Austin (aka Slattery-Cookson) v Department of Corrections
[2018] NZHC 1594
•29 June 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-56
[2018] NZHC 1594
BETWEEN MICHAEL JOHN AUSTIN (AKA SLATTERY-COOKSON)
Appellant
AND
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 28 June 2018 Appearances:
S Peters for Appellant
S Bicknell Young for Respondent
Judgment:
29 June 2018
JUDGMENT OF MANDER J
[1] The appellant, Michael Austin, was sentenced by Judge Garland to two months’ imprisonment on a charge of breaching community work. The Judge also granted an application to cancel the sentence of community work and, in substitution of that sentence, imposed a cumulative period of three months’ imprisonment.
[2] Mr Austin appeals the sentence. He alleges the total term of five months’ imprisonment was manifestly excessive and should have been converted to a sentence of home detention.
Background
[3] In August 2014, Mr Austin was sentenced to 250 hours’ community work in default of his payment of fines. A subsequent appeal against that sentence was dismissed by this Court. In July 2016, Mr Austin was convicted and discharged for
AUSTIN v DEPARTMENT OF CORRECTIONS [2018] NZHC 1594 [29 June 2018]
breaching the sentence of community work. The following year, in June 2017, he was again convicted and discharged for breaching the sentence.
[4] The present charge of breaching community work arises from his failure, without reasonable excuse, to report as directed on 11 September last year. That failure was the last of some 18 previous breaches by Mr Austin arising from his failure to report since his previous conviction in June 2017. During that same period, he was further excused on two occasions and reported on only five occasions.
[5] At the time the application to cancel the sentence of community work was filed, Mr Austin had last reported on 14 August 2017, and had only completed 16 hours of community work since his conviction in June of that year. As at 21 September 2017, despite the elapse of three years since the imposition of the sentence, Mr Austin had served only 33 hours and still had 217 outstanding hours to complete.
District Court decision
[6] After outlining Mr Austin’s current offending and personal circumstances, and his extensive list of previous convictions, Judge Garland considered that Mr Austin was “clearly unwilling” to complete his sentence. The Judge noted Mr Austin’s excuse for his poor performance as being that he could not afford to take time off work.
[7] In the circumstances, Judge Garland considered himself unable to agree with the Probation Officer’s recommendation of community detention. On the charge of breaching community work, the Judge adopted a starting point of three months’ imprisonment before allowing a reduction of one-third to reflect Mr Austin’s guilty plea and the hours he had already completed.
[8] The application to cancel the sentence of community work was granted. In lieu of the outstanding 217 hours, Mr Austin was sentenced to a cumulative term of three months’ imprisonment. Because the Judge was not persuaded that some form of electronic detention would be sufficient to meet the purposes and principles of sentencing, he declined to impose that type of sentence.
Approach to appeal
[9] An appeal against sentence may only be allowed by the appeal court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 An appellate court will not intervene unless the sentence is inappropriate or manifestly excessive and not justified upon the application of relevant sentencing principles.2
The appeal
[10] Mr Peters on behalf of the appellant submitted that the total sentence of five months’ imprisonment was manifestly excessive and inappropriate. He submitted the sentence should have been converted to one of home detention.
[11] Initially, Mr Peters also submitted that because Mr Austin believed that he would receive an electronically monitored sentence as a result of his sentencing having been adjourned on a number of occasions for further inquiries to be made in respect of that possibility, it was unfair for a custodial sentence to have been imposed. However, Mr Peters, on the hearing of the appeal, acknowledged a request for information regarding the availability of an electronically monitored sentence cannot represent any promise or guarantee of that being the eventual sentence. The sentencing discretion of the Court cannot be constrained because such inquiries have been allowed to be made.
[12] Mr Peters submitted that, in imposing a sentence of imprisonment, the Judge had not given sufficient weight to the recent reduction in Mr Austin’s offending. Counsel also expressed the concern that Judge Garland, in imposing a custodial sentence, had inappropriately taken into account Mr Austin’s inability to immediately pay a fine. This was a position which was contrary to Mr Austin’s initial representation to the pre-sentence report writer.
1 Criminal Procedure Act 2011, s 250(2) and (3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
[13] Mr Peters further submitted that the Judge had incorrectly taken the maximum three month sentence as a starting point for the breach of community work charge. This, he submitted, was excessive. Additionally, that the sentencing court had not provided reasons for imposing a fulltime custodial sentence rather than an electronically monitored sentence which was an available sentencing option.
Decision
[14] I do not consider the Judge erred in the imposition of the sentence. Mr Austin was sentenced to community work for unpaid fines in August 2014. He manifestly failed to complete that sentence. Notwithstanding his failure to abide by his obligations, he was extended leniency on the two previous occasions when charged with breaches. His lamentable record of non-compliance cannot simply be excused as resulting from his work commitments; it is more consistent with his sense of entitlement, which Mr Austin acknowledged to the pre-sentence report writer, and a deliberate disregard of his obligations.
