Bate v The Queen
[2018] NZHC 882
•1 May 2018
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHARAKEKE ROHE
CRI-2018-406-2 CRI-2018-406-3
CRI-2018-406-4 [2018] NZHC 882
BETWEEN CONNOR WILLIAM BATE
Appellant
AND
THE QUEEN
Respondent
Hearing: 19 April 2018 Appearances:
R Gould for Appellant
S Revell for Respondent
Judgment:
1 May 2018
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] Mr Bate was sentenced to a total of six months’ and one week imprisonment in the District Court on 19 March 2018.1 He appeared for sentencing on one charge of breaching community work and male assaults female. He was also resentenced on one charge of receiving property (under $500), procuring or possessing a cannabis plant, possessing a needle/syringe for cannabis and two charges of breaching community work.
[2] There was initially some confusion about how many charges for a breach of community work he was being resentenced for. However, this has since been clarified and counsel did not raise any issue on that matter.
1 NZ Police v Bate [2018] NZDC 5220.
BATE v R [2018] NZHC 882 [1 May 2018]
Background
Male assaults female
[3] Mr Bate and the complainant have been in a relationship for two years, but live in different homes.
[4] On 4 December 2017, Mr Bate was at his home in Blenheim. The complainant arrived at his home unannounced and climbed into his bed. Mr Bate asked her to contact his work to call in sick. The complainant questioned him about exactly what she should say, and he punched her in the head repeatedly and kicked her leg. She was huddled in the corner of the bed.
[5] Mr Bate ordered the complainant to leave his home, and threw her clothes and other items out after her. She then sat on the doorstep trying to collect her thoughts and he demanded she leave the property. He then threw her to the ground and dragged her by her clothes and skin across the lawn onto the path near the gate.
[6] Mr Bate went back inside and when the complainant tried to get back into the home to get her mobile, Mr Bate punched her in the head with such force she knocked her head against the wall. The complainant received bruising to her face, back and thigh, as well as persistent pain in her head.
Breach of Community work
[7] Mr Bate was sentenced to 275 hours on 17 July 2017. Mr Bate breached his community work conditions on 16 October 2017. He was then sentenced to 60 more cumulative hours community work on 31 October 2017 for this breach. He was warned on that occasion that it was a ‘final warning’.
[8] On 2 December 2017, Mr Bate failed to report to a probation officer without reasonable excuse. This was a breach of his community work requirements. As at 7 December 2017, he had only completed 36.5 hours of community work, leaving a balance of 298.5 hours outstanding.
[9] Due to this December 2017 breach, Mr Bate’s community work sentences were cancelled and he was resentenced on a charge of receiving property (under $500), possession of an offensive weapon, procuring or possessing a cannabis plant, and possessing a needle or syringe for cannabis and two charges of breaching community work.
District Court decision
[10] Before sentencing the judge noted that the sentencing recommendation was for intensive supervision, but as Mr Bate lived in shared accommodation that made an electronically monitored sentence problematic.
[11] The judge further stated that there were a large number of inconsistencies in Mr Bate’s submission that the imposition of a sentence of intensive supervision was appropriate. Mr Bate was not overworked or busy and he had chosen not to do the community work. Therefore, the starting point for this offending taken by the judge was imprisonment.
[12] The sentencing judge cancelled the previous sentence of community work. He then resentenced Mr Bates on the charge of receiving property (under $500) and two breaches of community work. He started at one month imprisonment for these charges and discounted that to three weeks for the guilty plea. He then considered the need to resentence on the charges for possession of a cannabis plant, possession of an offensive weapon, and possession of needles. Taken together, the judge resentenced Mr Bate’s to seven weeks’ imprisonment on a totality basis. The judge noted that he could not give Mr Bate much credit for the work on community sentence due to lack of completion.
[13] In sentencing Mr Bate on the new charges, the judge initially adopted a starting point of four months imprisonment on the male assaults female charge. This would have been reduced to three months with credit for the guilty plea. The judge then considered the new breach of community work charge, and on a totality basis imposed a sentence of four months’ and two weeks’ imprisonment.
