Since electronically-monitored bail (“EM bail”) was introduced in New Zealand in 2006, varied approaches have been taken to accounting for this time at sentencing.

Prior to 2006, it was not usual to make deductions for time on ‘non-EM’ bail although it was possible. Mandatory consideration of time spent on EM bail as a mitigating factor was inserted into the Sentencing Act 2002 in sections 9(2)(h) and 9(3A) in September 2013.

Section 9(3A) states that:

In taking into account that the offender spent time on EM 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.

Discounts for this time as high as 100 per cent of the period spent on EM bail have been made in the High Court in two decisions of Justice Powell (R v Walker-Haturini [2021] NZHC 1208 and R v Macfarlane [2021] NZHC 1332) although these are superseded by the definitive statement of the Court of Appeal decision of Paora v R in which the Court held that:

There is no guideline about the discount which should be afforded to a defendant for time spent on EM bail in New Zealand, although percentages ranging between 30 and 50 per cent are often used, and this Court recently noted that an allowance of up to 50 per cent is not uncommon. That is not an upper limit. As we have explained, the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case. Courts have sometimes considered it appropriate to award a discount of more than 50 per cent of time spent on EM bail to reflect its restrictive conditions.

Paora v R [2021] NZCA 559 at [53]

The relevant discussion in Paora (embedded below) is at [40]-[54].

Ranges of discount from the Court of Appeal

In Paora, a discount of 70 per cent was granted. This was for 14 months on ‘very restrictive’ EM bail, the first 10 months of which were on conditions of a 24-hour curfew, payment of a $100,000 surety (only available in High Court matters), not to meet with any person at the address (apart from his wife and children, and legal or medical practitioners) other than in the company of one or more of the residents (all of whom were family members), not to possess or use any cellphone or device capable of connecting to the internet, and to be supervised by one or more of the residents of the address at all times. After ten months his curfew was varied to 7 pm to 7 am, he was permitted to use a laptop for pre-approved purposes under the direct supervision of one of two relatives with controls placed on internet access, and exempted from curfew to attend a gym at approved times. He remained on these terms for another four months. There were no breaches of bail for this entire period. This first 14 months is the period of EM bail to which the 70 per cent discount was applied. Mr Paora then moved to another location but at that address there was fresh offending and serious breaches of bail conditions so he received no credit for this time.

The Court in Paora cited the example of Hohipa v R [2015] NZCA 485 (also celebrated for its holding on full credit for guilty pleas being available in instances of resolution with significant movement on summaries of facts and/or charges) in which a 12-month discount was given for 14 months on highly-restrictive conditions of EM bail, an 86 per cent discount. The conditions were 24-hour curfew with exceptions only to leave the property to attend court, his lawyer’s office, and to buy food once a week. He had an approved absence to be away from the bail address for 24 hours once in the 14 months. There were no issues with compliance.

In the Court of Appeal case of Shramka v R [2022] NZCA 299, a 30 per cent discount was made for 19 months on EM bail. The first two-and-a-half months were on standard conditions of 24-hour curfew for seven days a week, not to leave the address without the approval of the Department of Corrections’ EM bail team, not to possess, consume or use alcohol or drugs. Then the conditions were varied slightly to allow him to travel to a supermarket and gym and to attend employment appointments. 11 months later the conditions were varied again to allow him to be away from the address between 7 am and 7 pm for two days a week on the condition that he not travel more than two kilometres from the address. A month later conditions were varied again to allow him to work. In that time he breached conditions only once for consuming alcohol. The Court considered the discount of 30 per cent to be appropriate “given the progressive relaxation of Mr Shramka’s confinement.” (at [65])

To summarise the above:-

Paora: 14 months | 10 months on highly-restrictive, supervised 24-hour curfew| four months on 7-7 curfew, still closely supervised | No breaches = 70 per cent discount

Hohipa: 14 months | highly-restrictive 24-hour curfew | minimal exemptions | No breaches = 86 per cent discount

Shramka: 19 months | 2.5 months 24-hour curfew | then exemptions for gym attendance and shopping | at 11 months 7-7 curfew for 2 days per week | at 12 months exemption for work | one (relatively minor breach) = 30 per cent discount

Comparing these authorities it appears that the major determinant for a reduction in discount is the relaxation of conditions over the period of EM bail. A more usual discount in most cases can be surmised to be ~50 per cent, the midway point between the poles of 70 percent in Paora and 30 percent in Shramka, and as stated at [53] of Paora: ‘an allowance of up to 50 per cent is not uncommon.’

Although, an important consideration not dealt with substantially in the above cases is compliance with the conditions which is a mandatory consideration under s 9(3A)(c). Not only is poor compliance often, in practice, a major cause of erosion of what would be otherwise healthy discounts, it can also impact on sentencing options; as the Court says at [42]: “Compliance evidences rehabilitative success or potential.”

The temptation of an arithmetical approach

The Court of Appeal has consistently held that there is no arithmetical formula to be applied in determining an appropriate discount for time on EM bail and the level of discount is ultimately within the discretion of the sentencing Judge (Tamou v R [2008] NZCA 88 at [19]; Keown v R [2010] NZCA 492 at [12]; and Rangi v R [2014] NZCA 524 at [10]).

For instance, Paora notes at [46], citing Tamou, that:

[N]one of the cases had adopted an arithmetical approach to credit for restrictive bail conditions, noting that it is difficult to equate time on restrictive bail with time spent as a remand prisoner. The Court held that what is required is an evaluative assessment of all the circumstances.

Nonetheless, an arithmetical approach is tempting and has been attempted in a 2022 paper by District Court Judge David Harvey who seeks to offer more definition to the “evaluative decision”, entitled “Discounting EM Bail – Developing the Evaluative Approach”.

This paper is embedded as, inter alia, it contains a useful summary of the High Court decisions of Walker-Haturini and Macfarlane advocating for a 1:1 discount for time on EM bail and the approach of Paora.

At the conclusion of the piece, Harvey arrives at a proposed formula for calculating the discount of TD = (TP – AE). Where TD is the Total Discount; TP is the Total Period spent on EM bail; and, AE is Approved Exceptions.

A shortcoming of this formula is that it does not engage at all with compliance which is a mandatory criterion in s 9(3A) of the Sentencing Act.

The calculation is also predicated on the assumption that the starting point is 100 per cent (i.e. 1:1) and the deductions are made from there. This criticism is acknowledged in the final paragraph of the article but that does not make it any less significant.

Having made clear in the article that the 1:1 discount held in the High Court decisions of Walker-Haturini and Macfarlane is not authoritative in view of the Court of Appeal decisions of Paora and Shramka, which are not only from a senior court but also post-date the High Court decisions, it seems odd to adopt that superseded position as the core assumption.

Perhaps the formula could be elaborated upon to include compliance but does this really bring “science” to the decision or is it just a re-iteration of the s 9(3A) factors in a different format? For instance, how is ‘AE’ empirically derived? Is it possible to factor in the many and varied ways in which compliance may not have been met?

In any event, given the preponderance of Court of Appeal authority on the topic, the evaluative approach to discounts – bounded generally in a range of 30 per cent to close to 90 per cent; more usually about 50 percent – is clearly the established approach.