Allen v Department of Corrections
[2017] NZHC 2902
•23 November 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-49 [2017] NZHC 2902
BETWEEN SHANE JOSEPH ALLEN
Appellant
AND
DEPARTMENT OF CORRECTIONS Respondent
Hearing: 23 November 2017 Appearances:
D J Sayes for Appellant
J P R Scott for RespondentJudgment:
23 November 2017
JUDGMENT OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Whangarei
ALLEN v DEPT OF CORRECTIONS [2017] NZHC 2902 [23 November 2017]
Introduction
[1] On 6 September 2017, Mr Allen, the appellant, was sentenced to 10 and a half months’ imprisonment by Judge M J Hunt in the Whangarei District Court on one charge of breaching release conditions.1
[2] Mr Allen appeals his sentence on the grounds that Judge Hunt erred by setting the sentencing starting point too high and by failing to give sufficient discount for his early plea of guilty.
[3] Mr Allen has a right to appeal his sentence pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 248(2), a notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of the sentence appealed against. In this case, a notice of appeal was filed outside that timeframe. An application for leave to appeal was filed on or around 30 October 2017. Application is made to bring the appeal out of time. Mr Scott for the Department of Corrections does not oppose the application and I consider that, in the circumstances, it is in the interests of justice that leave to appeal out of time be granted.
Background
Summary of the Caption Sheet filed by the Department of Corrections
[4] The facts to which Mr Allen pleaded guilty are as follows. Mr Allen was released from prison on 21 June 2017. He was subject to release conditions which were imposed on 5 May 2017 at the Whangarei District Court following conviction for breaching conditions of intensive supervision, common assault, behaving threateningly, other common assault, and intentional damage. Mr Allen was also subject to a special condition that he was not to associate with the victim of the
offending, his partner.
1 Department of Corrections v Allen [2017] NZDC 20097. Sentencing Act 2002, s 96. Maximum penalty of 12 months’ imprisonment or a $2,000 fine.
[5] On 31 May 2017, prior to being released from prison, Mr Allen was inducted into his order of release on conditions. The condition not to associate with his partner was discussed with him. Despite the condition, he stated at that time that he would contact his partner and that nothing would stop that from happening or them being together. Mr Allen signed a declaration of induction. On 22 June 2017, Mr Allen reported to the Whangarei Probation Centre where he was again inducted into the special conditions of his sentence. He confirmed that he was aware of the condition that he was not to associate with his partner.
[6] On 6 July 2017, Mr Allen spoke to his Probation Officer and advised that he had travelled to Taupo to be with his partner. His Probation Officer reminded him about the special condition not to associate with his partner and what the consequences were.
[7] On 7 July 2017, Mr Allen reported to the Taupo Probation Centre accompanied by his partner. Mr Allen thereafter sent a text to his Probation Officer stating “I’ve just reported in. You know I’m not going to stop being with [referring to his partner]”.
Provision of Advice to Courts Report
[8] Prior to sentencing, a Provision of Advice to Courts report was prepared by the Department of Corrections. The report writer outlined Mr Allen’s criminal history and concluded that the majority of his offending related to alcohol and drug use. The report writer stated that Mr Allen blamed Community Corrections for his offending. This appears to relate to the offending for which he was subject to the release conditions, and not the breach of the non-association release condition. The report writer identified as “offending related factors” in respect of his current offending “a sense of entitlement, propensity for violence, anti social attitudes, substance abuse, lack of insight, problem thinking, relationship issues, criminal friends and associates”. Mr Allen’s risk of re-offending and causing harm to others was assessed as high. Mr Allen told the report writer he was going to live with his partner and that he was not interested in attending any rehabilitative programmes.
[9] On 8 July 2017 Mr Allen was charged with an offence against s 96(1) of the
Sentencing Act with failing to comply with the non-association condition. He first
appeared before the Court on 8 July 2017 in the District Court, Rotorua and was remanded in custody without plea to appear in the District Court, Whangarei on 24
July 2017. On that date he entered a plea of guilty and was remanded in custody for sentence on 6 September 2017.
