr Eastwood.[49] Regarding the effect of the seven month sentence, the respondent responsiblyand fairly accepted that Mr Rerekura was labouring under a mistake that may havebeen caused by Mr Eastwood, and which was partly due to the speedy nature of thesentencing process in this case, including the waiver of the pre-sentence report.[50] As to the arguments about the adverse impact on Mr Rerekura's release dates,s 88 of the Parole Act provides that release dates are to be undertaken by the ChiefExecutive of the Department of Corrections. Under the Act, it is not for the court toconcern itself with attempting to calculate release dates and the time that wouldactually be served on a sentence of imprisonment. In practical terms, it would be toocomplex to expect Judges to engage in calculating release dates.12 R v Wallace [1983] NZLR 758 (CA); R v Smith CA 261/97, 27 August 1997; R v Rewa CA 367/88,20 April 1989; R v Bunning CA 37804, 6 April 2005; Hughes v R [2012] NZCA 388; R v DobbsHC Hamilton CRI 2009-085-7829, 16 July 2010; O'Connor v R [2014] NZCA 328, (2014) 27CRNZ 302; Maihi v Police [2016] NZCA 205; Waitohi v R [2014] NZCA 614; Awatere v Police[2015] NZHC 1374.[51] The respondent accepted that if Mr Rerekura had pleaded guilty sometime after23 September 2020, once the sentence for the EBA charge had expired, there wouldhave been no possibility of a cumulative sentence. It was also accepted that as no trialdate had been set at 21 July 2020 it would have been open to him to maintain his guiltypleas until after 23 September 2020 and then seek a sentencing indication. Whetherhe could have achieved a more favourable outcome by deferring the entry of guiltypleas and sentence until after the expiry of the other sentence, is a matter ofspeculation. Further, the fact a more favourable outcome may have been achieveddoes not make the present sentence an error of law.[52] However, the respondent maintained there was strong evidence to support thepolice case against Mr Rerekura: he was the sole occupant of the vehicle and foundseated in the driver's seat; there were witnesses to his driving; there was traffic camerafootage; and he made partial admissions to Police.[53] The sentences imposed were not manifestly excessive. The respondent reliedon Haereroa v R where a starting point of two years six months' imprisonment wasimposed on a charge of aggravated assault where the offender had pushed a staffmember of a store who had tried to stop the offender from leaving with stolen goods.13The seven months' imprisonment was well within the range of available sentences.[54] Accordingly, there was no miscarriage of justice.Discussion[55] This case presents what Mr Cheng described as a plethora of complexities. Itraises concerns about: (a) sentencing indications which do not meet with theoffender's expectations at the time the sentencing indication was given; (b) the extentto which a sentencing Judge should consider whether to impose a concurrent orcumulative sentence and in particular have regard to the sentence release dates andexpiry dates for either concurrent or cumulative sentences; (c) how to discount timeserved on recall from parole and the quantum of that discount; (d) the risks associatedwith a speedy approach to the sentencing process; and finally (e) whether any errors13 Haereroa v R [2020] NZCA 169.associated with those concerns may vitiate the sentencing process to the extent thatwarrants this Court looking at a sentencing afresh. Before considering these validconcerns I consider it helpful to assess whether the seven month sentence Mr Rerekurareceived is manifestly excessive.Whether sentence is manifestly excessive[56] The sentence was imposed a few days after the Court of Appeal's decision inMoses v R was released. This proximity may explain why the judge adopted a pre-Moses approach to the sentence structure.14 The same approach, figure, and endsentence were applied in the sentence indication and the sentencing. First, the Judgeadopted a starting point of 10 months' imprisonment, which in the circumstances wasgenerous to Mr Rerekura. Whilst he may have had good grounds to challenge themens rea element of the aggravated assault charge, once he pleaded guilty to thecharge, absent a disputed-facts hearing, he had to be sentenced according to thesummary of facts. Those facts were that Mr Rerekura intentionally drove his vehicleat a police officer who was part of a police team trying to prevent him from fleeing apolice pursuit. The police prosecutor had suggested a 12 month starting point, whichin my view was available.