Kinghorn v Police [2018] NZHC 2026 (9 August 2018)

Last Updated: 15 August 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000055 [2018] NZHC 2026

BETWEEN	TIMOTHY KINGHORN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 August 2018
Appearances:	A G James for Appellant H F McKenzie for Respondent
Judgment:	9 August 2018

ORAL JUDGMENT OF GENDALL J

Introduction

[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 and one charge of unlawful possession of a firearm.¹ He appeals that sentence on the ground the District Court Judge failed to adequately recognise the time he had spent on 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 the victim was thus occupied, Mr Kinghorn broke into the victim’s house and stole over

¹ Police v Kinghorn [2018] NZDC 10281.

KINGHORN v NZ POLICE [2018] NZHC 2026 [9 August 2018]

$22,500 worth of property including two firearms after prizing open a firearm safe, a television, a motorcycle, and power tools. Throughout the burglary Mr Kinghorn was in contact with Ms Orange via text message, who updated him on the victim’s movements.

District Court sentencing

[3] In the District Court, Judge Garland noted the careful planning that went into the burglary, and the deception and breach of trust it involved. His Honour also noted that the targeting and taking of firearms was a “very serious aggravating factor because of the concern that such firearms can easily... fall into the wrong hands”. Taking these matters 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 of offending including eight dishonesty offences.

[4] The Judge then noted that Mr Kinghorn had spent eight and a half months on electronically monitored bail (EM bail) with restrictions, “apparently without incident”, 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 the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.³ If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

² Criminal Procedure Act 2011, s 244.

³ Criminal Procedure Act, s 250.

Submissions

Appellant

[6] Turning now to the appellant’s submissions, Mr James for the appellant takes no issue with the starting point, the uplift for previous convictions, or the discount for guilty plea. The only aspect of the sentence challenged is the three-month discount for 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 a relevant mitigating factor. Section 9(3A) provides more detail:

(3A) In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—

(a) the period of time that the offender spent on bail with an EM condition; and

(b) the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

(c) the offender’s compliance with the bail conditions during the period 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 as restrictive as it could be; akin to home detention. It involved a 24-hour curfew and a number of conditions including not to consume alcohol. He was not able to undertake any form of employment, recreation outside of the home, courses or programmes. Mr James points out the appellant was fully compliant with these conditions, and was assessed 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 as this is reflected in a discount is for the discretion of the sentencing Judge, here he says the three months discount applied was outside the available range. He submits that at least six months should have been given.

[10] In support of that position Mr James cites a number of cases. In Koti v R a two-month discount was given for six weeks on EM bail, despite the fact the appellant
had breached bail by cutting off his bracelet.⁴ In O’Conner v R a four month discount was given on appeal for 10 months on EM bail.⁵ In Molia v R a two month reduction was awarded for just over three months on restrictive EM bail.⁶ Finally, in Police v Knox 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 been complied with, more credit should be given than was here.

Respondent

[12] Turning now to the respondent’s submissions, Ms McKenzie for the respondent says the end sentence in this case was not manifestly excessive. She refers to White v R, where the Court of Appeal observed that “the extent of the discount allowed for time spent on EM bail is left to the Judge’s discretion.”⁸ In response to the cases cited by Mr James, Ms McKenzie refers to R (CA/258/2016) v R where the Court of Appeal said a discount of four to six months was available for 12 months spent on restrictive EM bail, which equates to one third to one half of the time in bail.⁹ She also refers to the comments of that Court in Parata v R, where the reasons for not awarding a 1:1 discount on sentence for EM bail were set out.¹⁰ While EM bail with a 24 hour curfew has some similarities to imprisonment, many more facilities are available to the bailed defendant than the remanded prisoner. Further, it is important that the courts do not provide 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 also fell within the one third to one half band of discount. The three-month discount given by Judge Garland in this case fell firmly within that band, and so Ms McKenzie contends there was no error. A reduction of six months, as proposed by Mr James, she says 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 McKenzie submits that the overall sentence, in any event, was nevertheless within range. The offending here was serious, and the 25 per cent guilty plea discount was generous given 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 a statutory mitigating factor and thus a mandatory consideration, there is no arithmetical formula to work out the correct discount.¹¹ What the cases cited to the Court by counsel 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 the learned Judge said, “six weeks on EM bail equates to a 12-week sentence of imprisonment” but as a matter of law that is not correct. It appears her Honour conflated EM bail and home detention, and the general practice in that context of halving a sentence of imprisonment when converting it to one of home detention. And on this aspect, the Court of Appeal said in Parata:

[14] We accept that there is considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail. However, home detention as a substitute for imprisonment is 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) would be incorrect.

[18] In O’Connor, the ratio of discount was almost exactly the same as here (four months from 10 months on bail as opposed to three months from 8.5 months on bail in this case). While the discounts in Molia and Knox, it seems, were more generous than here, the cases cited by the Crown show that for every case with a more generous discount 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 a possibly greater discount, there was no error in the way his Honour exercised his discretion. On appeal, it must be shown the sentence as a whole was manifestly excessive or otherwise wrong. Taking a step back, I agree with Ms McKenzie that the overall sentence here is well within range. The starting point could have been higher given the nature of the offending, and the guilty plea discount could have been lower given the stage at which it was entered.

Conclusion

[20] In conclusion, I find there was no error in the sentence imposed. This appeal is dismissed.



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

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to: Alister James QSO, Barrister, Christchurch