Bergman v The Queen

[2018] NZHC 2484

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI 2018-406-7

[2018] NZHC 2484

BETWEEN

JAYDEN TERRY BERGMAN

Appellant

AND

THE QUEEN

Respondent

Hearing:	18 September 2018 via AVL
Appearances:	A J Heward for appellant S J Revell for respondent
Judgment:	21 September 2018

JUDGMENT OF MALLON J

Introduction

[1]    Jayden Bergman was convicted of burglary and aggravated burglary having pleaded guilty to those charges.1 He was sentenced by Judge Butler in the Blenheim District Court on 8 May 2018 to two years and two months’ imprisonment.2 The end sentence meant home detention did not fall to be considered. Mr Bergman appeals against sentence on the basis that information on his psychological history not available to counsel or the Judge at the time of sentencing would have led to a different outcome.

The facts

[2]    On 14 July 2017 at around 1 am, Mr Bergman forced his way into a locked ice- cream shop in Timaru. He stole the cash register coin tray and ran out of the shop. A

1      Crimes Act 1961, ss 231 (maximum penalty 10 years) and 232 (maximum penalty 14 years).

2      R v Bergman [2018] NZDC 9111.

BERGMAN v R [2018] NZHC 2484 [21 September 2018]

short time later he returned and took a soft-drink and two ice-creams. He ran off and was chased by two security officers.

[3]    On 19 December 2017 at around 2.20 am, Mr Bergman, carrying a 11.5 cm kitchen knife in his pocket, entered an unlocked house in Nelson. He was searching through some bedrooms when the male occupant of the house woke up and confronted him. There was a physical altercation during which Mr Bergman was forced against a window, causing it to break. Mr Bergman threatened the occupant, saying he was going to stab him. When the police spoke to Mr Bergman he admitted these facts and said he carried the knife for his protection.

[4]    At the time of this offending, Mr Bergman was 19 years old and unemployed. His previous offending had been dealt with in the Youth Court. This related to a spate of mainly thefts and burglaries carried out over a fortnight in December 2014 when he was 16 years old.

[5]    His pre-sentence report describes Mr Bergman as having a significant drug habit. He said his offending on 19 December was for the purpose of paying off a methamphetamine debt to gang members. Although presently unemployed and not receiving a benefit, he had worked at various times on fishing boats. The pre-sentence report recommended home detention. His mother’s address was assessed as suitable.

District Court sentencing

[6]    Mr Bergman was to be sentenced on 13 March 2018. His counsel had only recently been instructed and there was a mix up about the sentencing date. Judge Davidson indicated a sentence of home detention, but for that to occur he had insufficient information about the mitigating features or Mr Bergman’s personal circumstances. He adjourned the sentencing to enable that information to be presented. He also ordered a drug and alcohol report.

[7]    The drug and alcohol report was provided for the adjourned sentencing. This report described cannabis and synthetic cannabis use from a young age, heavy methamphetamine use and more sporadic use of other drugs. Mr Bergman met the DSM-1V criteria for methamphetamine dependence in recent remission and cannabis

dependence. He participated well in the assessment, reported suffering from poor attention at school at which he struggled and he was expelled from two schools for his drug use. The report recommended a treatment plan involving regular outpatient counselling with the possibility of being referred to a residential programme, and some following up of psychological issues.

[8]    Apart from the drug and alcohol report, no other information was provided to the Court about Mr Bergman’s background and personal circumstances.

[9]    On the adjourned sentencing date, Mr Bergman came before Judge Butler. He adopted a starting point of three years and nine months’ imprisonment.3 The Judge applied a 15 per cent discount for Mr Bergman’s youth, 10 per cent for his drug addiction and 25 per cent for his early guilty plea to the charges. That meant an end sentence (rounded up) of two years and two months’ imprisonment.4 Home detention was therefore not available.

The new information

[10]   Mr Bergman’s appeal is on the basis that there was further information that counsel, Crown and the Judge were not aware of concerning his psychological history which would have made a difference to the sentencing outcome. This, together with Mr Bergman’s performance in prison to date, support a reduction in the end sentence so that home detention can be considered.

[11]   The psychological history is provided in the form of a report from Mr Prince (a registered clinical psychologist) who met with Mr Bergman in prison. Mr Bergman’s mother contacted his counsel for the first time after sentencing. She provided counsel with a variety of records. The records indicated the Youth Court had identified psychological issues, and had sought reports but these had not been

3      The judge regarded the offending as on par with that in R v Kaukau [2007] NZCA 66. The Court of Appeal considered a starting point of three years and nine months imprisonment was appropriate where the 17 years old defendant armed himself with a knife, entered the victim’s home while on bail, and fled when confronted.