[57] The Judge uplifted the starting point by two months to take account of thereckless driving and failing to stop. The latter charge does not support a prisonsentence. Mr Rerekura argues that the two month uplift for reckless driving wasexcessive given an overlap between that offence and the aggravated assault. I do notagree. The summary of facts discloses incidents of reckless driving that sit outside thedriving supporting the aggravated assault charge. Accordingly, there was no doublejeopardy here.[58] The Judge then uplifted the sentence by one month to take account of previousconvictions, which the Judge described as generous given Mr Rerekura's criminalhistory. I agree.14 Moses v R [2020] NZCA 296; this judgment was delivered on 15 July 2020.[59] The Judge gave a 20 per cent discount for the guilty plea. Mr Eastwood hadsought a 25 per cent discount. No reasons are given for the 20 per cent discount.Generally, appellate courts are reluctant to interfere with discounts for guilty pleasbecause a sentencing Judge may be more familiar with the process leading up to theguilty plea. Here, the District Court Record of Hearing first records Mr Rerekuraappearing with counsel (Mr Eastwood) on 30 March 2020. There was a briefappearance before Judge Glubb on 20 April 2020. A not guilty plea was entered beforeJudge Tremewan on 4 May 2020, and Mr Rerekura then appeared before Judge Glubbat the sentencing indication hearing on 21 July 2020. In these circumstances, I doubtJudge Glubb was better informed than I am on how to view the entry of the guiltypleas. However, for the present I shall work with the 20 per cent discount.[60] The result was a sentence of 10.4 months' imprisonment. The Judge thenturned to consider the appropriate discount due for the time Mr Rerekura had spent onrecall from parole following the recent offending. The Judge realised that the ParoleAct does not provide for the Chief Executive of Corrections to give any credit for thistime spent in custody. The Judge referred to authorities where in such circumstancesJudges had given a "two thirds allowance" and applied this approach. The Judgeidentified the relevant time spent in detention as "some five months it seems" whichled him to give a discount of three months and so bring the sentence down to an endsentence of seven months' imprisonment. This is where I consider the Judge wentastray.Whether concurrent sentences properly considered[61] When the Judge set out the proposed sentencing approach in the sentencingindication he had not yet identified whether the sentence would be cumulative orconcurrent. This only occurred after the formal part of the indication hearing wasover,in response to Mr Eastwood's query. However, the Judge needed to haveidentified this matter before he proceeded to work through the various stages of theproposed sentencing process.[62] A concurrent sentence would take effect from the date of sentence, which wasto be that day, and therefore the time spent in detention would necessarily run fromthe date of recall from parole (26 February 2020) to the day of sentencing (21 July2020), which was approximately five months. Accordingly, had the Judge given aconcurrent sentence the allowance he gave for time spent on recall from parole wasappropriate and in line with authorities.15[63] However, a cumulative sentence does not take effect until the present sentencehas run its course, which here was not until 23 September 2020. Given the Judge hadallowed a two thirds discount for time spent in custody following recall and beforesentence for the new offending, this period would necessarily have been from 26February 2020 to 23 September 2020, which is approximately seven months. Thepurpose of the two thirds discount was to recognise that - but for the recent offending- Mr Rerekura would have been on parole after 26 February 2020 rather than servingthe balance of the 2012 sentences. The discount was a way of avoiding a doublejeopardy in penalty. Here the overall effect of the sentence structure the Judge adoptedmeant that Mr Rerekura was effectively being detained in prison for 14 months: (a)the seven months between date of recall and the sentence expiry date of 23 September2020; and (b) the seven months that ran from the sentence expiry date to 23 April 2021.[64] Here, the application of a two thirds discount for time spent in custodyfollowing recall from parole should have been calculated over a period of sevenmonths, which comes to 4.6 months' imprisonment. When this is subtracted from 10.4months' imprisonment the result is an end sentence of 5.8 months. 