Algie v Police

[2014] NZHC 1093

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000007

CRI-2014-443-000008 [2014] NZHC 1093

DENNIS LANCE ALGIE

v

NEW ZEALAND POLICE

Hearing:	21 May 2014
Appearances:	D M Goodlet for the Appellant (via audiovisual link) A W M Britton for the Respondent
Judgment:	21 May 2014

JUDGMENT OF PANCKHURST J

Introduction

[1]      This is an appeal against a sentence of nine months’ imprisonment.   No criticism is levied at the nine month sentence in itself; the sole ground of appeal is that the Judge erred in not imposing home detention rather than a short term of imprisonment.

[2]      There were eight offences before the Court in relation to which the sentence was  imposed.    There  were  four  charges  of  assault  committed  on  children,  two charges of male assaulting a female, a breach of a protection order and a misuse of a

telephone.

ALGIE v NEW ZEALAND POLICE [2014] NZHC 1093 [21 May 2014]

The offence history

[3]      To my mind it is helpful to set out the chronology of the offending.  The first offence occurred in November 2012 and was an assault by the appellant on his partner.  She was punched, with the result that she received a black eye.

[4]      The second offence was in January of 2013, again an assault upon the same partner.   The two argued.   The appellant grabbed his partner and restrained her momentarily, but she escaped from his grip.  He pursued her, tackled her and then she was kicked, or kneed, on a number of occasions.

[5]      The third offence, indeed the next three offences, occurred in the period April to May 2013.  They were against children.  The first of them in time was an assault on a daughter, aged four years. The next was an assault upon another daughter, aged three years, who was smacked in such a way as to cause bruising to her body.  The third offence was against a son, aged 12 at the time, who was kneed and kicked in the course of an assault.

[6]      That  cluster  of  offences  resulted  in  the  appellant’s  partner  going  to  the Family Court in May 2013 and obtaining a protection order.  The order was made permanent three months later in August.

[7]      The other thing that the cluster of offending triggered was action on the part of the Family Court, culminating in Mr Algie’s involvement in a number of rehabilitative programmes.  He began two programmes, one of them for preventing domestic violence, and that, I am informed, was interrupted for a time while some departmental restructuring occurred.   In any event, it is common ground that by December 2013 he was well into the course in relation to domestic violence and also another programme he had all but completed.

[8]      The next offence occurred on 2 December 2013.  It was an assault against the same boy who was the subject of the assault in May. A lunchbox was thrown at him. He was also kicked to the foot and as a result left for school in an upset frame of mind.   Teachers were apparently concerned enough to think that the incident warranted the intervention of the police and the police became involved.   In the

result, there were two offences: one a breach of the protection order and the other another charge of assault upon the child.

[9]      As a result of the submissions I have heard from Ms Goodlet this afternoon I now  have  a  better  understanding  of  what  occurred  after  that.    The  appellant appeared, I assume, in the Hawera District Court, was granted bail but initially subject to a condition that he was not to reside in the family home where the offending had occurred.  However, on 17 December he entered pleas of guilty to the seven charges to which I have referred.   He was re-admitted to bail and he also secured a variation to the terms of bail permitting him to return to the family home. I will mention the reason for that variation shortly.

[10]     Soon after, on 24 December 2013, the appellant committed the last of the eight offences with which I am concerned.  This was the misuse of a telephone.  He sent a text message to a police officer, a female police officer.  She at that time was coping with not only her duties as an officer, but also a serious illness, cancer.  The gist of the text message was that she was a home wrecker, a liar and it ended on the note that Mr Algie hoped that her cancer would come back.  When he was spoken to by the police, and indeed arrested in relation to that matter, he apparently said that he hoped the police officer died.

[11]     I note that the message was sent using his partner’s phone.  Her phone had been set up with a direct dial access number so that she could call the female police officer if the need to do so arose.  On this occasion, instead of being used for that purpose, the phone was used to enable this nasty text message to be sent.

The sentencing in the District Court

[12]     The sentence was imposed on 5 March of this year by Judge Roberts.   He listed a number of features of the offending which weighed with him in assessing its culpability.  These were that there were a number of victims – he said four, but in reality I think there were actually five victims.   He referred to the duration of the offending, which was of the order of 10 months, albeit with a gap in the middle.  He noted that following the making of the protection order in the Family Court there had been the further offending, to which I have referred.   Finally, he noted that the

offending was against, in part, young children who were vulnerable as members of the appellant’s family.

