Amon v Department of Corrections

[2023] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-41

[2023] NZHC 1691

BETWEEN

ROBERT PAUL AMON

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	3 July 2023
Appearances:	S Thode and W T Main for the Appellant N L Jamieson for the Respondent
Judgment:	3 July 2023

ORAL JUDGMENT OF JOHNSTONE J

Solicitors:

Thode Utting, Albany

Marsden Woods Inskip Smith, Whangarei

AMON v DEPARTMENT OF CORRECTIONS [2023] NZHC 1691 [3 July 2023]

[1]                 Robert Paul Amon pleaded guilty to three charges of breach of release conditions by failing to comply with electronic monitoring.1 On 8 May 2023, he was sentenced by Judge D J McDonald to one year’s imprisonment.2

[2]He appeals against that sentence. The Department of Corrections opposes.

The offending

[3]                 Mr Amon was released from a previous sentence of imprisonment, imposed for breaches of a protection order, on 15 June 2022. His release was made subject to release conditions, including a special condition not to contact the victim of his protection order breaches and, to that end, to wear and keep charged an on-body GPS tracker. Mr Amon’s first breach was on 28 October 2022 when he allowed his tracker to go flat “without reasonable excuse”. The summary of facts relating to this breach records that the episode was discussed with Mr Amon on 3 November 2022 at which time Mr Amon was “unable to offer a reasonable explanation”.

[4]                 Mr Amon’s second and third breaches occurred when, again without reasonable excuse, he allowed his tracker to go flat on 25 December 2022 and (separately) on 13 February 2023.

[5]                 On each occasion on which Mr Amon’s tracker went flat, he was not immediately able to be monitored. At the time it could not be known whether he moved within a prohibited distance from his victim’s residence while unmonitored. Following a review of his movements such as they can be known, it appears that it is unlikely he did so. Certainly there is no record of his victim noticing any breach.

District Court decision

[6]Judge McDonald took the following approach:

(a)On starting point, the Judge viewed the offending as becoming more serious with each breach. Two months’ imprisonment was taken as the

1      Parole Act 2002, s 71: maximum penalty one years’ imprisonment or a fine not exceeding $2,000.

2      Police v Amon [2023] NZDC 8955.

starting point for the first breach; four months’ imprisonment for the second; and eight months’ imprisonment for the third. This approach gave rise to an overall starting point of 14 months’ imprisonment.

(b)The Judge considered a two-month uplift to that starting point to be appropriate in light of Mr Amon’s prior offending, which included seven breaches of sentencing conditions, eight breaches of protection orders, and 11 other family violence convictions.

(c)The Judge allowed a full guilty plea discount of 25 per cent.

Appellant’s submissions

[7]For Mr Amon, Mr Main submitted that:

(a)The overall starting point (after uplift) of 14 months’ imprisonment was too high.

(b)The Judge should have allowed a discount for personal circumstances (other than his guilty plea), such as his recent homelessness, his remorse, and his intention to obtain employment and accommodation with his partner.

(c)By imposing an end sentence of 12 months’ imprisonment, which was manifestly excessive and not the least restrictive outcome available, the Judge fell into error.

Corrections’ submissions

[8]For the Department of Corrections, Ms Jamieson submitted that:

(a)The Judge’s overall staring point was justified. There were three separate occasions of breach, each increasing in seriousness.

(b)The discounts, such as they were, were appropriate in the sense that a guilty plea discount was realistically all that was available. Mr Amon’s desire to obtain employment at this stage is simply aspirational.

(c)Overall a community based was not available. The sentence appeal should be dismissed.

Law on appeal

[9]                 This Court must allow the appeal if there is an error in the sentence imposed at first instance and a different sentence should be imposed on appeal.3 Otherwise the Court must dismiss the appeal.4

[10]             Before this Court may substitute its own views as to the appropriate sentence, it must find the first instance sentence to be manifestly excessive. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.5 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed rather than the process by which it was reached.6

Analysis

Starting point

[11]             As Judge McDonald observed, there is no guideline judgment in this area. The purpose of the “electronic whereabouts” special condition, including the requirement that Mr Amon keep his tracker charged, was to assist with mitigation of risks faced by his victim should he fail to keep an appropriate distance from her residence. It is implicit in Mr Amon’s offending that he had no reasonable excuse for failing to keep the tracker charged.

3      Criminal Procedure Act 2011, s 250(2).

4      Section 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

6      Ripia v R [2011] NZCA 101 at [15].

[12]             That said, and as observed by Judge McDonald, and indeed as conceded it seems by Department of Corrections, it appears Mr Amon did not enter the exclusion zone around his victim’s residence. Further, while Mr Amon received a reminder of the importance of observing his special condition upon his first failure to do so on  28 October 2022, it does not appear there was similar interaction between him and the Department of Corrections following the second breach on 25 December 2022 before the third breach on 13 February 2023. In that regard, there is a disconnection in terms of time and circumstance between the first and second breach, but not clearly so between the second and third.

[13]             Finally, it appears the Judge accepted that mere inadvertence (albeit not amounting to a “reasonable excuse”) may have been the reason for Mr Amon allowing his tracker to go flat on the first occasion, but in doing so selected a starting point of two months’ imprisonment.

[14]             In light of these features, I take the view there was an error in the selection of starting point. A starting point in respect of the first breach of one month’s imprisonment would have been justified, with a cumulative sentencing approach taken in respect of the second and third breaches (together), adding a total of five months’ imprisonment for that offending.

[15]             In  light  of  Mr  Amon’s  substantial  relevant   history   of   offending,   Judge McDonald’s two-month uplift was in my view well justified. Standing back to assess totality, I accept Mr Main’s submission that an overall starting point of eight months’ imprisonment, at most, rather than 14 months would have been appropriate.

Personal features

[16]             The PAC report dated 1 May 2023 recorded Mr Amon’s statement that he has been homeless since mid-2022, a matter the report writer suggested may have been a contributing factor in the offending. While it does not appear the Judge was invited to have particular regard to that feature, I consider it must mitigate the blameworthiness of Mr Amon’s offending, at least to some extent. He is unlikely in those circumstances to have been able to establish regular habits insofar as charging the tracker is concerned. I consider some allowance for that aspect should have been granted.

[17]             As to whether a sentence of imprisonment was necessary, the Judge’s view of Mr Amon’s poor record of compliance was again, in my view, well justified.

Conclusion

[18]             Adopting an overall starting point of eight months’ imprisonment, and applying deductions of 25 per cent for Mr Amon’s  guilty plea, and of a little over   10 per cent for his irregular housing at the time he failed to keep his tracker charged, I arrive at a final sentence that in my view should have been imposed, of five months’ imprisonment.

Orders

[19]Accordingly:

(a)Mr Amon’s appeal is allowed.

(b)The sentences imposed by Judge McDonald are quashed and replaced as follows:

(i)on CRNs 22088500920 and 23088500101, sentences of five months’ imprisonment; and

(ii)on CRN 22088500712, a sentence of 14 days’ imprisonment.

Those sentences are to be served concurrently.

(c)The  standard  and   special   release   conditions   imposed   by   Judge McDonald are to remain and will operate until Mr Amon’s sentence expiry date.

Johnstone J