KINGHORN v NZ POLICE [2018] NZHC 2026

KINGHORN v NZ POLICE [2018] NZHC 2026 [9 August 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000055[2018] NZHC 2026BETWEEN TIMOTHY KINGHORNAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2018Appearances: A G James for AppellantH F McKenzie for RespondentJudgment: 9 August 2018ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Kinghorn, was sentenced to two years, three months'imprisonment after pleading guilty in the District Court to one charge of burglary andone charge of unlawful possession of a firearm.1 He appeals that sentence on theground the District Court Judge failed to adequately recognise the time he had spenton restrictive EM Bail.The offending[2] Turning now to the offending, Mr Kinghorn was in a relationship with his co-offender, Ms Orange. She was previously, it seems, in a relationship with the victim.Ms Orange invited the victim to her house to spend the evening with her. While thevictim was thus occupied, Mr Kinghorn broke into the victim's house and stole over1 Police v Kinghorn [2018] NZDC 10281.$22,500 worth of property including two firearms after prizing open a firearm safe, atelevision, a motorcycle, and power tools. Throughout the burglary Mr Kinghorn wasin contact with Ms Orange via text message, who updated him on the victim'smovements.District Court sentencing[3] In the District Court, Judge Garland noted the careful planning that went intothe burglary, and the deception and breach of trust it involved. His Honour also notedthat the targeting and taking of firearms was a "very serious aggravating factor becauseof the concern that such firearms can easily fall into the wrong hands". Taking thesematters into account the Judge adopted a starting point of three years' imprisonment.An uplift of three months was applied for Mr Kinghorn's significant history ofoffending including eight dishonesty offences.[4] The Judge then noted that Mr Kinghorn had spent eight and a half months onelectronically monitored bail (EM bail) with restrictions, "apparently withoutincident", and he reduced the sentence by three months to recognise that. In addition,the full 25 per cent reduction for guilty plea was applied.Jurisdiction and approach to appeal[5] Mr Kinghorn appeals that decision as of right.2 This Court can only allow theappeal if it is satisfied that there is an error in the sentence imposed and that analternative sentence should be imposed.3 If the sentence under appeal can be properlyjustified having regard to relevant sentencing principles, this Court cannot substituteits own views for those of the sentencing Judge. The sentence must be eithermanifestly excessive or inappropriate if the sentencing Judge's discretion is to beinterfered with.2 Criminal Procedure Act 2011, s 244.3 Criminal Procedure Act, s 250.SubmissionsAppellant[6] Turning now to the appellant's submissions, Mr James for the appellant takesno issue with the starting point, the uplift for previous convictions, or the discount forguilty plea. The only aspect of the sentence challenged is the three-month discountfor time spent on EM bail, which he says was inadequate.[7] Section 9(2)(h) of the Sentencing Act 2002 lists time spent on EM bail as arelevant mitigating factor. Section 9(3A) provides more detail:(3A) In taking into account that the offender spent time on bail with an EMcondition under subsection (2)(h), 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, particularlythe frequency and duration of the offender's authorisedabsences from the electronic monitoring address; and(c) the offender's compliance with the bail conditions during theperiod of bail with an EM condition; and(d) any other relevant matter.[8] Mr James says the EM bail arrangement Mr Kinghorn was subject to was asrestrictive as it could be; akin to home detention. It involved a 24-hour curfew and anumber of conditions including not to consume alcohol. He was not able to undertakeany form of employment, recreation outside of the home, courses or programmes.Mr James points out the appellant was fully compliant with these conditions, and wasassessed as suitable for home detention by the pre-sentence report writer.[9] While Mr James accepts that the extent to which a mitigating factor such asthis is reflected in a discount is for the discretion of the sentencing Judge, here he saysthe three months discount applied was outside the available range. He submits that atleast six months should have been given.