Hall v Police [2020] NZHC 1988 (7 August 2020)

Last Updated: 24 August 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000237 [2020] NZHC 1988

BETWEEN	LANCE CLINTON HALL Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 August 2020
Appearances:	R N Roy for the Applicant J M Phillips for the Respondent
Judgment:	7 August 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 07 August 2020 at 3.00pm

..............................

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Manukau, Auckland Crown Solicitor, Auckland

HALL v NEW ZEALAND POLICE [2020] NZHC 1988 [7 August 2020]

Introduction

• [1] Mr Hall pleaded guilty in the District Court to four charges of male assaults female.¹ He was sentenced on 14 February 2020 to 17 and a half months’ imprisonment.² He appeals against that sentence. The essential basis of his appeal is that the District Court Judge erred by failing to apply a discount to reflect the time Mr Hall served in custody as a recalled prisoner prior to sentencing. Mr Hall says that, as a consequence of this error, the sentence was manifestly excessive.

• [2] The appeal was filed out of time. Mr Hall sought an extension of time to appeal. The Crown did not oppose an extension, and I grant it.

Factual background

• [3] In 2009 Mr Hall was sentenced to 12 years’ imprisonment on two charges of sexual violation by rape, three charges of male assaults female, and one charge of threatening to kill or do grievous bodily harm.³ This was imposed cumulatively on a sentence of two years and four months’ imprisonment for wounding with intent to injure which Mr Hall was already then serving.

• [4] Mr Hall was released on parole on 8 July 2018. He committed the current offending between 9 September and 11 December 2018.

• [5] The summary of facts describes four incidents. In the first, Mr Hall hit the victim (his then-partner) twice in the face using the back of his hand, causing her a black eye. In the second, Mr Hall struck the victim with a closed fist to the head while he was driving and she was in the passenger seat, continuing as she cowered in the foot-well. In the third, Mr Hall became enraged and hit the victim repeatedly on the legs using a belt. He then struck her with the belt buckle four to five times, connecting with her back, the back of her neck, her head and her hands as she attempted to shield herself. In the fourth, Mr Hall hit the victim in the face with an open hand, giving her

¹ Crimes Act 1961, s 194(b). Maximum penalty of two years’ imprisonment.

² Police v Hall [2020] NZDC 2616.

³ See Hall v R [2010] NZCA 72 at [15].

a swollen and black eye. At the time the summary of facts was written the victim was still experiencing headaches, blurred vision and unsteadiness on her feet.

• [6] On 10 January 2019 Mr Hall was taken into custody pursuant to an interim recall order. A final parole recall order was made on 25 March 2019.

• [7] Mr Hall pleaded guilty to the four charges. By the time of his sentencing on 14 February 2020 he had been in custody, on recall, for a little over 13 months.

• [8] Mr Hall’s history of offending dates back to 1987. Mr Hall has appeared for sentencing on 16 occasions prior to the present charges. His serious offending appears to have begun in the early 2000s, resulting in short sentences of imprisonment for drug offending, violating a protection order (by possessing a firearm), violent offending and driving offending, as well as longer sentences (of four years’ imprisonment) for methamphetamine and violent offending. The 2008 sexual violence offending discussed above resulted in the sentence of 12 years’ imprisonment with a minimum non-parole period of six years.

District Court decision

• [9] Judge Bennett described the “assaults and the level of violence” involved in the offending as “awful”.⁴ She took the assault with the belt as the lead charge, setting a starting point of 18 months’ imprisonment.⁵ She imposed uplifts of four months for the three other charges and four months for Mr Hall’s “very poor prior record of previous offending”.⁶ This produced a sentence, prior to any mitigating factors, of 26 months.⁷

• [10] The Judge reduced that by five per cent for Mr Hall’s willingness to participate in a restorative justice process.⁸ This took the sentence down to 24 and a half months. She then deducted 25 per cent for Mr Hall having pleaded guilty early “as soon as the

⁴ Police v Hall [2020] NZDC 2616 at [2].

⁵ At [4].

⁶ At [5].

⁷ At [6].

⁸ At [7]–[8].

charges were amended” and following a change of counsel.⁹ She rounded this deduction down to six months, and said that this left Mr Hall with an end sentence of 17 and a half months’ imprisonment.¹⁰ This contained an arithmetical error: a six month deduction should have left an end sentence of 18 and a half months.

