STRIDOM v NEW ZEALAND POLICE [2019] NZHC 354

STRIDOM v NEW ZEALAND POLICE [2019] NZHC 354 [12 March 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-4[2019] NZHC 354BETWEEN PIETER CONJE STRIDOMAppellantAND NEW ZEALAND POLICERespondentHearing: 5 March 2019Appearances: R D Stone for the AppellantC R Stuart for the RespondentJudgment: 6 March 2019Reissued: 12 March 2019JUDGMENT OF COOKE J[1] On 23 January 2019 Mr Stridom was sentenced before Judge Adeane in theDistrict Court at Hastings to two years one months' imprisonment in respect of thefollowing charges:1(a) Two charges of burglary;2(b) One charge of theft between $500–$1000;3(c) One charge of receiving stolen goods over $1000;41 Police v Stridom [2018] NZDC 1108.2 Crimes Act 1961, s 231(1)(a) and s 66, maximum penalty 10 years' imprisonment.3 Sections 219 and 223(c), maximum penalty 1 years' imprisonment.4 Sections 246 and 247, maximum penalty 7 years' imprisonment.(d) One charge of unlawfully taking a motor vehicle;5(e) One charge of driving while disqualified (third offence);6(f) One charge of possession of methamphetamine pipes;7(g) Two charges of using a document for pecuniary advantage;8(h) One charge of possession of a knife in a public place.9[2] Mr Stridom appeals his conviction on the grounds there were two mistakes inthe District Court decision in relation to the sentence, and the appellate court is entitledto consider the sentence afresh. He argues that the end sentence was within the rangeof home detention, and that this is the sentence the Court should impose.[3] The Police accept that mistakes were made in the District Court decision, butthe mistakes were not material so as to justify a different sentence.Factual background[4] Mr Stridom is 30 years old and lives in Hastings. On 8 March 2018 he droveto Havelock North to meet his co-defendant, Ms Brown. Mr Stridom remained in thecar while Ms Brown walked up the driveway at an address and climbed in through theopen window, taking numerous items of value including jewellery and electronics,valued at approximately $20,000. Mr Stridom then drove Ms Brown back to heraddress, dropped her off and took the stolen goods with him to sell.[5] On 13 March 2018 Ms Brown picked up Mr Stridom from his address inHastings. They drove past an address where they saw the occupants leaving the house.Ms Brown parked the car at the end of the driveway. Both Ms Brown and Mr Stridom5 Section 226(1), maximum penalty 7 years' imprisonment.6 Land Transport Act 1998, ss 32(1)(a) and 32(4), maximum penalty 2 years' imprisonment or$6,000 fine.7 Misuse of Drugs Act 1975, s 13(1)(a) and (3), maximum penalty 1 years' imprisonment or $500fine.8 Crimes Act 1961, s 228(b), maximum penalty 7 years' imprisonment.9 Section 202A(4)(a), maximum penalty 3 years' imprisonment.exited the car and approached the house. Ms Brown found an open window, reachedin and unlocked the door. Once inside Ms Brown took numerous items of value,including a wallet, a laptop, jewellery, clothing, sunglasses and watches. She returnedwith the stolen items to the car where Mr Stridom was waiting for her. They left andwent back to Ms Brown's address. There they divided the property betweenthemselves, including a stolen wallet with a number of debit and credit cards belongingto the victim.[6] A short time later Mr Stridom and Ms Brown drove to the Mobil ServiceStation where they purchased $69.90 worth of goods using a stolen debit card. LaterMs Brown entered the Z Service Station in Windsor and purchased more items usingthe stolen debit card, totalling $72.99. Then the defendants drove to a Caltex ServiceStation, where Mr Stridom attempted to purchase cigarettes, but the debit carddeclined.[7] On or about the 13 March 2018 Mr Stridom and Ms Brown were drivingthrough Hastings. They stopped at a road when they noticed an open gate at anaddress. Mr Stridom and Ms Brown walked up to the front door. Mr Stridom pickedup a pair of running shoes lying next the front door. He then returned to the car withthe shoes. Ms Brown stole a set of golf clubs and brought them back to the car. Laterthat day Mr Stridom sold the stolen golf clubs to the Buy4Less store in Hastings for$100.[8] Between 13 and 14 April 2018 there was a burglary at another address inTaradale. A large amount of property was taken including a computer, a coffeemachine, an antique clock, jewellery, electronics and a Toyota car valued at $2500.[9] On 24 April 2018 Hastings Police executed a search warrant at Mr Stridom'saddress in Hastings. Police located stolen property from the burglaries at the aboveaddresses. Police also located a number of glass pipes used to smokemethamphetamine. Mr Stridom was located and arrested for the offending. At thetime of arrest Mr Stridom was wearing the stolen running shoes and Police located alarge fold-down hunting knife and a silver envelope knife in his backpack.