Neho v The Queen

[2016] NZHC 3082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000343 [2016] NZHC 3082

BETWEEN

SHAYNE MORGAN NEHO

Appellant

AND

THE QUEEN Respondent

Hearing:	12 December 2016
Appearances:	S Thode for Appellant K Eastwood for Respondent
Judgment:	15 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 December 2016 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

NEHO v R [2016] NZHC 3082 [15 December 2016]

[1]      In September this year Judge D Sharp sentenced Shayne Neho in the District Court at Auckland to 12 months’ home detention imposed in respect of offending that mostly occurred in the context of domestic violence against Mr Neho’s then partner; two charges of threatening to do grievous bodily harm, five of male assaults female, one of intimidation, one of sustained loss of traction, one of careless driving and one of breach of community work.  Mr Neho appeals the sentence on the ground that it is manifestly excessive as a result of the Judge failing to  give adequate allowance to reflect the mitigating factors and the time spent in custody following his arrest. Ms Thode, for Mr Neho, submitted that had appropriate recognition been given to these factors, the end sentence would have been six to seven months’ home detention.

[2]      In fixing the end sentence the Judge took a starting point of three years’ imprisonment.  He then allowed a 25 per cent discount for Mr Neho’s guilty plea and a further three months for mitigating factors (remorse and efforts at rehabilitation) and the eight months that Mr Neho had spent in custody prior to sentencing.  This resulted  in  a  short-term  sentence  of  24  months’ imprisonment  which  the  Judge commuted to 12 months’ home detention.

[3]      There is no challenge to the starting point, which was clearly appropriate for the nature and extent of the offending.

[4]      The Judge did not follow the orthodox approach that would have seen a discount for Mr Neho’s guilty plea applied after the allowance for mitigating factors. It is also evident that the composite discount allowed for mitigating factors and time spent in custody was no more than three months, which equates to approximately eight per cent of the three year starting point.  The allowance for mitigating factors and time in custody should have been separately identified and then the reduction made for the guilty plea. However, these irregularities will not justify my interfering in the sentence unless I am satisfied that the end result was manifestly excessive.

[5]      The usual position under s 82 of the Sentencing Act 2002 is that pre-sentence detention is not taken into account in determining the length of the sentence because

that aspect is taken into account administratively under the Parole Act.1   Where the sentence  is  to  be  home  detention,  however,  time  spent  on  remand  is  not automatically taken into account in calculating an offender’s release date and in Laloni v R the Court of Appeal considered that:2

In such cases, an allowance is commonly made to reflect the time spent on remand in fixing the period in respect of a sentence of home detention.

[6]      Such an allowance though is not amenable to any rigid formula.  By way of example, in Laloni the appellant had spent almost nine months on remand and (on appeal)  a  reduction  was  made  of  three  months  from  the  original  term  of imprisonment with the result that the term of home detention was reduced by one- and-a-half months.  In Kidman v R the appellant had spent six months on remand and (on appeal) a reduction of one-and-a-half months from the term of home detention

was regarded as appropriate.3    On the basis of these cases, a discount of three–four

months from the original end sentence would have been appropriate and would have flowed through to the sentence of home detention, resulting in a reduction of that sentence by one-and-a-half to two months. Thus, the starting point should properly have been adjusted to between 32 – 33 months.

[7]      That  adjusted  starting point  could  then be further adjusted  to  reflect  the mitigating factors.   The Judge identified Mr Neho’s efforts at rehabilitation as the only mitigating factor.   Ms Thode argued that the following should have attracted additional specific recognition; the negative results of two voluntary drug tests in March and May 2016, a letter of remorse, Mr Neho’s offer to engage in a restorative justice process (which was declined by the complainant) and Mr Neho’s extensive family support.

[8]     Ms Eastwood responded that, although laudable, Mr Neho’s efforts at rehabilitation appeared not to have involved any effort to address the violence and anger that was clearly a feature of the offending. Likewise, although it was evident from one of the charges (involving a threat with a cannabis spotting knife) that some

of  the  offending  took  place  against  a  background  of  drug  use  it  had  not  been

1      Parole Act 2002, s 90.

2      Laloni v R [2015] NZCA 55 at [9].

3      Kidman v R [2011] NZCA 62.

suggested that drug abuse was a cause of the offending so that negative drug tests did not justify specific recognition. I agree with both submissions.

[9]      As to Mr Neho’s offer of restorative justice and his letter to the Judge, both are aspects of remorse and the assessment of remorse is very much one for the sentencing Judge. It is often the case that an offender’s letter will not be viewed as sufficiently compelling to justify any reduction beyond that given for the guilty plea. However, the offer of restorative justice could reasonably have attracted a modest level of recognition. Finally, whilst Mr Neho is fortunate to have significant family support, that is not a factor that would usually be viewed as a mitigating factor in itself.

[10]     Looked  at  overall,  two  to  three  months  would  represent  an  appropriate reduction  for  these  mitigating  factors. This  would  have  brought  the  provisional sentence to 29 – 30 months. The 25 per cent reduction for the guilty plea would have resulted in an end sentence of 21- 22 months’ imprisonment. An appropriate sentence of home detention would therefore have been around 11 months.

[11]     The sentence the Judge imposed was, clearly, within the range available to him and was not manifestly excessive. The appeal is dismissed.

P Courtney J