• [11] Regarding the time Mr Hall had already spent in custody on recall, the Judge said:

• [11] I am aware now that you have in fact been in custody for a period of some 14 months, and it is likely that this would mean immediate release, were you not a recalled prisoner. It does, however, pave the way for you to go to your parole hearing unencumbered by an outstanding sentencing exercise.

Standard of appellate review

• [12] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.¹¹ The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.¹²

Matters not contested

• [13] Neither Mr Hall nor the Crown contests the starting point imposed by the Judge, which was 18 months’ imprisonment on the lead charge, uplifted by four months for the three other charges. There is no tariff case for male assaults female offending.¹³ But, having had regard to other cases, I agree that the starting point was within the available range.¹⁴

• [14] Nor does either party challenge the Judge’s uplift of four months for Mr Hall’s prior convictions. Again, I agree that that uplift was within range.

⁹ At [8]–[10].

¹⁰ At [10].

¹¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

¹² At [36].

¹³ R v Reihana CA143/03, 3 July 2003 at [43].

¹⁴ R v RHB [2012] NZHC 2879; and BIA v Police [2012] NZHC 192.

• [15] Neither party challenges the percentage discounts that the Judge applied: five per cent for willingness to engage in restorative justice, and 25 per cent for the early guilty plea. I likewise do not perceive any basis for departing from those percentages. However, there was disagreement between Mr Hall and the Crown as to how those discounts should be applied under the Court of Appeal’s recent judgment in Moses v

R.¹⁵ Neither counsel drew attention to the arithmetical error, which I identified above,
in the Judge’s deduction of the discount for the guilty plea.

Mr Hall’s challenge to the sentence

• [16] Mr Hall’s appeal has a narrow focus. He challenges the sentence on the basis that the Judge failed to take account of the 13 months that he spent in custody on recall prior to sentencing. Counsel for Mr Hall, Mr Roy, submits that the Judge erroneously understood that the time Mr Hall spent in custody was pre-sentence detention.¹⁶ He says that the Judge therefore considered that she could not take that time into account in determining the length of Mr Hall’s sentence.¹⁷ Mr Roy submits that time in custody on recall is not pre-sentence detention. The Judge was therefore permitted to take it into account. Relying on several authorities, Mr Roy says that the Judge should have taken it into account by applying a further discount to the sentence.

• [17] Mr Roy goes so far as to submit that the Judge’s intention was that Mr Hall’s sentence should already have been completed at the date of sentencing. He therefore submits that if the appeal were allowed and a different sentence imposed, the appropriate substitute sentence would be a conviction and discharge, thereby fulfilling what is said to be the Judge’s intention.

• [18] Ms Phillips for the Crown agrees that the time that Mr Hall spent in custody on recall is not pre-sentence detention, though she does not accept that the Judge misunderstood the position. Ms Phillips also accepts that the Courts do frequently allow a discount to reflect time in custody on recall. But she says that a discount is only “generally” – not always – applied, and that is usually where the breach of parole (which led to the recall) has resulted in an uplift in sentence. In addition, Ms Phillips

¹⁵ Moses v R [2020] NZCA 296 at [46].

¹⁶ In terms of s 91 of the Parole Act 2002.

¹⁷ By reason of s 82 of the Sentencing Act 2002.

says that the extent of the discount must be tailored to the circumstances of each case. Here, because the Judge did not apply any uplift for the breach of parole, and because of the nature of Mr Hall’s offending (historic and current), no discount was appropriate.

• [19] Alternatively, Ms Phillips says that if any discount is to be applied, it needs to be accompanied by an uplift to reflect Mr Hall’s offending on parole. She submits an uplift of six months would be within range. The net result of any discount and uplift, she says, would be that the Judge’s sentence was not manifestly excessive.

Decision

The legal framework

• [20] Under s 90 of the Parole Act 2002 “pre-sentence detention”, as defined in s 91 of that Act, counts as time served towards any sentence of imprisonment subsequently imposed. A corollary is that, in determining the length of any sentence of imprisonment, the Court must not take into account any period during which the offender was on pre-sentence detention: Sentencing Act 2002, s 82.

