Kidman v The Queen [2011] NZCA 62; (2011) 25 CRNZ 268 (10 March 2011)

Last Updated: 20 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA576/2010 [2011] NZCA 62

BETWEEN CHRISTINE LEE KIDMAN Appellant

AND THE QUEEN Respondent

Hearing: 24 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: B J Hunt for Appellant K Laurenson for Respondent

Judgment: 10 March 2011 at 11 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of six months home detention imposed at the second stage of the appellant’s sentencing is quashed. The matter is remitted to the District Court for reconsideration in light of this judgment. The appellant will remain on bail in the meantime.
   

REASONS OF THE COURT
(Given by Arnold J)

Introduction

[1] The appellant faced two counts of possession of cannabis for supply, three counts for selling cannabis, one count of offering to sell cannabis and one count of receiving. She was discharged on the receiving count under s 347 of the Crimes Act 1961 and entered guilty pleas in relation to the drug offending. Judge Barry sentenced her to home detention. In imposing sentence, the Judge neglected to take account of the fact that the appellant had been remanded in custody for approximately six months prior to trial. The issue on the present appeal concerns the means by which the time served on remand should be taken into account in this context.

Background

[2] The background in relation to the appellant’s drug offending is as follows. On 10 March 2009 the police executed a search warrant at the appellant’s house. They found eight cannabis foils in her room, together with $240 cash, made up of $10 and $20 notes. That gave rise to one charge of possession of cannabis for sale and one charge of sale of cannabis.
[3] On 30 July 2009 the police executed a further search warrant at the appellant’s address. In a chest of drawers by the appellant’s bed the police found a dried cannabis plant head. In an adjoining room they found 30 tinnies hidden in a compartment at the bottom of a dehumidifier. They found a further eight tinfoil packages of cannabis in the pocket of a jacket hanging in the wardrobe. In another room they found 25 tinfoil packages together with $300 in cash. As a consequence the appellant was charged with selling cannabis and possessing cannabis for sale.
[4] Finally, on 14 September 2009, an undercover police officer went to the appellant’s house and knocked on the door. The officer asked the appellant if she could “score” and the appellant sold her two cannabis tinnies. On 30 October 2009, another undercover officer visited the address and asked if she could score. The appellant said that she was out of supplies but was expecting more later in the day. She told the officer that she should come back then. As a consequence of these visits the appellant was charged with selling cannabis and offering to sell cannabis.

Sentencing

[5] To understand the issues in this appeal it is necessary to understand the sequence followed in relation to the sentencing. On 15 March 2010 the appellant sought a sentencing indication. Judge Barry indicated a starting point of two and a half years imprisonment.[1] This was on the basis that the offending fell within category 2 of R v Terewi,[2] that is, it was low level commercial dealing. The Judge gave a generous credit for the appellant’s guilty pleas, which led to an end sentence of 22 months imprisonment.
[6] Judge Barry acknowledged that this opened up the possibility of a sentence of home detention. He said:[3]

Whether or not such a sentence would be appropriate is beyond the scope of this indication and would be grounded in the information from a probation report and appendices considering [the] suitability of nominated addresses, if any, consents of house-holders and a further consideration of the propriety of entering into such a sentence for such offending. While I accept that there is authority suggesting it could be inappropriate, where offending arises from the nominated place of detention, I would not rule it out unilaterally and neither would I intend to give any indication that such could be the outcome after an acceptance of any indication.

[7] Following this, on 11 May 2010, Judge Barry sentenced the appellant to four months two weeks home detention on four of the seven counts.[4] Sentencing on the remaining two counts was adjourned so that the appellant could commence a rehabilitation programme and come back before the Court for sentence after that, which would enable the Judge to assess the appellant’s progress. In respect of the four counts, the Judge took a starting point of 12 months imprisonment and then reduced it by 25 per cent for the appellant’s guilty pleas, which left a sentence of nine months imprisonment. Judge Barry then converted that to four and a half months home detention.
[8] On 16 August 2010, having completed the four and a half months home detention, the appellant returned to Court for sentencing on the remaining two counts.[5] Judge Barry considered that the appellant was making progress in her rehabilitation. He took a starting point of 18 months, reduced that to 13 months for the guilty plea, rounded that down to 12 months and then imposed six months home detention. This was cumulative, so that the total term of home detention was ten and a half months.
[9] On 29 September 2010 the appellant’s counsel informed Judge Barry that he had failed to take into account the time that the appellant had served in custody prior to trial. The Judge issued a minute in which he indicated that he would have taken time served into account had it been brought to his attention and would have reduced the second sentence of home detention to four and a half months.[6] However, he considered that he had no jurisdiction to re-sentence. This appeal is the result.

