Anderson v Police
[2024] NZHC 1826
•5 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-44
[2024] NZHC 1826
BETWEEN DYLAN JAMES ANDERSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 July 2024 Appearances:
H Porter for the Appellant
R Bedggood and R Buckman for the Respondent
Judgment:
5 July 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 5 July 2024 at 3.30 pm
Registrar/Deputy Registrar Date:
Solicitors:
Crown Solicitor, Wellington
Luke Cunningham & Clere, Wellington
ANDERSON v NEW ZEALAND POLICE [2024] NZHC 1826 [5 July 2024]
Introduction
[1] Mr Anderson appeals his sentence of one year’s imprisonment on a charge of injuring with intent to injure1 imposed by Judge N Wills in the Wellington District Court on 8 May 2024 following a guilty plea.2
[2] The sole issue on appeal is whether the Judge erred by imposing a sentence of imprisonment despite a sentence of home detention being available at Mr Anderson’s home address.
Summary of offending
[3] I adopt Judge Wills summary of the offending which occurred on 8 February 2024 as follows:3
[2] You were at the Wellington High Court in relation to a murder trial and you were there with two gang associates. You were there to support the deceased and the victims were there to support the defendants charged with murder.
[3] The public gallery became disordered and that resulted in the High Court going into a short lockdown and all the gallery attendees left the court. You and other associates approached two victims, in this case [sic] turns on your actions in relation to one of those victims.
[4] What has been clarified for me today is that you kicked the victim causing him to fall to the ground and then you kicked him once in the head before you and others left the immediate area, the result being that this victim lost consciousness and suffered a concussion.
Sentencing decision
[4] Judge Wills identified the aggravating features of an attack on the head while the victim was on the ground leading to moderate injury (loss of consciousness and concussion), involvement of multiple attackers, and gang involvement. The Judge declined to include vigilante action and hate crime as aggravating factors in addition to gang involvement because it would have led to double-counting.
1 Crimes Act 1961, s 189(2). Maximum penalty of 5 years’ imprisonment.
2 Police v Anderson [2024] NZDC 10270 [sentencing decision].
3 Sentencing decision, above n 2.
[5] The Judge placed Mr Anderson’s offending at the lower end of band two of Nuku v R which sets the range for a starting point of up to three years’ imprisonment.4 The Judge then adopted a starting point of 22 months’ imprisonment.
[6] The Judge uplifted the starting point by two months to reflect Mr Anderson’s previous convictions for violent offending.
[7] The Judge arrived at the end sentence of imprisonment for one year after adopting the following credits for personal mitigating factors:
(a)a credit of four months for Mr Anderson’s background and other matters raised in the cultural report;
(b)a credit of two months to reflect steps taken in terms of remorse and rehabilitation; and
(c)a credit of 25 per cent for guilty plea.
[8] The Judge then turned to considering whether it would be appropriate to impose a sentence of home detention. The proposed home detention address was a small two-bedroom privately-rented unit with two adult occupants, being Mr Anderson’s partner of over two years, and her father.
[9] The Judge referred to the most recent Provision of Advice to Courts (PAC) report dated 6 May 2024 in which home detention was not recommended. The report-writer noted that the restrictive nature of home detention, in concert with the small space in the proposed address, was concerning on account of Mr Anderson’s history of family violence. It was noted that Mr Anderson’s partner was not aware of the extent of his offending history, including his sexual history against children. The partner apparently then said she would not allow her nieces to stay over if Mr Anderson was living at the address.
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38], referring R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA).
[10] The Judge noted that Mr Anderson’s counsel clarified during the sentencing that Mr Anderson’s partner was in fact aware of his background but the Judge was nevertheless concerned with Mr Anderson’s previous history of violence towards intimate partners. The Judge considered that the confined nature of the residence might pose a risk in terms of further intimate partner offending, especially given the report-writer’s assessment of Mr Anderson being at a high risk of further general offending and above average risk of further sexual offending.
