PAUL v POLICE [2021] NZHC 1924

PAUL v POLICE [2021] NZHC 1924 [28 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2021-485-43[2021] NZHC 1924BETWEEN TEMUERA PAULAppellantAND NEW ZEALAND POLICERespondentHearing: 28 July 2021Counsel: R J Bayer and N L Donaldson for AppellantL R van der Lem for RespondentJudgment: 28 July 2021ORAL JUDGMENT OF MALLON JIntroduction[1] Temuera Paul was charged with and pleaded guilty to a number of dishonestycharges, unlawfully being in a building without reasonable excuse and failing toanswer bail.1 He was sentenced in the District Court to nine months' home detentionand to pay reparation of $5,438.78.2 He appeals his sentence on the ground thatinsufficient credit was given for the three months he spent in custody on remand andfor the four months he spent on electronically-monitored (EM) bail subject to a24 hour curfew.1 Burglary (x3): Crimes Act 1961, s 231(1)(a) and (b) (maximum penalty 10 years' imprisonment);taking, obtaining or using a document for pecuniary advantage (representative): s 228(1)(b)(maximum penalty seven years' imprisonment); theft of property under $500: ss 219 and 223(d)(maximum penalty three months' imprisonment); unlawfully being in a building withoutreasonable excuse: Summary Offences Act 1981, s 29(1)(a) (maximum penalty three months'imprisonment, $2,000 fine); failure to answer District Court bail: Bail Act 2000, s 38(a) (maximumpenalty one year imprisonment, $2,000 fine); and failure to answer Police bail: s 24 (maximumpenalty three months' imprisonment, $1,000 fine).2 Police v Paul [2021] NZDC 10785.Summary of facts[2] I adopt his counsel's summary of the offending which is as follows:(a) On 2 March 2020 Mr Paul found a discarded wallet in Waharoa (wherehe was living at the time) and used the credit card to make three separatepurchases of cigarettes from a local Mobil. The value of the propertyobtained was $186.40.(b) On 11 September 2020 Mr Paul and an associate entered the back shedof a property in Matamata and were found trying to steal a water blaster.Items taken included a leaf blower, mountain bike and water blaster.(c) Also on 11 September 2020, Mr Paul went to another address, walkinginto the house through the back door. When the occupant woke andasked Mr Paul who he was, he gave his name and left the address whentold to.(d) On 4 November 2020 Mr Paul entered the Horse and Jockey Inn inMatamata through an open window and took a cellphone. He returnedthe cellphone when asked about it by the staff.(e) Also on 4 November 2020, Mr Paul walked to another address andentered a garage on the property, taking a bicycle and helmet. Policerecovered the bicycle the next day after Mr Paul admitted to the Policethat it was at his home address.[3] Mr Paul was convicted and discharged on the charges of failing to answer bail.District Court[4] The Judge adopted a global starting point of 30 months' imprisonment for allthe offending. This was in accordance with what was proposed by counsel on hisbehalf. This was made up of a 12 month starting point for one of the burglaries, withan additional 12 month uplift for the two other burglaries, and then an additional sixmonth uplift for the dishonesty offending and offending whilst on bail, as well asMr Paul's relevant previous convictions. After mitigating factors, the Judge reducedthis to nine months' home detention.3The appeal[5] In reaching this end point the Judge said that deductions were available for theguilty pleas, the cultural factors and the remorse as evidenced by attendance at andparticipation in the two restorative justice meetings, as well as saying that he had takeninto account time spent on remand and on EM bail.[6] This meant he applied a total discount of 40 per cent to the adjusted startingpoint to reach an 18 months' imprisonment sentence before conversion to homedetention. Assuming a full guilty plea discount was applied, this meant that for all theother mitigating factors and for time spent on remand in custody, the discount was15 per cent.[7] A discount of 15 per cent would have been appropriate for the cultural report,remorse and restorative justice.4 It therefore appears that either an inadequate discountfor these factors was allowed or the Judge did not in fact make an appropriateallowance for time spent on EM bail and remand in custody.[8] The respondent submits that a discount was not required for the EM bail,although it was available, but does accept that the three months for time spent incustody should have been allowed. It does not seek to debate the appropriateness ofthe overall starting point, nor that the 40 per cent overall discount was appropriate forthe guilty plea, remorse, restorative justice and cultural factors.5[9] It is accepted that time spent on very restrictive bail conditions may be takeninto account in mitigation.6 Although it does not have to be, the Judge here said he3 The Judge did not say how much he had allowed for each of the mitigating factors he took intoaccount.4 See, for example, Waho v R [2020] NZCA 526; Court-Clausen v R [2020] NZCA 488; Woodstockv R [2020] NZCA 472; and Carr v R [2020] NZCA 357. Here, the Judge said the cultural report"describes eloquently Mr Paul's poverty of circumstances during his upbringing".5 The respondent accepts that the maths do not add up and the appeal should be allowed.6 Parata v R [2017] NZCA 48.had taken it into account. And, although the EM bail was subject to approved absencesfor training and employment, it does not appear that Mr Paul was able to takeadvantage of those approved absences, as he was still on the benefit at the time ofsentencing.[10] It is also accepted that an offender is entitled to credit for time spent in custodyon remand if a sentence of home detention is imposed. The leading case on when andhow these discounts should be taken into account is Simon France J's decision inLongman v Police.7 For the reasons explained in that judgment, credit for time spenton EM bail is considered when fixing the appropriate length of any sentence ofimprisonment. It is a mitigating factor that is assessed in the same way and at the sametime as factors such as remorse, guilty plea and rehabilitative efforts. As the Judgesaid, it feeds into the appropriate length of sentence.8 For the reasons also explainedin that judgment, credit for time spent on custodial remand is different. Conceptuallyit has nothing to do with the appropriate length of the underlying sentence. Rather itis time spent serving that sentence for which credit is appropriate. With a sentence ofimprisonment, credit is given automatically but with home detention, the Court needsto act to ensure it is given recognition.9 As the Judge also said, full equivalence shouldbe the norm.10[11] The Court of Appeal took a different approach in Laloni v R, a divisionaldecision given in 2015.11 In that case the Court deducted the time spent on remandfrom the adjusted length of the imprisonment sentence before converting it to homedetention. However, the Court did not set out why it had taken that approach. It alsopre-dated the Supreme Court's decision in Booth, which, as Simon France J said inLongman, is consistent with a default position of full credit given for the time onremand.12[12] The difference matters. Here, from the adjusted starting point of 18 months, afurther two months' discount is appropriate in my view for the time spent on restrictive7 Longman v Police [2017] NZHC 2928.8 At [7].9 At [8].10 At [9].11 Laloni v R [2015] NZCA 55.12 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.electronically-monitored bail, given he was subject to a 24 hour curfew and there isno suggestion of an compliance issues. If the three months in remand is taken from16 months' imprisonment, that would mean 13 months' imprisonment, which wouldadjust to six and a half months' home detention.[13] In contrast, if the 16 months is converted to eight months' home detention, andfrom that the three months is then deducted, that results in a sentence of five months'home detention. That period better equates with what would be the position if thesentence was not converted to home detention. That is, if a sentence of 16 months'imprisonment was imposed, Mr Paul would be released in a period of five months, thethree months on remand being counted as time served.[14] In accordance with the approach in Longman, the end sentence here should befive months' home detention.Result[15] The appeal is allowed. The sentence imposed in the District Court is quashedand replaced with a home detention sentence of five months. The reparation ordersremain in place.Mallon J