District Court decision
[10] Judge Hunt sentenced Mr Allen in the Whangarei District Court on 6
September 2017. Judge Hunt outlined the facts in line with the facts as set out above, although he also said that “By 22 June, literally the day after your release, you were with [your partner]”.
[11] In relation to Mr Allen’s criminal history, the Judge noted that the release conditions were imposed because of concerns that the Department of Corrections had for his partner’s safety and stated:2
Now that is based on the history. That does not necessarily affect all of the circumstances but there is a history and that is just the most recent matters. There is a history for you of involvement with drug use. You have had convictions for using and procuring methamphetamine. Some of those are quite dated but, nevertheless, that is a factor that I cannot ignore. But it is a concern for the safety of the complainant and your persistence with not complying with the directions that are problematic.
[12] The Judge then noted that Probation had concerns about the co-dependent nature of the relationship between Mr Allen and his partner. Probation assessed the risk of re-offending as being very high. The Judge noted that Mr Day had told him that Mr Allen’s partner and Mr Allen wanted to get married in October, and acknowledged that Mr Allen’s partner was present in Court, stating:3
… that is a choice she has made, to be here. It is not [her] standing in the dock today, it is you. It is about your compliance.
…
Nevertheless, I cannot ignore the fact that this is a very flagrant breach, in circumstances where you are unapologetic and say well that is simply how things are going to be and in circumstances where effectively the same breaches or restrictions of the same kind have been breached before and you have received a sentence of imprisonment.
2 At [6].
3 At [9] and [11].
[13] The Judge then proceeded by deciding on a sentencing starting point which he discounted to take account of Mr Allen’s guilty plea. The Judge stated:4
I conclude that you are someone who, on a sentencing approach, has a start point at the maximum. You are someone who attracts a maximum sentence because that is the only protective deterrent factor that I have available to me and that is one of 12 months’ imprisonment.
The discounts that I have given you for your plea are limited because of your attitude towards compliance. And so while I do acknowledge the plea of guilty, which came at an early stage, the discount I give you is of one and a half months.
So the sentence I impose today is one of 10 and a half months’ prison. …
Starting point
[14] The Judge adopted the maximum starting point of 12 months’ imprisonment. Mr Sayes for Mr Allen submits that the Judge was wrong to do so. Mr Sayes submits that the Judge incorrectly took account of four factors and failed to take account of a fifth.
[15] Mr Sayes submits that the Judge incorrectly took account of Mr Allen’s previous drug-related convictions. However, the Crown submits that the previous convictions are a mandatory aggravating factor pursuant to s 9 of the Sentencing Act. In any event, I consider that although the Judge made general reference to the drug- related convictions, it is clear from reading the Judge’s sentencing decision that those convictions were a subsidiary factor to the convictions for the offending against Mr Allen’s partner, although no harm had occurred to her as a result of the breach of the non-association condition.
[16] Next, Mr Sayes submits that the Judge erred in noting that the appellant was unapologetic. Mr Sayes submitted that being apologetic or showing remorse can be a mitigating factor but the absence of such a factor should not be an aggravating factor. The Judge’s reference to Mr Allen being unapologetic was made in the context of setting a starting point and appears to have been a factor taken into account by the
Judge in deciding the starting point and I will have more to say about that shortly.
4 At [12]–[14].
[17] Next, Mr Sayes submitted that the Judge erred in taking into account that sentences of imprisonment had previously been imposed in respect of the same breaches or restrictions. Mr Sayes submits that this is not the case. Mr Sayes informed the Court that Mr Allen has four previous convictions for breaches on 5 May 2017, 22
June 2006, 15 October 1994 and 8 July 1994. The 2017 conviction was for breach of intensive supervision and the remainder were for breaches of supervision. Mr Sayes informs the Court that he has made inquiry of Corrections as to the nature of the breaches and has been informed that the two more recent were for failing to report within 72 hours, and failing to notify an address. No information is available regarding the circumstances of the more historical breaches.
