STACY PAORA v R [2021] NZCA 559

STACY PAORA v R [2021] NZCA 559 [21 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA319/2020[2021] NZCA 559BETWEEN STACY PAORAAppellantAND THE QUEENRespondentHearing: 21 July 2021Court: Miller, Thomas and Wylie JJCounsel: R M Mansfield QC for AppellantZ A Fuhr for RespondentJudgment: 21 October 2021 at 1.00 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 12 years and one month's imprisonment is quashed andsubstituted with a sentence of nine years and 10 months' imprisonment.C The minimum period of imprisonment is four years and 11 months.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] As a senior patched member of the Head Hunters Motorcycle Gang,Stacy Paora was involved in a relatively sophisticated enterprise supplyingmethamphetamine in the Bay of Plenty. He appeals his sentence of 12 years and onemonth's imprisonment, with a minimum period of imprisonment (MPI) of six years,on the grounds the starting point of 17 years' imprisonment was too high and thediscounts for various mitigating features, in particular for time spent on bail with anelectronic monitoring condition (EM bail) and his guilty plea, were too low.BackgroundFactual background[2] Mr Paora pleaded guilty to 18 charges:(a) participating in an organised criminal group;(b) conspiring to deal in ephedrine;(c) eleven charges (six of them representative) of supplyingmethamphetamine;(d) four charges of possessing methamphetamine for supply; and(e) unlawfully possessing a pistol.[3] Mr Paora's leadership role in the methamphetamine supply operation waslikened to that of a chief executive. He had overall control of the methamphetaminesupplied by the group, and the other members were required to comply with hisdirections and instructions, such as transporting and storing the drugs. While Mr Paoradistanced himself from the drugs themselves, the bulk of the profits from the supplyoperation accrued to him. He identified suitable gang prospects, enforced disciplineamongst members, and matched various gang members' abilities to the gang'soperations.[4] Between 16 November 2015 and 20 December 2016, Mr Paora oversaw andprofited from the supply of 691.8 grams of methamphetamine in total. During thatsame period, Mr Paora and his associates had in their possession at least two morekilograms of methamphetamine for supply, 1.02 kilograms of which were recoveredby the police. This resulted in the charges of possession and supply ofmethamphetamine, amounting to a quantity of 2.691 kilograms.[5] Between October and December 2016, Mr Paora was also involved inarranging a deal for the supply of a kilogram of ephedrine per month. This resulted inthe charge of conspiring to deal in ephedrine.[6] Mr Paora was initially remanded in custody following his arrest in December2016, but he was granted EM bail to a Te Atatu address on restrictive terms inSeptember 2017. In June 2018 his bail conditions were relaxed somewhat, and inNovember 2018 a home in Tauranga became his EM bail address. We examine hisbail conditions in some detail at [55]–[58] below.[7] On 11 October 2019, the police executed a search warrant on the Taurangaaddress and discovered a loaded pistol with further ammunition, cash, and a mobilephone in the concealed bottom of a gas cannister. This led to the charge of unlawfulpossession of a pistol. Mr Paora was remanded in custody after his arrest on thischarge.[8] Mr Paora also faced civil forfeiture proceedings in respect of around half amillion dollars in assets, including cash, jewellery, vehicles and a residential property.He withdrew his opposition to the making of those forfeiture orders shortly afterpleading guilty to the charges on 31 January 2020, less than two weeks before he wasto stand trial. He was sentenced on 28 May 2020.1High Court sentencing[9] After setting out the circumstances of the offending, Hinton J consideredMr Paora's personal circumstances. She noted he had a relatively small number ofprior convictions (having received only a single sentence of imprisonment) and thathe had acknowledged the harm that his drug offending could cause individuals,families and communities, expressing some level of remorse for the offending.2The Judge canvassed Mr Paora's background in some depth, including the fact that,1 R v Paora [2020] NZHC 1595.2 At [21]–[22].although he was bought up fluent in the reo and tikanga Māori ofTe Whānau-ā-Apanui, he drifted away from his family from the age of 13 and turnedto drugs and alcohol, which was, according to Mr Paora's s 27 report, driven by havingbeen abused between 13 and 15 years of age by a relative.3[10] The Judge concluded that the report writers were correct in identifying somenexus between endemic socioeconomic disadvantage and the trauma of the abuseMr Paora experienced, and his subsequent involvement in serious organised criminalactivity.4 She accepted that those circumstances impaired Mr Paora's moral agency inchoosing to offend, reducing his culpability. She gave a discount of 15 per cent forthese factors plus remorse.5[11] The Judge noted the