HOUGH v NEW ZEALAND POLICE [2017] NZHC 93

HOUGH v NEW ZEALAND POLICE [2017] NZHC 93 [8 February 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI-2016-485-98[2017] NZHC 93BETWEEN TERANCE JAMES HOUGHAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2017Counsel: S M M Bolland for AppellantR H De Silva for RespondentJudgment: 8 February 2017JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is3 pm on the 8th day of February 2017[1] On 11 November 2016 Mr Hough was sentenced by Judge Black to a combined total of 19 months' imprisonment for two discrete tranches of offending. He now appeals the sentence of 10 months' imprisonment on the first tranche. That sentence was imposed in substitution for an earlier, community based, sentence which had been imposed by Judge Hobbs in December 2015.BackgroundEarlier offending[2] On 30 October 2015 Mr Hough broke into a dwelling house, taking a few minor items and some cash. A neighbour confronted him and he was later stopped by police who found cannabis in his car. Mr Hough subsequently pleaded guilty to one count each of burglary, possession of cannabis and possession of cannabis oil.[3] The pre-sentence report recommended a sentence of community work and supervision. Judge Hobbs took a starting point of 18 months' imprisonment on thelead burglary charge but ultimately sentenced Mr Hough to six months' communitydetention (the maximum allowed), 120 hours' community work and 12 months'supervision. Judge Hobbs made it clear to Mr Hough that if he did not comply with the sentence, or reoffended, he would go to jail.[4] In March 2016 the Community Probation Service made an application to cancel and substitute the remainder of the community detention service. It appears that that was because the address was no longer suitable.[5] In April 2016 Mr Hough was charged with breaching his community work sentence. At this stage, 81 of the 120 hours imposed was outstanding.[6] Judge Hobbs' handwritten note on the application to cancel and substitute thecommunity detention sentence records that he cancelled the community detention sentence on 23 May 2016. His note also states "no substitute".Later offending[7] On 11 August 2016 Mr Hough went onto property belonging to Mr Kevin Angus and uplifted some copper spouting from the yard. On 12 August he returned to the yard but did not take any further spouting. He was recorded on CCTV on both occasions.[8] On 31 August he was stopped at a routine traffic stop and arrested for the burglary. He returned to his car and attempted to drive away. Police found a small amount of cannabis leaf and two empty syringes in the vehicle. These events gave rise to one charge each of burglary, unlawfully being in an enclosed yard, possession of a syringe and possession of cannabis, and two charges of resisting arrest.[9] By that date (31 August) only 31 of the 120 hours community work sentence were outstanding. Mr Hough had also completed eight of the 12 months'supervision. His community detention sentence had, as I have said, been cancelled. Because Mr Hough was denied bail (due to the inappropriateness of the bail address) he was unable to finish the earlier sentence.[10] On 9 September 2016 the probation service filed an application "to cancel and substitute" Mr Hough's sentence of supervision under s 54(1)(a) of theSentencing Act 2002. The affidavit in support, however, referred to cancelling and substituting both the supervision and community work sentences. The affidavit saidthat Mr Hough's compliance with those sentences had been "variable" and that he had not cooperated with the probation service's direction that he participate in areassessment for the purpose of attending a Departmental Programme as part of his supervision. He was, however, never charged with a breach in that respect.Resentencing and sentencing in the District Court[11] And so it was that Judge Black came both to determine the application to cancel and substitute the earlier sentence, and to sentence Mr Hough on the later charges.[12] In relation to the "resentencing", the Judge's notes show that he accepted the starting point of 18 months' imprisonment originally adopted by Judge Hobbs, and considered that Mr Hough was entitled to the full 25 per cent discount for an early guilty plea. The Crown agrees that the Judge then made a mathematical error in deducting only three months for that, rather than four and a half.[13] Then, having arrived at a (mistakenly) discounted sentence of 15 months'imprisonment, the Judge said:1 What is important is then that I give you some credit for the parts of thesentence that you did serve. You served three months of the CD sentence. That came to an end early. That is not your fault. That is just what happened and you are entitled to credit for that.You are also entitled to credit for the supervision and community work that you did do. You did do some of it. I have had to really take a step back and make a global assessment about what credit should be given and I am of the view that a credit of five months, so a third off the adjusted starting point, would be appropriate. That would get me to 10 months.[14] It is not necessary to go into detail about the sentencing in relation to the second tranche of offending. In essence, the Judge adopted a starting point of 12 months' imprisonment and gave a full 25 per cent discount for an early guilty plea. He referred to the need to consider totality. He refused home detention. Both Mr Hough and the Crown accept that the end sentence of nine months' imprisonmentfor the second tranche of offending was appropriate.Discussion[15] As I have said, the Crown accepts that there was an error in the Judge'scalculation of the guilty plea discount in relation to the first tranche of offending that should be recognised in the outcome of this appeal.[16] There is, however, a further matter. It was only tentatively raised by Ms Bolland on Mr Hough's behalf, apparently because he had been advised by otherinmates that he risked his sentence being increased if it was pursued. But in my view the point is an important one.1 New Zealand Police v Hough [2016] NZDC 22867 at [8]–[9].[17] The Sentencing Act 2002 expressly requires a "resentencing" court to "takeinto account the portion of the original sentence that remains unserved at the time ofthe order".2 And while the passage from the Judge's notes I have quoted above suggests that Judge Black did turn his mind to what Mr Hough "did do", the focus that is statutorily required is on what he did not do. One is not the mirror image of the other, as this case shows.[18] Even accepting that the 89 hours of community service and eight months'supervision that Mr Hough had completed might be regarded as broadly equivalent to a sentence of five months' imprisonment, such a "conversion" does not take intoaccount the fact that all that remained unserved of his earlier sentence was:(a) 31 hours of the community work sentence; and(b) four months' supervision.[19] So the real question is whether those remaining parts of Mr Hough's sentencecan fairly be said to equate to the substituted sentence of 10 months imprisonment. The fact that they cannot is evident here from the fact that the Judge gave Mr Hougha "credit" or discount of only half that amount (five months) for having completed over three times as much community service and twice as long a period of supervision.[20] I accept entirely that there is no mathematical conversion formula and that a resentencing may legitimately involve a modicum of increased firmness.3 That said, however, the sentence should not include sanction for any breach of the earlier sentence and there is a need for overall proportionality. But the most important reality here is that Mr Hough had very nearly completed his original sentence. Moreover, the fact that he did not complete it was largely (if not wholly) due to the fact that he was denied bail in relation to his later, separate offending.2 Sections 54(5) regarding supervision, 68(4) regarding community work, and 69I(4) regarding community detention.3 R v Morgan [2008] NZCA 232 at [13]–[15].[21] In my view the substituted sentence of 10 months' imprisonment was the result of asking the wrong question. That error led to a substituted sentence that was manifestly excessive.Conclusion[22] The appeal is allowed. I consider that a sentence of no more than twomonths' imprisonment would appropriately recognise the sentence that Mr Hough had left to serve.[23] The substituted sentence of 10 months' imprisonment for the earlieroffending is quashed. I substitute a sentence of two months' imprisonmentaccordingly. The sentence of nine months' imprisonment for the later offendingstands.____________________Rebecca Ellis JSolicitors: Paino & Robinson Solicitors, Upper Hutt, for AppellantCrown Solicitor for Respondent