[13]     The Judge then went through a conventional exercise to determine what the appropriate prison sentence would be if that was to be the outcome.   I need not replicate  the  steps  that  he  went  through,  because  there  is  no  challenge  to  the nine month end sentence at which he arrived, after taking into account as mitigating features  both  the  pleas  of  guilty  and  the  efforts  towards  rehabilitation,  the counselling in which the appellant had been involved.  For the latter, I note he made a deduction of two months in the course of the sentence calculation.

[14]     When it came to the question of home detention, the Judge said this:1

Home detention I decline.   My reasons overall, this offending constitutes serious  offending.    You  have  worked  through  the  whole  spectrum  of penalties but offending is ongoing.  Home detention was previously imposed on you, yet your offending continues.  Given too the substance of the text messages your attitude, as it is even manifested today, is poor in the extreme, you talking over me as I deliver this sentence.

[15]     Earlier  the  Judge  had  made  reference  to  a  previous  sentence  of  home detention which he had imposed in 2010.  The offending on that occasion was quite different, being the supply of prescription medication to others, for which the appellant was sentenced to four months’ home detention.  The Judge actually noted that he had received a letter from Mr Algie following the imposition of that sentence. He also noted that the sentence had been completed satisfactorily.  It follows that he had some knowledge of the appellant as a result of that previous appearance, from his involvement with him in December last year and then again in March.

[16]     The appellant’s offending record is poor.  He is 37 years of age.  His list of previous convictions covers a period of 20 years.  There are convictions for offences of violence, for dishonesty, for traffic matters and quite some number for breaches of

Court orders.

1 New Zealand Police v Algie DC CRI-2013-021-000898, 5 March 2014 at [37].

The grounds of appeal

[17]     Ms Goodlet has advanced a considerable number of points in support of the appeal, and indeed I think has said everything that can possibly be said in relation to the matter.  To my mind there are two main strands to her argument.  The first is that the gravity of the offending was overstated by the Judge, and the second is that personal mitigating factors were not adequately assessed and brought to account.  In particular, counsel stressed that this was a case where there had been genuine rehabilitative steps taken and argued that these have not been adequately understood and brought to account by the Judge.

[18]     I will refer to the two arguments in turn.  With reference to gravity the point was made that some of the offences were “aged” by the time of sentencing in March 2014.   That is, I agree, the case.   It was also stressed that the previous occasion upon which the appellant had appeared in Court was in June 2010 and this was described as a gap of almost four years, which I think is a slight overstatement.

[19]     A further  criticism  was  that  the  text  message  seemed  to  have  assumed something of a focus for the Judge in the course of his sentencing remarks; that it seemed this offence had been given considerable weight when, counsel submitted, it was “comparatively minor” in the overall scheme of things.

[20]     Turning to the personal mitigating factors, the argument was that there were strong indicators to show that Mr Algie had taken positive steps towards turning his life  around.     He  had  completed  about  two-thirds  of  an  anger  management programme by December 2013 and completed a parenting course.   It was his participation in those initiatives which was instrumental in the variation of his bail terms and the lifting of the prohibition on his returning to the family home.

[21]     When   the   pleas   of   guilty   were   entered   in   Court   on,   I   think,

17 December 2013 the Judge was shown a letter from Child, Youth and Family which characterised the last of the assaults upon a child as relatively minor and went on to say that as a result of contact which the service had had with Mr Algie that there were “very positive gains made by him in recent months”.  This enabled the Judge to reach the view that the non-residential condition should be lifted, with the

consequence  that  the  appellant  returned  to  the  family  home  while  he  awaited sentence.

[22]     Another matter raised by counsel is that Mr Algie had been in the family home for four months “without issue” before he was eventually sentenced in March. Again, I am not sure that the time calculation is quite right.  It is really about two and a half months from the last of the offences, the text message, and the sentencing, but there is nonetheless a reasonably significant period.

[23]     The point was also made that, all in all, the appellant was on remand and on bail awaiting resolution of these charges for an extensive period and, finally, that he had written a letter of apology and thereby demonstrated remorse.