• [21] The position is different for time spent in prison on recall prior to sentencing. Such time on recall is, by s 91(5) and (6) of the Parole Act, excluded from the meaning of pre-sentence detention. It therefore does not count as time served towards any sentence of imprisonment subsequently imposed. Equally, however, the restriction in s 82 of the Sentencing Act does not apply. This means that a Court may, in determining a sentence, take time on recall into account.¹⁸ Indeed, the authorities that I refer to below show that a Court generally should take time on recall into account, by applying a discount to the sentence, in order to avoid any element of double punishment.

• [22] If an offender has spent time in custody on recall prior to sentencing, the usual reason for this will be that he or she offended while on parole. Offending while on parole is an aggravating factor that the Court must take into account when sentencing: s 9(1)(c) of the Sentencing Act. It will generally lead to an uplift.

18. R v Beri CA91/96, 25 September 1996 at 5 (dealing with the equivalent provision in the Criminal Justice Act 1985).

Discounts for time spent in custody on recall

• [23] The Crown accepts that the courts generally take time on recall into account by applying a discount. But Ms Phillips submits that such a discount is usually only available where the offending on parole has resulted in an uplift in sentence. It is only in that situation, Ms Phillips suggests, that there might be double punishment (the time on recall, and then the uplift) and a need for a discount.

• [24] I do not accept that discounts for time on recall are confined to the situation where there has been an uplift for the offending on parole. Nor do I accept that the risk of double punishment arises only in that situation. It is true that in some cases the risk of double punishment, and the consequent discount for time on recall, have been explained by reference to the uplift for the offending on parole.¹⁹ But most of the cases do not explain the discount in that way,²⁰ and are not explicable on that basis – either because there has been a discount without reference to any uplift,²¹ or because the discount exceeds the uplift.²²

• [25] Ms Phillips referred me to a decision of the Court of Appeal, R v Graham.²³ She submitted that the Court had refused to reduce the sentence to allow for time spent on recall. Ms Phillips relied on the following passages in the judgment:

[21] A grant of parole amounts, as observed by Randerson J in Hart, to a licence during good behaviour. There is no right to release on parole. A grant of parole is a conditional release from custody, subject to a liability of recall if the conditions of release are not observed. If an order for recall is made, then parole ceases, and the offender will be required to serve the balance of the sentence (subject to the right to apply for parole again after the parole eligibility date). Thus, if a paroled prisoner offends while on parole and is recalled, the impact is on the term of imprisonment imposed for the original offending.

...

¹⁹ R v Paul CA409/05, 26 April 2006 at [40]; Vernon v R [2010] NZCA 308; and Murphy v Police

[2018] NZHC 251 at [25].

²⁰ In addition to the cases cited in the next two footnotes, see Te Aho v R [2013] NZCA 47 at [26]; and Oliver v R [2014] NZCA 285 (discount for time on recall balanced, but not explained, by an uplift).

²¹ R v Beri CA91/96, 25 September 1996 at 5.

²² Tukuafu v R [2015] NZCA 251 at [12]–[13]; Faulkner v R [2016] NZCA 315 at [17]–[18]; Sililoto v R [2016] NZCA 328 at [40]; and Thomas v R [2020] NZCA 257.

²³ R v Graham CA293/05, 14 December 2005.

[23] There can be no question of the offender being punished twice for the same offending. That the later offending may trigger consequences under both the Parole Act and the Sentencing Act is entirely consistent with the legislative policy of the two statutes which were part of the same legislative passage.

• [26] But those passages were directed at a point different from the one that is in issue here. There the appellant had argued that the recall to prison together with a cumulative sentence amounted to double punishment for the same offence, in breach of s 26(2) of the New Zealand Bill of Rights Act 1990. It was that argument that the Court was addressing in the above passages. The Court was not saying that there should be no discount for time spent on recall. The sentencing Judge had allowed such a discount.²⁴ The Court approved that discount, saying that when the offending results in a recall “care needs to be taken that the offender is not unfairly penalised in what might be viewed as a double fashion”.²⁵

• [27] I therefore proceed on the basis that time spent on recall should generally be allowed for by a discount. This does not necessarily mean a discount equivalent to the time on recall. In Thomas v R the Court of Appeal recently approved a discount of 66 per cent of the actual time on recall, observing that it was “in line with the discounts applied in other cases”.²⁶ I respectfully agree with that observation. By contrast, Mr Roy submitted that the discount could be longer than the time spent on recall. He acknowledged that none of the authorities supported such an approach to the calculation of the discount, and I reject it.

