Biskowiak v Police
[2015] NZHC 486
•17 March 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-2 [2015] NZHC 486
BETWEEN PAUL ANTHONY BISKOWIAK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 March 2015 Appearances:
P Knowsley for appellant
S W Woods for respondentJudgment:
17 March 2015
JUDGMENT OF CLIFFORD J
[1] The appellant, Paul Biskowiak, pleaded guilty to one count of unlawfully taking a motor vehicle,1 two counts of theft,2 and one count of driving while disqualified.3 On 12 August 2014 Judge Grace gave a sentencing indication to Mr Biskowiak.4 The District Court record of hearing shows that indication was accepted on 19 August 2014. Mr Biskowiak was finally sentenced by Judge Grace
in the District Court on 12 December 2014 to one year and ten months’
imprisonment.5
[2] Mr Biskowiak now appeals the sentence on the grounds that the Judge indicated a sentence of home detention and was bound to follow that indication at sentencing.
[3] Mr Biskowiak did not file his appeal until 23 January 2015, and was therefore out of time. That delay is not long and is explained by difficulties the
1 Crimes Act 1961, s 226(1).
2 Crimes Act 1961, s 219.
3 Land Transport Act 1998, ss 32(1)(a) and 32(4).
4 Police v Biskowiak DC Lower Hutt CRI-2014-096-001699, 12 August 2014.
5 Police v Biskowiak DC Hutt Valley CRI-2014-096-001699, 12 December 2014.
BISKOWIAK v POLICE [2015] NZHC 486 [17 March 2015]
holiday period created for Mr Knowsley when communicating with Mr Biskowiak. Leave is granted accordingly.
Facts
[4] Mr Biskowiak was disqualified from driving for six months on 11 December
2013.
[5] In the early hours of the morning of Saturday 7 June 2014, he drove a stolen vehicle, a ute, to a house. There he jacked up a car that was in the driveway, removed the car’s four wheels and drove off with them in the ute. The wheels were valued at approximately $2,500. They were recovered when Mr Biskowiak was stopped by the police a short while later. It transpired that Mr Biskowiak had also stolen a laptop, sunglasses and tools, together valued at $3,620, from the ute.
[6] In his sentencing indication, the Judge noted the facts of Mr Biskowiak’s offending, that he had an unenviable record of dishonesty, a lot of it relating to motor vehicles, and that he had only just been released from a term of imprisonment before the offending in question had occurred. Having indicated that the starting point
sentence would be two and half years’ imprisonment, the Judge went on to say:6
[6] If he were to plead guilty he would be entitled to a 25 percent reduction for a plea of guilty and one would have to take into account the period of time that he has spent on remand. That would bring him within the less than the two year period, which, from a statutory point of view, brings him into the realms of home detention. He could not expect anything less than home detention, but whether or not he would be eligible for home detention would depend upon what would come out of a pre-sentence report, as to whether or not there is firstly a suitable address at which he could serve home detention and secondly, whether or not he would be suitable for home detention, having regard to what can only be described as his rather horrendous history.
[7] I am told by his counsel that his grandmother is now on the scene and no doubt she will need to come to the party and put her money where her mouth is, so to speak.
[7] Following the acceptance of that indication, a series of three pre-sentence reports was prepared by the Department of Corrections, reflecting ongoing
investigations of the possibility of Mr Biskowiak being sentenced to home detention
6 Police v Biskowiak, above n 4.
with his grandmother, Mrs Turner, at her home in Tauranga. The first report dated
17 September 2014 recommended imprisonment. At the time of the preparation of that report, however, the probation officer had been unable to interview Mrs Turner as she had been in hospital following an accident. He requested an appointment to do that. Mr Biskowiak was remanded to enable that process to occur. The probation officer then met with Mrs Turner and prepared a second report dated 22 October
2014. The probation officer concluded at that point that Mrs Turner’s address was not suitable for Mr Biskowiak’s home detention. He was particularly concerned that Mrs Turner had not fully understood the impact of having her grandson living with her on home detention. He also doubted her ability to control him. Moreover, Mrs Turner was still recovering from her broken leg, had little local family support and, indeed, had not seen her grandson since he was four years old. Imprisonment was recommended.