[10] When spoken to Mr Stridom admitted receiving the stolen property from thefirst address referred to above but denied having anything to do with the burglary. Headmitted waiting in the car for Ms Brown while she committed the burglary at thesecond address, but denied knowing what she was doing or having any involvement.He admitted using the stolen debit card to purchase goods at Mobil and the attemptedpurchase at Caltex. In relation to the burglary at the third address, Mr Stridomexplained he never went into the address with Ms Brown but admitted to receiving thestolen running shoes and selling the golf clubs.[11] There is other offending for which Mr Stridom was sentenced. On 3 March2018 at around 4.50 am Mr Stridom was driving a Toyota on Shakespeare Road,Napier. Mr Stridom was stopped by Police and enquiries revealed the defendant wasa disqualified driver. In explanation Mr Stridom said he was giving his friends a ride.Finally, on 11 April 2018 Mr Stridom was at the District Court at Napier. After settingoff metal detectors, his property was searched and two knives were found in his bag.The defendant was detained by court security and held for Police. He told Police hehad no other knives or contraband in his bag. Police searched Mr Stridom and founda small black folder with a pipe and other methamphetamine utensils in his bag. Inexplanation Mr Stridom said he forgot he had those items in his bag and the pipe wasnot his but belonged to a friend.District Court decision[12] After outlining the facts and the charges the Judge turned to a discussion ofsentencing for burglary. He noted for burglary of a dwelling-house, an appropriaterange is between 18 months and two and a half years, citing Arahanga v R.10 For thiskind of case, "the Court is not entitled to simply lose sight of the effect of this kind ofoffending on the home owners involved".[13] The Judge also considered the position of Mr Stridom's co-offender,Ms Brown. Ms Brown had been sentenced to 10 months home detention. JudgeAdeane rejected submission of counsel that as a matter of parity, Mr Stridom shouldreceive a similar sentence. Mr Stridom's co-offender had specific personal10 Police v Stridom, above n 1, at [8]; and Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.circumstances limited to her case to allow a sentence of home detention and hadreceived a strong warning as to the consequences of further offending.[14] The Judge used a starting point of two and a half years' imprisonment, with asix month uplift for receiving and unlawful taking of the vehicle.11 The otheroffending (possession of the pipe, fraud charges, driving while disqualified andpossession of knives) justified a further two month uplift. This calculated to threeyears and two months' imprisonment. Judge Adeane gave a 25% discount for guiltyplea and reduced the sentence by three months to take account of 24 weeks spent onEM bail. This gave an end sentence of two years, one months' imprisonment. JudgeAdeane also ordered Mr Stridom pay $500 in reparation ($250 for each burglarycharge).Approach to appeal[15] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[16] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion. An error of principleincludes an error of fact or law, failing to take into account a relevant consideration,or if the decision was plainly wrong.12 The focus is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.13[17] Mr Stone for Mr Stridom submits that Judge Adeane made material mistakesin his sentencing decision. When considered afresh he submits that the followingfactors justify an end sentence within the range of home detention:11 At [12].12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481.13 Ripia v R [2011] NZCA 101 at [15].(a) a lower starting point should be substituted;(b) further credit should have been given for time spent on EM bail;(c) parity with Mr Stridom's co-offender;(d) pre-sentence report considerations.[18] I will first address the alleged mistakes in the sentencing decision and then goon to discuss whether any mistakes lead to a sentence that was manifestly excessive.Did Judge Adeane make errors in his sentencing decision?[19] First, Mr Stone submits the Judge erred in referring to three burglary chargesin his decision when there were in fact two. The Judge refers to "three charges ofburgling dwelling-houses" more than once in his judgment.14 This was an error as thecharging document related to one of the burglaries had been amended to a charge oftheft under ss 219 and 223(c) of the Crimes Act 1961. This is a lesser offence with amaximum penalty of one years' imprisonment.[20] Second, Mr Stone points out that the Judge miscalculated the amount of timeMr Stridom spent on EM bail. The Judge reduced Mr Stridom's sentence by threemonths to take account of the 24 weeks spent on EM bail.15 In fact he had spent 34weeks on EM bail.[21] Both these errors are accepted by counsel for the Police, Mr Stuart. However,Mr Stuart submits the errors were not material as the end sentence is not manifestlyexcessive. Mr Stone argues the errors were material and the Court is justified toconsider the sentencing exercise afresh. It is accordingly important to consider thesignificance of the errors.14 Police v Stridom, above n 1, at [1], [4], [5] and [12].15 At [12].Burglary charges[22] The Judge noted that while there is no tariff for burglary of dwelling-houses"there is a coherent and frequently referred to line of authority to the effect thatburglary of other people's dwelling-houses attracts a starting point between 18 monthsand two and a half years' imprisonment", citing Arahanga v R.16 A burglary of threedwelling-houses in the circumstances required a starting point of two and a half years'imprisonment.17 It would accordingly appear that the number of burglary offenceswas of significance to this determination.