Box v Police

[2018] NZHC 286

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-070-34 [2018] NZHC 286

BETWEEN

REBECCA NICOLE BOX

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 February 2018
Appearances:	B J Hesketh for Appellant O M Salt for Respondent
Judgment:	1 March 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 29 February 2018 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Tauranga

BOX v POLICE [2018] NZHC 286 [1 March 2018]

Introduction

[1]Rebecca Box has been convicted of the following offences:

(a)possession of a Class A drug, namely methamphetamine;1

(b)failing to appear in court (x 2);2

(c)driving while disqualified (x 2);3

(d)possession of a Class C drug, namely cannabis;4 and

(e)giving false details as to her own identity.5

[2]        She was sentenced to a total period of four months’ imprisonment with six months of standard and special release conditions.6 Ms Box now appeals against that sentence on the grounds that home detention should have been imposed and the special release conditions relating to alcohol were inappropriate.

[3]        Since being sentenced on 6 October 2017, Ms Box has completed serving her sentence of imprisonment and has been released. As a consequence, the issues raised by this appeal are effectively moot, although Mr Hesketh for Ms Box submits that a decision by this Court would nevertheless provide valuable guidance to the District Court in relation to future cases where the same or similar issues arise.

The offending

[4]The offending arose out of several discrete incidents.

1      Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty six months’ imprisonment or a fine not exceeding $1,000.

2      Bail Act 2000, s 38(a); maximum penalty one year of imprisonment or a fine not exceeding $2,000.

3      Land Transport Act 1998, s 32(1)(a); maximum penalty three months’ imprisonment or a fine not exceeding $4,500, and mandatory disqualification from driving for six months or more.

4      Misuse of Drugs Act, s 7(1)(a); maximum penalty three months’ imprisonment or a fine not exceeding $500.

5      Land Transport Act, s 44; maximum penalty a fine not exceeding $10,000.

6      Police v Box [2017] NZDC 22914.

[5]        On 19 May 2016, police executed a search warrant at an address that Ms Box was visiting in Mount Maunganui. Police located half a gram of methamphetamine in Ms Box’s handbag.

[6]        Ms Box was disqualified from driving for a period of nine months commencing on 9 February 2016. On 15 August 2016, she was stopped while driving by police as part of a routine traffic stop. It was then discovered that she was disqualified from driving.

[7]        On 10 October 2016, at about 2.00am, Ms Box was stopped by police while driving because one of her headlights was not working. When asked to provide details of her identity, she gave a false name and birthdate. At the time she was found to have in her possession five grams of cannabis packaged into six foils in a glass jar. She was still disqualified from driving at this time.

[8]        Ms Box was released on bail, but failed to appear in the District Court when required to do so on two occasions in October 2016 and March 2017.

Ms Box’s personal circumstances

[9]        Ms Box is 24 years old and she has seven convictions dating back to 2012. These are all for relatively minor offences, and she has not previously been sentenced to imprisonment.

[10]      The pre-sentence report states that Ms Box sought to explain and justify her offending. She explains that on one occasion she drove while disqualified because she was at a party and believed she was going to be attacked and raped. On the second occasion she drove while disqualified because she felt uncomfortable where she was and wanted to drive to a friend’s place to stay the night. In relation to her failure to attend court on two occasions, she explained to the author of the report that she suffers from severe anxiety which impeded her ability to attend court. She admits to possessing methamphetamine for her own personal use, but says the cannabis belonged to her friend whose car she was driving at the time she was stopped by police.

[11]      Ms Box lived a transient lifestyle over the period of the offending. When asked, Ms Box said she had been using methamphetamine for at least three years. She is willing to address her drug use.

[12]      The report states that Ms Box’s drug use, criminal associates, unbalanced lifestyle and lack of consequential thinking all contributed to her offending. She is assessed as presenting a low to medium risk of reoffending (in part due to the extended periods between her convictions), and a low risk of harm to others. The report recommends a sentence of imprisonment for Ms Box, although an electronically monitored sentence was discussed with her and she agreed to comply with the relevant conditions.

[13]      Ms Box occupies a cabin on her parents’ property at Papamoa, and it is this address that was proposed for a sentence of home detention. The property is owned and occupied by Ms Box’s mother, her mother’s partner, and their three teenage children (who are all over the age of 16). They consented to Ms Box carrying out an electronically monitored (EM) sentence at the address, although the author of the report stated that her mother acknowledged her daughter’s untreated behavioural issues and commented that she was unsure about her daughter’s ability to contend with the constraints of an EM sentence.