16 A prisonsentence of 7 months is approximately 21 per cent greater than a sentence of 5.8months. This makes the end sentence Mr Rerekura received manifestly excessive, andwarrants this Court looking at the sentencing exercise afresh. However, in deferenceto the arguments Mr Rerekura made, I propose to consider them before completing thesentencing exercise. Further, they will help inform me as to how to complete thatexercise. This is particularly relevant when it comes to the decision about whether toimpose concurrent or cumulative sentences.15 Thomas v R [2020] NZCA 257 at [21] and the authorities cited therein.16 I have applied the arithmetical result of deducting two thirds from a sentence of 10.4 months. InTukuafau v R [2015] NZCA 251 at [13] the Court of Appeal allowed an allowance of five monthsfrom the full seven months that was spent in custody following recall from parole. Had I followedthat approach the sentence would be further reduced to 5.4 months which is more likely to berounded down to five months' imprisonment. This shows the sentence imposed by the Judge tobe more excessive.[65] For Mr Rerekura, the release date for a seven month sentence would bemarkedly different if the sentence was concurrent rather than cumulative. This isbecause of the way the Parole Act treats those sentences.[66] With concurrent sentences the sentence generally commences on the day it isimposed, which means that had Mr Rerekura's sentence been concurrent with the EBAsentence the sentence of seventh months' imprisonment would have run from 21 July2020.17 Further, a sentence of this length is within s 4 of the Parole Act's definition ofa short sentence of imprisonment, which means that under s 86(1) the release date isthe date on which the offender has served half of the sentence. Under s 4 of the ParoleAct, the "release date" is the date an offender ceases to be liable to be recalled to servethat sentence. Accordingly, with a short-term sentence of imprisonment, once anoffender has served half the sentence he or she is automatically released and cannotbe recalled to serve the balance of the sentence. However, for a seven month sentenceof imprisonment time spent in prison would have been no longer than three and a halfmonths, which would have seen Mr Rerekura released some time in mid-October2020.[67] With cumulative sentences the Parole Act provides that:75 Cumulative sentences form notional single sentence(1) If, after the commencement date, an offender is sentenced to a sentence ofimprisonment (a later sentence) that is directed to be served cumulatively onanother sentence (an earlier sentence), the later sentence and the earliersentence form a notional single sentence for the purpose of determining—(a) whether the offender is subject to a long-term sentence or a short termsentence; and(b) the non-parole period to apply when determining the offender's paroleeligibility date; and(c) the release date to apply when determining the offender's statutory releasedate.(2) If the earlier sentence is part of a series of cumulative sentences, then allthe sentences (including any pre-cd sentences) in that series, along with the17 Section 76 of the Parole Act provides the general requirement that sentences start on the day theyare imposed. The section is subject to ss 77 to 81, none of which would have applied hadMr Rerekura received sentences that were concurrent on his existing sentence.later sentence, form a notional single sentence for the purpose described insubsection (1).(3) Every sentence (including any pre-cd sentences) in a series of cumulativesentences links to the next one in the series at its sentence expiry date.(4) Every notional single sentence is deemed to be a sentence that is imposedon or after the commencement date, even if it contains a pre-cd sentence.(emphasis added).[68] Under s 77 of the Parole Act, the start date of a notional single sentence is thestart date of the first sentence in the series of sentences that forms the notional singlesentence.[69] The effect of ss 75 and 77 on the present case is that the seven month sentenceof imprisonment joined onto the entire series of sentences that Potter J imposed on 8March 2012. This meant the seven month sentence could not be a short term sentenceof imprisonment for the purposes of s 86, and therefore could not attract the automaticearly release.[70] Given the significant difference between the two forms of sentence, I considertheir effect in terms of eligibility for release was a relevant consideration that JudgeGlubb should have considered. It is difficult to know why he imposed a cumulativesentence rather than a concurrent sentence because he did not give reasons for doingso. Were it not for Mr Eastwood's query after the sentencing indication hearing hadended, the form of the sentence may not have been known until the sentence wasdelivered.[71] Section 31 of the Sentencing Act 2002 requires a sentencing Judge to givereasons, with whatever level of particularity is appropriate to the particular case.Given the difference in consequences for Mr Rerekura, I consider that some reasonswere required to explain why a cumulative rather than concurrent sentence wasimposed. This was a legal error on the part of the Judge. Had it not been for MrEastwood's inquiry, the prospect of a cumulative sentence may not have becomeknown to Mr Rerekura until he was sentenced.