[8] Mrs Turner disputed the accuracy of that report. She wrote to the probation officer asserting strongly that she did understand what she would be doing, that she could control her grandson (as she had controlled others of her grandchildren), that her injury had not incapacitated her in any permanent way and that she had ample local support. Mrs Turner drew the probation officer’s attention to the fact that she had, in recent years, successfully completed a university degree (majoring in education and sociology) and that she had worked in residential drug and alcohol treatment centres as an educator and counsellor. She had often had sole charge of
20 clients. She had, at an earlier time I infer and not on the basis of that training, worked at police headquarters in the forensic unit and at the police college in connection with the INSIS programme and police training. She explained, moreover, that Mr Biskowiak had been brought up by his mother and a step-father. At his mother’s request, Mrs Turner’s son – Mr Biskowiak’s father – and the wider family had not attempted to contact him. She had, however, now met with him and was satisfied he would fit into her side of the family.
[9] The probation officer then interviewed Mrs Turner again, and prepared a third report. This time he did recommend home detention, although with some reservations. The police remain concerned that Mr Biskowiak would reoffend.
Judge’s sentencing decision
[10] The Judge, having referred to the three presentence reports, then observed:7
[7] Now Mr Knowsley this morning, or yesterday, but I received them this morning, filed written submissions on your behalf and he has made submissions this morning. Primarily what he is saying is that you fit the criteria in his submission for home detention. There is a suitable address available. There is a sponsor available and I should release you on home detention having regard to your age and the fact that, in his view, you need a further chance and you have that support from your family. I have to say there is much to be said for that, particularly bearing in mind the latest probation report. However, there are some concerns that I have because although you are only 24 years of age you have what could only be described as a significant history. You have had 41 terms of imprisonment since 2009. You have had a number of prior convictions for dishonesty involving theft of motor vehicles, theft from motor vehicles and motor vehicles and dishonesty on those 35 occasions.
[8] The Sentencing Act 2002 provides that I may impose home detention only if I am satisfied that sentencing purposes cannot be achieved by a less serious sentence and I must be satisfied that the Court would otherwise have imposed a short term of imprisonment. Now both those criteria, in my view, are met here because I have indicated a term of imprisonment and, as I have indicated, home detention is available. The question, however, in my view, is whether, for the purposes of the Sentencing Act, the denunciation and deterrence can be met by anything less than a term of imprisonment. That is an evaluation that I have to undertake and in doing that I have to take into account the purposes and principles of the Sentencing Act, particularly those set out in ss 7 and 8 Sentencing Act. Under those factors I have to hold you accountable for the harm that you have done to the victims and the community by your offending, to try and promote a new sense of responsibility for and an acknowledgement of the harm that you have done, to denounce the conduct for which you have become involved and to protect the community from you. Under the principles of the Sentencing Act I have to take into the account the gravity of the offending in the particular case including your degree of culpability, and I must impose a maximum penalty subject to the particular circumstances of the case. I have to, as Mr Knowsley pointed out, impose the least restrictive sentence possible.
[11] In considering those factors the Judge said he was concerned about the appellant’s significant history of offending.8 He noted that Mr Biskowiak had
34 prior convictions for dishonesty offending, that he had been sentenced to 41 separate terms of imprisonment since 2009 and that he had been before the court most recently in February of 2014 for similar offending. On that occasion, Mr Biskowiak had been sentenced to 10 months’ imprisonment. He had, therefore, only recently been released when he offended on this occasion. Both the February
and the June 2014 offending involved a breach of release conditions. The Judge concluded that Mr Biskowiak was “not getting the message”.9 He asked himself whether the principle purposes of deterrence and denunciation could be met by anything short of a custodial sentence. Whilst he admired Mrs Turner’s “stamina” and her willingness to have Mr Biskowiak serve a sentence of home detention with her, the Judge concluded that “the reality is I do not believe that home detention is an
appropriate sentence in the circumstances and I am going to impose the custodial sentence that I indicated on the sentence indication”.10 The Judge sentenced Mr Biskowiak to twenty two months’ imprisonment, disqualified him from driving for eighteen months, and ordered him to pay reparation of $3,920.
Arguments on appeal
[12] For Mr Biskowiak, Mr Knowsley submitted that the indication, as given by the Judge, in effect told Mr Biskowiak that if there was a pre-sentence report that recommended home detention, that is the sentence he would receive. In making that submission, Mr Knowsley relied particularly on the words the Judge had used when he gave his indication that whether or not Mr Biskowiak would be eligible for home detention would depend upon the outcome of the pre-sentence report, firstly as to whether the address was suitable and secondly as to whether he would be suitable.
