SANFORD v POLICE [2020] NZHC 344

SANFORD v POLICE [2020] NZHC 344 [2 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-008/009/010[2020] NZHC 344BETWEEN SHARN KAREN SANFORDAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersCounsel: T Frazer-Rata for AppellantB D Tantrum & J V Barry for RespondentJudgment: 2 March 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 2 March 2020 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Ms Sanford has pleaded guilty to 14 charges.1 On 28 August 2019, she wassentenced to 23 months' imprisonment by Judge Glubb in the District Court atAuckland.2 On 19 December 2019, the Judge substituted the sentence ofimprisonment for a sentence of eight months' home detention and 100 hours'community work.3[2] The Judge said:[1] Today, as I have indicated, I have determined that it is appropriate that Igrant the application for substitution of sentence. I note that you have servedsome four months in custody since 28 August and I give you credit for that. Ireduce that 23 months by four months in consequence and I then convert thatto a home detention sentence and halve it in consequence. I come down toeight months' home detention and I also impose 100 hours of communitywork.[3] The sentence is appealed on the ground that the Judge erred by not taking intoaccount the time the appellant had spent on remand, and hence imposed a manifestlyexcessive sentence. The Crown supports the appeal. Both the appellant and Crownagree that four months' home detention is an appropriate sentence. Both Crown anddefence agree that this appeal can be dealt with on the papers.[4] By the time of Ms Sanford's re-sentencing on 19 December 2019 she had spentseven months and 12 days in custody. This should have been deducted from the homedetention sentence, recognising that Ms Sanford would have served half of hersentence in prison before being paroled.4 Ms Sanford had therefore spent theequivalent of a 14 month and 24 day sentence in prison. Her remaining sentence atthat point was therefore eight months and six or seven days. Without a compellingreason to deviate from the usual sentencing approach, this should have equated to fourmonths' home detention. The Judge expressly said he was halving the sentence inreducing it to home detention: clearly the Judge's error of omitting to take account ofthe time Ms Sanford had spent in custody while on remand was inadvertent.51 Police v Sanford [2019] NZDC 16937 at [1].2 Police v Sanford [2019] NZDC 16937 at [39].3 Police v Sanford [2019] NZDC 264284 Pursuant to the Parole Act 2002, s 86(1), and in accordance with Shepherd v R [2018] NZCA 232.The same approach was taken in Tasi v Police [2019] NZHC 2186, Wilson v Police [2018[ NZHC1352, and Kopa v Police [2017] NZHC 1244.5 Police v Sanford [2019] NZDC 16937 at [1].[5] To allow the appeal I must be satisfied in accordance with s 250 of the CriminalProcedure Act 2011 that an error occurred in imposing the sentence, and that a differentsentence should be imposed.6[6] An appeal can be allowed either because the sentence was manifestly excessiveor wrong in principle.7 In Tutakangahau v Police the Court of Appeal provided thatthe concept of "manifestly excessive" is a means of examining the significance of theerror in a sentence, to decide whether a different sentence should be imposed.8 Thecourt's focus should be on the final sentence imposed rather than its component partsor how the sentence was eventually reached. It is clear that the sentence here ismanifestly excessive: it is twice the appropriate sentence.[7] Accordingly I allow the appeal, and order that the sentence of eight months'home detention be quashed and substituted with a sentence of four months' homedetention. The 100 hours' community work element of the original sentence is leftunchanged._____________Paul Davison J6 Criminal Procedure Act 2011 s 250(2).7 R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.8 Tutakangahau v R [2014] NZCA 279 3 NZLR 482.