[14] This brought the total sentence six months and one week, as the two sentences were cumulative. Mr Bate was also to be subject to six months’ post release conditions, one of which was that he was required to comply with alcohol and drug counselling.
[15] The judge briefly noted that he would not depart from that calculation to impose a sentence of intensive supervision. He did not have confidence Mr Bate would comply with that sentence. Although there were a number of factors pointing to Mr Bate’s making progress, there were issues around the defendant appearing unsettled and a long history of non-compliance as well as a final warning. The judge stated that he reserved leave to apply for home detention as an alternative, but would not adjourn the matter for that investigation to occur.
Grounds of appeal
[16] Mr Bate appeals his sentence on the basis that the judge erred in fact and law, rendering his sentence manifestly excessive. Ms Gould, on behalf of Mr Bate, submits:
(a)The judge made factual errors about whether Mr Bate chose not to do community work in his available time, whether he blamed the complainant for the assault and whether he disregarded his previous sentence of supervision. It is submitted that these factual errors contributed to the legal errors in (b) and (c) below;
(b)The judge erred by rejecting the recommended sentence of intensive supervision; and
(c)The judge erred by leaping to a sentence of imprisonment without allowing Mr Bate to establish an address suitable for home detention.
[17] The Crown opposes the appeal. It says the starting point taken by the sentencing judge was within the available range and that the judge made no errors.
Discussion
Factual errors
[18] Ms Gould argues that the sentencing Judge’s was factually incorrect in stating that Mr Bate was blaming the victim. She noted it was argued at sentencing that the victim had provoked Mr Bate when he was very tired by coming to his home unannounced.
[19] In my view the Judge properly noted that Mr Bate was responsible for how he behaved and how he chose to act in the circumstances. The judge referred to this matter in passing and it was not specifically taken into account in Mr Bate’s sentencing.
[20] Ms Gould also argued that one of the reasons that Mr Bate had not complied with his community work sentence and therefore had a high number of hours outstanding at the time of cancellation of sentence, was that he had prioritised his paid employment, which was apparently on demand, over his community work. Ms Gould argued this behaviour did not indicate he had “no particular regard for sentences of the Court” as the sentencing judge had said.2 Rather she submitted that this behaviour was a common if foolish decision to prioritise paid employment over community work obligations.
[21] While this may be common, I do not concede the judge was in error by describing Mr Bate’s actions as disregarding Court sentences. I note this was in the context in light of his history of breaching community work obligations which adds further justification for the judge’s comments.
[22] Finally, Ms Gould noted that Mr Bate should not have been characterised by the sentencing judge as “choosing” not to do his community work in his available time.3 Rather, she argued that his busy work seasons had not matched up well with his community work sentences and he was in a busy patch of work when he breached his community work obligations. Although I am sympathetic to the dilemma Mr Bate
2 At [12].
3 At [12].
found himself in, he can be accurately described as ‘choosing’ not to engage with his community work obligations by prioritising paid work over them. The judge was not in error on that point.
Adjournment while an appropriate address is sought
[23] At the heart of this appeal is the recommendation before the Judge that the matter be adjourned for three months to enable further inquiries to be made about sentences alternative to imprisonment. The appellant had accommodation and good prospects of work in Havelock, although his accommodation was not suitable for home detention purposes.
[24] Counsel pressed the point that Mr Bate was a diligent worker which was something to be encouraged. He was on the right track and therefore the judge should have either allowed the further adjournment or, if the judge was not in a position to consider electronic monitoring (which he was not without the further information) the Judge should have taken the option of intensive supervision.
[25] The question, therefore, is whether it was open to the judge to decline to adjourn the sentencing to allow the appellant further time to find a suitable address and to instead grant the appellant leave to apply for home detention if a suitable address became available.