[13] Knowing, Mr Knowsley submitted, that he was a suitable candidate and had a suitable address, Mr Biskowiak accepted the indication. As the probation report has, ultimately, recommended home detention, both of those conditions were satisfied. The Judge was therefore obliged, in terms of s 116(2) of the Sentencing Act, to sentence Mr Biskowiak to home detention. As the Crown had conceded, there was no information that had become available to the Court after the sentence indication was given that materially affected the basis on which it was given. As the sentencing indication itself revealed, the Judge was well aware of Mr Biskowiak’s previous offending. As matters transpired, the probation report having finally recommended home detention, the Judge could not go back to the issue of the significance of Mr Biskowiak’s previous offending, in terms of the need for deterrence and other like matters, to decline to impose the indicated sentence.
[14] For the Crown, Mr Woods submitted that all the Judge had done in his sentencing indication was to note that home detention was a possible outcome. When the Judge said whether or not Mr Biskowiak would be eligible for home detention, he was referring to the possible availability of that sentence if the home detention report was positive. The Judge was entitled to take into account the contents of all three of the pre-sentence reports. The combination of the Judge’s concern about the significance of Mr Biskowiak’s offending history, and the final recommendation “with some reservation”, together with the analysis in the two earlier reports, provided an appropriate basis for the Judge’s decision not to impose a sentence of home detention.
[15] To find, as Mr Knowsley argued, that the Judge was bound to impose a sentence of home detention on the basis of the ultimately favourable pre-sentence report would, in effect, mean that the ultimate sentencing decision had been made by the writer of that report, and not the Judge. That is a finding that the Court should avoid, except in very clear cases.
Analysis
[16] Sentencing indications were originally a judicial development more common in the District Court than the High Court. They now have been given a statutory basis in subpart 4 of Part 3 of the Criminal Procedure Act 2011. Those provisions came into force on 5 March 2012, and hence apply here. They largely, but not completely, reflect prior judicial practice.
[17] A sentence indication is defined as follows:
60 Meaning of sentence indication
A sentence indication is a statement by the court that, if the defendant pleads guilty to the offence alleged in the charge, or any other specified offence, at that time, the court would or would not (as the case may be) be likely to impose on the defendant—
(a) a sentence of a particular type or types; or
(b) a sentence of a particular type or types within a specified range (for example, periods of time or monetary amounts); or
(c) a sentence of a particular type or types and of a particular quantum
(for example, periods of time or monetary amounts).
[18] The court may give a sentence indication at the request of a defendant made before trial.11 Importantly, the court is not obliged to give a sentence indication. There is no right of appeal against a decision to give or not give a sentencing indication.12 The court must first be satisfied that the information available to it at the time is sufficient for the purpose.13 It also must have (at least) an agreed summary of facts, information about previous convictions and any victim impact statements.14 The court may gave the parties an opportunity to be heard on the matter.15 A sentencing indication must be given in open court.16
[19] Section 116(2) of the Act provides:
(2) The sentence indication is binding on the judicial officer that gave it unless—
(a) information becomes available to the court after the sentence indication was given but before sentencing; and
(b) the judicial officer is satisfied that the information materially affects the basis on which it was given.
[20] If the circumstances described in s 116(2) apply, and the Judge intends to impose a sentence of a different type or types or of a greater quantum, s 115(2) requires the Court to grant leave to the defendant to withdraw his or her plea of guilty.
[21] These provisions were considered by the Court of Appeal in Boyce v R.17
Boyce was an appeal against sentence, including on the basis that home detention had been indicated and should have been imposed.18 The appellants faced violence charges. Following an amendment to the charges, a sentencing indication was sought. The Judge said:19
[2] The best indication I can give the three of you now is this, were you to plead there would still be some slight concession attaching to a plea. As I see it though, the issue for all of you is finely balanced. Pleas and a
11 Criminal Procedure Act 2011, s 61(1).
12 Section 62(5).
13 Section 61(2).
14 Section 61(3).
15 Section 62(1).
16 Section 62(2).
17 Boyce v R [2014] NZCA 295.
18 Boyce v R, above n 17.
19 R v Boyce DC New Plymouth CRI-2012-021-586, 27 January 2014.
favourable pre-sentence report would bring it to where I suspect your counsel would be able to argue for one of the monitored sentencings, that is either home detention or community detention, perhaps in conjunction with something else. I cannot tell you categorically, however, that you are to put imprisonment from your minds entirely.
[3] I repeat, it is a finely balanced issue that I am asked to commit on. I
am not prepared to commit to any greater extent than that.