[72] The respondent submitted the imposition of a cumulative sentence wasrequired by operation of law; in which case no reasons would be required. However,I reject that submission. It is not consistent with the language of the Sentencing Act.Section 83 says that cumulative sentences may be imposed. Section 84 providesguidance on the imposition of cumulative and concurrent sentences. Whilst s 84provides that cumulative sentences are "generally appropriate if the offences for whichan offender is being sentenced are different in kind, whether or not they are aconnected series of offences" this language allows room for choice. It does notmandate the imposition of cumulative sentences. This discretion is further bolsteredby s 85 which requires a Court to consider the totality of the offending. Section 85(2)further provides that if cumulative sentences are imposed they must not result in a totalperiod of imprisonment wholly out of proportion to the gravity of the overalloffending.[73] Some of the matters I have outlined were recognised in Faulkner v R where theCourt of Appeal changed a cumulative sentence of three years and eight months'imprisonment to a concurrent sentence of the same term because a cumulative termhad a disproportionate impact on the offender.18 In this case, the form of sentenceimposed generated nine months' difference between potential release dates:19Overall, we think that a concurrent rather than a cumulative sentence is fair,being more proportionate to the offending. It would mean that Mr Faulkneris not immediately eligible for parole, but on the other hand he would have tobe released from prison after the expiry of three years and eight months fromthe date of sentence on 11 September 2015. This is approximately ninemonths before he would have to be released if the sentence imposed wascumulative.[74] The Court of Appeal found that s 84:envisages an offender being sentenced for offences at the same time, ratherthan almost seven and a half years after an earlier sentence to which a sentencefor fresh offending is made cumulative.[75] In the present case, sentences for offending in February 2021 were beingattached to almost completed sentences imposed on 12 March 2012 for earlier18 Faulkner v R [2016] NZCA 315 at [18].19 Above n 18, at [21].offending (on the day of sentencing, 21 July 2020, Mr Rerekura was two months awayfrom completing his current sentence on 23 September 2020).[76] The respondent relied on several authorities regarding cumulative sentences.However, these were distinguishable because none came close to the factual scenariosin Mr Rerekura's case or in Faulkner.20 Further, the circumstances in which a sentencemay be imposed are fact dependant.21Whether the totality principle considered[77] The need to have regard to totality when considering whether to imposeconcurrent or cumulative sentences was referred to in Hughes v R22 and in Faulkner.23In Faulkner, the sentencing Judge failed to stand back and consider whether the totalperiod of 25 years and 11 months' imprisonment, arising out of cumulatively imposedsentences, was wholly out of proportion to the gravity of the offending, as required bys 85(2) of the Sentencing Act.[78] Here there is nothing to suggest that, once he decided on a cumulative sentenceof seven months' imprisonment, Judge Glubb stood back and assessed whether theoverall total period of 10 years and 1 month's imprisonment (being nine years and sixmonths' imprisonment plus seven months' imprisonment) was wholly out ofproportion to the gravity of the overall offending. In Opetaia v R, there were two seriesof sentences, and the second was made cumulative on the first. The Judge whoimposed the second series of sentences failed to consider the effect of the second seriesof sentences in combination with the first series. The Court of Appeal found thatassessing whether the overall effect of the end sentence was "proportionate ordisproportionate to the gravity of Ms Opetaia's overall offending" was a necessarystep in the sentencing process.24 The failure to do so was sufficient to warrant theCourt of Appeal in Opetaia to embark on the sentencing afresh.20 Some of the authorities pre-date the Sentencing Act and the Parole Act. In these cases, there is nodistinction made between short-term concurrent sentences and cumulative sentences of the samelength that are excluded from being short-term sentences of imprisonment.21 Hughes v R, above n 11, at [36].22 Above at [27] and [28]; although this was said in relation to multiple offending it is equallyapplicable to other circumstances where cumulative sentences are being considered.23 Faulkner v R, above n 17, at [23].24 Opetaia v R [2013] NZCA 434 at [32].