SLADE v NEW ZEALAND POLICE [2020] NZHC 3396

SLADE v NEW ZEALAND POLICE [2020] NZHC 3396 [17 December 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2020-483-19[2020] NZHC 3396BETWEEN RYAN ANDREW SLADEAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2020Counsel: R J Leith for AppellantH R Hancock for RespondentJudgment: 17 December 2020JUDGMENT OF CHURCHMAN J[1] Mr Slade (the appellant) appeals a sentence of six months' home detention thatwas imposed in the Whanganui District Court by Judge Smith, along with six monthspost-detention conditions, two fines of $250 and a disqualification from driving for25 months.1 This was for a charge of driving whilst disqualified (third or subsequent),two charges of dangerous driving and two charges of failing to stop.2[2] He appeals that sentence on the ground that it was manifestly excessive. Theappellant says that the Judge failed to account for the five months that he spent onremand in prison and that his home detention sentence should be reduced accordingly,leaving him with one month's home detention.1 Police v Slade [2020] NZDC 23832.2 Land Transport Act 1998, ss 32(1)(a) and 32(4) (maximum penalty two years' imprisonment or$6,000 fine), 35(1)(b) (maximum penalty three months' imprisonment or $4,500 fine), and52A(1)(a)(ii), 52A(3), 52A(6) and 114(2) (maximum penalty $10,000 fine).[3] The respondent acknowledges that the Judge did not make any adjustment toreflect the time spent on remand but submits that overall the sentence is not manifestlyexcessive because the starting point taken by the Judge in respect of the driving whiledisqualified charge of 12 months, was too low.[4] I have concluded that the appeal should be allowed. The Judge does not appearto have given any discount or credit for these five months, and the case law indicatesthat full credit should be given for pre-sentence time on remand when a sentence ofhome detention is imposed.[5] The starting point taken by the Judge was appropriate and, unless there is anadjustment for the time spent on remand, the end sentence will be manifestlyexcessive. I now set out my reasons for those conclusions.BackgroundFactual background[6] At about 10.15 am on 12 July 2020, the appellant was seen driving in a motorvehicle and police conducted a query of the vehicle. The appellant turned down astreet 20 kms above the speed limit before overtaking a vehicle. The police activatedtheir sirens and lights to stop him, but he did not stop, accelerating to speeds of over100 km/ph. He failed to stop and give way at two stop signs. The police lost sight ofhim. This gave rise to one dangerous driving charge and one failing to stop charge.[7] At about 10.58 am the same day, police activated their lights and siren to stophim, but the appellant again did not stop. The police initiated a pursuit. The appellantfled police, reaching speeds of 100 km/ph and continued through a red light at anintersection. He avoided a tyre deflation device. He was located shortly after at hishome address and was arrested. The vehicle was found at another address andimpounded. This gave rise to the rest of the charges.District Court decision[8] The Judge set out the relevant facts of the offending, and then acknowledgedthe differing submissions as to an appropriate starting point. Counsel for therespondent submitted in favour of a starting point of 12 months' imprisonment for thetwo separate charges of driving while disqualified, with an uplift of two months eachfor the two dangerous driving charges, as well as a disqualification from driving fortwo years. Counsel opposed commuting the sentence to one of home detention.Counsel for the appellant submitted that a starting point of 11-14 months'imprisonment was appropriate, with an end sentence of between eight to 10.5 months'imprisonment, commuted to four to five months' home detention.[9] The Judge then acknowledged the appellant's s 27 cultural report, whichtraversed the appellant's history as a child and the significant factors that led to hisemotional and psychological traumas.[10] Acknowledging the lead charge as being driving while disqualified (third orsubsequent) and that this was the appellant's ninth conviction, the Judge applied astarting point of 12 months' imprisonment. This was uplifted by two months for eachof the dangerous driving charges, and as the other charges were not considered towarrant an uplift, this led to a final starting point of 16 months.