[24]     Another factor which has been particularly stressed this afternoon, which was not mentioned by the Judge and which may not have been before him, concerned a further initiative which had occurred, as I understand it, as early as June 2013 when the appellant approached an agency called Relationships Aotearoa.  As a result he attended a number of meetings with the provider.  He had, I think, completed one of the programmes which I have already referred to by the end of the year.  However, he went back to the agency in 2014, met with the clinical manager and as a result of that, what is termed a “family case file” was opened for the appellant and his family. He then returned and participated in meetings in February and again in March, at least one of those meetings accompanied by his son, one of the complainants.

[25]     Ms Goodlet’s concern was that this aspect, further involvement of his own initiative in a new programme, was not mentioned by the Judge and may not have been known to him and therefore not brought to account.

The Crown submissions

[26]     The Crown submissions are to this effect.  Home detention was an available sentencing option.   The choice between its imposition on the one hand and the imposition of a short term of imprisonment on the other required a discretionary assessment to be made.  Mr Britton submitted that the Judge had considered home

detention and that his analysis did not demonstrate any error of approach.  Hence, the Judge imposed the short prison term rather than home detention.

[27]     Reliance was placed upon observations made by the Court of Appeal in the case of R v D.  The Court said:2

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending. The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other. In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

Counsel suggested that those observations were apt, and applied equally to me sitting in judgment on this appeal.  I shall return to those observations in a moment.

Evaluation

[28]     To my mind the offence history, or chronology, is important in this case. There were five offences committed up to May 2013 and then three further offences committed in December.  What this means is that the appellant had been involved with the rehabilitative programmes for a period of a few months at least, before the first of the December offences were committed.   Moreover, he was on bail and permitted to return to his home before the last offence involving the text message was committed.  I do not think that this pattern of the offending can be put to one side.

[29]   The pre-sentence report was dated 26 February 2014.   It contained an assessment of risk in relation to the appellant.  It described his risk, as I read it in general, to be only moderate.   It said, however, that based on the nature of the offending for which he awaited sentence, he was at high risk. As I understand it, the

assessment was that in relation to domestic-type offending his risk was higher.

2 R v D [2008] NZCA 254 at [66].

[30]     Nonetheless, the recommendation made by the report writer was for intensive supervision or home detention, although the writer also recognised that a prison sentence remained an option.  The report had an appendix to it which found that the home address would be suitable for a sentence of home detention or, failing that, that there was an alternative address equally suitable and away from the home town.

[31]     Despite the recommendation for intensive supervision and the approval of home detention sentencing option, I still see the assessment of risk as of significant relevance in the overall assessment of matters.

[32]     I return then to the observations made in R v D, the focus upon the type of offending and which side of the line the offending may fall upon.   I see those observations as equally apt in relation to the personal assessment which must be made of the defendant by District Court Judges when faced with the difficult task of determining whether a short-term prison sentence should be commuted to home detention.

[33]     Reading Judge Roberts’ sentencing notes in the round, I think the essential conclusion he reached was not that the offending was of such a level of seriousness as to rule out home detention as an option, rather that the appellant’s state of mind, or, perhaps better put, his attitude was such that he did not consider home detention was appropriate.   That, at least, is what I take from his sentencing remarks and particularly what he said towards the end of [37], in the observations I quoted earlier.

[34]     Returning to R v D, he was much better placed than I am to determine the appellant’s attitude.   One has a feel for a case if you are dealing with it at first instance and in this instance the Judge had the added advantage that he had dealt with  the  appellant  on  previous  occasions,  at  least  twice  in  2010  and  then  in December when the pleas to these charges were entered.

[35]     These three matters to which I have just referred I consider to be highly influential.   It may be that the Judge was not aware of the further rehabilitative initiative that had been made and carried on into 2014 with Relationships Aotearoa.

I am not persuaded that that aspect is such as to warrant my taking a different view to that of Judge Roberts.

[36]     My  final  conclusion  is  that  it  would  be  wrong  of  me  to  contemplate intervention in this case.  The sentencing remarks as a whole provide a good sense as to what influenced the Judge.  The offending was nasty, but I think compounded by an attitude problem which the Judge perceived still existed at the date of sentencing and for that reason he did not commute the sentence to home detention.  I am not persuaded that he erred.

[37]     For these reasons the appeal is dismissed.

Solicitors:

D Goodlet, Wanganui

C & M Legal, New Plymouth