Beaufill v The King
[2024] NZHC 1304
•22 May 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-43
[2024] NZHC 1304
BETWEEN PETER EDWARD TERRENCE BEAUFILL
Appellant
AND
THE KING
Respondent
Hearing: 22 May 2024 Appearances:
M J L Olphert for Appellant A Maino for Respondent
Judgment:
22 May 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Gordon Pilditch, Rotorua Olphert Law, Rotorua
S Bartle, Rotorua
BEAUFILL v R [2024] NZHC 1304 [22 May 2024]
Introduction
[1] Mr Beaufill appeals against a sentence of 10 months’ imprisonment imposed by Judge Hollister-Jones in the District Court at Rotorua on 5 April 2024.1
[2]Mr Beaufill faced the following charges:
(a)possession of an offensive weapon;
(b)possession of utensils for methamphetamine;
(c)theft/property ($500–$1000);
(d)three counts of theft property (under $500);
(e)take, obtain or use document for pecuniary advantage; and
(f)failure to answer District Court bail.
[3] Mr Beaufill submits that the sentencing Judge erred in not granting leave to apply for home detention and by not taking into account Mr Beaufill’s ability to pay reparations at the amount of $20 per week. Mr Beaufill submits that home detention would be the least restrictive outcome. He says that there were two addresses available at sentencing and those addresses are still available.
[4] The respondent submits that the sentencing Judge did not err when declining to grant leave to apply for home detention; and that the appeal should be dismissed.
The offending
[5] In terms of the facts, I adopt the description of the facts as set out in the Judge’s sentencing notes at [2] and [3]:
[2] The facts of your offending are that on 19 June, you went into a Z station in Rotorua, pumped $436 of 95 octane into your vehicle and took off without paying. Then on 29 June, you went into the Z at Fairy Springs. You
1 New Zealand Police v Beaufill [2024] NZDC 8271.
pumped $552 of 95 octane into your vehicle. I interpolate here you must have been driving a tank. Then on 30 July, you drive into another fuel station,
$376 of petrol without paying. On 5 August, another petrol drive-off of
$432 of 95 octane without paying. Then in relation to the offensive weapon, there was an incident on 9 September at your ex-partner’s address. You got into a heated discussion and you walked out to your vehicle, got a machete from it and struck the fence of your ex-partner’s address. Understandably, she contacted the police and the police stopped you. In your vehicle were two machetes, a crossbow, two baseball bats and two glass methamphetamine pipes.
[3] Mr Beaufill, you have a history that involves four convictions of dishonesty, the last of those was burglary in 2020 when you were imprisoned. You have one conviction for breach of home detention.
The approach on sentence appeals
[6] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.
[7] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.2 In any other case the appellate court must dismiss the appeal.3 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.4 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.5
[8] When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.
[9] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error whether
2 Criminal Procedure Act 2011, s 250(2).
3 Section 250(3).
4 Palmer v R [2016] NZCA 541 at [17].
5 Kumar v R [2015] NZCA 460 at [81].
intrinsically or because of additional material submitted on appeal.6 The court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.7
Fresh evidence
[10] The appellant has filed an affidavit in support of this appeal. There is no application to adduce fresh evidence on appeal and the evidence is not strictly speaking fresh. It is Mr Beaufill’s explanation for his failures in respect of contact with Community Corrections.
[11] It is concerning that the affidavit contains an explanation in respect of the machetes and crossbows found in the car. In the affidavit, Mr Beaufill deposes that they were in the vehicle for hunting purposes. The machetes, he said, were used to clear away bush in the forest hunting. As for the baseball bats, Mr Beaufill says he has no explanation for why they were in the car. This part of the affidavit is concerning because in the PAC report, the report writer reported that:
Mr Beaufill reported in regards of the weapons Police located inside the vehicle, he bought them to his brother’s residential address due to an incident that occurred a few nights prior. He said his brother needed assistance with black power members and the items were left in his vehicle.
[12] The only conclusion I can draw is that Mr Beaufill either lied to the PAC report writer or has now filed an untrue affidavit, which would amount to perjury. I am putting the affidavit aside — it is not fresh, leave was not sought, and it would not be in Mr Beaufill’s interests for me to have regard to it.