[14]      The report noted that the police strongly objected to Ms Box serving a sentence of home detention at her mother’s property, as Ms Box had told them of issues she had had with her step-father and one of her brothers in the past. The police view was that should Ms Box be confined to the property by a sentence of home detention there was potential for domestic violence. Ms Box reports having anger issues towards her mother and it is said she has in the past destroyed property when she does not get her way. The police also told the author of the report that Ms Box has an association with some members of the Filthy Few gang.

[15]      Although the property is assessed as technically suitable for electronic monitoring, the report concluded the address unsuitable for an EM sentence by reason of the matters summarised above.

Mother’s letter to the Judge

[16]      As well as and in contrast to the information in the pre-sentence report regarding Ms Box’s mother being uncertain about whether her daughter would be able to contend with the constraints of an EM sentence, Ms Box’s mother herself wrote a letter to the sentencing Judge, dated 1 October 2017. She wrote:

This letter is to let you know that we love Rebecca soooooo (sic) much. I am unbelievably happy she has been bailed and is now home with us where she belongs. I missed her terribly when she was detained.

She has made some poor choices in the past but has really grown up and matured a lot since her last offence. Her behavior [sic], attitude and being able to cope with things has dramatically improved, and a huge turnaround from where she was a year or two ago.

Rebecca has our full unconditional support to be on a bracelet at her family home with us. We really want her to be able to come home again today, to stay, after this sentencing.

District Court decision

[17]      After summarising the facts, Judge Harding noted that a psychiatric report provided to the Court in part explained Ms Box’s offending. The report listed several concerns about Ms Box’s behaviour and suggested that she suffered from borderline personality disorder. Judge Harding then reviewed the contents of the pre-sentence report, noting the concerns about an EM sentence at the proposed address.

[18]      Judge Harding also recorded that Ms Box was sentenced to 260 hours of community work in late 2015, but that she had only completed one hour in the two years since this sentence began.

[19]      The Judge noted that Ms Box’s counsel sought a sentence of home detention as a rehabilitative sentence, but declined to impose it saying:7

Home detention as a sentence is a sentence which is designed at least in part to be rehabilitative and there is no doubt at all that you need a period of rehabilitation but it is going to require a length which means that home detention would be entirely unsuitable because the total sentence of imprisonment to be imposed is of such a length that converting that to home

7 At [8].

detention on the usual basis would result in a sentence which was too short to be helpful.

[20]        With regard to the pre-sentence report and the psychiatric report, the Judge concluded that “regrettably … nothing short of a sentence of imprisonment can be imposed but it can be short”.8

[21]The Judge sentenced Ms Box to:

(a)three months’ imprisonment on the charge of possession of methamphetamine, with standard and special release conditions for six months after the sentence expiry date (those conditions included attending an alcohol and drug assessment, abstaining from alcohol and drugs, and completing any treatment or counselling recommended by a probation officer);

(b)one month’s imprisonment on the first charge of driving while disqualified (to be served cumulatively);

(c)nine months’ disqualification from driving from the date of sentence;

(d)one month’s imprisonment on the second charge of driving while disqualified;9 and

(e)one month’s imprisonment on the two breaches of bail.10

[22]      On the charges of possession of cannabis and providing false information, Ms Box was convicted and discharged. The Judge ordered the confiscation of the car Ms Box was driving when she was first caught driving while disqualified.

8 At [9].

9      As the Judge described this as the appellant being “similarly sentenced” to the first driving while disqualified charge, although not expressly stated, having regard to the “effective sentence” of four months’ imprisonment, it is clear that this one month term of imprisonment was also intended to be served concurrently.

10 The Judge said that this sentence again was cumulative on the sentence of three months’ imprisonment, but if that is the case it is not clear how he reached a total period of four months’ imprisonment.

[23]      Judge Harding clarified that this resulted in a total period of imprisonment of four months. He stated that in reaching these sentences, he had had regard to the “rather late pleas”, but also the progress Ms Box had made and the need to deal with matters on a totality basis.11 He cancelled the balance of Ms Box’s community work sentence, stating that the prospect of her completing the work seemed “extremely thin”.12

Approach to appeal

[24]      Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[25]In any other case, the Court must dismiss the appeal.13

Submissions on appeal

[26]      Mr Hesketh for Ms Box submits that the Judge erred in refusing to impose a sentence of home detention. He submits that the Judge was required to have regard to the desirability of keeping an offender in the community, so far as consonant with the community’s safety. He says that the Judge was required to impose the least restrictive outcome in the circumstances according to the hierarchy of sentences in the Act.