Was the sentence manifestly excessive?

• [28] I first deal with Mr Roy’s submission that the Judge erroneously understood that the time Mr Hall spent in custody was pre-sentence detention. From this Mr Roy argued that the Judge’s intention was that Mr Hall’s sentence should already have been completed at the date of sentencing. He submitted that if the appeal were allowed and a different sentence imposed, the appropriate substitute sentence would be a conviction and discharge, thereby fulfilling the Judge’s (supposed) intention.

²⁴ R v Graham CA293/05, 14 December 2005 at [10].

²⁵ At [45].

²⁶ Thomas v R [2020] NZCA 257 at [16] and [21].

• [29] I reject that submission. Had Mr Hall’s time in custody on recall counted as pre-sentence detention, Mr Hall would have been eligible for immediate release (on the subject sentence). The Judge noted that that would have been the position “were you not a recalled prisoner”.²⁷ In my view the Judge therefore appreciated that Mr Hall’s time in custody on recall was not pre-sentence detention. Moreover, the Judge’s remark does not evince an intention that Mr Hall’s sentence should already have been completed at the date of sentencing. Had that been the Judge’s intention, she would have said so, and a shorter sentence would have been imposed.

• [30] It is, however, clear that the Judge did not take into account Mr Hall’s time in custody on recall. In my view, for the reasons set out earlier, the Judge should have done so. I do not mean this as a criticism of the Judge. It seems the Judge’s attention was not directed to the possibility of making such an allowance.

• [31] Equally, the Judge did not take into account, as an aggravating factor, the fact that Mr Hall’s offending occurred while he was on parole. Both counsel agreed that there should have been an uplift for this aggravating factor. They differed only as to the extent of any uplift.

• [32] I therefore propose to consider an appropriate discount for the time on recall, and an appropriate uplift for the offending on parole. I will then apply the two-step methodology set out by the Court of Appeal in Moses. I will finally stand back and consider whether the end result shows that the sentence was manifestly excessive.

• [33] As to the discount for the time on recall, I am guided by the Court of Appeal’s approval in Thomas of a discount of 66 per cent of the actual time on recall. This is in line with the other cases referred to in Thomas. There is nothing in the circumstances of Mr Hall’s time on recall that leads me to depart from that approach. This gives a discount, rounded up, of nine months.

• [34] As to the uplift for the offending on parole, Ms Phillips says six months was appropriate. Mr Roy says three months. Ms Phillips relies on Oliver v R, where the Court of Appeal said that an uplift of nine months for offending on parole would not

²⁷ Police v Hall [2020] NZDC 2616 at [11].

have been out of range.²⁸ But in Oliver the starting point was a sentence of five years, so the uplift was 15 per cent of the starting point. That would translate to an uplift of three months here.

• [35] Ms Phillips submits that it is appropriate for this uplift to be at the high end of the range. This is because Mr Hall reoffended so early after his release on parole, and because his offending was of the same nature as the offending for which he had been on parole (both involving serious violence against women). I accept those points. The Court of Appeal in R v Paul said: “It is appropriate for the sentencing Judge to denounce an offender’s preparedness to offend in a similar way shortly after release on parole.”²⁹

• [36] But in my view four months is at the high end of the range, particularly in light of the uplift that has already been made of four months for prior convictions. A combined uplift of eight months for prior convictions and for offending on parole would be about 36 per cent of the starting point of 22 months. This is in line with combined uplifts in other serious cases.³⁰

• [37] This takes me to the two-step methodology set out in Moses. The first step calculates the “adjusted starting point”, incorporating all aggravating and mitigating features “of the offence”.³¹ The second step incorporates all aggravating and mitigating factors “personal to the offender”, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point. The Court of Appeal said that under this methodology “the court fixes all second-step uplifts and discounts by reference to the adjusted starting point”.³² The Court made clear that this methodology did not preclude credit for some mitigating factors being assessed by

²⁸ Oliver v R [2014] NZCA 285.

²⁹ R v Paul CA409/05, 26 April 2006 at [27].

