BETWEEN TAMARA MARY DEACON Appellant AND NEW ZEALAND POLICE Respondent
[2024] NZHC 2576
•9 September 2024
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2024-406-8
[2024] NZHC 2576
BETWEEN TAMARA MARY DEACON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 September 2024 Appearances:
R J T George for Appellant D W Baxter for Respondent
Judgment:
9 September 2024
JUDGMENT OF McQUEEN J
[1] On 19 July 2024, Ms Tamara Deacon was sentenced in the District Court at Blenheim to 12 months’ imprisonment for various charges.1 Ms Deacon appeals that decision on the basis that the District Court erred by not providing reasons for whether or not leave to apply for home detention pursuant to s 80I of the Sentencing Act 2002 (the Act) should be granted.
What happened?
[2] On 4 November 2021, Ms Deacon defrauded a person by selling to them a Ford Falcon Panel van that Ms Deacon did not own. This resulted in the victim of this offending losing $3,500.
1 New Zealand Police v Deacon [2024] NZDC 16841.
DEACON v NEW ZEALAND POLICE [2024] NZHC 2576 [9 September 2024]
[3] On 23 January 2022, Ms Deacon was driving her car on Marshland Road in Christchurch whilst disqualified. She had been convicted more than two times previously for driving whilst disqualified.
[4] On 15 November 2022, Ms Deacon shoplifted from Mitre 10 Mega in Blenheim after paying for a $1 plant when she in fact had a bag full of items valued at well over $1,000. She then became engaged in a struggle with a Mitre 10 Mega employee which resulted in her committing common assault by punching the employee. The items were then returned to Mitre 10 Mega after Ms Deacon was arrested. Whilst searching Ms Deacon following the arrest, police were said to have discovered a small snap lock bag containing white powder. This powder was reportedly later determined to be 0.32 grams of methamphetamine.
[5] On 17 December 2022, Ms Deacon shoplifted $42.67 worth of groceries from Pak’n Save Blenheim after she left the store having not properly scanned all the items in her bags. These items were not recovered.
[6] On 7 March 2023, Ms Deacon shoplifted $30.59 worth of groceries from Countdown Redwood Town in Blenheim after leaving the store without making any attempt to pay for the items she and her 14-year-old son had concealed in her shopping bag. The stolen items were also not recovered.
[7] On 10 March 2023, Ms Deacon again shoplifted from Countdown Redwood Town after placing items in her shopping bag and purse and exiting the store without making any attempt to pay for these items, despite being confronted by staff who prompted her to pay for them. The total value was $21.90, and the items were not recovered.
[8] Between 8 December 2022 and 18 January 2023, Ms Deacon breached her post-detention conditions by failing to complete her drug and alcohol counselling (having been discharged from Wairau Addiction Services), returning a positive result for alcohol after being tested as part of her release conditions and failing to report to her probation officer.
[9] Ms Deacon’s offending resulted in both Police and Crown prosecutions. On 19 July 2024, the day set down for the judge-alone trial of the Police charges, a resolution was reached, and the parties agreed sentencing could proceed. Ms Deacon entered guilty pleas and the sentencing took place without a pre-sentence report.
[10] The Crown prosecution is continuing to trial, with a jury trial currently set down for 16 September 2024. Ms Deacon would need to be granted bail on her Crown charges to give effect to her release, were she to be granted home detention.
District Court decision
[11] In her sentencing notes, the Judge acknowledged that Ms Deacon had made significant efforts to rehabilitate, with recent drug tests showing she is clean in regard to drugs. The Judge accepted that Ms Deacon was associating with gang members and that they may be pressuring her to offend and not report matters. The Judge observed that Ms Deacon was responsible for making better choices for herself and her children.
[12] The Judge adopted a starting point of six months’ imprisonment for the obtaining by deception charge relating to the fraudulent van sale. One-month uplifts were given respectively for the theft and assault charges, and a three-month uplift was made for the driving whilst disqualified charge. In combination with a further two- month uplift for the breach of release conditions, this resulted in an adjusted starting point of 13 months’ imprisonment.
[13] The Judge then gave a two-month uplift for Ms Deacon’s previous convictions which included dishonesty offences and offending whilst on bail. A 15 per cent discount was provided for her guilty pleas as well as a five per cent discount for progress on rehabilitation. This resulted in an end sentence rounded down to 12 months’ imprisonment.
[14] The Judge also imposed six months standard and special release conditions and ordered Ms Deacon to pay $3,500 in reparations to the victim of the obtains by deception charge and additional reparation for the thefts from the two supermarkets.
