NANDAN v NEW ZEALAND POLICE [2023] NZHC 2975

NANDAN v NEW ZEALAND POLICE [2023] NZHC 2975 [24 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-447[2023] NZHC 2975BETWEEN RIKLELSH YENGTESHWAR NANDANAppellantAND NEW ZEALAND POLICERespondentHearing: 24 October 2023Appearances: B Finucane and D Taumihau for AppellantS Arnerich and R H Vercoe for RespondentJudgment: 24 October 2023ORAL JUDGMENT OF LANG J[on appeal against sentence]Solicitors/counsel:B Finucane, AucklandKayes Fletcher Walker, Auckland[1] Mr Nandan pleaded guilty in the District Court to a variety of charges. On 8August 2023, Judge J H Lovell-Smith sentenced Mr Nandan to six months homedetention.1 Mr Nandan appeals against sentence solely on the ground that the Judgefailed to give him credit for time he had spent in custody before being sentenced.[2] Given the narrow scope of the appeal it is not necessary to outline the detail ofMr Nandan's offending. I therefore proceed directly to the issue to be determined onappeal.The sentence[3] The Judge adopted a starting point of 17 months imprisonment on all charges.She then allowed discounts totalling 35 per cent to reflect mitigating factors includingguilty pleas and rehabilitative efforts. This resulted in a reduction of six months,thereby producing an end sentence of 11 months imprisonment.[4] The Judge then converted that sentence to one of six months home detention.2In fixing the length of the sentence the Judge took into account the fact that she hadremitted outstanding fines totalling $3,030.3 The Judge dealt with the fact thatMr Nandan had been in custody for a period whilst on remand as follows:[8] I would also add with regard to your remand in custody; you wereinitially released on bail successfully but by 18 April 2023 you had breachedyour bail. The Judge has noted that electronically monitored bail appeared tobe unavailable and therefore when you entered your guilty pleas you wereremanded in custody. There was an EM bail application. You were clearlybailed on 20 April. This summary is all back to front. By 22 May when yousought EM bail again it was declined and since then you have been remandedin custody. The fact that you have been remanded in custody was because ofyour breaches. If you had not breached your bail, and I do not know the detailsof it, you would have been bailed when assessing the time that you have spentin custody.[9] So, the home detention is for six months. 1 New Zealand Police v Nandan [2023] NZDC 16837.2 At [9].3 At [7].Decision[5] Mr Nandan was in custody for four days between 10 and 14 April 2023, whenhe was granted bail. He breached the terms of his bail on 18 April 2023 and thenremained in custody until he was sentenced on 2 August 2023. This meant he spent atotal of approximately three and a half months in custody before being sentenced. Thisis the equivalent of a sentence of seven months imprisonment. The Judge appears tohave decided not to give Mr Nandan any credit for the time he had spent in custodysolely because he had effectively brought his custodial remand on himself.[6] As Ms Arnerich correctly points out for the respondent, the issue of whetherthe end sentence was manifestly excessive remains an evaluative exercise. Therespondent's position is that the overall gravity of Mr Nandan's offending justified anend sentence of six months home detention.[7] However, as Mr Finucane points out on Mr Nandan's behalf, the fact that anoffender is remanded in custody for breaching bail conditions does not generally meanthat the time spent in custody should be disregarded when imposing a sentence ofhome detention. In Laloni v R, the Court of Appeal observed:4It was of course the appellant's own conduct that resulted in his remand incustody following his earlier release on bail. That factor however should notdisentitle him from the normal allowance, which is made to reflect time spentin custody when imposing a sentence of home detention.[8] There may be cases in which the breach of bail has been so egregious, or thetime spent in custody so small, that it will not justify the time spent on custodialremand being deducted from the end sentence. In the present case, however, there wasno justification for such a lengthy custodial remand being disregarded in fixing theend sentence. This is particularly so given the fact that Mr Nandan would only havebeen required to spend another two months in prison before he was eligible forautomatic release.[9] Deducting the seven months Mr Nandan has effectively already served fromthe end sentence of 11 months imprisonment results in a sentence of four months4 Laloni v R [2015] NZCA 55.imprisonment. This would ordinarily be converted to two months home detention. Inthe present case, however, the Judge also remitted fines totalling more than $3,000. Itherefore consider the end sentence should be one of three months home detention.Result[10] The appeal against sentence is allowed. The sentence of six months homedetention is set aside. In its place I substitute a sentence of three months homedetention on all charges on which Mr Nandan received sentences of six monthsdetention. The sentences imposed on remaining charges will remain intact.____________________________Lang J