sentences imposed on Mr Paora's co-offenders,Messrs Morgan, Ranui and Petersen, where starting points of six years' imprisonment(for supply of 56 grams of methamphetamine, and other charges), 11 years'imprisonment (for supply of 84 grams of methamphetamine, possession for supply of1.148 grams of methamphetamine, and other charges) and 16 years' imprisonment (forsimilar offending to Mr Paora) respectively were imposed.6[12] The Judge then considered the bands for methamphetamine offending set outin Zhang v R.7 Noting the quantity of methamphetamine (2.691 kilograms), sheplaced the offending in the middle of band five, which indicated a sentence of between10 years and life imprisonment.8 The other charges were treated as aggravatingfeatures.9 Taking into account the co-offenders' sentences and the submissions of theparties (the Crown sought a starting point of 19 to 20 years' imprisonment while thedefence sought a starting point of 15 to 16 years' imprisonment), a starting point of17 years' imprisonment was adopted.103 At [23] and [26].4 At [30].5 At [33], [65] and [70]–[71].6 At [34]–[37].7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.8 R v Paora, above n 1, at [41] and [49].9 At [43].10 At [58].[13] In reaching this starting point, the Judge also had regard to the fact thatMr Paora had "the greatest conceivable degree of involvement in the enterprise"because he directed and organised the sale of methamphetamine on a commercial scalefor substantial financial gain, used his wife's business as a cover for the enterprise andused other diversionary tactics and subterfuge in order to attempt to avoid detection.11The Judge considered the description of Mr Paora as the chief executive of theenterprise was apt, as he applied his substantial financial gains to further his controland influence over his associates, while seeking to minimise the risk of being detectedby making others take the risk of being apprehended in possession of drugs.12[14] The Judge therefore rejected Mr Paora's contention that his role was only"slightly higher" than Mr Petersen's, who was "very much" Mr Paora's loyallieutenant.13 She also considered a range of cases in reaching the 17-year startingpoint, including R v Cutler, R v Zhou, R v Bouavong, R v Hughes, and the sentence ofMr Thompson (one of the appellants in Zhang).14[15] The Judge found that, of these cases, Mr Thompson's was the most analogous,as Mr Paora had a similar leading role and, while the amount of methamphetaminewas significantly less in Mr Paora's case (Mr Thompson was involved in the supplyof 4.2 kilograms of methamphetamine and the possession for supply of a further2.6 kilograms), his offending extended over a longer period and there were additionalaggravating factors.15 Therefore, a starting point of 17 years' imprisonment wasjustified, and also commensurate with the sentence adopted in respect ofMr Petersen.16[16] The Judge imposed a nine-month uplift in respect of the firearm offending,leading to an adjusted starting point of 17 years' and nine months' imprisonment.1711 At [51].12 At [51].13 At [52].14 R v Cutler [2019] NZHC 2737; R v Zhou [2009] NZCA 365; R v Bouavong [2012] NZHC 932;R v Hughes [2018] NZHC 1760; and Zhang v R, above n 7, at [265]–[272].15 R v Paora, above n 1, at [57].16 At [58]–[59].17 At [60] and [64].[17] After allowing the 15 per cent discount for cultural factors and remorse,the Judge refused any discounts for Mr Paora's limited criminal history or for the assetforfeiture.18 A 10-month discount was granted for the 25.5 months he spent on EMbail (the majority of this while subject to a 24-hour curfew and extensive restrictions),and a 15 per cent discount was given for a guilty plea entered less than two weeksprior to the start of an anticipated five-week jury trial.19 Mr Paora had sought a20 per cent discount on the basis he was only able to enter into meaningful resolutiondiscussions when the Crown relented and withdrew a representative charge ofsupplying methamphetamine.[18] This resulted in an end sentence of 12 years and one month's imprisonment.20The Judge also imposed a 50 per cent MPI, rounded to six years.21Issues[19] There are five issues for us to address:(a) Was the starting point of 17 years' imprisonment on the drug chargestoo high?(b) Was the guilty plea discount of 15 per cent too low?(c) Was the discount for time spent on EM bail too low?(d) When and how should the guilty plea discount be applied?(e) Was an MPI required?18 At [74]–[76].19 At [92] and [98].20 At [99].21 At [106].Was the starting point of 17 years' imprisonment on the drug charges too high?Mr Paora[20] Mr Mansfield, for Mr Paora, submitted that the Judge's starting point was outof step with the guidelines in Zhang, as well as post-Zhang decisions of this Court.He referred to a spectrum of analogous cases based on four post-Zhang decisions.At the more extreme end were Mr Thompson's sentence in Zhang, discussed above,and Campbell v R, where a starting point of 18 years' imprisonment was not interferedwith by this Court (although the starting point was not a ground of the appeal).22The offender in that case played a leading role over two years in trafficking more thansix kilograms of methamphetamine.