[10] In support of that position Mr James cites a number of cases. In Koti v R atwo-month discount was given for six weeks on EM bail, despite the fact the appellanthad breached bail by cutting off his bracelet.4 In O'Conner v R a four month discountwas given on appeal for 10 months on EM bail.5 In Molia v R a two month reductionwas awarded for just over three months on restrictive EM bail.6 Finally, in Police vKnox a four month discount was allowed for four and a half months on EM bail.7[11] Mr James says that while these cases demonstrate a broad range of discounts,they support the proposition that where the conditions are strict and have beencomplied with, more credit should be given than was here.Respondent[12] Turning now to the respondent's submissions, Ms McKenzie for the respondentsays the end sentence in this case was not manifestly excessive. She refers to White vR, where the Court of Appeal observed that "the extent of the discount allowed fortime spent on EM bail is left to the Judge's discretion."8 In response to the cases citedby Mr James, Ms McKenzie refers to R (CA/258/2016) v R where the Court of Appealsaid a discount of four to six months was available for 12 months spent on restrictiveEM bail, which equates to one third to one half of the time in bail.9 She also refers tothe comments of that Court in Parata v R, where the reasons for not awarding a 1:1discount on sentence for EM bail were set out.10 While EM bail with a 24 hour curfewhas some similarities to imprisonment, many more facilities are available to the baileddefendant than the remanded prisoner. Further, it is important that the courts do notprovide incentives for defendants to prolong their time on EM bail by, for example,delaying guilty plea.[13] Ms McKenzie goes on to point out that in Parata the discount awarded alsofell within the one third to one half band of discount. The three-month discount givenby Judge Garland in this case fell firmly within that band, and so Ms McKenziecontends there was no error. A reduction of six months, as proposed by Mr James, shesays would be well outside that band.4 Koti v R [2018] NZHC 547.5 O'Connor v R [2014] NZCA 328.6 Molia v R [2013] NZCA 512.7 Police v Knox [2013] NZHC 2760.8 White v R [2017] NZCA 322 at [63].9 R (CA/258/2016) v R [2017] NZCA 210.10 Parata v R [2017] NZCA 48.[14] Even if a greater discount could have been given in this case, Ms McKenziesubmits that the overall sentence, in any event, was nevertheless within range. Theoffending here was serious, and the 25 per cent guilty plea discount was generousgiven it was not entered until Mr Kinghorn's eighth appearance.Analysis[15] Turning now to my analysis in this matter, while time spent on EM bail is astatutory mitigating factor and thus a mandatory consideration, there is no arithmeticalformula to work out the correct discount.11 What the cases cited to the Court bycounsel show is that the discretion as to length of discount is broad.[16] Of the cases cited by Mr James, Koti can be set to one side. In that case thelearned Judge said, "six weeks on EM bail equates to a 12-week sentence ofimprisonment" but as a matter of law that is not correct. It appears her Honourconflated EM bail and home detention, and the general practice in that context ofhalving a sentence of imprisonment when converting it to one of home detention. Andon this aspect, the Court of Appeal said in Parata:[14] We accept that there is considerable similarity between the conditionsof home detention and those experienced when subject to the most restrictiveform of EM bail. However, home detention as a substitute for imprisonmentis a legislative choice. It is for Parliament to alter matters if the long-established approach to EM bail is considered incorrect.[17] In light of those comments any calculation based on reasoning as to what the'equivalent' prison-time would have been (such as is done with home detention) wouldbe incorrect.[18] In O'Connor, the ratio of discount was almost exactly the same as here (fourmonths from 10 months on bail as opposed to three months from 8.5 months on bailin this case). While the discounts in Molia and Knox, it seems, were more generousthan here, the cases cited by the Crown show that for every case with a more generousdiscount there is one with a less generous discount – certainly, in my view,Judge Garland's approach is not an outlier.11 Rangi v R [2014] NZCA 524 at [10].[19] As I see the position, while it would have been open to the Judge to award apossibly greater discount, there was no error in the way his Honour exercised hisdiscretion. On appeal, it must be shown the sentence as a whole was manifestlyexcessive or otherwise wrong. Taking a step back, I agree with Ms McKenzie that theoverall sentence here is well within range. The starting point could have been highergiven the nature of the offending, and the guilty plea discount could have been lowergiven the stage at which it was entered.Conclusion[20] In conclusion, I find there was no error in the sentence imposed. This appealis dismissed....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to: Alister James QSO, Barrister, Christchurch