[15] There is no discussion in the sentencing remarks of the possibility of the sentence, as a short sentence of imprisonment, being commuted to home detention.
Approach to sentence appeal
[16] This appeal is to be determined under s 250 of the Criminal Procedure Act 2011. I must allow the appeal if I am satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed and otherwise, I must dismiss the appeal.2 The requirement for the appellant to show there is a “material” error recognises “that reasonable minds can differ about where an appropriate sentence should sit within an available range”. 3 If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.4 It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.5
Positions of the parties
Ms Deacon
[17] Mr George, counsel for Ms Deacon, submits that the sentencing Judge’s failure to provide reasons as to whether Ms Deacon should be granted leave to apply for home detention was a material error. He submits that the Court is required to not impose a sentence of imprisonment unless satisfied that the purposes and principles of sentencing cannot be achieved by a sentence other than imprisonment, as required by s 16 of the Sentencing Act.
[18] Mr George refers to Lewis v Wilson & Horton Ltd6 as authority for the proposition that the need for a court to give reasons for critical issues is well established. He notes the discussion in the judgment referring to the need to give reasons in order to uphold the principle of open justice, ensure the lawfulness of the
2 Criminal Procedure Act 2011, s 250.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4 At [30].
5 At [32]–[36].
6 Lewis v Wilson & Horton Ltd CA131/00, 29 August 2000.
decision can be assessed by a court exercising supervisory jurisdiction, and to provide discipline for the Judge.7
[19] Mr George also refers to Papa v Police,8 where Palmer J held that the considerations for giving reasons identified in Sena v Police apply to sentencing.9 As in this case, in Papa the sentencing Judge failed to give reasons for not granting the appellant leave to apply for home detention. This was found to be a material error, with Palmer J finding that such leave should be granted.10
[20] Mr George argues that Ms Deacon has an address available that was previously deemed suitable for electronic monitoring conditions, and says that she completed her previous home detention sentence without a breach. He submits that the appeal should be allowed and leave to apply for home detention granted, with the merits of the application to be considered in the District Court, as occurred in Papa.
The Police
[21] Mr Baxter, counsel for the Police, submits that the Judge did not err and that the appeal should be dismissed.
[22] Mr Baxter submits that s 80I of the Sentencing Act does not require the Court to consider substitution of a short sentence of imprisonment with home detention. He contrasts the provision with its former equivalent (s 97, repealed on 1 October 2007), which provided that the court “must” make an order granting or declining leave to apply for home detention. Mr Baxter refers to Dalton v Police11 where this Court found that given no application for leave had been made, and because there was nothing in the sentencing remarks to suggest the appellant would receive a sentence of home detention, there was no identifiable error.12 Mr Baxter also notes Pahulu v Police,13
7 At [76]–[82].
8 Papa v Police [2019] NZHC 1309 at [5].
9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [6].
10 Papa, above n 8, at [10]–[12].
11 Dalton v Police [2014] NZHC 1335.
12 At [9]–[10].
13 Pahulu v Police [2020] NZHC 153.
where the Judge was referred to Papa but not Dalton and concluded that he must turn his mind to whether leave to apply for home detention should be granted.14
[23] Mr Baxter submits that the facts in this case can be differentiated from Dalton, Pahulu and Papa, as Ms Deacon did not seek home detention. Mr Baxter infers from the circumstances, namely the waiving of the right to a pre-sentence report, that Ms Deacon requested to be sentenced on the day of her pleas to a short sentence of imprisonment in contemplation that she would be eligible for release once sentenced.
[24] Mr Baxter submits that to require a sentencing judge to consider s 80I in every case where a short sentence of imprisonment is imposed, but where leave under s 80I is not sought, would impose a requirement on the courts that Parliament did not intend. He says there should be no error found in not considering s 80I when the Court is not given notice that leave is sought.
Discussion
Was the Judge required to consider granting leave under s 80I and give reasons for her decision?
[25]This appeal relates to the interpretation of s 80I of the Act, which states:
Leave 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.
[26] Thus, where a short sentence of imprisonment is imposed and the court would have sentenced the offender to home detention if a suitable address had been available,
14 At [43].
s 80I requires the court to grant leave for home detention to be sought at a later date. An application for such leave by the offender is not a prerequisite for this obligation to be engaged. The purpose of such leave being granted is to enable the offender to seek home detention if a suitable address later becomes available, in furtherance of the sentencing principle that the court must impose the least restrictive outcome appropriate in the circumstances.15
[27] After the hearing of this appeal, I became aware of a further relevant decision of this Court in Bourton v New Zealand Police.16 Mr Bourton was sentenced to 20 months’ imprisonment. At the time of sentencing there was no suitable address for an electronically-monitored sentence, leaving a short sentence of imprisonment as the only viable option. Mr Bourton appealed solely on the sentencing Judge’s alleged failure to grant him leave to apply under s 80I of the Sentencing Act.