[23] Given that the Judge's error was a material one it is appropriate to considerwhat the starting point should have been. In Arahanga the Court of Appeal stated thatit had "deliberately not set a tariff for burglary because the range of circumstances inwhich the offence can be committed is so varied", but it noted that burglary ofdomestic residence is a significant aggravating feature.18 Both counsel have directedme to R v Nguyen, where the Court of Appeal provided guidance as to factors toconsider when determining the "criminality" of a burglary charge. Gault J said for theCourt:19[17] It is necessary in every case to assess the criminality of the particularoffending. As we said in Mako, with reference to aggravated robbery, itis necessary to consider the combination of factors surrounding theoffending conduct. In burglary cases, these include the degree ofplanning and sophistication in the offending, the nature of the premisesentered, the kind and value of property stolen, damage done, the impactand potential impact upon occupants or owners of property, and theextent of the offending where multiple burglaries are involved.[18] The range of circumstances in which the offence of burglary can becommitted is such that no tariff can be fixed. Entry into private homesgenerally will have an emotional impact giving rise to a sense ofviolation and insecurity for the owners that may not arise in the case ofcommercial premises. The value of goods stolen from commercialpremises may be higher.[19] Organisation of groups or rings for the purpose of a business in the theftand sale of goods is a factor which will increase criminality.16 Police v Stridom, above n 1, at [8].17 At [12].18 Arahanga v R, above n 10, at [78].19 R v Nguyen CA110/01, 2 July 2001 at [17]–[19].[24] Mr Stone also referred to the following authorities to assist with determiningwhether the sentence was manifestly excessive:(a) Van Wyk v Police:20 This involved five charges of burglary of housesunder construction. The District Court Judge identified the risk ofconfrontation was low given the house was still under construction.21A starting point of 18 months was adopted, which was upheld onappeal.(b) Graham v Police:22 This involved one charge of burglary of a dwelling-house. The District Court Judge adopted a starting point of two yearsafter considering the following factors: the interior of the property hadbeen vandalised; the offenders had consumed alcohol andmethamphetamine prior to the offending; the burglary had occurred atnight; and items of high value had been taken.23 The sentence wasquashed, but the High Court held the Judge was entitled to take astarting point of two years' imprisonment.[25] The following authorities also assist in assessing an appropriate starting point:(a) R v Sherlock:24 This involved three burglaries of residential propertieswith a total value of $45,000. The offending was within two months ofthe defendant's release from prison. The sentencing judge adopted astarting point of four years. This was upheld on appeal.(b) Borthwick v Police:25 This involved three charges of burglary ofresidential properties. All the burglaries took place during the day. Thevictim was at home on one of the occasions. There was no forced entry,20 Van Wyk v Police [2018] NZHC 285821 At [4].22 Graham v Police [2016] NZHC 1696.23 At [10].24 R v Sherlock [2008] NZCA 555.25 Borthwick v Police [2014] NZHC 2772.but items were stolen to the value of over $3000. A starting point of 18months' imprisonment was upheld on appeal.26(c) McFall v Police:27 This involved two charges of burglary. Both chargesarose from burglaries committed during the day with items of valuetaken. On both occasions the defendant had smashed a window to gainentry. The District Court Judge adopted a starting point of two years,six months' imprisonment.28 On appeal, the High Court replaced thestarting point with one year, nine months' imprisonment taking intoaccount there were two burglaries, both of which were domesticproperties; the risk of confronting the occupants; the fact the burglarieshappened during the day; and the nature of the items taken.29(d) Stepanicic v R: This involved two charges of burglary of residentialpremises. Both burglaries took place at night when the victims werehome. Items stolen included clothing, keys, wallets and electronics andthe victim impact statements reveal there was a significant effect on thepeace of mind of the occupants. On appeal the High Court held theappropriate starting point was two years' imprisonment.30[26] Mr Stone submitted that the circumstances of this case suggested a startingpoint of only two years. Mr Stuart accepted that two years six months used by theJudge was on the high side, or top end of the available range. But he argued that thefirst burglary alone would have been sufficient to justify a two year starting point giventhe premeditation, the organised nature of the offending, Mr Stridom's key rolereflected in his sale of the stolen goods, and the value of the stolen goods. Thesubsequent similar offending justified the two and a half year starting point, or at leastbrought it within that range.26 At [28].27 McFall v Police [2015] NZHC 2095.28 At [11].29 At [32].30 Stepanicic v Police [2017] NZHC 1882 at [9].