[27]      Mr Hesketh submits that where a short term of imprisonment is considered the appropriate sentence, a judge must consider whether to commute that sentence to a sentence of home detention.

[28]      At the hearing of the appeal, Mr Hesketh withdrew the ground of appeal referred to in his written submissions alleging that the Judge erred in imposing a

11 At [11].

12 At [17].

13     Criminal Procedure Act 2011, s 250(3).

release condition not to consume alcohol without there being any foundation. Mr Hesketh acknowledged that such a condition was proposed in the pre-sentence report, and that no submission had been made to the Judge suggesting that such a condition was inappropriate either as a post release condition or home detention sentence condition.

[29]      Mr Hesketh submits that in making the decision between a sentence of home detention and imprisonment, a judge must weigh the factors that really count, and must not only consider deterrence without also having regard to the other purposes of sentencing.

Respondent’s submissions

[30]      Mr Salt for the respondent submits that the Judge adequately considered all relevant factors, and that he was justified in declining home detention as it would not provide for the level of rehabilitation needed by the appellant.

[31]      Mr Salt submits that the decision to decline home detention resulted in a short prison sentence which was the least restrictive outcome when considering the appellant’s need for rehabilitation. The respondent submits that the short term of imprisonment was well justified by reason of: the appellant’s drug use, criminal associates, unbalanced lifestyle and offending supportive attitude; continuing offending in a similar manner; low compliance with court imposed conditions and sentences; potential issues with members of the appellant’s family living at the proposed home detention address and a related risk of domestic violence; and the need to denounce the appellant’s conduct and deter her from further offending.

[32]      The respondent submits that the Judge did make a considered choice between the two sentences. Mr Salt submits that while the Judge may not have addressed the detail of his evaluation of the sentencing options in detail, the key issue on appeal is whether the total sentence was in the available range, rather than the method by which it was arrived at.

Home detention

Case law

[33]      Home detention is available where the offender would otherwise be sentenced to a short-term period of imprisonment,14 i.e. a period of two years or less.15 It was therefore prima facie available to the sentencing Judge in this case given that he ultimately sentenced Ms Box to four months’ imprisonment. This meant the Judge was obliged to consider whether to commute the sentence of imprisonment to one of home detention.16

[34]      In the hierarchy of sentences from most to least restrictive, home detention is immediately below imprisonment.17 It is recognised that home detention is a serious sentence that imposes major restrictions on liberty;18 it is not to be perceived as a lenient option. The Court of Appeal has observed that a sentence of home detention offers social and individual benefits:19

The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note [to the Criminal Justice Reform Bill] identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”.

[35]      The decision to commute a sentence of imprisonment to one of home detention is a discretion to be exercised in accordance with the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act.20 There is no presumption for or against such commutation, either generally or in respect of particular types of offence.21 The Judge must:22

… make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and

14     Sentencing Act, s 15A(1).

15     Sentencing Act, s 4(1); Parole Act, s 4(1).

16     Fomai v Police [2014] NZHC 377 at [18].

17     Sentencing Act, s 10A.

18     R v Bisschop [2008] NZCA 229 at [19].

19     R v Hill [2008] 2 NZLR 381 (CA) at [33].

20     R v Vhavha [2009] NZCA 588 at [34]–[36]; Manikpersadh v R [2011] NZCA 452 at [10].

21     Manikpersadh v R [2011] NZCA 452 at [10].

22     Fairbrother v R [2013] NZCA 340 at [30].

deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[36]      As for the term of a home detention sentence, the maximum period is 12 months, and the minimum is 14 days.23 When determining the length of a sentence of home detention, the Court typically halves the sentence of imprisonment it would otherwise have imposed.24 This is because home detention is served in full, whereas the release date of a short-term sentence of imprisonment is the date on which half the sentence has been served.25 However, the Court of Appeal has recognised that “it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case.”26 The term of a home detention sentence is to be fixed by reference to the purposes and principles of the Sentencing Act and all the factors relevant to the offending and offender.27

[37]      This Court must not use an appeal against a refusal to grant home detention as an opportunity to revisit the merits of the case. The question is whether the Judge erred in exercising the discretion, namely by applying an incorrect principle, giving insufficient or excessive weight to a particular factor, or because the Judge was plainly wrong.28

Did the Judge err in refusing to impose home detention in this case?

[38]      Judge Harding recorded Mr Hesketh’s submission that home detention was appropriate. He noted that home detention was a rehabilitative sentence and agreed that Ms Box required a period of rehabilitation, but observed:29

… it is going to require a length which means that home detention would be entirely unsuitable because the total sentence of imprisonment to be imposed is of such a length that converting that to home detention on the usual basis would result in a sentence which was too short to be helpful.