[79] Failure to assess the overall effective sentence is present here. The Judge neveridentified the length of the earlier series of sentences or the sum of those sentencesonce the seven months he proposed was added to them. In accordance with Opetaia,this is enough to warrant the sentences being set aside and fresh sentences imposed.Whether the effects of short-term sentences considered[80] After stating the sentence would be cumulative on the "present sentence",which is as far as the Judge went to identify the earlier sentences, the Judge declinedto grant leave to covert the sentence he was to impose to one of home detention.I do not grant leave to convert. It is a short term of imprisonment and it is onethat I have a discretion in appropriate circumstances to do so. I look to theneed for denunciation, deterrence and the need to hold you accountable andalso protect the community. I am simply not satisfied in the circumstancesthat a conversion of this sentence is appropriate, and I would decline.[81] This indicates the Judge was mistaken as to the legal effect of the sentence hewas imposing. He believed it qualified as a short-term sentence under s 86 of theParole Act, which enabled him to impose home detention or grant leave to MrRerekura to apply for home detention once the earlier sentence had been completed.25This also indicates that the Judge believed that Mr Rerekura would only serve half theterm of the seven month sentence.[82] The legal effects of short-term sentences of imprisonment are generally wellknown. The way in which a single notional term of imprisonment arises from a seriesof cumulative sentences may be less well known. In any event, the Judge did not havethe necessary information before him to determine the length of the single notionalterm of imprisonment that would follow for Mr Rerekura if a cumulative seven monthsentence were imposed. The length of the present sentences to which the newsentences would attach, and how those sentences were structured, was never identifiedfor the Judge. It is not clear to me if he had Potter J's sentencing notes before him.Further, he did not have the benefit of a pre-sentence report. This was waived by MrRerekura so that he could be sentenced the same day the sentencing indication was25 Section 80K of the Sentencing Act permits an offender who is serving a short-term sentence ofimprisonment and who has leave to apply for cancellation of a sentence of imprisonment andsubstitution of a sentence of home detention under s 801 of the Sentencing Act to apply at anytime to the Court.given. This means the Judge was not able to give proper consideration to theimposition of a cumulative sentence. Put another way, he did not have the necessaryinformation to inform him of a relevant consideration to the imposition of a cumulativesentence.Whether defendant understood effect of the sentence[83] There is a further concern which relates to the circumstances in which thesentencing indication was accepted. Mr Rerekura has less than ten minutes betweenlearning the sentence was cumulative (just before 2.54pm) and accepting theindication (just after 3.02pm). The Judge directed that the sentencing indication wasto expire that day. Accordingly, Mr Rerekura had to decide whether to accept it or notin circumstances where he was receiving legal advice by telephone and inside a verylimited time frame. The respondent accepts that Mr Rerekura misunderstood theeffective length of the sentence. I have already expressed the view that neither MrEastwood nor the Judge understood the practical effect of the length of sentence.Given the minimal period of time between the sentencing indication being given andits acceptance, I am not surprised its overall effect was not realised. The overall effectwas substantially different from what everyone in the Court room believed it to be. InNuku v R Mander J said:The danger that arises when a sentence does not match that indicated is thatbecause a defendant's expectations have not been met the plea has beenentered on a false or mistaken premise. In order to meet that expectation it isnecessary for an appellate Court to provide the appellant with the opportunityto vacate his or her plea in order to remedy the error and purge the potentialinjustice arising from the faulty process.