Anderson v Police

[2017] NZHC 1566

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-000017 [2017] NZHC 1566

BETWEEN

KIERAN MARK ANDERSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 July 2017 (at Wellington)
Counsel:	W Hawkins for Appellant (via AVL) C R Stuart for Respondent
Judgment:	7 July 2017

JUDGMENT OF COLLINS J

Introduction

[1]      Mr Anderson appeals his sentence of 16 months’ imprisonment imposed by Judge Adeane  in  the  Hastings  District  Court  on  4  May 2017.1      The  16-month sentence of imprisonment was a culmination of sentences imposed in relation to one charge of burglary,2 one charge of unlawfully taking a motor vehicle,3 one charge of driving while disqualified,4  one charge of possession of a knife,5  one charge of failing to answer police bail6  and two charges of failing to answer District Court bail.7   Judge Adeane treated the burglary offence as the lead offence and reached an end sentence of 16 months’ imprisonment in relation to that matter and the unlawful

taking of a motor vehicle charge.   Mr Anderson was convicted and discharged for

1      Police v Anderson [2017] NZDC 9288.

2      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.

3      Section 226(1). Maximum penalty seven years’ imprisonment.

4      Land   Transport  Act   1998,   s   32(1)(a)   and   32(3).     Maximum  penalty   three   months’

imprisonment/6 months’ disqualification/$4,500 fine.

5      Summary Offences Act 1981, s 13A.   Maximum penalty three months’ imprisonment/$2,000

fine.

6      Bail Act 2000, s 24. Maximum penalty three months’ imprisonment/$1,000 fine.

7      Section 38(a). Maximum penalty one year imprisonment/$2,000 fine.

ANDERSON v NEW ZEALAND POLICE [2017] NZHC 1566 [7 July 2017]

two breaches of supervision8 and one breach of community work.9    All other sentences were imposed concurrently.

[2]      Mr  Anderson’s   appeal   is   based   on   the   contention   that   16   months’ imprisonment was manifestly excessive and that home detention should have been imposed.

[3]      This  judgment  explains why I am  dismissing  Mr Anderson’s  appeal  and

upholding the sentences imposed by Judge Adeane.

Background

Unlawfully taking a motor vehicle

[4]      At about 9.00 am on 30 October 2016, Mr Anderson stole a Toyota ute.  He drove the vehicle to an address in Hastings where he met up with an associate.  They then drove to Napier. At about 11am the vehicle was located in Napier and two men were seen leaving the area.  Mr Anderson and his associate were located by police a short time later.

[5]      Mr Anderson admitted the facts to police.  In explanation he said he saw a ute with the keys in it, did not think anything of it at the time, hopped in and drove off. He admitted he was a disqualified driver.

Burglary

[6]      At about 8.15pm on 19 February 2017, Mr Anderson was at an address on Huia Street, Hastings to visit Mr Cherry, the victim in this offending.  Believing the victim to be away from the address, he entered the garage and took an Avanti pushbike,  a  laptop  and  a  cell  phone.     The  victim  heard  noises  and  found Mr Anderson  leaving  the  address  with  the  stolen  property.    When  confronted, Mr Anderson said “you know who I am” and left the property empty handed.  All

items were recovered.

8      Sentencing Act 2002, s 70(a).

9      Section 71(1)(f).

[7]      Mr Cherry provided a victim impact statement outlined his disappointment

Mr Anderson had stolen from him and described the offending as “upsetting”.

Possession of a knife

[8]      At about 1.50am on 7 February 2017, Mr Anderson was located on a road in Hastings.  He was stopped because an alarm had been activated in the area.  His bag was searched and a large carving knife, approximately 25 cm long was located in the front pocket of this bag.  Mr Anderson said he had the knife to cut stuff.

Breaches of previous sentence

[9]      Mr Anderson had previously been sentenced to nine months supervision and

180  hours community work  in  the Napier  District  Court  on  5 August  2016  on charges of theft and breach of community work.   The application to cancel and substitute these sentences on 16 December 2016 noted Mr Anderson was unwilling or unable to comply with either sentence.  An affidavit of Mr Robinson, a probation officer, recorded:

(1)Mr Anderson  had  failed  to  report  as  required  to  attend  addiction counselling as directed in his sentence of supervision.