[11] The Judge applied a full 25 per cent discount for the appellant's guilty pleas,leading to an end sentence of 12 months' imprisonment. The Judge considered thathaving read the cultural report, the appellant would be in a better position to improvehimself and prevent re-offending in a home detention environment, rather than inprison. The sentence was therefore commuted to six months' home detention, with anumber of conditions during and post the detention. The appellant was also fined $500(fines of $250 for each failure to stop) and disqualified from holding or obtaining adrivers' licence for 25 months.Sentencing reports[12] The Provision of Advice to Courts (PAC) report indicates that the appellant'sprevious conviction history spans some six years, predominantly for dishonesty andserious driving offences, being committed with continued regularity and frequency.As a result, the appellant was assessed as having a high risk of re-offending in a naturethat posed a medium risk of harm to others, which was likely to increase if he did notaddress the key factors of his offending, including an unstructured lifestyle, attitude,influence of associates supportive of offending, absence of consequential thinking andpoor problem-solving skills, and his sense of entitlement and associated behaviour, allof which were underpinned by his misuse of substances.[13] The appellant was also assessed as being high risk of harmful use of bothmethamphetamine and cannabis, and that he would benefit from harm reductionprogrammes and rehabilitative treatment to address his substance misuse. While theappellant had little pro-social support, he still maintained a relationship with histerminally ill mother, who he considered to be a strong influence.[14] According to the report, the appellant had appropriate accommodation wherehe could serve a community-based sentence, which was suitable for electronicmonitoring. Ultimately, while the appellant had a history of non-compliance withcommunity-based sentences, a sentence of home detention was recommended, as itwould provide the appellant with an opportunity to address his alcohol and drug useand engage with psychological services to determine treatment and counselling in thecommunity.[15] The s 27 cultural report detailed difficulties that the appellant experiencedduring his upbringing, including the tragic death of his older brother when theappellant was seven years old, the abusive nature and absence of his birth father,experiencing violence throughout his childhood and early difficulties with drugs as ateenager, including synthetic cannabis. It also discussed in detail the appellant'smental health issues, including depression, suicidal ideations and his struggle to acceptthe terminal illness of his mother, who appears to be one of the few stable andconsistent figures of support in his life.Position of the partiesThe appellant[16] As stated, this appeal is brought under a single ground: that the appellant'ssentence was manifestly excessive because the sentencing Judge failed to account forthe five months that the appellant spent on remand in prison and that his homedetention sentence should be reduced accordingly, so that an end point sentence of onemonths' home detention should have been imposed. Counsel noted that there was nochallenge to the other aspects of the sentence.[17] Counsel submitted that if the current sentence was maintained, the total periodof detention for the appellant would amount to 11 months, being the five months ofpre-sentence time in custody, and the six months post-sentence home detention. It wassubmitted that this would be the equivalent to 22 months' imprisonment, which wouldbe six months longer than the initial starting point taken by the Judge and close to themaximum penalty for driving while disqualified, which could only be described asmanifestly excessive.[18] Counsel referred to Longman v Police, where Simon France J observed:3Credit for time spent on EM bail is considered when fixing the appropriatelength of any sentence of imprisonment. It is a mitigating factor that isassessed in the same way and at the same time as factors such as remorse,guilty plea and rehabilitative efforts. It feeds into the appropriate length of thesentence.Credit for time spent on custodial remand is quite different. Conceptually, ithas nothing to do with the appropriate length of the underlying stance. Rather,it is time spent serving that sentence for which credit is appropriate. With asentence of imprisonment, credit is given automatically. With home detention,the Court needs to act to ensure it is given recognition.In my view the clear default position is that full credit should be given. Thisis where it is important to note the distinction from EM bail. There theanalysis is what reduction to a prison term should be made for restrictive pre-sentence arrangements that do not involve jail. Here, the analysis is whatadjustment should be made to a home detention sentence, the length of whichis fixed by reference to a sentence of imprisonment, for time actually spent injail in effect serving the same sentence. Seen that way, full equivalence shouldbe the norm. Although arising in a different area, I suggest this outcome offull equivalence is consistent with the tenor of the Supreme Court decision inBooth v R where the Court emphasised the need for pre-sentence detention tobe applied effectively to all sentences.