[84] I consider Mr Rerekura's circumstances fit within that framework. They differin that before the pleas were entered he had heard the sentences would be cumulative,but that was in circumstances where he did not understand what the effect of thatwould be; his counsel never advised him of that effect and the statements of the Judgeduring the sentencing indication did nothing to disabuse Mr Rerekura of hismisunderstanding. In such circumstances, had he known much earlier what the overalleffect of the seven month sentence would be, and applied for leave to vacate his guiltypleas, I consider such leave would have been forthcoming. It is now too late to remedyhis situation by vacating the guilty pleas. However, the errors relevant to the entry ofthe guilty pleas are material as they have resulted in him receiving a disproportionatesentence. Accordingly, they provide a separate basis for allowing the appeal.26Whether a pre-sentence report should have been obtained[85] Finally, there is the adverse effect of the sentencing proceeding without a pre-sentence report. Mr Rerekura waived the requirement to obtain a pre-sentence reportbecause he thought he was receiving no more than a three and a half tofourmonthssentence of imprisonment. Had a pre-sentence report been obtained, thecircumstance of the earlier offending and the structure of his present sentences wouldhave been before the Judge. Either the report writer would have addressed the issueof a notional single sentence or the means to recognise its relevance in this case wouldhave been before Mr Eastwood and the Judge. There was no need to rush thesentencing. The availability of a pre-sentence report may have been enough to allowthe error in the sentencing indication to be identified before sentence was passed onMr Rerekura.[86] The waiver of a pre-sentence report had another adverse impact on MrRerekura. It meant that his personal circumstances and the reasons for the February2020 offending were not before the Judge. Accordingly, it is not possible to know ifthe offending was the result of defiant, recalcitrant, recidivist behaviour or the foolishresponse of someone who had just been released on parole from a long sentence ofimprisonment (eight years and 11 months), was stupid enough to drive while under adisqualification from driving and who then panicked because he feared loss of libertyand so compounded his trouble by fleeing from the police. Other possibilities mayalso exist. Without hearing Mr Rerekura's explanation for how he came to be drivingthat day it is difficult to place the offending in context.[87] Mr Rerekura is Maori. His criminal history shows social welfare supervisionat the age of 15 years, corrective training at the age of 16 years and shortly thereafteradult imprisonment. This history is consistent with the social background anddetrimental consequences recognised by this Court in Solicitor-General v Heta and26 See Nahu v Police [2015] NZHC 54, where the imposition of a one-month sentence whichunknowingly resulted in the appellant no longer serving a sentence of short duration, was a basisfor the appeal being allowed.Zhang v R.27 In Carr v R, the Court of Appeal rejected the Crown's arguments thatmatters raised in the s 27 report for Mr Carr were too far in the past to be relevant tothe conduct for which he was now to be held accountable, or that social and culturalfactors that explain offending are less relevant when they pertain to earlier periods ofa defendant's life. Instead, the Court found:28 it is clear that [Mr Carr's] early life has contributed to the course his lifesubsequently took. Recognition of a causal linkage between matters reliedon in a s 27 report and the offending does not require the Court to be satisfiedthe matters are the proximate cause of the offending.[88] Accordingly, here a pre-sentence report may have triggered the need for a s 27report and the potential for Mr Rerekura to receive sentence discounts for the sametype of factors that were recognised in Heta, Zhang and Carr. The waiver of the pre-sentence report, based on the mistaken belief the sentence would only be for a shortterm with a release before the end of 2020, led to Mr Rerekura foregoing theopportunity of gaining the benefit of an additional mitigation discount. Thiscircumstance compounds the errors that occurred at the hearing on 21 July 2020.[89] For all the above reasons, I am satisfied the sentence the Judge imposedcontained legal errors that adversely impacted on the sentence outcome in a materialway and led to a sentence that was wrong in principle. The sentence is also manifestlyexcessive. Accordingly, I am satisfied it should be set aside and the sentencingexercise re-done.Sentencing calculation[90] Aggravated assault carries a maximum sentence of three years' imprisonment.The summary of facts is consistent with Mr Rerekura driving intentionally at the policeofficer. This cannot be disputed. Here, there was no harm to the police officer, butthe experience would have been frightening. Police officers should not be placed atsuch risk. I consider a starting point of 12 months, which is one third of the maximumsentence, is appropriate. I would uplift that by 2 months to take account of the recklessdriving, which the summary of facts shows to have placed others at risk and to be27 Solicitor-General v Heta [2019] 2 NZLR 241; Zhang v R [2019] 3 NZLR 648 at [155] to [162].28 Carr v R [2020] NZCA357 at [63] to [65].standalone offending from the aggravated assault. That brings the starting point to 14months.