Guilty pleas were then entered. At sentencing the Judge said that a favourable pre- sentence report had been required. One had not been received. Sentences of imprisonment were therefore imposed.
[22] The Court of Appeal interpreted the Judge’s words as referring to the end sentence being brought down to a level where home detention was available. At the same time the Court found it was clear the Judge had not committed himself to imposing a sentence less than imprisonment, or ruling out imprisonment as an appropriate sentence. The Court of Appeal went on the consider whether, in terms of ss 116(2) and 115(2) of the Criminal Procedure Act, the Judge had varied his sentence in breach of s 116(2) so that he should, prior to imposing that sentence, have followed the s 115(2) procedure of granting the defendants leave to withdraw
their guilty pleas. The Court reasoned:20
[37] The sentence indication was that, in the event of a favourable pre- sentence report, the end sentence would be in the region of two years’ imprisonment thereby enabling counsel to argue for a sentence of home detention or community detention. Provided the Judge’s assessment that the pre-sentence reports were not favourable is correct, it cannot be said the Judge departed from that sentence indication by imposing a sentence of two years, four months’ imprisonment. Imprisonment was always a possibility in terms of the indication given. The sentence would only have been at two years or less if the appellants received favourable pre-sentence reports.
[23] The Court concluded that the appellants did not receive favourable pre- sentence reports, and so neither of s 116(2) nor s 115(2) were engaged.
[24] Similar approaches, albeit with differing outcomes, have been taken in cases that pre-date the coming into force of the statutory sentencing indication regime.
[25] In the 2000 case of R v Gemmell, the Court of Appeal considered a sentencing indication given in the District Court of nine to 12 months’ imprisonment
20 Boyce v R, above n 18.
cumulative on a concurrent sentence.21 A cumulative sentence of two years’ imprisonment was imposed. The dispute was whether or not the Judge had made it clear that his indication had been subject to hearing argument about tariff authorities. For the appellant it was submitted that it amounts to a miscarriage of justice to induce a guilty plea with an indicated sentence range of nine to 12 months and then, without offering the appellant an opportunity to seek leave to set aside the guilty plea, to impose a sentence of two years. The Court agreed. The appeal was allowed, the convictions were set aside and the matter was remitted to the District Court for the appellant to have the opportunity to plead again.
[26] A similar outcome was reached in Wood v R.22 There, the Judge had given a sentencing indication that home detention would be “given very serious consideration” (subject to receipt of a satisfactory pre-sentence report).
[27] The Court of Appeal said:
[15] In the present case, the appellant pleaded guilty on the basis of an indication that home detention would be a “very strong consideration”. Although that indication was contingent upon the receipt of a satisfactory pre-sentence report and other matters, when the Judge stated that such a sentence would be given “very serious consideration” we consider the appellant would have expected that sentence to be imposed. A sentence of imprisonment of 25 months must be regarded as significantly different from one of home detention, involving as it does, far more restrictive circumstances and a significantly greater time period than would have been available under a sentence of home detention.
[28] On that basis, the Court of Appeal again allowed the appeal, set aside the conviction and remitted the matter to the District Court to enable the appellant to plead again.
[29] In Taylor v R, an appeal with a complicated history and another case where the Sentencing Act did not apply, the appellant instructed his counsel to obtain a sentencing indication (charges of burglary and other dishonesty) and instructed him that if the indication was for a sentence of less than 15 months’ imprisonment a
guilty plea was to be entered.23 The Judge gave the following indication:24
21 R v Gemmell [2000] 1 NZLR 695.
22 Wood v R [2013] NZCA 312.
23 Taylor v R [2013] NZCA 55
24 Cited in Taylor v R, above n 23 at [7].
… I would have thought that a starting point of 12 months was warranted for burglary during the daytime. There would need to be a significant uplift for the aggravating feature being his 21 previous burglary convictions and 213 other dishonesty convictions and the mitigating factor would be 25 per cent reduction in the penalty for the early guilty plea.
[30] Thereupon, the appellant instructed counsel to enter a guilty plea. The Court of Appeal noted there did not appear to have been any discussion between counsel and the appellant over what might have been meant by the phrase “significant uplift”. Neither had any clarification of that matter been sought from the Judge.
[31] At sentencing, the Judge took the starting point of 12 months. There was then a global uplift of two and a half years for aggravating factors. The three and a half year starting point was reduced to two and a half years for the guilty pleas and that was the sentence imposed.