[19] Counsel also referred to Kirk v R, where Woolford J observed that "unlike asentence of imprisonment, there is no statutory provision that automatically givescredit for time spent in custody when subject to a sentence of home detention. As fortime deducted, full equivalence is the norm".43 Longman v Police [2017] NZHC 2928 at [7]-[9] (footnotes omitted).4 Kirk v R [2019] NZHC 3361 at [7].[20] Relying on the above cases, counsel submitted that as full credit was given forthe time spent in prison on remand, the same approach of full equivalence should beapplied here, meaning that the sentence of six months' home detention should bequashed and replaced with a sentence of home detention of one month.The respondent[21] Counsel for the respondent accepted that full credit should be allowed for theappellant's five months spent in pre-sentence detention, but submitted that the startingpoint taken by the Judge was at the lower end of the range available, and theaggravating features of the offending could have justified a greater uplift, which wouldlead to an end sentence of four months' home detention.[22] In terms of the starting point, counsel referred to the case of Opetaia v Police,where Moore J made a useful observation as to the assessment of starting points fordriving while disqualified offences:5the number of previous convictions for driving while disqualified or drivingwhile suspended is strongly and directly relevant in assessing the starting pointfor this kind of offending. While a mathematical or formulaic approach is notto be commended, a starting point of 10 months' imprisonment, albeit at thetop end of the range, may be appropriate for an eighth conviction. The factthat multiple convictions are sentenced together will inevitably justify theimposition of a harsher sentence.[23] Counsel submitted that this case was analogous to Affleck v Police, whichconcerned an unsuccessful appeal against a starting point of 20 months' imprisonmentfor a 10th conviction of driving whilst disqualified.6 In that case, Mander J noted thatthe previous convictions had all occurred within a four-year period, which increasedthe seriousness of the offending.7 As a result, it was counsel's position that the startingpoint of 12 months' imprisonment in the current case was on the lower end of the rangeavailable.[24] Counsel then submitted that the starting point could have been increased to agreater amount, namely through an uplift of four months each for the additional5 Opetaia v Police [2015] NZHC 2532 at [38].6 Affleck v Police [2017] NZHC 3220.7 At [15].dangerous driving charges, and an additional uplift of four months for the relateddriving offending, the appellant's previous driving history and offending whilst subjectto a sentence. This would lead to a total of 24 months' imprisonment, which would bereduced by 25 per cent for the guilty plea, commuted to nine months of homedetention, and then reduced again by five months to take into account the appellant'spre-sentence detention.Approach on appeal[25] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.8 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.9Relevant law and analysis[26] The observations of Simon France J in Longman, set out at [18] above, arerelevant to this case. They highlight the important distinction between pre-sentencetime spent on EM bail as opposed to remand in custody, and indicate that fullequivalence or full credit should be granted for the latter. In that case, Simon France Jreferred to the case of Booth v R, where he noted that the Supreme Court emphasisedthe need for pre-sentence detention to be accounted for effectively to all sentences.[27] Simon France J's approach in Longman has been followed and cited withapproval in a number of High Court cases. However, there appears to be a divergencein the manner in which this approach is applied.[28] Two recent cases of Kirk v R (discussed at [19] above) and Parkinson v Policeaffirm the observations of Simon France J in Longman but apply his reasoning indifferent ways. In Parkinson v Police, Clark J acknowledged that while a fullyequivalent reduction in time served may not be appropriate for EM bail, it should be8 Tutakangahau v R [2014] NZCA 279.9 Ripia v R [2011] NZCA 101 at [15].the norm for a discount to a sentence of home detention when pre-sentence custodytime has been served:10Full equivalence should be the norm, however, when assessing what reductionthere should be to a home detention sentence, the length of which is fixed byreference to a sentence of imprisonment. That is because, with a sentence ofimprisonment, the prisoner will automatically obtain credit for time spent oncustodial remand and that time will be deducted from the sentence that isserved. For this reason, in determining the length of any sentence ofimprisonment, the Court is not to take into account any part of the periodduring which an offender was on presentence detention. But where thesentence of imprisonment is to be supplanted with home detention the Judgewill have to take into account the time spent in custodial remand to ensure fullcredit is given for that time.