[18] It is not clear what the Judge was referring to when he said “effectively the same breaches or restrictions of the same kind have been breached before”. It may be that the Judge was referring to Mr Allen having previously breached release conditions generally, or that the Judge may have mistakenly considered that Mr Allen had previously breached a non-association condition in respect of his partner. The fact remains, however, that Mr Allen has several previous convictions for breaching conditions of supervision. He has an extensive list of other convictions, that have not been referred to, including breaches of court orders for community work, breach of periodic detention, and driving while disqualified. Overall, Mr Allen’s criminal history does display an attitude of disregard for court orders. A breach need not be of exactly the same nature to demonstrate a pattern of behaviour. Here, Mr Allen’s history shows previous breaches of various kinds of court orders. This history and pattern can appropriately be taken into account.
[19] However, Mr Sayes is quite correct in his submission that Mr Allen has no prior conviction for breaching a non-association order and no prior imprisonment for such a breach. Mr Scott, for the Department of Corrections, accepts that that is so.
[20] Next, Mr Sayes submits that the Judge erred in concluding that the maximum sentence was the only effective deterrent measure available. He submits that this offending was not in fact the worst of its kind. While Mr Allen has previously offended by failing to comply with Court orders and conditions relating to the serving of community based sentences, he has not previously offended in relation to a non-
association condition. The circumstances in this instance, involving Mr Allen’s partner, who was entirely co-operative with his wish to be with her, was the motivation for the breach and that background informs consideration of the need for a sentence necessary to deter any repeat offending. Mr Allen refused to engage with rehabilitative programs and also expressed his intention to breach the condition again in order to be with his partner.
[21] In light of Mr Allen’s determination to be with his partner, and it must be said his partner’s obvious wish to be with him, the question is whether a maximum sentence is the only means of achieving the sentencing objective of effective deterrence.
[22] Mr Sayes submits that the Judge erred by failing to take into account that the contact by Mr Allen was welcomed and consented to by his partner. In his written submissions, Mr Sayes submitted that Mr Allen’s partner had been a sentenced prisoner herself, and that Mr Allen had picked her up, or met up with her, on 5 July
2017 upon her release from Auckland’s Women’s Prison and thereafter travelled with her to Taupo where she was to visit her father who was dying. The Judge was aware of Mr Allen’s partner’s wish to be with Mr Allen. He referred explicitly to her presence in the Court on the occasion of the sentencing and noted that it was not her, but Mr Allen, who was in the dock. However, the Judge proceeded on the basis that Mr Allen’s partner’s attitude and support for Mr Allen was of no relevance to the sentence to be imposed, commenting that apart from the immediate facts relating to the breach, “I am not looking for a further explanation”.
Analysis
[23] I find that the Judge made several errors in determining the sentence imposed. Firstly, the Judge was wrong in saying that on the day after his release on 21 June 2017
Mr Allen was with his partner. As I have said, his partner was herself in prison until
5 July 2017 and Mr Allen met her at the prison upon her release and the pair then travelled to Taupo. This error is not, in my view, material, as on both the Judge’s version of the facts and what I understand to be the correct position, Mr Allen breached the terms of the non-association condition on what was effectively the first opportunity available to him following his release from prison.
[24] The second error of the Judge, however, is material and it led to the Judge adopting a sentencing starting point that was excessive and wrong in my view. The Judge found Mr Allen’s breach of the release condition by which he was directed not to associate with his partner involved him in making a deliberate decision to disobey a Court order. The Judge, having found that Mr Allen had wilfully committed what he appropriately described as a flagrant breach, then went on to say that any reasons why the non-association condition had been breached were wrong. The Judge said “the reasons why you chose to do what you [did] are not the point.” In my view, however, the reasons why Mr Allen acted in breach of the non-association condition and the context within which that conduct occurred were highly relevant to an assessment of the gravity of his offending and therefore relevant to the decision as to the appropriate starting point.
[25] The condition that he not associate with his partner had been imposed following what is described in the pre-sentence report as an attempt at strangulation of his partner and was imposed by the Court in order to provide his partner with protection and to reduce the risk of re-offending. Mr Allen was entirely open with his Probation Officer regarding his intention to see and reunite with his partner. He told his Probation Officer on 6 July 2017 that he had travelled to Taupo to be with her. The next day he reported into the Taupo Probation Centre accompanied by his partner. Soon afterwards he sent a text message to his Probation Officer saying that he was not going to stop being with her.