The sentencing decision
[13] The sentencing Judge set out the facts and set starting points for the offending. No issue is taken with the facts as set out or the starting points which the sentencing Judge applied. The sole issue on appeal is whether leave should have been granted to apply for home detention. The sentencing Judge referred to the PAC report and said at [6] of the decision:
6 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
7 Tutakangahau v R [2014] NZCA 279 at [36].
The Court has two pre-sentence reports before it. The theme of both is your failure to appropriately contact Corrections to be interviewed and the failure to advance electronic addresses in a timely way. The most recent report details the difficulties Corrections have had in contacting you. I am not going to grant a further adjournment in these circumstances. You have left the Court with no option but to sentence you to imprisonment and you are sentenced to 10 months imprisonment.
[14] The sentences were then imposed and, at [13] the sentencing Judge said, “there is no leave to apply given the recent history.”
Submissions
[15] The respondent submits that, while the appellant was eligible for a sentence of home detention on the basis that the end sentence was 10 months’ imprisonment, the Judge was nevertheless correct not to either adjourn the hearing or grant leave to apply for home detention.
[16] The respondent points out that the reason home detention was not available was because a suitable address for electronic monitoring had not been canvassed despite various attempts by Corrections to do so. However, this was not the only reason leave for home detention was declined. The respondent relies on the last line of the decision where his Honour noted that leave was declined because of the recent history. The respondent therefore says that, on limited terms, the sentencing Judge did turn his mind to whether leave should be granted and decided to decline leave.
[17] The respondent says that it is clear the sentencing Judge considered that an end sentence of imprisonment was appropriate. The respondent says that the offending was relatively serious in its own right, being family violence involving the use of a machete which is a potentially lethal weapon, and dishonesty related offending which was relatively high value.
[18] The respondent points out the appellant has a recent history of dishonesty related offending for burglary and receiving, where he served a sentence of one year and three months’ imprisonment. He was subject to special conditions upon release which ended in March 2022. Plainly, the respondent says that sentence did not serve as a deterrent for the appellant.
[19] The respondent says that it is clear from the contents of the pre-sentence report that the appellant may have difficulty complying with a sentence of home detention. The contents of the reports indicate that the appellant is not particularly motivated to rehabilitate.
[20] On 12 January 2023, sentencing was adjourned for the appellant to provide an address for home detention. After that date, there were various attempts to canvas proposed addresses. The pre-sentence report makes it clear that the appellant did not cooperate in any meaningful way with that process. The pre-sentence report also makes it clear that the appellant lacks remorse. The report writer assessed his motivation to rehabilitate in terms of drug use as low and observed that the appellant was unable to recognise his ongoing drug issues.
[21] There are also issues of non-compliance with previous sentences of home detention. Those issues relate to drug use, warnings for leaving the address without approved absences and returning late.
[22] In terms of the offer to repay reparation, the respondent submits that the sentencing Judge did consider that but said that the appellant had no ability to pay the reparation and that such an order would effectively set him up to fail.
[23] The appellant submits in respect of rehabilitation and lack of insight, that the appellant has a longstanding addiction to methamphetamine. That drove his non‑compliance and lack of cooperation. He now wishes to explore rehabilitation.
[24] The appellant also says that he had some difficult family issues at the time which he prioritised over his obligations to Community Corrections.
Discussion
[25] To allow an appeal against sentence, this Court must be satisfied that there was an error in the approach taken and that a different sentence should have been imposed. Sentencing is not an exact science. There is a range of appropriate outcomes and providing the sentence imposed is within the available range, the appellate court will not interfere.
[26] Some Judges in this case might have granted leave to apply for home detention. That would have been a lenient and merciful approach, but it is not incorrect to take a stricter approach and to take the view that the appellant used up his chances and that his history of non-compliance, reoffending and other issues made a full-time custodial sentence appropriate without leave to apply for home detention.
[27] There is force in the Crown’s submissions that the motivation to attend rehabilitation was addressed in the PAC report and was found to be lacking.
[28] It is clear to me from reading the Judge’s sentencing notes that the experienced District Court Judge did turn his mind to leave and was well aware that was an option had the address been the only outstanding issue.
[29] It seems to me that the reason for declining leave was not simply the unavailability of the address, it was also the need for denunciation and deterrence. The appellant was in a position where he was always running the risk of a full-time custodial sentence given his history. Had he cooperated fully and demonstrated insight, he might have attracted a sentence of home detention, or he might have been granted leave to apply for home detention, but he failed to do so and there is nothing incorrect in the way that the Judge approached sentencing as a result.
Result
[30] I am not persuaded that there was any error in the approach taken by the sentencing Judge. Neither am I of the view that the failure to grant leave to apply for home detention was incorrect.
[31]In those circumstances, the appeal is declined.
Wilkinson-Smith J
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