[28] Mr Bourton relied on the commentary in Hall’s Sentencing for the proposition that the obligation to grant leave to apply for home detention is a mandatory one which arises on satisfaction of a threshold criteria. In Bourton Dunningham J said: 17
[7] …. In that commentary the author says:
A sentence of home detention may be substituted for a short-term sentence of imprisonment on an application by the offender: s 80K. A pre-requisite to this application is that the Court, at time of sentence, must have granted leave to the offender to apply (to the Court of first instance) for cancellation of the sentence of imprisonment and substitution of home detention if the offender finds a suitable residence at a later date.
The sentencing Court must grant leave to apply if the Court, instead of sentencing the offender to a short-term sentence of imprisonment, would have sentenced the offender to home detention had a suitable residence been available: s 80I. This is a mandatory requirement placed upon the sentencing Court and is not dependent on any application or submission by counsel for the defendant at the time of sentence.
15 Sentencing Act 2002, s 8(g).
16 Bourton v New Zealand Police [2016] NZHC 2883.
17 At [7], citing Geoff G Hall Hall’s Sentencing Home Detention (online looseleaf ed, LexisNexis) at [SA80I.1].
[29] Mr Bourton went on to argue that the approach taken by this Court in Dalton is inconsistent with the interpretation taken in that commentary and the clear statutory effect of the provisions.18
[30] Justice Dunningham concluded that the commentary in Hall’s Sentencing is correct. Her Honour said:19
[12] … Section 80I is directory not discretionary. The section imposes a mandatory obligation on the Judge provided the threshold criteria are met. The obligation arises independently from any application by a defendant (or lack thereof) for leave to apply for substitution.
[13] The Court must therefore reach a view when it imposes a short-term sentence of imprisonment as to whether it would have sentenced the offender to home detention if a suitable residence had been available. Commonly this issue is addressed by judges simply saying something along the lines of “even if a suitable address had been available I would have imposed a sentence of imprisonment because …”. A statement such as that precludes the application of s 80I(1)(b) and heads off the mandatory application of s 80I(2).
[14]As I recently held in Verbitsky v Police:
[28] The usual course in cases such as this is for the Court to either grant leave under s 80I, or to clearly articulate its reasons as to why imprisonment is required, notwithstanding the mandatory obligation to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A. A failure to do this makes the decision amenable to appeal.
[15] As a consequence, where a Judge has failed to address s 80I(1)(b) such that it is not clear whether he or she has overlooked the mandatory requirement in s 80I(2), there is an error in sentencing.
[31] I agree with Dunningham J that this reflects the correct interpretation of s 80I. This is consistent with the approach taken by Palmer J in Papa although his Honour’s focus was on the lack of reasons given by the sentencing Judge in that case.20 It is also helpful to set out Palmer J’s observations about the role of s 16 of the Sentencing Act:21
When considering imposing a sentence of imprisonment, s 16 of the Sentencing Act 2002 requires a court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. The court is required not to impose a sentence of imprisonment unless it is satisfied, among other things, that the
18 At [8].
19 At [12]–[15] (footnotes omitted).
20 Papa, above n 8, at [7].
21 At [6] (footnotes omitted).
purposes of sentencing cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles of sentencing. The principles of sentencing, in s 8, include the requirements to impose the least restrictive outcome appropriate in the circumstances. Home detention itself is recognised by the courts as carrying a considerable measure of denunciation and deterrence. As the Court of Appeal stated in Fairbrother v R:
… the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[32] In Papa, Palmer J concluded that he could not be sure whether the sentencing Judge had turned his mind to the question of whether to grant leave to home detention, noting that in any case, no reasons for such a decision were given. The Judge considered this was the material error.22 Palmer J concluded that the issue must be addressed, and reasons provided, noting that in Sena v Police, in relation to the reasoning in conviction decisions, the Supreme Court had explained that Judges should:23
… show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved and generally provide a rational and considered basis for the conclusion reached.
[33]Palmer J held that the same approach applies to sentencing.
[34] Accordingly, I am not persuaded by the arguments advanced by Mr Baxter that this interpretation of s 80I was not intended by Parliament nor that it places too onerous an obligation on sentencing judges. I consider that the decision in Dalton is incorrect insofar as it suggests that s 80I requires an application by an offender. The sentencing judge must reach a view when they impose a short sentence of imprisonment as to whether they would have sentenced the offender to home detention if a suitable residence been available.