[21] At the lower end of the spectrum were the cases of Hall v R and Parkes v R.23In Hall, Mr Roberts (one of the appellants) played a leading role in the manufactureof 1.14 kilograms of methamphetamine and this Court held that the appropriatestarting point was 12 years' imprisonment.24 In Parkes, the appellant played a leadingrole in the supply of approximately 560 grams of methamphetamine, for which thisCourt considered the starting point should be nine years' imprisonment.25[22] Mr Mansfield submitted that Mr Paora's offending sat squarely between thesetwo groups of cases. While more serious than the latter two cases, it was considerablyless serious than Mr Thompson's case, or that in Campbell. He said the offending wasnot particularly sophisticated or in the nature of a large-scale commercial enterprise.He emphasised that a relatively small amount of methamphetamine was involved:2.691 kilograms in respect of which two kilograms was for the purpose of supply and691 grams were supplied. He described the amount as relatively standard in casesinvolving gangs and commercial dealing. Mr Mansfield suggested the charge ofparticipating in an organised criminal group added nothing to Mr Paora's overallculpability, as it would be rare for an offender who played a leading role in distributingcommercial quantities of methamphetamine not to be part of some sort of organisedcriminal group.22 Campbell v R [2020] NZCA 631.23 Hall v R [2020] NZCA 183; and Parkes v R [2020] NZCA 203.24 Hall v R, above n 23, at [31].25 Parkes v R, above n 23, at [51]–[52].[23] In Mr Mansfield's submissions, Mr Paora's offending was comparable to thatin Parkes and warranted a starting point in the region of 11 years' imprisonment butjustified a two-year uplift in line with Mr Thompson's sentence. Even with anadditional year for the other offending, the starting point should only be 14 years'imprisonment.The Crown[24] Ms Fuhr, for the Crown, submitted that the 17-year starting point imposed bythe Judge was in range. The starting point was not only based on the quantity ofmethamphetamine (which placed the offending clearly within band five of Zhang) butwas also because Mr Paora played a leading role, characterised by his seniority,responsibility, and profit motives. The 17-year starting point was consistent with othercases, for example Chai v R, Martin v R, and the sentencing of Mr Hobson (one of theother appellants in Zhang).26[25] Ms Fuhr contended the cases of Hall and Parkes were of limited assistance,given that both involved significantly smaller quantities of methamphetamine and that,in those cases, the defendants played less of a leading role. For example, Mr Parkesdid not have substantial influence over others; he only supplied methamphetamine toone wholesale customer, did not use business fronts to conceal his illicit activities andwas not carrying out his enterprise as a senior patched gang member.Discussion[26] The guideline judgment which sets out the relevant "bands" formethamphetamine offending is Zhang v R.27 Mr Paora's offending involved thepossession and supply of 2.691 kilograms of methamphetamine, which falls into thehighest band, band five. Importantly, the Court in Zhang held that, while quantity isobviously valuable in assessing culpability, it is not the sole determinative factor.28A full evaluation of the circumstances is required, including a consideration of thedefendant's role in the offending. The Court set out examples of the role an offender26 Chai v R [2020] NZCA 202; Martin v R [2020] NZCA 318; and Zhang v R, above n 7, at [229]–[238].27 Zhang v R, above n 7, at [125].28 At [104].might play (from lesser, to significant, to leading) and how that might be taken intoaccount.29[27] It is worth discussing in more detail Mr Thompson's appeal in Zhang v R.30Mr Thompson was the principal offender in a sophisticated and extensivemethamphetamine distribution network in Hawke's Bay. He was involved in thesupply of 4.2 kilograms of methamphetamine and the possession for supply of afurther 2.6 kilograms of methamphetamine over a 12-month period. A starting pointof 16 years' imprisonment with a two-year uplift for possession for supply, resultingin an adjusted starting point of 18 years' imprisonment, was found to be within rangeof the new Zhang bands.31 Mr Thompson's case involved somewhat more seriousoffending than in the present case not only because of the greater quantity ofmethamphetamine, but also because of the significant complexity of the operation,in which Mr Thompson was the leading figure.