[29] In Parkinson, Clark J reduced the sentence by the equivalent time the appellantspent in pre-sentence detention (11 weeks) from the end sentence of imprisonment(17 months' imprisonment), which was then commuted to 8.5 months' homedetention.11 Conversely, in Kirk v R, Woolford J reduced the sentence by 4.5 months(to reflect the time spent in custody pre-sentence) after the sentence had beencommuted to one of home detention. Similarly, in Stridom v Police, Cooke J took thefull two months served through pre-sentence custody off the end sentence of homedetention, after it had been commuted from a sentence of imprisonment, with HisHonour reasoning that:12The two months served can be treated as equivalent to a four month prisonsentence, being the equivalent period of two months' home detention. Thatshould be deducted from the 11 months so that the ultimate sentence nowimposed is nine months' home detention.[30] In Longman, Simon France J applied a 4.5-month discount (equivalent to thetime served in pre-sentence custody) after the sentence was commuted to one of homedetention.13[31] However, a number of cases have followed the approach of Clark J inParkinson. In Gotty v R (citing Clark J in Parkinson v Police) Wylie J observed thatthe approach from Longman ensures equality of treatment for offenders in that where10 Parkinson v Police [2019] NZHC 1710 at [19]. See also Adams on Criminal Law (Online ed,Thomson Reuters) at SA9.23A.11 At [22]-[23].12 Stridom v Police [2019] NZHC 354 at [50].13 At [14].a sentence of imprisonment is imposed, the offender automatically obtains credit forall of the time spent on custodial remand; all of the time spent is deducted from thesentence to be served.14 Thus, where a sentence of imprisonment is commuted to asentence of home detention, the sentencing Judge should ensure that full credit is givenfor the time spent in remand by deducting it from the calculated term of imprisonmentbefore it is commuted to a sentence of home detention.15[32] A similar approach was taken in Wharrie v R, McMillan v Police and Closey vPolice, where the time spent in custody was deducted from the sentence ofimprisonment, before being commuted to home detention.16 In McMillan,Dunningham J specifically noted that deduction is to be made from the nominal endsentence of imprisonment before the length of home detention sentence is set.17Conclusion[33] I prefer the approach taken by Cooke J in Stridom v Police. The five monthsserved by the appellant is effectively the equivalent of a 10-month prison sentence. IfMr Slade serves one month of home detention that will properly account for the timethat he spent in custody.Was the starting point for the lead offence too low?[34] Of the five charges faced by the appellant, only three were imprisonable.18[35] The maximum penalty for a charge of disqualified driving (third or subsequent)under s 32(1) of the Land Transport Act 1998 is two years' imprisonment. Themaximum penalty for each of the dangerous driving charges is three months'imprisonment. All of the offences with which the appellant was charged also provide14 Gotty v R [2020] NZHC 2035 at [18].15 At [18].16 Wharrie v R [2019] NZHC 633 at [32]-[33]; McMillan v Police [2019] NZHC 3323 at [43]-[44];and Closey v Police [2020] NZHC 990 at [35].17 At [43].18 The two charges of failing to stop are punishable by fine only.for disqualification from holding or obtaining a driver's licence for various periods.19There is no challenge to this aspect of the sentence.[36] The Judge correctly noted that the lead charge was the disqualified drivingcharge. He also noted that it was the appellant's ninth conviction and that he wasobliged to take into account the prior convictions.[37] He started at 12 months' imprisonment for the disqualified driving alone. Tothat, he cumulatively added two months for each of the dangerous driving charges.That is two-thirds of the maximum for each such offence. This led him to a combinedstarting point of 16 months' imprisonment. This needs to be measured against themaximum starting for the lead offence of 24 months' imprisonment.[38] In addition to the term of imprisonment for the three offences for whichimprisonment was available, the appellant was fined $250 on each of the two failingto stop charges. The Court also has to have regard to these penalties in assessing theoverall sentence.[39] While the starting point of 12 months in respect of the driving whiledisqualified charge might properly be described as lenient, it must be considered inconjunction with the cumulative sentences totalling four months for the dangerousdriving charges. If these sentences had been concurrent rather than cumulative, thenthe Crown's position would have been stronger.