[91] Under Moses v R, the aggravating and mitigating factors are taken from thestarting point. I would give Mr Rerekura a guilty plea discount of 25 per cent. WhilstI am approaching the sentencing on the aggravated assault charge as involvingintentional conduct, when it comes to assessing the appropriate level of discount for aguilty plea it is relevant that Mr Rerekura had an arguable defence concerning mensrea. The respondent referred to the strength of the police case, but the factors heidentified go to proof of other aspects of the case and not mens rea. No evidence wasdrawn to my attention relevant to proof of that element of the charge. In terms ofinferences to be drawn from the circumstances to prove mens rea, on one view thecircumstances were consistent with Mr Rerekura losing control of the vehicle whenhe swerved to avoid the police spikes. Driving in the direction of the police officerwas therefore arguably reckless rather than intentional. On 21 July 2020, Mr Rerekuragave up this defence. There was no exchange with a reduction from the aggravatedassault charge; it they remained the same.[92] In Faulkner, the Court of Appeal refused to interfere with the guilty pleadiscount. However, in that case the guilty pleas were offered two weeks before trialand after alternative charges were substituted for the original charges. Here, MrRerekura gave up an arguable defence, and pleaded guilty two months after he hadentered his not guilty pleas, in circumstances where no trial date was set for 2020, andthe charges were not altered. In such circumstances I consider he deserves a 25 percent discount. Under Moses, that is calculated from the starting point of 14 months'imprisonment, which comes to 3.5 months.[93] Under Moses, aggravating factors relevant to the offender are also calculatedfrom the starting point.29 Such factors include uplifts for criminal history and foroffending while on parole.29 Gray v R [2020] NZCA 548.[94] In Sililoto v R, the Court of Appeal cited authorities for making allowance forprior convictions and time spent in custody on recall from parole. 30 The Court notedthat further complications would arise if a sentencing Judge also had to considerwhether cumulative or concurrent sentences should be imposed.31 Mr Sililoto was incustody for two years following recall from parole. The Court settled on an approachwhich applied a two thirds discount. Its approach was first to apply an uplift of sixmonths to the starting point to reflect Mr Sililoto's offending while on parole (being6.7 per cent of a starting point of seven years and six months) and then to give a twothirds reduction (18 months) to remove any element of double punishment.[95] Regarding Mr Rerekura's criminal history, the aggravated assault charge is lessserious than the earlier family violence assaults, and there is no previous history ofreckless driving. In Thomas v R, the Court of Appeal considered that a 22 per centuplift on the starting point to reflect previous convictions and recall from parole wasexcessive. Vernon v R and Waterworth v R, where similar uplifts were applied, weredistinguished on the grounds they were given for previous convictions for similaroffending.32 Here, the aggravated assault is less serious than the earlier familyviolence assaults, which resulted in actual injury and charges higher up the hierarchyof violent offending. There is one prior conviction for failing to stop, which does notattract a prison sentence. Accordingly, something less than a 22 per cent uplift (beingthree months) is required.33 I consider in these circumstances that a two month upliftadequately reflects prior offending and the fact the present offending occurred whileon parole. This amounts to a 14 per cent uplift.[96] When the discount of 3.5 months is set off against the uplift of two months, thebalance comes to a deduction of 1.5 months. This reduces the starting point to 12.5months. However, there remains the discount for time spent on recall from parole. InMoses, the Court of Appeal described the two-step methodology to be adopted insentencing and then said that:3430 Sililoto v R [2016] NZC 328.31 At [39].32 Vernon v R [2010] NZCA 308; Waterworth v R [2012] NZCA 58.33 Here a 22 per cent uplift would be three months.34 Moses v R, above n 14, at [48].This methodology does not preclude credit for some mitigating factors beingassessed by reference to what would otherwise be the end sentence (that is theproduct of step 2) where that is appropriate. For example, credit for time spenton electronically monitored bail is commonly calculated in that way.