[15] The Judge expressly acknowledged the need, when considering the imposition of a sentence of imprisonment, to have regard to the desirability of keeping an offender in the community as far as practicable. A sentencing court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences.3 However, it is also required to impose the maximum penalty prescribed for an offence if it is one of the most serious cases of its kind for which that penalty is prescribed.4
[16] Leaving to one side for present purposes the possibility of an electronically monitored sentence, Mr Austin had demonstrated an obvious unwillingness or inability to comply with or complete previous community-based sentences notwithstanding the considerable latitude that had been extended to him. I therefore do not consider the starting point of three months’ imprisonment was outside the range available to the Judge in the circumstances.
3 Sentencing Act 2002, s 8(g).
4 Sentencing Act 2002, s 8(c).
[17] I am unable to discern anything illegitimate in the Judge’s reference to the failure by Mr Austin to be able to fully pay a fine despite his initial representations that he could do so. The Judge was entitled, when reviewing the options available to him, to note the empty representation made by Mr Austin which had accompanied his self-expressed desire to remain offence-free and remove himself from the judicial system. The option of a fine was impractical, given both the reason for the imposition of the community work in the first place in 2014, and the substantial amount of outstanding reparation currently owed by him.
[18] No complaint was made regarding the substitution of three months’ imprisonment for the outstanding 270 hours of community work. Mr Austin’s argument is that the substituted sentence of imprisonment together with the two month term imposed for the breach of community work should have been commuted to some form of electronic detention. The reasons provided by the Judge for him not being prepared to impose a sentence of home detention are sparse. Judge Garland stated it would be insufficient to meet the purposes and principles of sentencing.
[19] The question arises whether the Judge erred in exercising his discretion to refuse to grant home detention. There is no presumption in the Sentencing Act 2002 for or against commutation of imprisonment to home detention.5 The decision calls for an exercise of judgment on a case by case basis against the sentencing principles and purposes which a sentencing Judge is called upon to assess in determining whether home detention is an adequate response to the seriousness of the offending.6
[20] In marginal cases it can be difficult to articulate reasons for preferring one approach to another, and the margin of appreciation extended to Judges in deciding whether to commute a prison term to a sentence of home detention will usually be significant.7 However, the same standard of appellate review applies to decisions not to commute imprisonment to home detention as it does to any other sentence.8 An
5 R v Vhavha [2009] NZCA 588 at [29]; Osman v R [2010] NZCA 199 at [20]; Palmer v R [2016] NZCA 541 at [19].
6 Palmer v R, above n 6, at [19].
7 Palmer v R, above n 6, at [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].
8 Palmer v R, above n 6, at [18].
appellant is required to show that a material error was made, and satisfy the appellate Court a different sentence should be imposed.9
[21] The Judge acknowledged that, apart from the two previous breaches of community work, Mr Austin’s last serious offence occurred in 2013. Home detention can provide a real alternative to imprisonment because it carries with it significant levels of denunciation and deterrence.10 However, the individual circumstances of each case is required to be assessed to determine whether such a sentence is an appropriate and viable option.
[22] Mr Austin has an extensive history of previous offending. More importantly, Mr Austin has previous convictions for breaching parole, breaching supervision, and four for breaching community work. The Judge was mindful of the desirability of keeping Mr Austin in the community.11 In his sentencing remarks, he referred to the consideration given in the pre-sentence report to a sentence of community detention as being the best means to distance himself from the criminal justice system. However, that recommendation was premised on Mr Austin being able to pay a fine which he ultimately was unable to do. Moreover, it appears that Mr Austin’s motivation to complete an electronically monitored sentence did not extend to the possibility of a sentence of home detention. Mr Austin considered that, because he was self-employed and worked alone, such a sentence would mean he would be unable to maintain his business.
[23] The seriousness of Mr Austin’s position does not seem to have been apparent to him notwithstanding his failure to comply with past sentences for which the community work itself had been imposed. Mr Austin was assessed as being at medium risk of reoffending.
[24] I do not consider that in the circumstances of the present case the sentencing Judge can be held to have erred in declining to grant home detention. He was entitled to conclude that because of Mr Austin’s consistent and deliberate failure to abide by
9 Tutakangahau v R, above n 2Error! Bookmark not defined..
10 R v Iosefa [2008] NZCA 453 at [41].
11 Sentencing Act 2002, s 16(1).
the terms of his community work or to make any real effort to complete that sentence, a sanction short of imprisonment would not be adequate, particularly to meet the purposes of personal deterrence and accountability.
[25] Having regard to Mr Austin’s background, his antecedence and attitude, the Judge could have no confidence that Mr Austin would comply with the obligations of an electronically monitored sentence. In particular, the sentencing Judge was entitled to conclude that a sentence of home detention would not represent an adequate response to Mr Austin’s ongoing failure over a period of some years to comply with previous sentences.
[26] I do not consider the effective sentence of five months’ imprisonment was either inappropriate or manifestly excessive. The appeal is therefore dismissed.
Solicitors:
Alpers & Co – Northwest Law Office, Christchurch Raymond Donnelly & Co, Christchurch
0
7
0