(2)Mr  Anderson  had  failed  to  report  as  required  or  contact  the community work centre in terms of his sentence of community work.

[10]     The application noted the supervision sentence would expire on 4 May 2017 and 143.5 hours remained to be completed from Mr Anderson’s community work sentence. A substituted sentence was requested.10

District Court decision

[11]     Judge Adeane adopted a starting point of 18 months’ imprisonment for the

burglary and unlawfully taking a motor vehicle charges.   He uplifted that by two

10     Sentencing Act 2002, ss 54(1)(a), 54(3)(c), 68(2)(b) and 68(3)(c).

months for the driving while disqualified charge and two months for the breach of

supervision, reaching a starting point of 22 months’ imprisonment.

[12]     After deducting a 25 per cent discount for Mr Anderson’s guilty plea, an end result of 16 months’ imprisonment was reached.   The charges of possession of a knife, driving while disqualified and the breaches of bail each attracted one month’s imprisonment, to be served concurrently.

Circumstances of the appellant

[13]     Mr Anderson is 24 years of age.  He has previous convictions including for theft, burglary and breaches of community work.

[14]     Judge Adeane had before him two pre-sentence reports. The first report dated

27 March 2017 noted Mr Anderson’s non-compliance with community based sentences.11    His  attitude  towards  his  offending  was  described  as  “somewhat relaxed”.    The  report  writer  identified  contributing  factors  to  Mr  Anderson’s offending were his attitude toward authority, inability to comply with court imposed sanctions and his substance use, mainly synthetic cannabis.  The reports noted a lack of  remorse  and  also  a  lack  of  support  for  Mr Anderson,  whose  likelihood  of reoffending was assessed as being high.

[15]     The  second  pre-sentence  report  dated  24  April  2017  noted  electronic monitoring  assessments  had  been  conducted  at  a  proposed  address  for  home detention and community detention, and that the address was “technically suitable”. However, the report writer expressed concerns that:

(1)Police checks indicated apprehensions about the address as there have been four family violence incidents at that address since 2015.

(2)Comments from Child, Youth and Family (CYF) noted three reports about Mr Anderson allegedly having engaged in physical violence towards his previous partner while she was pregnant and physical

abuse of his daughter.

11     This report did not refer to Mr Anderson’s burglary charge.

[16]     A  sentence  of  imprisonment  was  recommended,  with  special  release conditions.

Approach on appeal

[17]     The appeal against sentence is brought pursuant to s 247(b) of the Criminal Procedure Act 2011 (the Act) and is to be determined in accordance with s 250 of the Act.  The Court of Appeal in Tutakangahau v R,12 explained that Mr Anderson must show an error in the sentence imposed and that a different sentence should have been imposed.

[18]     The proper approach in cases relating to the imposition of imprisonment where the length of sentence means home detention is technically available was explained by the Court of Appeal in Manikpersadh v R.13   The choice between home detention  and  a  short  sentence  of  imprisonment  is  the  exercise  of  a  fettered discretion, with appellate review focusing on the identification of an error, if any, in the court below.14

Submissions on appeal

[19]     Mr Anderson appeals his sentence on grounds that the District Court Judge erred by not considering an end sentence of home detention and as a result the end sentence was manifestly excessive.  Mr Hawkins, counsel for Mr Anderson submits an appropriate end sentence for this matter would have been eight months’ home detention.   Mr Hawkins has referred to Fomai v Police and Namana v Police in support of his submission that a sentence of home detention should be substituted.15

[20]     The  Crown  acknowledges  Judge Adeane  did  not  explicitly  rule  out  the possibility of  home  detention  as  an  available  sentencing  outcome.    The  Crown submits however that the unsuitability of home detention is implicit in the Judge’s

decision and supported by an overwhelming amount of information.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

