MCLEAN v NEW ZEALAND POLICE [2023] NZHC 3724

MCLEAN v NEW ZEALAND POLICE [2023] NZHC 3724 [15 December 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-36[2023] NZHC 3724BETWEEN TRE MCLEANAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2023Appearances: E C Killeen for the AppellantN H Brown for the RespondentJudgment: 15 December 2023ORAL JUDGMENT OF PALMER JCounsel/SolicitorsE C Killeen, Barrister & Solicitor, Palmerston NorthCrown Solicitor, BVA The Practice, Palmerston North[1] Mr Tre McLean, now aged 21, has pleaded guilty to three firearms offencesand three driving offences.1 They arose out of three separate incidents where he:pointed an imitation firearm at a complainant at the Highfield Lookout in Fielding on24 December 2021; fled from Police in his car, lost control and seriously injured apassenger on 15 April 2022; and was found to have a stolen vehicle, sawn-off shotgunand ammunition at his house on 22 December 2022. He has no previous convictions.Mr McLean was remanded in custody on 23 December 2022. On 29 May 2023, hewas granted electronically-monitored (EM) bail to his aunt's house in Manurewa,Auckland, with a 24-hour curfew.[2] On 16 November 2023, in the District Court at Palmerston North,Judge D G Smith sentenced Mr McLean to four months' home detention and 60 hours'community work, as consistent with the pre-sentence report of the Department ofCorrections.2 The Judge set a starting point of 18 months' imprisonment for the twolead firearms offences, added eight months for the two lead driving offences, andadjusted that to 22 months to reflect the totality of the offending.3 The Judgediscounted the sentence by 25 per cent for Mr McLean's guilty pleas, and six monthsfor his youth, background of instability, violence, and drug use and deducted twomonths and three weeks for Mr McLean's five and a half months on EM bail.4 Thatresulted in an end sentence of seven months and three weeks' imprisonment, whichthe Judge converted to four months' home detention with six months' post-detentionconditions. Mr McLean was also fined for the other offences and ordered to complete60 hours of community work.5[3] Mr McLean appeals the sentence on the sole basis that the Judge did not takeinto account the time he was remanded in custody. He spent 160 days in prison beforehe was granted EM bail. Ms Killeen, on his behalf, submits that, following the1 Unlawful possession of a firearm and ammunition and presenting an object that looks like afirearm; Arms Act 1983, ss 45, 22B, and 52(2) (maximum penalties of four years' imprisonment,a $10,000 fine, and six months' imprisonment respectively). Unlawfully getting into a vehicle,failing to remain stopped, and careless driving causing injury; Crimes Act 1961, s 226(2)(maximum penalty of two years' imprisonment); and Land Transport Act 1998, ss 52A(1)(b),52A(3), 52A(6), 114, and 38(1)(a) (maximum penalties of a $10,000 fine and three months'imprisonment respectively, and mandatory disqualification of at least six months for each offence).2 New Zealand Police v McLean [2023] NZDC 25623.3 At [15]–[19].4 At [20]–[21].5 At [22]–[23].approach in Longman v Police, Mr McLean would have reached "time served" on hishome detention sentence which should be substituted by a combined sentence ofcommunity work and supervision.6 Mr Brown, for the Police, accepts that it was anerror not to consider Mr McLean's time in custody and the appeal should be allowed.He agrees that the Judge would have imposed a different sentence altogether if he hadturned his mind to it.[4] Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal ifI am satisfied that there has been an error in the sentence imposed and a differentsentence should be imposed. I am satisfied there was an error in the sentence imposed,as counsel agree. The way in which time remanded in custody is reflected in asentence of home detention is an evaluative decision.7 There is a difference betweenHigh Court and Court of Appeal authorities as to whether the time in prison should bededucted from the starting point of imprisonment before it is converted to homedetention or deducted on a one-for-one basis from the sentence of home detention.8But it is an error not to take it into account at all and which method is used makes littledifference here. An offender should be in no worse position, in terms of their time onhome detention, than they would have been if the sentence had not been commuted tohome detention.9 In light of Mr McLean's 160 days remanded in custody, his endsentence of four months' home detention was manifestly excessive.10 He hadeffectively already served his sentence. The end sentence was not within the rangeavailable.11 And he has now completed a month of home detention.[5] The existing sentences of community work, fines, and disqualifications willremain in place. There should be some credit given for the month spent on homedetention. I quash the sentence of home detention and substitute instead a sentenceof:6 Longman v New Zealand Police [2017] NZHC 2928.7 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [14].8 See the discussions in Mason v Police [2022] NZHC 1845 at [35] and Kirikino v Police [2023]NZHC 1821 at [19]–[21]. See Simon France (ed) Adams on Criminal Law — Sentencing(looseleaf ed, Thomson Reuters) at [SA.82.03].9 Mason v Police, above n 8, at [35].10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].11 Ripia v R [2011] NZCA 101 at [15].(a) six months' supervision for unlawful possession of a firearm, withspecial conditions:(i) not to possess, use or consume alcohol or controlled drugs orany psychoactive substances unless they are prescribed by adoctor; and(ii) to attend an assessment for an alcohol and drug programme andto attend and complete any counselling or treatment orprogrammes that come out of that assessment;(b) three months' supervision, to run cumulatively, for careless drivingcausing injury; and(c) two months' supervision, to run concurrently, for presenting an objectthat looked like a firearm.Palmer J