[40] I have considered a number of decisions that comment on the appropriatestarting point for a driving while disqualified (third or subsequent) conviction, wherethe defendant has a significant number of previous convictions of this nature. What isapparent is that a relatively broad range of starting points have been applied, and thatthere is not necessarily a set number of months imposed for nine previous convictions.For example, in Royal v Police, Miller J upheld the maximum two-year sentence of19 I note that the Judge's sentencing notes at [11] refer to "two separate charges of driving whiledisqualified". It is clear that there was in fact only one charge of driving while disqualified buttwo charges of driving dangerously.imprisonment imposed as the starting point by the sentencing Judge for the appellant's14th conviction, but acknowledged that sentences varied widely:20Mr Stevenson argued that Judges routinely adopt much lower starting pointsthan the two years used in this case, even for recidivist offenders such asMr Royal. I accept that lower starting points are sometimes used, butsentences vary widely. The question is whether the sentence was manifestlyexcessive. There were six charges of driving while disqualified over a shortperiod, and eight previous convictions for doing so. He was subject to releaseconditions. In these circumstances, it was open to the Judge to take a startingpoint of two years, the maximum for a single offence, before credit for guiltypleas: R v Butterfield CA100/97 23 July 1997. [41] In Maxwell v Police, Hansen J upheld a starting point of 12 months'imprisonment for the appellant's 11th conviction, but accepted that this was at thelower end of the range, and illustrated the wide range of applied starting points fordiffering numbers of previous convictions:21The starting point of 12 months was well within the range available to theJudge and, arguably, at the lower end of the range. The High Court decisionsreferred to by the Crown support that view, as does the Court of Appeal'sdecision in Butterfield where a starting point of 18 months was upheld for theeighth and ninth convictions for driving while disqualified. To similar effectin Finch v R the Court of Appeal upheld a 14-month starting point for theappellant's fifth, sixth and seventh offences of driving while disqualified. Inanother High Court decision, Royal v Police Miller J said that the two-yearmaximum sentence would be an appropriate starting point when sentencingon the eighth to fourteenth convictions of the appellant for driving whiledisqualified.[42] This was similarly noted in Iwikau v Police, where Williams J upheld a startingpoint of 10 months' imprisonment for the appellant's sixth conviction, but consideredit to be at the "top of the range":22Mr Iwikau submits that a starting point of 10 months is manifestly excessivebecause it is nearly triple the starting point for his last offending. Authoritiesnonetheless suggest a sentence of between six and 10 months was open to theJudge for a seventh offence. The authorities establish a trend of substantialincreases for subsequent offending between the fifth and tenth offences. Forinstance, a fifth conviction warranted a starting point of two months, while aneleventh conviction was held to warrant a starting point at or around themaximum of two years.20 Royal v Police CRI-2008-454-41, 17 June 2009 (HC) at [22].21 Maxwell v Police [2013] NZHC 3172 at [11] (footnotes omitted).22 Iwikau v Police [2013] NZHC 1515 at [13]-[15].Here, Mr Iwikau has been convicted of driving while disqualified every twelvemonths or so for the last four years. This is not a case where the offender hasrelapsed after a long period of non-offending. This is a pattern of reoffendingthat runs like clockwork.For these reasons, I consider the starting point to be the top of the allowablerange.[43] Given the broad range of starting points applied, I therefore consider that thestarting point of 12 months in this case was at the lower end of the range, but stillavailable to the Judge.[44] The totality of the sentence needs to be looked at, and I am not persuaded thata starting point of 16 months' imprisonment for the three imprisonable drivingoffences is inadequate.[45] Conversely, if the Crown's submission as to the appropriate duration of homedetention is accepted, that would result, when adding in the time served in custody onremand, to an effective prison sentence of 22 months. I am satisfied that would bemanifestly excessive in the circumstances.Outcome[46] The appeal is allowed in part. That part of the sentence imposing six months'home detention is quashed and replaced with a sentence of one-month home detention.That home detention is to be followed with six months post-detention conditions.[47] The conditions of home detention remain unchanged and are as set out at [30]of the Judge's sentencing notes. All other terms of the sentence including the periodsof disqualification and the fines, remain unchanged. The sentence of home detentioncommenced on 19 November 2020, and the appellant has now completed his sentenceand his home detention is at an end.Churchman JSolicitors:Wilkinson Smith Lawyers Limited, WhanganuiBarrister:Richard John Leith, Whanganui