[27] There was some debate on the respective roles of Mr Stridom and Ms Brownin the offending. Whilst Mr Stridom's sale of the stolen property might suggest a moresignificant role, it is noteworthy that Ms Brown was sentenced for additional burglarycharges, including charges occurring before the offending involved here. It seems tome, therefore, that Mr Stridom and Ms Brown should be treated as having anequivalent role.[28] Given the relevant circumstances and the general pattern of previous cases, inmy view a starting point of two and a half years was too high. In the present case, theoffending took place during the day. The occupants were not at home and there wasno forced entry. On the other hand, the properties were residential and the combinedvalue of the items taken in the burglaries was significant, valued at over $20,000. Iaccept the submission of Mr Stone that the offending here was a coordinated series ofoffences by the same offenders. Mr Stridom had a key role as he drove the vehicle tothe target neighbourhoods and appears to have acted as "lookout" in waiting outsideor at the car for Ms Brown on both occasions.[29] It is my view that the present case is equivalent to McFall and Stepanicic, butmore serious than Borthwick and McCall. I consider a starting point of two years isappropriate. The starting point adopted by the Judge was too high, and is likelyexplained by his error in relation to the number of burglary charges involved.EM bail period[30] The Judge also erred in the calculation of the amount of time spent on EM bail.Mr Stridom spent 34 weeks (7 and a half months) on EM bail. Judge Adeane reducedthe sentence by three months to take account of 24 weeks spent on EM bail.31 Timespent on EM bail is a mandatory mitigating factor under s 9(2)(h) of the SentencingAct 2002. Section 9(3A) provides a list of factors to consider when determining anappropriate reduction for EM bail:(3A) In taking into account that the offender spent time on bail with an EMconditionunder subsection (2)(h), the court must consider—31 Police v Stridom, above n 1, at [12].(a) the period of time that the offender spent on bail with an EMcondition; and(b) the relative restrictiveness of the EM condition, particularly thefrequency and duration of the offender's authorised absencesfrom the electronic monitoring address; and(c) the offender's compliance with the bail conditions during theperiod of bail with an EM condition; and(d) any other relevant matter.[31] Again it is appropriate to consider the deduction that should be given.Mr Stone submits that a reduction closer to the time actually spent on EM bail shouldbe allowed. This submission is not in line with the authorities. The reduction shouldnot be the equivalent on the time spent on EM bail,32 nor is it a mathematical formula.33An evaluative assessment of all the circumstances is required.34 In view of theseauthorities I also do not accept Mr Stuart's suggestion to use the conversion factoradopted by the Judge (i.e. halve the amount of time spent on EM bail to get thereduction period).[32] Some assistance can be derived from previous cases, although the particularfacts and circumstances are clearly critical to the evaluation. In Schuster v R the Judgegave a reduction of 3 months to account for eight months spent on EM bail with"stringent conditions".35 In Beckham v R, a reduction of six months was given for aneight month 24-hour EM bail.36[33] Mr Stridom spent just short of eight months on EM bail. The pre-sentencereport says Mr Stridom has complied with all requirements and restrictions of his EMbail conditions. He was only entitled to absences from his address for the followingreasons: appointments with legal counsel; medical appointments; Work and Incomeappointments; programme counselling treatment; any government communityprobation appointments. He was also not allowed to invite any person onto the32 R v Faisandier CA185/00, 12 October 2000 at [30].33 R v Tamou [2008] NZCA 88 at [19].34 R v Tamou, above n 33, at [19]; Keown v R [2010] NZCA 492 at [12]; and Rangi v R [2014] NZCA524 at [10].35 Schuster v R [2011] NZCA 343 at [7] and [12].36 Beckham v R [2013] 1 NZLR 613.property and in particular to have no contact with Ms Brown either directly orindirectly.37 In these circumstances I consider a reduction of five months isappropriate. Again that is materially higher than the three months adopted by theJudge.Countervailing considerations[34] These errors by themselves do not mean that the sentence was manifestlyexcessive. As indicated the focus is whether the offence was within an available rangerather than the exact process by which it was reached.