[28] In Chai, the appellant was involved in the importation of some 60 kilogramsof ephedrine and two kilograms of methamphetamine. This Court held that the startingpoint of 15 years' imprisonment imposed by the sentencing Judge was too strictpost-Zhang, given that Mr Chai played a significant, but not leading, role in theoperation (particularly as he reported to others higher up the chain of command).32The Court held a 13-year starting point was more appropriate.33 The Court observedthat the ringleader of a supply operation concerned with around 1.95 kilograms ofmethamphetamine might expect a starting point near the top of the band at 16 years.34[29] It is apparent from these and other cases discussed by the Judge and counselthat the role played by the offender in a methamphetamine operation is an importantconsideration. Mr Paora played a leading role, including directing, organising, buyingand selling on a commercial scale, having substantial influence on others in the chain,acting in expectation of substantial financial gain, and using his wife's business as acover. The fact the Judge considered his role was akin to that of the "chief executive"29 At [126].30 See [265]–[281].31 At [272].32 Chai v R, above n 26, at [19]. See also at [12].33 At [21].34 At [20].confirms this.35 The starting point also had to take into account the charge ofconspiring to deal in ephedrine, where the amount involved could have producedsomewhere between 500 to 750 grams of methamphetamine. Mr Paora's offendingwas more serious than that in Chai, involved greater quantities than those in Hall, andwas only narrowly less serious in all the circumstances in Thompson.[30] We are, therefore, satisfied that the starting point of 17 years' imprisonment onthe drug charges, including participation in an organised criminal group, was not outof range. The starting point was also consistent with the starting point of 16 yearstaken in respect of Mr Paora's "loyal lieutenant", Mr Peterson.36Was the guilty plea discount of 15 per cent too low?[31] The real force of Mr Mansfield's submissions was that Mr Paora should havereceived a more generous discount for his guilty plea than the 15 per cent allowed bythe Judge. The basis for that was the history of the way in which the Crown had dealtwith the charges. This issue is also relevant to the discount in respect of EM bail,which we discuss next.[32] As well as the charges in respect of which he was sentenced, Mr Paora hadfaced a representative charge of supplying methamphetamine. Mr Mansfielddescribed that as the "flagship" charge, the Crown contending that approximately$1 million of methamphetamine was involved. Notably, Mr Paora's co-defendantswere not subject to that charge.[33] In order to substantiate the charge, the Crown intended to rely on evidenceobtained as a result of an audit of Mr Paora's finances. Mr Mansfield said he raisedthe issue of disclosure at a number of trial callovers held in advance of the eight-weektrial scheduled to commence in October 2018. However, the trial had to be adjournedbecause the disclosure of the financial information did not occur until close to the trialdate. When the trial was adjourned, Mr Paora's co-defendants all pleaded guilty.Mr Mansfield said he had telephone conversations with the then Crown prosecutor35 R v Paora, above n 1, at [51].36 We also note that some of the offending occurred while Mr Paora was on bail for charges involvingviolence, theft, kidnapping and firearms. Mr Paora was acquitted of those charges in 2016.(who has since left the Tauranga Crown Solicitor's Office) making it clear thatMr Paora, like his co-defendants, would plead guilty to all charges but would not pleadguilty to the representative supply charge. Mr Mansfield understood the prosecutorwould take instructions. The next he heard was an email from the Crown on8 October 2018 proposing that all charges be resolved by guilty pleas with a disputedfact hearing in respect of the representative charge. Mr Mansfield's response was tosay that a five-week trial would be required. We agree with Mr Mansfield that theproposal put forward by the Crown did not represent any real advantage to Mr Paora.[34] Mr Mansfield accepted that he should have made Mr Paora's position plain inOctober 2018. That is, that Mr Paora would have pleaded to all charges except therepresentative one. Instead, he had no further correspondence with the Crown until11 December 2019 when he wrote to the Crown for the purposes of use at sentencing,saying that the trial would not need to proceed if the representative charge and that ofparticipating in an organised criminal group were withdrawn.[35] The Crown responded on 13 December, confirming that the representativecharge would be withdrawn in return for guilty pleas on all other charges. Agreementwas reached on 20 December 2019. Given the Christmas holiday period, guilty pleaswere not entered until 31 January 2020, with the trial then scheduled to begin on10 February 2021.