Basis for appeal

[10] Mrs Hunt for the appellant said that the appellant had served the first four and a half months of the first stage of her home detention and almost two months of the second stage before she was granted bail pending the outcome of this appeal. Mrs Hunt advised that the appellant sought an order that the six months home detention imposed at the second stage of the sentencing be quashed and argued that no further penalty should be imposed.
[11] Mrs Hunt drew attention to the fact that where an electronically monitored sentence (including home detention) is imposed as an alternative to imprisonment, there is no statutory process setting out how time served on remand should be taken into account. This is to be contrasted with the position where a person is sentenced to a term of imprisonment. In that case, there is a “one for one” deduction from the period to be spent in incarceration.[7]
[12] In her written submissions Mrs Hunt urged us to take a prescriptive approach to this type of case and require that time served be taken into account by deducting it from the end sentence. In the present case, then, the six month period spent on remand should be deducted from the six month period of home detention imposed at the second stage of the sentencing. We refer to this as the point of principle.
[13] Mrs Hunt’s second line of argument was that even if the Judge retained a discretion as to how to take time served into account, the proper outcome in this case was that the appellant should not be required to serve any further period of home detention.
[14] Ms Laurenson for the Crown accepted that the appellant was entitled to have time served taken into account, but submitted that how that was done was a matter for the discretion of the sentencing Judge. She indicated that the appellant had served a total of five months and eight days on home detention and argued that the six months home detention imposed at the second stage of sentencing should be reduced in the way indicated by Judge Barry, that is to four and a half months. In the alternative, the matter could be remitted to Judge Barry for reconsideration.[8]

Analysis

[15] Dealing first with the point of principle, even if we had the power to do so we do not consider that we should require sentencing judges to take account of time served in the way suggested by Mrs Hunt. Parliament has not felt the need to legislate an approach, as it has for finite sentences of imprisonment. Further, as Mrs Hunt ultimately accepted in oral argument, such an approach might, at least in some cases, operate to the disadvantage of convicted persons. For example, if a discretionary approach is retained, a judge may take time served into account in order to bring a person’s end sentence down below two years so that home detention can be considered. The approach advocated by Mrs Hunt would prevent this.
[16] Moreover, in R v Tamou this Court held that a discount for time served on electronic bail could be taken into account as part of an overall evaluative process rather than by reference to a rigid mathematical formula.[9] That seems to us to be the correct approach where home detention is imposed, and it is an approach which this Court has previously adopted in this context.[10] Home detention has a distinctly rehabilitative component to it, which tells against the imposition of a rigid discount (whether “one for one” or something similar), in favour of a more evaluative approach.
[17] Turning then to this case, Mrs Hunt argued that when the appellant accepted the sentencing indication she thought that she would receive 11 months home detention and that this would be reduced by 6 months to reflect the time that she had spent in custody. However, if that was what the appellant thought, she did not have a reasonable basis for it. First, the Judge made it clear when he gave the sentencing indication that whether or not home detention was an appropriate sentence had yet to be determined. Accordingly, he gave no assurance that home detention would be imposed.[11] Second, although the Judge acknowledged that the appellant had spent time in custody, he gave no indication as to how that would be taken into account. That is understandable because had he decided to impose the 22 months imprisonment indicated, time served would have been taken into account in accordance with the relevant statutory provisions without action on his part. He only needed to consider it if he ultimately decided to impose a sentence of home detention. Third, if the Judge did decide to impose home detention, he was not obliged to take time served into account on a “one for one” or some similar basis.[12]
[18] As we have said, when the oversight was drawn to the Judge’s attention, he indicated that he would have reduced the second period of home detention to four and a half months to take account of the fact that the appellant had spent time in custody. Had the Judge done that, we can see no reason why this Court would have interfered.
[19] However, there is the further consideration that the appellant has been on bail since 19 October 2010 awaiting the outcome of this appeal. We are unclear as to the conditions on which she was granted bail but they, and the period of bail, may be relevant in the present context. For this reason, and because there is some difference between the parties as to exactly how much time the appellant has spent on home detention, we consider that the best course is to quash the sentence of six months home detention imposed at the second stage of the appellant’s sentencing and remit the matter to the District Court for re-consideration in light of this judgment. The appellant will, of course, be entitled to the benefit of the period that she has already spent on home detention in respect of the second stage of her sentencing whatever new term is imposed.

Decision

[20] The appeal is allowed. The sentence of six months home detention imposed at the second stage of the appellant’s sentencing is quashed and the matter is remitted to the District Court for reconsideration in light of this judgment. The appellant will remain on bail in the meantime.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Kidman DC Wellington CRI-2010-085-1540, 15 March 2010.
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[3] At [20].
[4] R v Kidman DC Wellington CRI-2009-032-4705, 11 May 2010.
[5] R v Kidman DC Wellington CRI-2009-032-4705, 16 August 2010.
[6] R v Kidman DC Wellington CRI-2009-032-3093, 29 September 2010.
[7] Parole Act 2002, s 90.
[8] Crimes Act 1961, s 385(3)(c).
[9] R v Tamou [2008] NZCA 88 at [18]–[20].
[10] See R v Ford [2008] NZCA 64 at [20] and R v Stempa [2008] NZCA 254 at [15].
[11] See [6] above.

[12] In the normal course, those who consider that they have entered guilty pleas on the basis of misunderstandings as to sentence indications can seek to have their pleas vacated. Given that the appellant had served a significant part of her sentence before the misunderstanding emerged, that may not have been an option for her.