[26] While the non-association condition was imposed as a protective measure as regards Mr Allen’s partner, it is clear that she herself had no wish to be protected from him and was quite willing to associate with Mr Allen notwithstanding the existence of the condition and notwithstanding his conduct that had led to the imposition of the condition. I note that the pre-sentence report recorded that both Mr Allen and his partner were emphatic regarding their intention to live together regardless of any conditions that might be imposed by the Court.
[27] Here, where the person for whose benefit and protection the non-association condition is made, had made it plain that she did not seek its protection and willingly associated with Mr Allen because she wished to be in a relationship with him, with the
intention of perhaps marriage, the reasons why Mr Allen breached the condition are very relevant as they inform an assessment of the seriousness of his offending. Where the breach of the non-association condition did not only not cause harm to Mr Allen’s partner, but was in fact demonstrably welcome by her, such circumstances must clearly inform an assessment of the seriousness of the offence notwithstanding that the offending was deliberate and flagrant.
[28] Contrary to the Judge’s conclusion, I find that the reasons why Mr Allen acted in breach of the non-association condition were relevant and the Judge was in error by disregarding the existence of these mitigating circumstances in relation to the mutually willing personal relationship between Mr Allen and his partner.
[29] An unusual feature of the offending was the openness with which Mr Allen carried out his actions of associating with his partner. His offending could not have been more transparent. He informed his Probation Officer of his intended actions and then even attended the Probation Office at Taupo accompanied by his partner. While the breach was appropriately termed flagrant, equally there was no attempt whatsoever at concealment, meaning that Mr Allen would be readily held accountable for his actions by the authorities. I consider that the fact that Mr Allen conducted himself openly and informed his Probation Officer of his actions and intentions, while reflecting the deliberate nature of his offending, also demonstrated his preparedness to be held accountable and this too is relevant to an assessment of the gravity of the offending.
[30] The Judge, in my view, made a further error in proceeding on the basis that Mr Allen had previously been imprisoned for having breached restrictions of the same kind. While Mr Allen had been previously convicted of breaches of community based sentences, he had not been convicted or imprisoned for offending by way of breaching a non-association order. The Judge’s comment implied that Mr Allen’s offending on this occasion was yet another instance of him breaching a non-association condition and preceded his decision to adopt a sentencing starting point with a maximum penalty of 12 months’ imprisonment.
[31] Finally, the Judge concluded, that the adopting of the maximum penalty was the only protective deterrent factor available to him. I consider that finding also to be in error. The adoption of the maximum penalty as a starting point was not necessary in order to impose a sentence which operated as an effective deterrent. The adoption of a lower starting point for a term of imprisonment would not be inconsistent with the imposition of a deterrent sentence.
[32] Thus, in his assessment of the gravity of the offending and determination of the sentencing starting point, the Judge wrongly proceeded on the basis that Mr Allen had previously been sentenced to imprisonment for breaching restrictions of the same kind, disregarded the significant circumstances and reasons for Mr Allen’s actions and the existence of the relationship that existed between he and his partner, and disregarded his partner’s continuing support.
[33] The Judge further erred by proceeding on the basis that adopting the maximum penalty was the only protective deterrent factor available.
[34] These errors were individually and in combination material and resulted in the Judge adopting a maximum penalty of 12 months’ imprisonment as a starting point. However, in my view, a proper analysis of the offending produces a different conclusion. While the offending was obviously deliberate, it did not warrant being treated as the most serious type of offending, thereby attracting the maximum penalty. The offending occurred in the context of significantly mitigating circumstances. While the author of the Department of Corrections’ pre-sentence report considered that the risk of re-offending and causing harm to Mr Allen’s partner was high and Community Corrections was unable to guarantee her safety should Mr Allen and his partner cohabit, Mr Allen’s partner herself had demonstrated her willingness to be with him despite the prior event which had resulted in the imposition of the non-association condition.
[35] In these circumstances the breach of the non-association condition was a significant mitigating factor and the Judge was wrong to disregard it and concentrate exclusively on the deliberate and wilful breach of a Court order as determining and indeed dictating the adoption of the maximum penalty as the starting point.