[36] The Supreme Court in Hessell v R emphasised that the credit given for a guiltyplea must reflect all the circumstances in which the plea is entered, including whetherit is truly to be regarded as an early or late plea, and the strength of the prosecutioncase.37 In the Court of Appeal decision, this Court confirmed that the critical issue indetermining the amount of the reduction is whether the defendant had clearlydemonstrated a willingness to plead guilty to the charge of which he or she waseventually convicted, and at what stage of the proceedings that occurred.38 The Courtthen said that, as a matter of general principle, an offender who is convicted of anoffence for which he or she had earlier communicated a willingness to plead guiltyshould receive the maximum reduction available at the stage of proceedings at which37 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].38 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [40].the willingness was communicated.39 It also strongly recommended that, if anoffender does not wish to plead guilty to the offence charged but is prepared to pleadguilty to a lesser (specified) offence, he or she should communicate that willingnessin writing to the prosecutor, with a copy to the court. If that is done, then there will beno dispute as to what the defendant was willing to plead to and when.40 This remainsbest practice. Had it been followed in this case, the Court would not have had toresolve an unfortunate disagreement between counsel.[37] The Crown did dispute Mr Mansfield's version of events. We had hoped thatcounsel would be able to agree on what occurred in the discussions immediatelyfollowing the 2018 adjournment but that was not to be the case. We can, however, saythat we find Mr Mansfield's characterisation of events persuasive. We say that becauseall the co-defendants pleaded guilty after the 2018 adjournment, the evidence inrespect of the other charges was strong and, given the Crown's suggestion inOctober 2018 of a disputed fact hearing on the representative charge, it was clearlyaware then that that charge was the real sticking point.[38] For these reasons, we are satisfied that there was an error and Mr Paora wasentitled to a discount for his willingness to plead guilty as at October 2018.41 Mr Paorais therefore entitled to the same discount for a guilty plea as his co-defendants, that is25 per cent.42Was the discount for time spent on EM bail too low?[39] The same considerations are relevant when considering the discount whichshould have been afforded to Mr Paora in respect of his time spent on EM bail.The Judge allowed a discount of 10 months (40 per cent of the 25 months and 11 daysMr Paora spent on EM bail).39 At [41].40 At [43].41 We are not clear whether that offer included pleading guilty to the charge of participation in anorganised criminal group. In any event, we agree with Mr Mansfield that the charge had minimalimpact on the starting point.42 See R v Petersen [2018] NZHC 3263 at [65], [75] and [87].[40] In Mr Mansfield's submission, the Crown had unnecessarily extended the timeMr Paora spent on EM bail by pursuing the extremely serious but ultimatelyabandoned representative charge of supplying methamphetamine. This, combinedwith the strict EM bail conditions, meant there were exceptional circumstanceswhereby a discount of over 50 per cent of EM bail time could be granted, in the orderof 15 to 18 months (around 70 per cent).[41] Ms Fuhr disagreed, saying there were no exceptional circumstances. Mr Paorahad offended while on bail (which led to the charge of possession of a pistol) andbreached conditions by possessing mobile phones.[42] It has long been accepted that the fact a defendant has been remanded on bail(the length of time a defendant has been on bail, the conditions of the bail and thedefendant's compliance) may affect sentence.43 Compliance evidences rehabilitativesuccess or potential. And, while bail conditions are imposed for preventive reasons,a strict curfew may constrain liberty sufficiently to require recognition if the sentenceis to be proportional in all the circumstances of the offence and the offender. In its2000 judgment in Faisandier v R, this Court remarked that it had not been the practiceto make adjustments to prison sentences for periods spent on bail on remand, evenunder restrictive bail conditions, but recognised that some allowance could be made,as a matter of overall impression, having regard to the duration and restrictive natureof what amounted to electronically monitored house arrest.44[43] EM bail was introduced in September 2006. A defendant is not permitted toleave the EM bail address at any time except as authorised and is required to submitto the electronic monitoring of his or her compliance with the restrictions onmovement.4543 R v Nepe [2008] NZCA 98 at [33]; Keown v R [2010] NZCA 492 at [12]; and Tamou v R [2008]NZCA 88 at [18]–[19].44 R v Faisandier CA185/00, 12 October 2000 at [28]. The case predated statutory provision forelectronic monitoring, but electronic monitoring was imposed as part of the offender's bailconditions and subsisted for a period of 10 and a half months.45 Bail Act 2000, s 30L(1)(a) and (b).[44] Section 9(2)(h) of the Sentencing Act 2002 was inserted in 201346 and turnedwhat was a relevant, but not compulsory, factor into a mandatory consideration in thesentencing calculation.47 It provides that a court must take into account "time on bailwith an EM condition". Pursuant to s 9(3A), the court must consider:(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 absences from theelectronic monitoring address; and(c) the offender's compliance with the bail conditions during the periodof bail with an EM condition; and(d) any other relevant matter.