(emphasis added)[97] I consider that time spent on recall from parole has some resemblance to thecalculation required for time spent on EM bail and for this reason I propose to dealwith it now. I consider the two thirds discount applied in Sililotto v R and Thomas vR to be appropriate.[98] Because I propose to adopt a concurrent sentence, this discount works out at3.3 months (being two thirds of the time from 26 February to 21 July 2020). When3.3 months are subtracted from 12.5 months the result is 9.2 months, which I rounddown to nine months. I am satisfied that a concurrent sentence of nine months'imprisonment is the appropriate sentence.Conclusion[99] I consider a concurrent sentence is appropriate because it takes account of thefact that as at 21 July 2020 Mr Rerekura had almost completed his earlier sentence. Ifhe had delayed entering guilty pleas until after 23 September 2020 the sentence wouldhave been concurrent. The difference between 21 July and 25 September isinsignificant and therefore unlikely to have altered the guilty plea discount I haveallowed. The practical effect of the earlier series of sentences expiring on 23September 2020 is that until the question of bail for the February 2020 offending wasconsidered Mr Rerekura would have remained in custody until his next Courtappearance. A sentence of nine months imposed on 25 September 2020 would qualifyas a short-term sentence for which he would only serve half the term. Four and a halfmonths from 25 September 2020 comes to 25 January 2021. Thus, Mr Rerekura couldhave achieved a shorter sentence had he delayed his guilty plea by two months. Thisis an outcome which illustrates how disproportionate the cumulative sentence hereceived is.[100] I do not see how the discrepancies I have identified above could be fixed byrecourse to the totality principle. Further, the application of that principle works bestwhen it is applied to multiple offending for which an offender is being sentenced atthe one time.35 Trying to assess totality adjustments between the March 2012 and July2020 sentences is an impossible task. TBecause I am unable to adjust the earliersentences, I would need to heavily discount the present sentences. In accordance withthe reasoning in Faulkner, I consider that where there is a large gap in time betweenthe two groups of sentences and the earlier group has almost expired it is best to takea fresh approach to the later offending by imposing concurrent sentences.[101] The general expectation is that cumulative and concurrent sentences shouldresult in a similar overall time spent in detention. However, the Parole Act treatssentences of imprisonment of under 24 months and single notional sentences ofimprisonment differently. In my view, this makes it necessary to consider this outcomein a sentencing process like the present. The respondent argued that sentence releasedates should not be considered by a sentencing Judge, particularly because they canbe complex and require careful calculation. However, the necessary considerations inthis case do not involve calculation of release dates. All they require is knowledge ofthe operation of the law under ss 74, 77 and 86 of the Parole Act.[102] The respondent drew my attention to R v Smith where the Court of Appealallowed a Solicitor-General's appeal against the imposition of a concurrent sentenceof eight months when the offender was already serving a sentence of 12 months'imprisonment.36 However, in that case the eight month sentence was going to besubsumed into the 12 month sentence, thus rendering the eight month sentencepractically ineffective.37 It is understandable that the Court of Appeal consideredcumulative sentences to be more appropriate in that case. The circumstances are quitedifferent from the present case. What R v Smith also shows is that the appropriatenessof using cumulative or concurrent sentences will turn on the specific circumstances ofthe index case.35 Faulkner v R at [22].36 R v Smith CA 261/97, 27 August 1997.37 Above at 4; the Court of Appeal referred to an overall sentence of 12 months' imprisonment fallingfar short of an appropriate response to offences of fraud and serious violence.Result[103] Leave to appeal against sentence out of time is granted.[104] The appeal against sentence is allowed.[105] The sentence of seven months' imprisonment cumulative on CRN10068000382 is set aside. In its place Mr Rerekura is sentenced to a concurrentsentence of nine months' imprisonment. The sentence takes effect from 21 July 2020and runs concurrently with any other sentence that was alive at that date.[106] Because a concurrent sentence of nine months' imprisonment is a short termsentence of imprisonment under s 86 of the Parole Act, Mr Rerekura is entitled to bereleased following service of half the term of this sentence.Duffy J