13     Manikpersadh v R [2011] NZCA 452 at [11]-[14].

14 At [12].

15     Fomai v Police [2014] NZHC 377 and Namana v Police [2017] NZHC 66.

Analysis

[21]     Judge Adeane did not refer to the possibility of a sentence of home detention. While  he  noted  Mr Anderson’s  “predictable  breaches  of  community  work  and supervision”,16  it is difficult to infer on the face of the judgment whether home detention was considered.17

[22]     In Iwikau v Department of Corrections,18  Dobson J held there will be some situations  in  which  circumstances  of  conviction  for  breach  of  community work warrant consideration of home detention as an alternative to prison.19   A sentencing judge should consider home detention if it is technically available pursuant to s 15A of the Sentencing Act 2002, particularly when counsel has submitted home detention is appropriate, as in this case.20   However, even if Judge Adeane technically erred in his approach, this is not a case where Mr Anderson’s circumstances give rise to an alternative sentence from imprisonment.

[23]     Mr Anderson’s final sentence of 16 months’ imprisonment was within range

and not manifestly excessive.  In coming to this conclusion, I rely on three factors.

[24]     First, there were multiple breaches of the sentence of community work and supervision imposed in August 2016.  Mr Anderson had only completed 36.5 hours of  his  community  work  sentence  and  had  failed  to  report  to  his  supervisors. Breaches of community work will usually result in imprisonment in the absence of some good excuse or explanation.21    Mr Anderson’s breaches of community based sentences were in the context of previous breaches of community work in 2016 and

2014.  He has failed to provide any convincing explanation for his failure to comply

with community based sentences.

16     Police v Anderson, above n 1, at [4].

17     Unlike Ranui v Department of Corrections HC Invercargill CRI-2011-425-40, 27 September

2011, where that inference could be drawn despite the District Court Judge not specifically mentioning home detention.

18     Iwikau v Department of Corrections HC Palmerston North CRI-2008-452-42, 26 September

2008.

19 At [6].

20     Fomai v Police, above n 15, at [18].

21     Fahey v Police HC Palmerston North CRI-2008-454-21, 4 June 2008, referred to in Iwikau v

Department of Corrections, above n 18.

[25]     Second, Mr Anderson’s pre-sentence report indicates a lack of remorse and a disregard for authority.  His relaxed attitude towards his offending makes a sentence of home detention unrealistic.   This is compounded by Mr Anderson’s previous convictions for similar offending and the assessment of his high likelihood of reoffending.

[26]     Third, there are issues with the proposed home detention address and the occupants may be placed at further risk if a sentence of home detention is imposed. These considerations influenced the recommendation of imprisonment set out in the second pre-sentence report.   Mr Hawkins, counsel for Mr Anderson explained his concern that he did not have the opportunity to test the accuracy of the concerns expressed in the pre-sentence report.  If there were concerns about the pre-sentence report they needed to be raised in the District Court.

[27]     The evaluation of whether to impose home detention should give effect to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002.22   To the extent Judge Adeane failed to outline reasons for his decision not to impose home detention, I am satisfied a sentence of imprisonment will:

(1)       hold Mr Anderson accountable for the harm he has done;23

(2)promote  in  Mr  Anderson  a  sense  of  responsibility  for,  and  an acknowledgement, of that harm;24

(3)       denounce the conduct in which Mr Anderson was involved;25

(4)deter Mr Anderson or other persons from committing the same or similar offence;26 and

22     R v Vhavha [2009] NZCA 588 at [29].

23     Sentencing Act 2002, s 7(1)(a).

24     Section 7(1)(b).

25     Section 7(1)(e).

26     Section 7(1)(f).

(5)       is    the    least    restrictive    outcome    that   is    appropriate    in    the

circumstances.27

Result

[28]     The  appeal  is  dismissed.     All  aspects  of  the  sentences  imposed  by

Judge Adeane are upheld.

D B Collins J

Solicitors:

Public Defence Service, Napier for Appellant

Crown Solicitor, Napier for Respondent

27     Sentencing Act 2002, s 8(1)(g).