[35] It is correct to say that there was no discussion of the issue of home detention in the District Court Judge’s sentencing notes in relation to Ms Deacon. It is unclear
22 At [10].
23 At [5], citing Sena, above n 9, at [36].
whether the District Court Judge considered s 80I. Reasons must be given in decisions to ensure the principles of open justice are upheld, that those exercising a supervisory jurisdiction can determine how a decision was arrived at, and to ensure all relevant matters were considered in coming to that decision. Despite the fact it appears home detention was not sought by Ms Deacon’s counsel on the day of sentencing, the Judge should have mentioned s 80I in her decision and set out reasons (albeit brief) why leave was not granted. I consider that it was a material error for the Judge not to do so.
Should leave be granted?
[36] Mr George says that in these circumstances, this Court should grant leave for Ms Deacon to apply for home detention so that the application may be considered by the District Court.
[37] In Bourton, Dunningham J went on to consider whether the Court had jurisdiction to grant leave under s 80I, given the conclusion in Dalton that the ability to grant leave only arises at the time the offender is sentenced.24 Her Honour concluded:25
... Section 251 of the Criminal Procedure Act 2011 grants to the Court the broad power to “set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate”, provided that it is minded to allow the appeal. The grant of leave is an aspect of the sentence imposed, and therefore can be ordered on appeal if it is considered appropriate. That avoids the cumbersome alternative which is to refer the matter back to the District Court for reconsideration in light of the identified error.
[38] Once again, I agree with the conclusion reached by Dunningham J. I therefore turn to consider afresh whether leave to apply for home detention should be given.
[39] Given that a short sentence of imprisonment was imposed on Ms Deacon and there is no error apparent in coming to that sentence, the only issue to be addressed is whether Ms Deacon would have had a sentence of home detention imposed if a suitable residence had been available at sentencing.26
24 Dalton, above n 11, at [7].
25 Bourton, above n 16, at [22].
26 Sentencing Act, s 80I(1)(b).
[40] Mr George says that Ms Deacon has a suitable address available for home detention. No information is available as to its suitability, other than Mr George’s assurance that it has previously been deemed technically suitable. However, there is information concerning Ms Deacon’s recent criminal history and compliance with court orders.
[41] Ms Deacon is said to have successfully completed her previous seven-month sentence of home detention in 2022. She was acknowledged by the Judge for having made significant efforts towards her rehabilitation. However, Ms Deacon has also recently offended whilst on bail for her earlier charges and was declined bail after being arrested for breaching a bail condition. The charges she was convicted of in relation to the sentencing under appeal also included breaches of release conditions. This raises some concerns around whether home detention is a suitable sentence for her, given this recent history of non-compliance. Additionally, the “hiccups” in her rehabilitative efforts were attributed to the influence and possible pressure from Ms Deacon’s associates which include gang members.
[42] There were also some aggravating factors in relation to Ms Deacon’s offending, which include the fact the common assault was made whilst Ms Deacon was seeking to escape during the commission of one of her theft offences, and that one of the instances of theft was committed in the presence of, and seemingly with the assistance of, Ms Deacon’s 14-year-old son.
[43] In Papa, Palmer J considered it was “conceivable” that reasons against the grant of home detention may not prevail, and this satisfied him that leave to apply for home detention should be granted.27 Although in that case there were similar factors that weighed against home detention such as a history of non-compliance and repeat offending, there did not appear to be the same kind of very recent incidences of non- compliance. Neither were there concerns about influence or pressure from associates. These factors weigh strongly against a finding that it is conceivable that Ms Deacon will be granted home detention. I am also mindful of the requirements of s 16 of the
27 Papa, above n 8, at [11].
Sentencing Act. I am satisfied that a sentence of imprisonment on Ms Deacon is the least restrictive outcome appropriate in the circumstances.
[44] For these reasons, I consider that at the time of sentencing, the Court would not have sentenced Ms Deacon to a sentence of home detention if a suitable address had been available. I consequently find that despite the Judge erring in not considering whether to grant leave to apply for home detention and not giving reasons for her decision, this did not result in Ms Deacon receiving the wrong sentence. Irrespective of the error, the end sentence would remain the same.
Conclusion
[45] Although there was a material error in that the District Court Judge did not provide reasons for whether or not leave to apply for home detention pursuant to s 80I of the Sentencing Act should be granted, the Judge did not impose a manifestly excessive sentence on Ms Deacon. Ms Deacon was not an appropriate candidate for home detention.
[46]The appeal is dismissed.
McQueen J
Solicitors:
A J Bailey, Christchurch for Appellant Crown Solicitor, Nelson for Respondent
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