23     Sentencing Act, s 80A(3).

24     Brittin v Police [2017] NZHC 2410 at [59]; R v Chevin [2017] NZHC 285 at [38].

25     Parole Act, s 86(1).

26     R v Bisschop [2008] NZCA 229 at [18].

27     R v Bisschop [2008] NZCA 229 at [18]. See also Brittin v Police [2017] NZHC 2410 at [59].

28     James v R [2010] NZCA 206 at [17].

29 At [8].

[39]      I take that to mean that the Judge considered there to be little point in sentencing Ms Box to home detention for rehabilitative purposes because she was receiving such a short sentence which, if commuted to a sentence of home detention of half the prison term, would result in insufficient time for rehabilitation. However, it does not logically follow from that analysis that imprisonment is warranted, or is the least restrictive outcome that is appropriate in the circumstances.30 On the contrary, the Court of Appeal has observed that the lower the appropriate prison sentence is, the more likely it is that home detention will be appropriate.31 In Manikpersadh v R, the Court of Appeal explicitly noted that a four-month prison sentence (proposed in that case) favoured home detention.32

[40]      Further, the Judge’s reasoning (and particularly the reference to “converting that to home detention on the usual basis”) seems to overlook the fact that the Court can impose a term of home detention if it sees fit to meet the purposes and principles of sentencing (for example, rehabilitation). If the Judge considered three or four months’ home detention was appropriate for rehabilitative purposes, he was not obliged to halve the notional period of imprisonment and impose two months’ home detention.

[41]      For these reasons I consider that the Judge erred in his reasoning in reaching his conclusion that a sentence of imprisonment was required because converting the total sentence of imprisonment to home detention on the usual basis would produce a sentence which was too short to be helpful in terms of the appellant’s rehabilitation. It was open to the Judge to tailor a term of home detention to both hold Ms Box accountable for her offending and provide a realistic period for her rehabilitation, without being limited to the usual basis of converting a prison sentence to home detention by halving it.

[42]      The Judge also noted that “regrettably nothing short of a sentence of imprisonment can be imposed” with regard to the pre-sentence report and psychiatric report. I do not consider that such a conclusion necessarily followed from those

30     Sentencing Act, s 8(g).

31     Manikpersadh v R [2011] NZCA 452 at [22].

32     Manikpersadh v R [2011] NZCA 452 at [22].

reports. The psychiatric report indicates that Ms Box has a number of personal issues, observing that she exhibits a pervasive maladaptive behavioural pattern suggestive of borderline personality disorder.

[43]      While on one view, Ms Box’s pattern of unstable relationships and reckless behaviour arguably made her an unsuitable candidate for home detention, on another view this points to an increased need for rehabilitation and treatment which was best achieved with a sentence of home detention rather than imprisonment. It is nevertheless clear that Ms Box has been struggling to achieve stability in her life, and she needs to make changes in order to do so.

[44]      I also note that the pre-sentence report did not entirely point towards imprisonment. While some aspects of it were not favourable to Ms Box, the report recorded that she is willing to address her drug use and it assessed her as posing a low risk of harm: she does not have convictions for violence.

[45]       Although the report states that Ms Box’s mother was unsure about Ms Box contending with the constraints of a home detention sentence, it is clear from the terms of her mother’s letter to the Judge that she was in fact strongly supportive of her daughter receiving a home detention sentence. In the face of the letter from Ms Box’s mother, police concerns about possible domestic violence by Ms Box towards her mother appear to be without foundation.

[46]      In my view a sentence of three months’ home detention would have been the least restrictive outcome that was appropriate in this case. This is longer than the period of two months suggested by Mr Hesketh, in order to give Ms Box a realistic chance at rehabilitation. In reaching the conclusion that home detention was appropriate I have had particular regard to Ms Box’s mental health problems, the fact that she has not been sentenced to imprisonment before, and the relatively minor nature of the offending of which she was convicted.

Post-release conditions

[47]      As noted earlier, Ms Box no longer appeals the post-release conditions imposed by the Judge.

Result

[48]      I would have imposed a sentence of three months’ home detention with the standard post release conditions,33 together with the special conditions imposed by the Judge. The nine-month disqualification from driving imposed by the Judge would have remained in place.

[49]      I find that the sentence of four months’ imprisonment was manifestly excessive. I quash that sentence and direct that Ms Box’s criminal record be amended in accordance with the terms of this judgment.

Paul Davison J

33     Sentencing Act, s 80O.