[45] We make several points about s 9(2)(h):(a) it is to be contrasted with s 90 of the Parole Act 2002 in which thelegislature has prescribed one-for-one credit for time spent on custodialremand. Section 30Q of the Bail Act 2000 provides that a defendant onEM bail is not in custody.(b) the legislature has singled out EM bail for mandatory consideration,indicating that the State's ability to monitor compliance is important.(c) the legislation does not preclude credit for other restrictive conditionsof bail; and(d) credit for EM bail, or other restrictive bail conditions, remains anevaluative decision for the sentencing court.[46] In Tamou v R, this Court observed that none of the cases had adopted anarithmetical approach to credit for restrictive bail conditions, noting that it is difficult46 Bail Amendment Act 2013, s 42(3).47 This practice appeared to begin in 2000 with R v Faisander, above n 44. It was adopted in latercases of this Court including Tamou v R, above n 43, at [18]–[19]; Keown v R, above n 43, at [7];and Schuster v R [2011] NZCA 343 at [10]. See also Adams on Criminal Law (online ed, ThomsonReuters) at [SA9.23A].to equate time spent on restrictive bail with time spent as a remand prisoner.48The Court held that what is required is an evaluative assessment of all thecircumstances.49[47] In Keown v R, this Court rejected an argument that time spent on EM bailshould be calculated in a similar manner to sentences of home detention. The Courtpointed out that:50Electronic monitoring, when it is required as a condition of bail, is a means ofmonitoring compliance with restrictions on movement which are necessarilyspecified in each case, and may vary from case to case — for example,restriction to a home, or to a home and place of work. Absences for specificpurposes may be authorised. The degree of restriction on liberty which isimposed by conditions of bail may vary widely, both in cases where electronicmonitoring is imposed as a condition of bail and where it is not.[48] And while the degree of restriction on liberty may vary, we observe thatelectronic monitoring is more likely to be imposed where the conditions of bail aremore onerous, the obvious example being confinement to an address for 24 hours aday. There is no doubt that the introduction of EM bail allowed bail to be granted incircumstances where it would otherwise not have been. It is invariably connected tohighly restrictive conditions. The mandatory considerations in s 9(3A) make it clearthat it is the relative restrictiveness of the electronic monitoring condition, as well ascompliance with it which can be monitored and verified,51 which may justify credit atsentencing for a compliant defendant.[49] Bail conditions are intended to interfere as little as reasonably possible with anaccused person's right to liberty. At sentencing, the defendant, having pleaded or beenfound guilty, is now an offender who is being sentenced. The Court is being asked toadjust the sentence for past conditions of bail. In the case of an offender facing48 Tamou v R, above n 43, at [19].49 At [19]–[20]. This analysis was also made in Bisschop v R [2008] NZCA 229 at [18], whichremains authority for how sentencing courts should determine the term of home detention.Bisschop confirms that a sentencing judge is not required to halve the otherwise appropriate termof imprisonment when calculating the term of home detention, although such practice iscommonplace.50 Keown v R, above n 43, at [10]. Leave to appeal was refused in Keown v R [2011] NZSC 7,the Supreme Court stating that in light of that Court's decision in Hessell v R, above n 37, therewas no arguable basis for saying that a more structured approach should be taken to sentencingthose who have been on EM bail.51 Bail Act, s 30O(a).imprisonment, that calls for comparison between the terms of EM bail and theconditions in which a prisoner is held.[50] New Zealand courts have not treated restrictive bail as equivalent to remand incustody, even where bail conditions included conditions amounting to house arrest.For a sentenced prisoner, conditions of imprisonment are likely to include: substantialperiods of time confined to a cell; a strict institutional regime for meals, exercise andactivities; limited communication with people outside prison (through weekly visitsand telephone calls and mail); and substantial loss of the capacity to participate infamily life. The loss of personal autonomy is profound.[51] As this Court recognised in Keown and in Parata v R, bail conditions maypermit a defendant substantially greater flexibility of movement and contact than ifremanded in custody.52 Although confined to the home, they may move about in it,engage in any activity not prohibited by bail conditions and participate in family life.