Van der Sluys v Police

[2022] NZHC 2891

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-000022

[2022] NZHC 2891

BETWEEN

JOSHUA JAN VAN DER SLUYS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Judgment:	3 November 2022

JUDGMENT OF NATION J

[1]                 Mr van der Sluys appealed against his sentence of home detention, in particular, the length of it.

[2]                 The Crown accepts there was an error in the sentence and the term of home detention needs to be reduced. If the appeal is allowed in the way the Crown agrees is appropriate, Mr van der Sluys will have served the appropriate period of home detention. For that reason, counsel have agreed the appeal needs to be dealt with urgently and the appeal can be dealt with on the papers. I now do so.

[3]                 At the age of 35, Mr van der Sluys appeared on a number of dishonesty charges, including burglary.

[4]                 A District Court Judge assessed an appropriate starting point of 42 months’ imprisonment for the offending, with a discount of 25 per cent for guilty pleas. Once a pre-sentence report had been obtained, another Judge considered further discounts were appropriate. He gave a 15 per cent discount because of aspects of Mr van der

VAN DER SLUYS v POLICE [2022] NZHC 2891 [3 November 2022]

Sluys’ personal history and certain difficulties he has had to deal with. In addition, this Judge considered a further five per cent discount for remorse was appropriate, particularly because of what had happened in restorative justice and what Mr van der Sluys said when appearing for sentence.

[5]                 The Judge arrived at a sentence of 23.1 months’ imprisonment. The Judge considered home detention would be an appropriate sentence, particularly to help with rehabilitation. Consistent with the approach that home detention should be for half the period of the sentence of imprisonment, Mr van der Sluys was sentenced to 11 months and two weeks’ home detention.

[6]                 The appeal was brought on the grounds the sentence had failed to take into account the six months that Mr van der Sluys had been in custody before he was sentenced. The Judge was aware Mr van der Sluys had been in custody. He referred to it as being some punishment Mr van der Sluys had already received for his offending. Had Mr van der Sluys been sentenced to imprisonment, the time he spent in custody on the charges would have been treated as time served so as to effectively reduce the length of time Mr van der Sluys would have spent in prison following his sentencing.

[7]                 With the sentence of home detention imposed, there was not the same acknowledgement or account taken of the time Mr van der Sluys had already spent in custody.

[8]                 With reference to a judgment of Simon France J in Longman v Police, the Crown agreed the accounting for time spent in custody should have been to the extent of the full amount of that period of imprisonment, i.e. six months.1

[9]                 Mr van der Sluys, through his counsel, also sought that the sentence should be reduced by six months to five months and two weeks’ home detention.

1      Longman v Police [2017] NZHC 2928.

[10]             For those reasons, an error was made on sentencing. The sentence imposed is squashed. In substitution, Mr van der Sluys is sentenced to home detention for a period of five months and two weeks on the same conditions as were imposed with the original sentence. There also remains the order for him to pay reparation in the sum of $35,000 as originally ordered.

Solicitors:

Montrose Chambers, Invercargill Crown Solicitor, Invercargill.