[35] In that context there are two countervailing considerations that suggest thatfactors considered by the Judge could have resulted in a longer sentence.Uplift for other offending[36] First, the error made by the Judge in concluding that there were three burglarycharges also means that the theft charge was not taken into account by him whendetermining the uplift for other offending.[37] The Judge uplifted six months for one charge of receiving over $1000 and onecharge of unlawful taking of a motor vehicle. He uplifted a further two months for theother offending (two fraud charges, one charge of driving while disqualified, onecharge of possession of knives and one charge of possession of methamphetaminepipes). Given the Judge was mistaken as to the number of burglary charges, a furtheruplift for theft between $500–$1000 was also required.[38] Mr Stone argues the total uplift of eight months for further offending wasexcessive. He submits "when considered in totality" an uplift of six months was themost that could be justified. Mr Stuart submits that, for this combination of offending,the uplift could have been closer to 12 months' imprisonment. Mr Stuart argues thetwo month uplift in relation to the fraud and driving whilst disqualified charges was"appropriate in order to account for totality". He provided authorities for guidance on37 Police v Stridom [2019] NZDC 27398 [EM bail decision].uplifts. They included uplifts for receiving (R v Lasike and Ellis v R),38 unlawfullytaking a vehicle (Gideon v Police and R v Rolleston),39 driving while disqualified(Candler v Police),40 and fraud (Horrell v Police and Doctor v Police).41[39] These authorities seem to me to be of limited use given the holistic nature ofthe assessment undertaken by the Judge. Instead I estimate that if the Judge hadcorrectly included the charge for theft, the uplift would have been a further two months— a total uplift of 10 months. I consider this proportionate to the gravity of overalloffending.42Discount for guilty plea[40] The second feature is that the Judge allowed a 25 per cent discount forMr Stridom's guilty plea.[41] As Mr Stuart submitted, whilst there were some guilty pleas entered early byMr Stridom, the majority were not with the guilty pleas for the most serious chargesbeing entered 195–200 days after the first appearance, and in the week before trial. Irecognise that the third burglary charge was only amended to be a theft charge at thisstage, and that the District Court had not given a sentencing indication at a prior stage.Nevertheless in the circumstances a discount of 25 per cent seems to me to be too high.A discount of 20 per cent seems more appropriate.Was the end sentence manifestly excessive?[42] Given all the above considerations, I calculate the proper sentence as follows:(a) Starting point: two years imprisonment;(b) Uplift of eight months for receiving, theft, and unlawful taking of amotor vehicle;38 R v Lasike, HC Auckland CRI-2004-44-7103, 7 September 2006; and Ellis v R [2012] NZCA 513.39 Gideon v Police [2014] NZHC 1065; and R v Rolleston [2018] NZHC 2656.40 Candler v Police [2018] NZHC 1414.41 Horrell v Police [2016] NZHC 820; and Doctor v Police [2017] NZHC 1084.42 Sentencing Act 2002, s 85(2).(c) Uplift of two months for other offending (fraud charges, possession ofknives, and possession of methamphetamine pipes);(d) 20 per cent guilty plea discount;(e) Further reduction of five months to take account of 34 weeks spent onEM bail.[43] This results in an end sentence of one year 10 months. This is only threemonths shorter than the sentence of two years one month imposed by the DistrictCourt. Given the focus on the end sentence, is that difference sufficient to show thatthe sentence imposed was manifestly excessive?[44] In the circumstances of this case I have concluded that it is. There were twoerrors in the sentencing decision that resulted in the sentence being higher than itshould have been. Whilst the countervailing considerations reduce the impact of thoseerrors to only a three month period, that three month period takes the ultimate sentencewithin the range where home detention could be imposed.[45] On the question of home detention there is a suggestion that the Judge may nothave been in favour. He said:43[9] Obviously with sentencing falling in the range to which I havereferred, home detention is a frequent topic in sentencing of this kind. It is ofcourse necessary that the sentence be two years' imprisonment or less as anend sentence before that can be entertained, but there are other interestsincluding the safety of the community and denunciation and deterrents ofcertain categories of offending which all have their place in the calculation.[10] Mr Stridom has been on bail for a long time. He has largely performedadequately. He has favourable family circumstances, but in the context ofthose, he is an underachiever whose future in the community brings as manyquestions as it does assurances and answers.