[52] A brief survey of overseas practice53 suggests that it is usual to permit a credit,the amount of which is discretionary but in practice is less than one-for-one.[53] There is no guideline about the discount which should be afforded to adefendant for time spent on EM bail in New Zealand, although percentages rangingbetween 30 and 50 per cent are often used,54 and this Court recently noted that anallowance of up to 50 per cent is not uncommon.55 That is not an upper limit. As wehave explained, the assessment of credit is an evaluative decision to be made having52 Keown v R, above n 43, at [12]–[13]; and Parata v R [2017] NZCA 48 at [11].53 See Natalia Antolak-Saper "The Relevance of Bail Conditions to the Sentencing of Offenders"(2017) 19(1) Flinders LJ 89 for a survey of Australian practice. See R v Ijam 2007 ONCA 597,87 OR (3d) 81 for practice in Ontario. In the United Kingdom, a defendant under an electronicallymonitored curfew of between nine and 24 hours in the day is entitled to credit comprising days oncurfew less any days on which the offender was in breach, divided by two: see the Criminal JusticeAct 2003 (UK), s 240A and the Sentencing Act 2002 (UK), s 325. The rationale was that "a curfewis clearly less arduous than being remanded to custody": (15 October 2008) 704 GBPD HL 810(Remand on Bail (Disapplication of Credit Period) Rules 2008 — Lord Bach).54 See for example Parata v R, above n 52, at [15] (upholding a 40 per cent discount);R (CA528/2016) v R [2017] NZCA 210 at [14] (finding a 30–50 per cent discount was available);and Chea v R [2016] NZCA 207 at [111] (allowing a 31 per cent discount). Smaller discountsmay also be made: see for example Keown v R, above n 43, at [16], holding that a 16 per centdiscount would be reasonable.55 See Hall v R, above n 23, at [37], citing Wharrie v R [2019] NZHC 633 at [28]; A (CA90/2017) vR [2017] NZCA 278 at [89]–[91]; Huata v R [2017] NZHC 2833 at [30]; and R (CA528/2016) vR, above n 54, at [14].regard to the restrictiveness and duration of EM bail conditions in each case. Courtshave sometimes considered it appropriate to award a discount of more than 50 per centof time spent on EM bail to reflect its restrictive conditions.56[54] We note that this Court observed in Parata that were equivalence to be grantedfor EM bail, offenders would have an incentive to extend the period of bail as a meansof serving a sentence.57 We prefer to regard that not as a policy reason to denyequivalence but as something which sentencing judges might need to bear in mind ifcontemplating near-equivalence in any given case if the circumstances warrant it.And any such consideration should also take account of the fact that credit for timespent on EM bail is applied not to the time the prisoner will actually serve, which isdetermined by the Parole Board, but to the sentence expiry date; that is, it does nottake account of parole.[55] We turn to the appropriate allowance in Mr Paora's particular circumstances.As explained at [6] above, he was remanded in custody on arrest and granted EM bailin September 2017.58 Muir J, being concerned about the risk of drug-related offendingwhile on bail, imposed a range of strict conditions in an attempt to mitigate that risk.59These included a 24-hour curfew at the Te Atatu address (the home of some ofMr Paora's senior whanau members), provision of a cash surety of $100,000, not tomeet with any person at the address (apart from his wife and children, and legal ormedical practitioners) other than in the company of one or more of the residents, not topossess any cellphone or device capable of connecting to the internet, and to besupervised by one or more of the four residents of the bail address at all times.Mr Paora was permitted to leave the address with prior approval of Corrections or toattend rehabilitative programmes. He was not to associate with co-offenders or gangmembers.[56] In June 2018, Mr Paora's conditions were varied by Whata J, who noted hiscompliance with those conditions over the 10-month period and attributed this to his56 See Hohipa v R [2015] NZCA 485, allowing a 12-month discount for 14 months spent on EM bailwith restrictive conditions.57 Parata v R, above n 52, at [13].58 Paora v Police [2017] NZHC 2128.59 At [39].deep re-immersion with whanau over that period.60 As a result, the Judge adjustedMr Paora's hours of supervision at the Te Atatu address to between 7 pm and 7 am,permitted access to a laptop for pre-approved purposes under the direct supervision ofhis uncle or aunt (and with controls placed on internet access), and allowed him toattend a gym at times approved by an EM bail officer.61 The Judge recognised that,because it was no longer necessary that he be supervised by a whanau member at alltimes, Mr Paora's compliance with all the terms of bail depended on his owncommitment to compliance.[57] Mr Paora remained under these conditions from June 2018 to November 2018.It is not suggested that he failed to comply. As we have noted, his effective offer toresolve the charges was made in October 2018.