[11] For those reasons, the Judge declined to impose a sentence of home detention and confirmed an end sentence of one year’s imprisonment. In doing so, the Judge reserved leave for Mr Anderson to apply for home detention to a different address.
[12] Mr Porter, counsel for Mr Anderson, advises the Court that an application for home detention at a different address was filed but was subsequently withdrawn.
The law on sentence appeals
[13] The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.5 The Court’s focus is on the end sentence. If the process by which a sentencing Judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then the appeal court will not intervene.6 Otherwise the Court must dismiss the appeal.7
[14] The Court can impose a period of home detention where it is satisfied that the purposes for which the sentence is being imposed cannot be achieved by a less restrictive sentence, and the Court would otherwise sentence the offender to a short-term sentence of imprisonment, being two years or less.8 A sentence of home detention can be imposed for a maximum period of 12 months.9
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].
7 Criminal Procedure Act, s 250(3).
8 Sentencing Act 2002, s 15A.
9 Sentencing Act, s 80A(3).
[15] In Twomey v R the appellant had been sentenced to 18 months’ imprisonment.10 On appeal, he challenged the sentencing Judge’s decision to decline him leave to apply for home detention. The Court of Appeal discussed the relevant principles that apply in relation to the commutation of imprisonment to home detention as follows:
[12] There is no presumption in the Sentencing Act for or against commutation of imprisonment to home detention either generally or for particular types of offences. The decision calls for an exercise of judgment on a case by case basis against the statutory principles and purposes of sentencing which a sentencing judge is called upon to assess when determining whether home detention is an adequate response to the seriousness of the offending.
[13] Because it can be very difficult in a marginal case to articulate reasons for preferring one approach to another, the margin of appreciation extended to judges in deciding whether to commute a prison term to a sentence of home detention is usually significant. The same standard of appellate review applies to decisions not to commute imprisonment to home detention as it does to any other sentence. An appellant must show that a material error was made and satisfy the appellate court a different sentence should be imposed.
(footnotes omitted)
The case for the appellant
[16] Mr Porter submits that the Judge gave undue weight to the perceived risk of family violence arising against Mr Anderson’s partner. He notes that not only has there been a gap in time since Mr Anderson’s last general offending in February 2019 (as was noted by the Judge),11 Mr Anderson’s previous family violence offending occurred in July 2016, when Mr Anderson was 19 years of age, in relation to another partner. Mr Anderson has no history of violence against his current partner.
[17] Mr Porter submits that Mr Anderson, now aged 27 years, has matured significantly since his previous offending. He is in a stable relationship in a stable home and, prior to being remanded in custody, was in gainful employment. He has lost that job but Mr Porter expressed confidence that Mr Anderson would be able to obtain similar employment if the sentence was commuted to home detention.
10 Twomey v R [2018] NZCA 206. See also Palmer v R [2016] NZCA 541 at [17]–[19] and Aupouri v R [2019] NZCA 216 at [18].
11 Sentencing decision, above n 2, at [10].
[18] Mr Porter notes that Mr Anderson was on restrictive bail without incident at the proposed address, including conditions as to 24 hour curfew, before being remanded in custody following his guilty plea. Mr Porter submits that the Judge did not take this into account when sentencing him.
[19] Mr Porter seeks to adduce further evidence in the form of an affirmation of Mr Anderson’s partner, drafted with the benefit of independent legal advice. This is not opposed by the respondent.
[20] Mr Anderson’s partner affirms that she has been in a relationship with Mr Anderson for two years living at the proposed address, before her father moved in at the start of 2024. Both she and her father consent to Mr Anderson being sentenced to home detention at the proposed address. She deposes that Mr Anderson “has been honest with me and he did tell me about all his convictions, including the sexual ones” but he “has never harmed or hurt me in any kind of way”. She feels “lost” without Mr Anderson’s presence and would like him back home to “help with his half of the rent”.
[21] In relation to the second PAC report dated 6 May 2024 Mr Porter notes that the report-writer made his assessment of Mr Anderson’s risk of using violence and of further general offending without the benefit of interviewing Mr Anderson.