[26]Relevantly, s 80I of the Sentencing Act 2002 provides:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1)This section applies if—
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[27] I have not found any pertinent judicial analysis of where the use of s 80I is appropriate in the place of an adjournment. The section itself offers no guidance. In Larkin v Ministry of Social Development, Toogood J observed that there is a tendency for adjournment to be used where a report regarding home detention was not provided, or a suggested address had not been assessed, rather than in cases like the present where no suitable address was or is available.4
[28] There is a need for finality in matters of sentencing. In light of the lengthy three month adjournment sought by the pre-sentence report writer to enable Mr Bate to find a suitable address, the Judge did not err in adopting the approach he followed and imposing the sentence he did.
Hierarchy of sentences
[29] Ms Gould submitted that if the sentencing judge was not prepared to adjourn the sentencing for a suitable home detention address to be found, following the hierarchy of sentences set out in s 10A of the Sentencing Act 2002, he should have considered intensive supervision rather than going straight to imprisonment.
[30] Ms Gould says that the appellant had not continued to offend, nor did he pose any risk to the community. He was employed and his partner, while acknowledging ongoing conflicts and difficulties, asked for the non-association bail condition to be lifted. She affirmed that the appellant had never been violent toward her in the past.
[31] Ms Gould also refers to the Court of Appeal decision R v Rawiri.5 She characterised the decision as rejecting the view that a sentence must revert by default to a period of imprisonment if home detention is unavailable. In particular, she pointed to the comments of the Court of Appeal about community based sentences and home detention:6
[17] These changes are consistent with a discernible legislative policy of keeping offenders within the community wherever appropriate. Parliament’s intention was plainly to increase the range of sentencing alternatives available to a Judge other than home detention or imprisonment. Significantly, the
4 Larkin v Ministry of Social Development [2015] NZHC 680 at [29].
5 R v Rawiri [2011] NZCA 244.
6 At [17].
legislature placed community based sentences well up the hierarchy, immediately below home detention.7
[32] Ms Gould emphasised the obligation of the court to impose the least restrictive outcome appropriate in the circumstances.8 Ms Gould also added that while Mr Bate’s history of breaching his community work obligations was problematic, and it was accepted he was given a ‘final warning’ for these breaches in October 2017, the pre- sentence report before the Court supported the recommendation of intensive supervision with the cancellation of the outstanding work hours and a fine imposed in substitution. She said he would have remained gainfully employed and would be able to pay a fine at the rate of $100 per week. I note that the pre-sentence report was made in light of only the charge of male assaults female and breach of community work Mr Bate was sentenced for. It did not consider the other offences Mr Bate was being resentenced for.
[33] In Kerr v Police, Justice Thomas determined that Rawiri did not assist the appeal against sentence because the circumstances of the case differed as the need for rehabilitation in Rawiri was particularly strong.9 She noted that “double drop” down the hierarchy of sentencing would be inappropriate in the circumstances.10
[34] Similarly, I believe the present case can be distinguished from Rawiri. 11 In that case, neither of the defendants had a history of repeatedly breaching community based sentences as Mr Bate has.
[35] While s 8(g) of the Sentencing Act 2002 states that the court must impose the least restrictive outcome in the circumstances, the key words of that provision are ‘in the circumstances’. The sentencing judge was on firm ground in dismissing the possibility of intensive supervision because Mr Bate had quickly and repeatedly breached his community work sentence and had generally shown himself to be unreliable in following court ordered sentences. The sentencing judge then turned his mind to a sentence of home detention and concluded it was not suitable because
7 At [17].
8 Sentencing Act 2002, s 8(g).
9 At [29].
10 At [29].
11 Rawiri v R, above n 5.
Mr Bate lacked an appropriate address. He indicated the appellant would be given leave to apply for home detention if a suitable address could be found. In the circumstances of this case, it would have been wrong for the judge, in the absence of a suitable home, to go another step down the sentencing ladder and impose a sentence of intensive supervision.
[36] In light of Mr Bate’s history of breaching community based sentences and the ‘final warning’ he had been given, the sentence of six months’ and one weeks’ imprisonment imposed was within the available range to account for the totality of his offending. There was no error by the judge in starting with imprisonment.
Conclusion
[37] I am of the view that while the sentence imposed is at the harsh end of the available sentence, the judge made no error.
[38]The appeal is dismissed.
Grice J
Solicitors:
O’Donoghue Webber, Nelson
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