[58] In November 2018, Mr Paora's bail conditions were further varied by changinghis EM bail address to that of his sister in Tauranga so he could be closer to his wifeand children.62 He remained subject to conditions including electronic monitoring,a 24-hour curfew and non-association,63 but overall his bail was significantly lessrestrictive. The condition requiring that he be supervised by someone in the home wasdeleted in its entirety.64[59] Mr Paora remained under these conditions until October 2019 when he wasarrested for breaching his bail conditions following the execution of a search warrantat the Tauranga property.[60] We are then particularly concerned with the period Mr Paora spent on EM bailfrom October 2018. There are two, countervailing, considerations here. The first isthat he offended while at the Tauranga address. We have referred to the pistol andother items seized when the house was searched. In addition, he had possession of alarge amount of cash and prohibited internet-capable items, which had been used tosearch for drug-related information. These were serious breaches. His bail conditions60 Paora v Police [2018] NZHC 1511 at [19]–[20].61 At [22]–[25].62 Paora v Police [2018] NZHC 3128.63 At [31].64 At [12(c)] and [32].had been designed to prevent such behaviour. In principle he should not receive asentencing credit for periods during which he offended or was in material breach ofbail conditions. In our view, in the circumstances the onus is on him to satisfy us thathe complied with bail conditions.65 Having regard to the nature of the breaches, whichapparently evidenced continued drug offending and gang association, we are notprepared to accept that he had been compliant before the search warrant was executedin October 2019.[61] The second consideration is that, had the charges been resolved inOctober 2018 in the way in which they ultimately were and as effectively offered byMr Paora at that time, then he would not have spent the additional 12 months onrestrictive EM bail conditions. He would have been in prison, earning credit towardshis parole eligibility and sentence expiry dates. In other circumstances we would makean allowance for this second consideration but we are not prepared to do so incircumstances where Mr Paora was in serious breach of his bail conditions at the sametime.[62] We would allow a greater credit than did the Judge for the 14 months Mr Paoraspent on very restrictive bail at Te Atatu (September 2017 to November 2018), the first10 months requiring 24-hour supervision. In our view, compliance with such termsover such a long period justifies substantial credit. We would fix it at 70 per cent ofthat period. As indicated, we would allow no credit for the time spent on EM bail atTauranga. The resulting allowance would be 10 months, the same discount as theJudge allowed but by a different route.When and how should the guilty plea discount be applied?[63] Both counsel sought guidance from the Court as to whether the new sentencingmethodology espoused in Moses v R could be retrospectively applied.66 The decisionof this Court in Cheung v R answers the question.67 The Court will not ordinarily65 We characterise it as a mitigating fact for purposes of s 24 of the Sentencing Act.66 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.67 Cheung v R [2021] NZCA 175.apply Moses where an offender was sentenced before 15 July 2020, the date Moseswas issued, and an appeal was not pending at that date.68[64] Given Mr Paora's appeal was filed on 15 June 2020 and given that we areallowing the appeal in any event, it is appropriate for us to recalculate Mr Paora'ssentence using the Moses methodology.[65] From the starting point of 17 years and nine months' imprisonment we allowthe discount of 15 per cent for cultural factors and remorse, the increased guilty pleadiscount of 25 per cent, and 10 months for time spent on EM bail.[66] That results in a sentence of nine years and 10 months' imprisonment.Was an MPI required?[67] Although not a ground of appeal, in oral submissions Mr Mansfield suggestedthat the Court should consider whether an MPI was in fact required in thecircumstances of this case. He referred to Mr Paora's age at the time of offending(30 to 31) and his age at sentencing (35), and said that the six-year MPI (prior to anyreduction from this appeal) will result in Mr Paora being in some form of effectivecustody for 10 years before he is eligible for parole. As against that, he noted that thepre-sentence and s 27 reports discussed his good prospects for rehabilitation.Mr Paora had no prior convictions for drug dealing.[68] The imposition of a 50 per cent MPI was entirely orthodox given the nature ofthis offending. The reduction in sentence addresses Mr Mansfield's concerns aboutthe period of time before Mr Paora will be eligible for parole.Result[69] The appeal against sentence is allowed.[70] The sentence of 12 years and one month's imprisonment is quashed andsubstituted with a sentence of nine years and 10 months' imprisonment.68 At [48].[71] The MPI, at 50 per cent, is four years and 11 months.Solicitors:Crown Law Office, Wellington for Respondent