³⁰ Vernon v R [2010] NZCA 308 (32 per cent combined uplift; serious and repeat drug offending); Waterworth v R [2012] NZCA 58 (23 per cent combined uplift; recidivist drug offender); Ellis v R [2012] NZCA 513 (66 per cent combined uplift, described as the absolute top of the range; serial offender with over 40 dishonesty-related convictions); and Blackmore v R [2014] NZCA 109 (42 per cent combined uplift; serial dishonesty offending; over 300 past convictions for dishonesty- related offending; two separate blocks of offending while on parole).

³¹ Moses v R [2020] NZCA 296 at [46]. The Court said, at [6], it used the term “adjusted starting point” to signify “that it incorporates all aggravating and mitigating features of the offending”.

³² Moses v R [2020] NZCA 296 at [47].

reference to the product of step 2, where that is appropriate. The Court instanced credit for time spent on electronically monitored bail.³³

• [38] The parties’ written submissions understandably did not address Moses, it being such a recent decision. But Mr Roy and Ms Phillips did address Moses in their oral submissions. One point of disagreement emerged.

• [39] The disagreement was as to how the “adjusted starting point” should be calculated. Mr Roy submitted that the adjusted starting point should include the uplifts for prior convictions and for offending on parole, as these were aggravating features of the offence. So, on the view that I have taken of those uplifts, Mr Roy said that the adjusted starting point was 30 months (22 plus 4 plus 4). Ms Phillips, by contrast, submitted that the adjusted starting point did not include the two uplifts, because prior convictions and offending on parole were not aggravating features of the offence. She submitted that they were aggravating factors personal to the offender, and came in at step 2. She said the adjusted starting point was therefore 22 months.

• [40] This disagreement has an impact on the absolute amount of the discounts that should be allowed for Mr Hall’s willingness to engage in restorative justice and for his early guilty plea. As noted earlier, those discounts total 30 per cent. If the adjusted starting point is 30 months, the absolute discount is nine months. If 22 months, the discount is (rounded) six and a half months.

• [41] In my view Mr Hall’s prior convictions and his offending on parole are aggravating factors that are personal to Mr Hall, rather than aggravating factors of the offence.³⁴ They do not form part of the “adjusted starting point” under Moses. I acknowledge that Moses may have been primarily directed at the problem, under the earlier three-step methodology, of a guilty plea discount being reduced if an offender’s sentence is already discounted for other mitigating factors.³⁵ But the Court said that under the three-step methodology the amount of the guilty plea deduction could be affected by either “uplifts or discounts for personal circumstances”.³⁶ The Court

³³ At [48].

³⁴ Geoff Hall Hall’s Sentencing (online ed, LexisNexis) at [I.6.12].

³⁵ At [31].

³⁶ At [30].

therefore had in mind the possible effect on a guilty plea discount of an uplift for personal circumstances. The Court was clear that under the new two-step methodology such uplifts applied at step 2, and that the guilty plea discount (and any other percentage discount) should be calculated as a percentage of the adjusted starting point.³⁷

• [42] The adjusted starting point is therefore 22 months, and the absolute discount for willingness to engage in restorative justice and for the guilty plea is six and a half months.

• [43] As noted earlier, Moses acknowledges that some discounts may come after step 2, because they are not appropriately calculated by reference to the adjusted starting point. This is true of the discount for the time on recall. This discount is a function of the time on recall, not a function of the adjusted starting point. It is analogous to the example in Moses of time spent on electronically monitored bail.

• [44] In my view, therefore, an appropriate sentence is calculated as follows:

(a) An adjusted starting point of 22 months.

(b) Uplifts of eight months (four months each for the prior convictions and the offending on parole).

(c) A discount of six and a half months for willingness to engage in restorative justice and the early guilty plea.

(d) A discount of nine months for the time spent on recall.

• [45] This produces a sentence of fourteen and a half months. This is three months, or almost 20 per cent, less than the sentence below. In my view the sentence below was manifestly excessive. Although the excess arose primarily because the Judge was not asked to consider a discount for time on recall, the sentence should nonetheless be substituted with a lesser sentence.

³⁷ At [46]–[47].

Result

• [46] I grant an extension of time to appeal. I allow the appeal. I quash the sentence of 17 and a half months’ imprisonment and substitute a sentence of 14 and a half months’ imprisonment.

Campbell J