[46] It seems to me, however, that home detention was an appropriate sentence inthe present case. Home detention is available if the court would otherwise sentencethe offender to a short-term sentence of imprisonment (defined under s 4(1) of theParole Act 2002 as a sentence of 24 months or less) under s 15A(1)(b) of the43 Police v Stridom, above n 1.Sentencing Act 2002. There is no presumption in favour of home detention beingimposed.44 It is ultimately a matter of discretion and an "evaluative assessment of allthe circumstances" is required.45[47] It is my view that a sentence of home detention is appropriate in this case. Thisconclusion is based on the following factors:(a) Mr Stridom has not previously served a sentence of imprisonment, andhas a relatively limited criminal record with 12 previous convictions.These convictions represent small scale offending, including oneconviction for breach of community work; driving while disqualified;exceeding blood alcohol limit; breach of local liquor ban and theft excar. They also mainly took place some time ago (2006–2008) exceptfor offending relating to driving while disqualified in 2011 and 2017.(b) Mr Stridom has complied with all conditions of his EM bail. Thisdemonstrates he is likely to comply with a sentence of home detention.(c) The home detention conditions while being on EM bail appear to haveaddressed the methamphetamine problems that may have had asignificant influence on Mr Stridom committing the offending in thefirst place. The fact that Mr Stridom has been stabilised by theseconditions suggest that their continuation will assist in successfulrehabilitation.(d) The nature of the leading burglary charges was at the lower end of ascale of seriousness. While the property stolen was high value, therewas a small chance of encountering the occupants and the burglarieshappened during the day.(e) The pre-sentence report recommended a sentence of communitydetention and assessed his likelihood of re-offending at medium, but44 R v Stacey [2002] NZCA 465 at [21].45 R v Risschop [2008] NZCA 229 at [18]–[19].his risk at harm towards others as low with no previous violentoffending convictions. As to the charge for possession of a knife in apublic place, this was not during the burglaries but on a separateoccasion and Mr Stridom advised this was not for protection but"handy" to have.[48] I also note that Ms Brown received a sentence of home detention, although Ido not accept Mr Stone's arguments based on the desirability of parity in sentencing.There are material differences between Ms Brown and Mr Stridom, includingcircumstances that were personal to her.[49] It seems to me that a sentence of home detention is appropriate to addressMr Stridom's circumstances. He has not previously served a term of imprisonment.He is clearly in danger of engaging in conduct that could lead him to offending leadingto terms of imprisonment. In a sense the sentence of home detention may be a lastopportunity for him to avoid this being his future. In my view he should be given theopportunity to avoid that course.[50] Bearing in mind the calculated sentence of one year 10 months it seems to methat a starting point of 11 months home detention is appropriate. There is, however,one additional factor. Mr Stridom served one month on remand before being grantedEM bail, and he has also served approximately one month of the sentence imposed bythe District Court. This time is not taken into account in imposing the sentence, andneither will it be part of the calculations conducted in relation to an offender servingprison time. I accept Mr Stone's submission based on Longman v New Zealand Policethat these periods of imprisonment need to be taken into account when imposing theperiod of home detention.46 The two months served can be treated as equivalent to afour month prison sentence, being the equivalent period of two months' homedetention. That should be deducted from the 11 months so that the ultimate sentencenow imposed is nine months' home detention.46 Longman v New Zealand Police [2017] NZHC 2928 at [8].Conclusion[51] For these reasons it seems to me that the errors made by the Judge have led toa manifestly excessive sentence as a sentence of nine months' home detention shouldnow be imposed rather than a sentence of two years one months' imprisonment.[52] Accordingly the appeal is allowed and a sentence of nine months' homedetention is imposed in substitution for the sentence of two years and one months'imprisonment. The orders for reparation imposed by the District Court Judge are toremain. The special conditions of home detention are:(a) To attend an assessment for alcohol and drug counselling as directed bya Probation Officer. To attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a Probation Officer.(b) Undertake and complete appropriate assessment, treatment/counsellingas directed by and to the satisfaction of a Probation Officer.(c) To reside at the specified address and not move to any new residentialaddress without the prior written approval of a Probation Officer.Cooke JSolicitors:Souness Stone Law Partnership, Hasting for AppellantCrown Solicitor, Napier for Respondent