4      The Judge’s starting point apparently incorporated the Timaru offending because he made no further mention of it. A concurrent sentence of ten months for this offending was entered.

provided. Counsel then applied for legal aid funding for a report to be completed. This was granted and Mr Prince was commissioned do this work.

[12]   The psychological report provides some background about Mr Bergman’s family life. He lived with his mother, his stepfather and two half-brothers. His step father was abusive and Mr Bergman felt bullied by his half-brothers. He felt like “the black sheep” as the only member of the family who was part-Māori. He reported a number of psychological issues, including hearing “voices” since childhood. Cannabis helped to lessen the voices. The psychologist was doubtful Mr Bergman had a major mental illness but his reported symptoms should be monitored. He noted there was a family history of psychiatric issues. He described Mr Bergman as being an intelligent young man who appears to have gotten bored and disruptive at school, and who gravitated to a negative peer group and drugs.

[13]The psychologist concluded:

Mr Bergman would meet the criteria for Cannabis Use Disorder in early remission due to being in a controlled environment and Stimulant (Methamphetamine) Use Disorder in early remission. He would also meet criteria for Conduct Disorder and early Antisocial Personality Disorder. He also appears to be an intelligent young man who has potential in the correct environment.

[14]   Mr Bergman’s behaviour in the prison youth wing has been positive. He has completed every course and programme available to him and has now taken to running 11 kms around the prison perimeter to do something constructive. He is motivated to change and would like to attend rehabilitation when released. As of a few days ago he was eligible for transfer to the adult wing. However the prison is content for now to have him in a wing that is between the youth and adult wings, where he has just commenced a plumbing course which he would like to complete.

[15]   Mr Bergman would like to attend a live-in drug rehabilitation course if released. I considered it would be helpful to know if there was any live-in course potentially able to have Mr Bergman if he were granted home detention. At my request, his counsel made enquiries on the day of his sentence appeal. There is a residential facility in Christchurch that could take him, but the earliest availability be is mid to late November 2018. The facility also needs to obtain funding. The course

is for eight weeks and during that time Mr Bergman could not wear an electronically monitored bracelet. Mr Bergman confirmed to counsel he would like to attend this course.

Discussion

[16]   The Crown submits the key issue on appeal is whether the findings of Mr Prince’s report mean a reduction in sentence to home detention is warranted. The Crown says the new information in that report is limited given the alcohol and drug report available to the Judge at the time of sentencing. That said, the Crown has some sympathy for Mr Bergman’s situation particularly because Judge Butler had limited information about Mr Bergman’s personal circumstances despite the request from Judge Davidson that they be advanced.

[17]   I am satisfied the new information should be admitted and does require a reduction in the sentence.5 Mr Bergman is a young man who has not started out on the right track. He has potential if he is able to address his drug dependency and he has help with his personality and conduct issues. He is motivated to do that. Had this information been before Judge Butler, the rehabilitative sentencing aim would have required more weight.6 His rehabilitative potential is reinforced through his engagement with the programmes and courses in the prison. His rehabilitation prospects warrant a further reduction to his sentence of two months. A home detention sentence would then be appropriate provided it will have a component of drug rehabilitation and he has a suitable address. The home detention sentence would need to take into account the time he has already spent in prison.

[18]   Because there are arrangements yet to be finalised/confirmed before a home detention sentence could be substituted, the Crown and Mr Bergman’s counsel have discussed how to proceed if I were minded to granted his appeal. They propose that I grant leave for Mr Bergman to apply for home detention.7 This will enable Mr Bergman to complete his plumbing course and for arrangements to be made for him

5      The approach to the admission of fresh evidence on appeal was laid out by the Court of Appeal in R v Bain [2004] 1 NZLR 638 (later approved by the Privy Council in Bain v R [2007] UKPC 33 at [24]). It can also be found in Lundy v R [2013] UKPC 28.

6      Criminal Procedure Act 2011, s 250.

7      Sentencing Act 2002, s 80I.

to attend the residential rehabilitation facility in Christchurch. Providing there are no issues in the meantime, he would apply to the District Court for his home detention to commence on the day he can begin his course at the live-in facility. After the eight week course he would serve the balance of his home detention electronically monitored at a family member’s address (his grandmother is presently proposed) providing the address is assessed as suitable.8 That proposed approach to a home detention sentence would meet the rehabilitative aim of sentencing.

Result

[19]   Mr Bergman’s appeal against sentence is allowed. His sentence on the aggravated burglary charge is quashed. A sentence of two years imprisonment is substituted. He is granted leave to apply for home detention. As noted, it is envisaged that leave will be sought when arrangements for a drugs rehabilitation programme/home detention address are confirmed.

Mallon J

8      Section 80C.