[32] The matter was appealed to the High Court. On the question of the sentence indication disparity, Whata J noted first that counsel could have sought clarity from the Judge and, second, that counsel should have expected an uplift of 18 months to two years. Leave to appeal to the Court of Appeal was given, but not on the question of the sentencing indication disparity itself, but rather on the related issues of whether or not the Judge had been right to have regard to the ability of counsel to seek clarity and whether an uplift of 18 months to two years was to be expected by counsel.
[33] Citing Gemmell, and the purpose of the statutory sentencing indication regime being to provide clarity and certainty about jeopardy, the Court of Appeal said:
[18] It follows, as Gemmell makes clear, that where there is a significant disparity between indication and final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea. An expectation has been created and not met, and the accused should not be held to his or her plea.
[34] The Court found that whatever the reason for what had happened, the appellant had received a sentence which was twice as long as he had indicated he was willing to plead to. That sentencing indication had not made it clear that by pleading guilty he was exposing himself to that length of sentence. Nor was there
any suggestion that he had realised that. He should, therefore, have been offered the chance to vacate his plea. Counsel should have sought that opportunity.
[35] The Court of Appeal again allowed the appeal, quashed the convictions and remitted the matter to the District Court. In doing so, it observed in terms that are relevant here:25
[23] Finally, in relation to challenges such as the present, regardless of whether the challenge is made to the sentencing judge or on appeal, it is necessary to keep the correct focus. It is not a protracted inquiry into fault, nor into the merits of the accused, nor into the merits of the sentence actually imposed. A sentence indication generates an expectation. If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas. What is in issue is the integrity of the sentence indication system.
[24] It follows from what we have said that we consider the focus of the questions of law identified for this appeal to be incorrect. The inquiry is not on what defence counsel should or should not have done or understood. Likewise, issues about the predictability and correctness of an uplift of this magnitude are equally not the correct focus.
[25] It is plain on the material before us that Mr Taylor did not plead on the basis of an understanding that the sentence would be of this length. That is what matters.
[36] In submitting that Mr Biskowiak accepted the indication “knowing” he was a suitable candidate with a suitable address Mr Knowsley, given Mr Biskowiak’s criminal history, in my view goes too far. At the same time, by my assessment and although not absolutely clear in its terms, the indication given by Judge Grace as regards the availability of home detention was, if anything, more favourable than those given in Gemmell, Wood and Taylor. The words the Judge used do, in my view, clearly suggest that if a favourable pre-sentencing report on the question of home detention were obtained, that is the sentence he would impose. The Judge may well have had it in his mind that he was reserving to himself an opportunity to further assess the significance of Mr Biskowiak’s previous convictions and risk of reoffending. But what he said did not make that clear. Moreover, it is not an indication of a type of sentence to say that an offender is “eligible” for home detention if all a Judge is saying is that, if the end sentence is two years or less, home detention can be considered and that the Judge will do so on the basis of the pre-
sentence reports he receives. That is simply a statement of law.
25 Taylor v R, above n 23.
[37] Whilst I have no affidavit evidence from Mr Biskowiak as to what he did or did not understand, assessed objectively I think the words used by the Judge do carry a very strong indication that, subject very much to the outcome of the pre-sentence reports, home detention would be available. The efforts taken to obtain a positive pre-sentence report in my view confirm that that is the meaning that was taken by and on behalf of Mr Biskowiak.
[38] In these circumstances, therefore, I am minded to allow this appeal.
[39] Mr Knowsley’s submission, with which Mr Woods concurred, was that if I thought the appeal should be allowed, I should impose a sentence of home detention. Neither counsel referred me to the authority I have set out above as to what is the proper response of the Court in these circumstances, nor am I aware of any case in which the approach they said was available has in fact been taken.
[40] Accordingly, and following that Court of Appeal authority, in allowing the appeal I quash Mr Biskowiak’s convictions and remit the matter to the District Court for him to be given the opportunity re-plead. It is not my role, in these circumstances, to reach a view on the merits, as Mr Knowsley argued I should. Having said that, Mrs Turner’s qualifications and experience are impressive and home detention with her would remove Mr Biskowiak from an environment in which he has offended. It would also introduce Mr Biskowiak to, in effect, a new family. On a further sentencing indication, and with all the information that is now available, a Judge, in my view, might well indicate home detention.
Clifford J”
Solicitors:
P Knowsley, Barrister, Wellington for the appellant. Crown Solicitor, Wellington for the respondent.
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