[22] Finally, Mr Porter submits that if Mr Anderson’s appeal is allowed, then Mr Anderson’s time spent in custody will need to be credited towards his sentence of home detention. Mr Porter calculates that Mr Anderson will have spent 84 days in custody as at the date of hearing.
The case for the respondent
[23] Ms Bedggood, for the respondent, submits that there is no error in the sentence which would require a different sentence to be imposed. The Judge was entitled to reach the view that the proposed address was not suitable, and the further evidence has not altered that position.
[24] Ms Bedggood refers to R v Stead where Gwyn J declined to convert the defendant’s sentence into home detention as the proposed address was not suitable.12 The occupants of the address, the defendant’s parents, were supportive of the defendant and wished to help in any way they could (including providing consent for their address to be used for a sentence of home detention), but they had concerns about their safety and property. Unlike the present case, the Judge noted that three of the charges to be sentenced were for assault and threats to the defendant’s father. Justice Gwyn was not satisfied that the address was suitable “primarily due to the tensions in your relationship and the risk of those tensions becoming worse if you are confined in close quarters together”.13
[25] Ms Bedggood acknowledges that although Mr Anderson does not have a history of offending towards his current partner, he does have a history of offending against previous intimate partners, and there is a real risk that frustration at the circumstances will be taken out on his partner.
[26] Ms Bedggood submits that the Judge was entitled to place weight on the two PAC reports when conducting her own assessment of the evidence. In this regard she distinguishes Beattie v Police where the sentencing Judge accepted, without question, the recommendation in the PAC report that the address was unsuitable.14
[27]Finally, Ms Bedggood makes the technical point that:
… neither of the PAC reports has addressed whether, as required by s 80A(2)(a)(iii), Mr Anderson has agreed to comply with the conditions that will apply during home detention. The reports only record that he was read the conditions and “consented” to them. The respondent submits that if the Court is minded to allow Mr Anderson’s appeal, it should seek further information to ensure that the requirement in s 80A(2)(a)(iii) is met.
Discussion
[28] In my view this is one of those marginal cases where the Court extends a margin of appreciation to the sentencing Judge. There are available arguments that go both ways.
12 R v Stead [2021] NZHC 1411.
13 At [45].
14 Beattie v Police [2022] NZHC 2673 at [41].
[29] On the one hand as Mr Porter submits, Mr Anderson’s most recent family violence offending was in August 2016 when he was 19 years of age. This offending involved a previous partner. His most recent previous criminal conviction of any kind results from offending in July 2019 when he was 22 years of age. That, of course, does not take into account the serious index offending for which Mr Anderson was sentenced.
[30] On the other hand, while there is no past history of offending towards his current partner, Mr Anderson has been assessed of posing a general risk of violent offending based on his past behaviour and issues with managing his anger.
[31] There is also the issue of the sentence of home detention being served in a small property with three adults living there. Mr Anderson does not presently have a job to go to, and at least in the interim, he would be confined to the address, in close quarters with the other two occupants and with limited opportunities for social interaction. In those circumstances I consider the Judge was correct to find a risk of frustration, arising in those circumstances, being taken out on the other occupants.
[32] The Judge was entitled to place weight on the two PAC reports (although I accept the writer of the second report did not interview Mr Anderson). Nevertheless the report-writers had the benefit of the Department of Corrections’ records and documents for Mr Anderson, he was interviewed by the first report-writer, and there were discussions with the occupants of the address.
[33] Although the Judge was entitled to place weight on those reports it is clear from the sentencing remarks she formed her own view on the matter.
[34] There is also the issue of whether home detention would have been an adequate response to the seriousness of the offending which involved a kick to the head while the victim was on the ground. However, as that issue was not argued, I take it no further.
[35] While another Judge may have formed a different view, I consider the view formed by the sentencing Judge was open to her. There was accordingly no material
error in her analysis which would justify appellate intervention. In other words Mr Anderson has not satisfied the Court that a material error was made and that a different sentence should be imposed.
Result
[36]The appeal against sentence is dismissed.
Gordon J
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