Harris v New Zealand Police
| Jurisdiction | New Zealand |
| Judge | Campbell J |
| Judgment Date | 02 March 2022 |
| Neutral Citation | [2022] NZHC 345 |
| Docket Number | CRI 2021-488-57 |
| Court | High Court |
UNDER The Sentencing Act 2002
[2022] NZHC 345
Campbell J
CRI 2021-488-57
IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGĀREI-TERENGA-PARĀOA ROHE
Criminal Sentence — appeal against a sentence of 10 months home detention — assault with intent to injure — family violence — mitigating factors — time spent on remand — cultural deprivation — principles governing sentencing appeals — Crimes Act 1961 — Sentencing Act 2002
M Watkins for the appellant
R Annandale for the respondent
This judgment was delivered by me on 2 March 2022 at 4:00 pm
Deputy Registrar
Mr Harris pleaded guilty to a charge of assault with intent to injure. 1
On 8 November 2021, Judge H B Shortland sentenced Mr Harris to 10 months' home detention. 2 Mr Harris appeals against that sentence. He says it is manifestly excessive, because the Judge did not give enough credit for the amount of time he had spent in custody.
At around 1 am on 17 April 2021, Mr Harris and his partner, the victim, had an argument. The victim said she wished to end the relationship. In response, Mr Harris punched her multiple times in the head.
In an attempt to evade the blows, the victim went to the floor. Mr Harris, while wearing shoes, stood above her and continuously stomped and kicked her head and upper body region. He then punched her in the head again.
The victim suffered a bloody nose, contusions and abrasions across her face and upper torso. The assault caused her to fear for her life.
On 12 August 2021, Judge Shortland gave Mr Harris a sentence indication. 3 The Judge referred to both R v Taueki and Nuku v R as the guideline judgments for Mr Harris' offending. 4 In terms of those cases, the Judge said aggravating features of Mr Harris' offending included that he had committed violence against the victim while she was in her home; 5 she had suffered reasonably serious injuries; and the attack was somewhat prolonged and involved Mr Harris kicking and stomping the victim while wearing shoes.
The Judge, while acknowledging Mr Harris' youth, did not see any clear mitigating factors. His Honour therefore considered a starting point of two years and eight months' imprisonment appropriate, which was then uplifted by two months to account for Mr Harris' family violence history.
The final sentence indication was for two years and 10 months' imprisonment, with Judge Shortland saying discounts for a guilty plea and a report under s 27 of the Sentencing Act 2002 could bring the end sentence under two years' imprisonment.
Mr Harris accepted the sentence indication.
In the substantive sentencing decision, Judge Shortland noted that Mr Harris had taken steps to deal with the issues identified in his s 27 report, including by engaging in anger management programmes in prison and learning budgeting skills. He had provided a letter of remorse. The Judge considered these to be mitigating factors in the sentencing exercise.
The Judge applied discounts of 15 per cent for Mr Harris' guilty plea, 6 five per cent for the time Mr Harris had already spent in custody, and 20 per cent in relation to the social deprivation outlined in Mr Harris' s 27 report. His Honour also had regard to Mr Harris' remorse, but did not apply a discrete discount for it.
Those discounts brought the presumptive end sentence down to 20 months' imprisonment. That brought the sentence within range of home detention consideration.
The Judge, looking to the least restrictive sentencing outcome possible under the Sentencing Act, found a sentence of 10 months' home detention to be appropriate.
Mr Watkins, for Mr Harris, submits the Judge failed to give sufficient credit for the time that Mr Harris spent in custody. By the time of the sentencing, Mr Harris had spent close to seven months in custody. The five per cent allowance for time in custody, however, amounted to a discount of fewer than two months.
Mr Watkins submits that the usual practice is that the Court, when giving credit for time spent in custody in calculating a sentence of home detention, will take the time spent and multiply it by two and then deduct that from the presumptive sentence of imprisonment. In Mr Harris' case, that would mean a deduction of 14 months. Together with the discounts that Judge Shortland gave for the guilty plea and s 27 factors, the sentence before commutation to home detention would be eight months' imprisonment. Commuted to home detention, the end sentence would be four months' home detention.
Mr Watkins submits that an end sentence of ten months' home detention was therefore manifestly excessive.
Mr Annandale, for the Police, accepts that the Judge could have allowed a higher credit for the time Mr Harris had spent in custody. But Mr Annandale submits that the s 27 discount that the Judge allowed was generous. He says these two matters balance each other out and the end sentence was not manifestly excessive.
A Court will allow a sentencing appeal only if satisfied there is both an error in the sentence and that a different sentence should be imposed. 7 The Court will otherwise dismiss the appeal. 8
To be in error, the sentence generally must be shown to be manifestly excessive or wrong in principle. 9 The Court will not intervene where the sentence is within the
I have to decide two issues. Did the Judge err by giving insufficient credit for the time Mr Harris spent in custody? If so, was the sentence manifestly excessive?
When an offender is sentenced to imprisonment, s 82 of the Sentencing Act 2002 provides that the Court must not, in determining the length of sentence, take into account any time spent in pre-trial custody. This does not mean that credit is not given for such time spent. Credit is given, but it occurs administratively (and automatically) under s 91 of the Parole Act 2002.
Those provisions do not apply where a sentence of home detention is imposed. This does not mean that credit is not given for time spent in pre-trial custody. Credit is given as part of the Court's sentencing discretion, rather than automatically under the Parole Act. 11
In Kidman v R, the Court of Appeal rejected a prescriptive approach towards the determination of credit for time spent in pre-trial custody when imposing a sentence of home detention (namely, deducting time spent, on a “one for one” basis, from the term of home detention that would otherwise be imposed). 12 The Court preferred “a more evaluative approach”. 13
It follows that a sentencing Judge should not rigidly apply a “one for one” discount. Nonetheless, cases since Kidman v R have made it tolerably clear that a “one for one” discount is the default (though not rigid) position. The reason for this was
… what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in jail in effect serving the same sentence. Seen that way, full equivalence should be the norm.
His Honour added that full equivalence was consistent with the Supreme Court's then recent decision in Booth v R (in which the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences). 16 Accordingly, after arriving at a provisional home detention sentence of nine and a half months, Simon France J deducted the four and a half months spent in pre-trial custody, leaving a home detention sentence of five months. 17
Many cases have adopted the default position proposed by Simon France J in Longman v Police. 18 The default position is also consistent with two recent Court of Appeal cases, Williams v R and Diaz v R. 19 In each case the appellant succeeded in having a sentence of imprisonment replaced by a sentence of home detention. By the time of their successes the appellants had each served some of the sentence of imprisonment. In each case the Court of Appeal effectively gave full credit for the time spent in custody against the sentence of home detention that would otherwise have been imposed. 20
Other cases have taken a different approach, deducting the time spent in pretrial custody from the proposed term of imprisonment before that term of imprisonment is converted to a sentence of home detention. 21 Because the period of
I see no reason why that default position should not have been applied here. Mr Harris should have received full credit, against the term of home detention that would otherwise have been imposed, for the almost seven months spent in custody on remand.
Instead, the Judge gave credit by allowing a five per cent discount against the starting point of 34 months' imprisonment. This was a credit of 1.7 months. After taking account of all credits, the Judge settled on a term of imprisonment of 20 months. The Judge...
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