[36] Mr Sayes submitted that the District Court Judge failed to follow the three-step approach to sentencing outlined in Clifford and, as a consequence, failed to determine the sentencing starting point by reference only to the aggravating or mitigating factors relating to the offence.5
[37] The Judge’s errors of disregarding the mitigating circumstances of the offending relating to Mr Allen’s partner and her wish to be with Mr Allen and proceeding on the basis that Mr Allen had been in prison previously for breaching a restriction of the same kind, together with his finding that the imposition of a maximum penalty was the only deterrent available to him, contributed to his selection and adopting of a starting point which, in my view, was manifestly excessive.
[38] For the reasons I have explained, the offending here was not the most serious type of offending calling for the imposition of the maximum penalty. One can readily imagine more serious types of breaches where the consequences are damaging. Maximum sentences are to be reserved for offending that is of the worst kind and in my view the offending here was well below that level.
[39] Applying the provisions of s 250 of the Criminal Procedure Act, I consider the Judge’s errors are material and are such as require a different sentence to be imposed. I consider that while the deliberate breach of the non-association condition shows a high-handed disregard for authority of the Court, calling for a stern response and a deterrent penalty, the purposes and principles of sentencing provided for in ss 7 and 8 of the Sentencing Act 2002 would be met by the adopting of a lower starting point. I consider that a starting point of six months’ imprisonment is appropriate.
Reduction for guilty plea
[40] Mr Sayes submitted that the Judge should have reduced the starting point by
25 per cent on account of Mr Allen’s guilty plea – the maximum available pursuant to Hessell v R.6 However, as Mr Scott for the Department of Corrections has submitted, a guilty plea reduction is not automatically applied at the level of 25 per cent, even
where entered at the earliest stage. A guilty plea discount must be evaluated in light of all the relevant circumstances – including the strength of the prosecution case.7 Mr Scott submits that it was open to the Judge to conclude that, despite the plea of guilty,
the circumstances did not warrant the application of a 25 per cent discount or reduction.
[41] The Judge’s assessment of the appropriate discount to be given for the guilty plea was limited, he said, because of Mr Allen’s attitude towards compliance. However, the appellant’s attitude towards compliance was a factor that ought to have already been taken into account by the Judge when determining the sentencing starting point. To the extent that the appellant’s attitude can be seen as indicating an absence of remorse, that factor, that is remorse, is to be treated separately from the guilty plea and assessment of a discount.8 It was the appellant’s deliberate flouting of the Court order that attracted the Judge’s imposition of the maximum penalty as a starting point.
[42] For those reasons, I consider that the Judge’s reference to Mr Allen’s attitude towards compliance had no proper part to play in a consideration of the guilty plea discount. The Judge’s reduction of the sentence by six weeks was approximately a discount of 12.5 per cent. I consider that having regard to the appellant’s prompt and early guilty plea, an appropriate discount of 20 per cent of the starting point is appropriate. In that regard, while the guilty plea was entered at the first available opportunity, there needs to be appropriately some recognition of the strength of the prosecution case, contributed to as it was by the appellant’s own conduct and the way in which he acted in relation to disclosing his intentions before and after offending which made the prosecution case particularly strong.
Result
[43] Therefore, applying a discount of 20 per cent and adopting a six-month term of imprisonment as the starting point, an end sentence of four months, three weeks’ imprisonment is the result.
[44] Accordingly, the appeal against sentence is allowed. The sentence of 10 and a half months’ imprisonment imposed by Judge Hunt on 6 September 2017 is set aside and pursuant to s 251(2) of the Criminal Procedure Act 2011 I hereby substitute a sentence of imprisonment for a term of four months and three weeks.
[45] As to the non-association condition imposed by Judge Hunt, and set out in paragraphs [15] and [16] of his sentencing notes, which prohibits Mr Allen associating with his partner without her consent and without the written consent of the Probation Officer, that condition shall remain in force and also be part of the sentence I now impose. I note that although the Judge in expressing this condition said that it was to be “without her consent and without the consent of the Probation Officer”, in what I take to be his handwritten addendum to the condition that appears on the file, the wording is “without her consent and without the written consent of the Probation Officer”. I consider that the requirement of written consent is an appropriate feature
of the condition and the condition that I impose is in those terms.
Paul Davison J
3
0
0