Brown-Haysom v Police
[2016] NZHC 113
•3 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000403 [2016] NZHC 113
BETWEEN TIMOTHY JAMES BROWN-HAYSOM
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 February 2016 Counsel:
B Murphy for Appellant
K Lummis and G Woods-Child for RespondentJudgment:
3 February 2016
JUDGMENT OF ASHER J
Solicitors/Counsel:
B Murphy, Auckland.
Meredith Connell, Auckland.
BROWN-HAYSOM v NZ POLICE [2016] NZHC 113 [3 February 2016]
Introduction
[1] Timothy Brown-Haysom appeals against a decision of Judge K J Glubb on
8 December 2015 sentencing him on six charges to community detention for three months and to supervision for a period of nine months.1 The appeal is against only the sentence of community detention. The supervision part of the sentence is not challenged.
[2] Mr Brown-Haysom faced three charges of obtaining a document for pecuniary advantage and three charges of using a document. There were three incidents. The first arose between 1 and 13 July 2014 when Mr Brown-Haysom was carrying out cleaning work at a company in Albany. He was self-employed. There was a cheque book in the building which he located, and without permission he took out a cheque. He filled that cheque in, endorsing it to pay cash to the value of $250, and presented it and obtained the cash.
[3] The second incident occurred between 22 and 29 July 2014 when he was cleaning a different business. Again he came across a cheque book and took out a single cheque. He cashed that cheque for $150.
[4] The third incident occurred between 25 July and 4 August 2014 when Mr Brown-Haysom was cleaning a third premises. He found another cheque book, took out a cheque and made it out for cash for $250, which he presented.
[5] When confronted by the Police with his wrongdoing Mr Brown-Haysom admitted it and stated he had a problem that when everything was going well in his life he would “stuff it up” intentionally. He did not know why.
The sentence
[6] The Judge considered the background circumstances, the facts of the offending and the pre-sentence report. He noted the recommendation in the report of
community work with supervision. In the crucial part of his decision he stated:2
1 Police v Brown-Haysom [2015] NZDC 24588.
The way I propose to deal with it, taking into account all matters that have been advanced, noting that you have this very limited history, I do not want you going and mixing with other offenders in community work. The way I propose to deal with it is today is; I convict you and sentence you on all six of these charges to community detention for a period of three months. … I also sentence you to supervision for a period of nine months and the terms of that supervision, it is as detailed in the pre-sentence report. I do not propose to go through those now. …
[7] As can be seen, the Judge acknowledged that the pre-sentence report recommended supervision and community work and not community detention, but stated that he “…did not want [the appellant] going and mixing with other offenders in community work”. He referred later to Mr Brown-Haysom’s conduct as a “blip on the radar”, and noted his mature age and that he should not be making these sorts of decisions.
[8] The key to the submission of Ms Murphy in support of the appeal is that the sentence was manifestly excessive, in that the consequence of having to serve community detention was that Mr Brown-Haysom would lose his employment. It was accepted that the sentence of community detention was in theory an available sentence, but that in the particular circumstances it was manifestly the wrong sentence and excessive.
Approach
[9] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal if satisfied that for any reason there is an error in the sentence imposed on conviction, and a different sentence should be imposed. The Court of Appeal in Tutakangahau v R3 has recently confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957. The principle that an error must be shown applies, although the overarching issue is whether the sentence is manifestly excessive in all the circumstances, and if a sentence is manifestly excessive the appeal may be allowed even if there is no identifiable error in the sentence reasoning.4 On the other hand even if an error is shown, if the sentence is plainly within the range the appeal may
not be allowed.
3 Tutakangahau v R [2014] NZCA 279.
General analysis
[10] There was and is no suggestion that imprisonment was appropriate in this case. Nevertheless it is useful to follow the usual sentencing approach, and to consider first the culpability of the offending and then factors specific to Mr Brown- Haysom personally.
[11] In terms of culpability, the charges are serious, involving a maximum term of seven years’ imprisonment. As the Judge noted, there must have been some element of premeditation given there were three separate offences. Not only were the cheques taken, but they were cashed, which involved a later and deliberate act. Having said that, it is my overwhelming impression is that Mr Brown-Haysom’s decisions to take the cheques arose out of his depression at the time and had an element of spontaneity about them.
[12] Nevertheless, it must be also recognised that as a cleaner Mr Brown-Haysom had been given access to private premises on trust, and he breached that trust.
[13] The amounts involved were modest, the total being $650. On any overall assessment this is relatively minor offending for charges of this nature given the small amounts involved. There was also in my assessment, a lack of any real commerciality or desire for significant gain or to inflict deliberate hurt. Thus in assessing culpability, the offending must be seen as towards the bottom of the range.
[14] In terms of his personal circumstances Mr Brown-Haysom immediately admitted the charges. It appears that he was then offered diversion by the Police but failed to complete the requirements for diversion. Then on instruction from the Duty Solicitor he entered pleas of not guilty, which he later changed to guilty after Ms Murphy had started acting for him.
[15] It is clear from the pre-sentence report that he is genuinely and remorseful and understands his moral culpability. As he observed to the Probation Officer “I would be pissed off if someone did this to me and I have let a lot of people down”. He has offered to participate in a restorative justice programme.
[16] The Probation Officer assessed him in the report as being at a low risk of offending and in relation to his risk of harm, that was assessed at low. It is to be observed that Mr Brown-Haysom has no previous convictions of note. As a 49 year old he is entitled to have his good character taken into account as a mitigating factor. He is also entitled to have taken into account as a mitigating factor the complete reparation he has provided.
[17] I have been referred to a number of precedents, but I have not found any of them of particular help. A case like this must be assessed on its particular facts. In my assessment Ms Murphy is correct when she submits that community detention and supervision was an available sentence. She is also correct when she says that community work combined with supervision was also within the range.
[18] I note that under s 10A of the Sentencing Act 2002 in the hierarchy of sentences community work and supervision are below intensive supervision and community detention.
[19] It is possible for a sentence that is within the notional range to be nevertheless the wrong sentence in the particular circumstances. Sections 8(g) and (h) are of relevance:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
(g) must impose the least restrictive outcome that is appropriate in the circumstances [, in accordance with the hierarchy of sentences and orders set out in section 10A]; and
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
[20] In general terms community work is a less restrictive outcome than community detention. Further, if there are particular circumstances relating to Mr Brown-Haysom that mean that a sentence of community detention would in the particular instance be disproportionately severe, then the less restrictive but available
alternative should be imposed. It is Ms Murphy’s submission that community detention was disproportionately severe as it will result in Mr Brown-Haysom losing his job.
Loss of job
[21] This was not a matter specifically referred to before the Judge. However, in the pre-sentence report it was observed that Mr Brown-Haysom had taken fulltime employment with a truck cleaning company which operated 24 hours a day, seven days a week, and was on call and could be expected to travel long distances. This was a statement which in itself indicated that community detention might not be the right sentence because it would preclude Mr Brown-Haysom being on call. It does not appear to have been given any emphasis by counsel in the sentencing process.
[22] It is a term of community detention that the offender is on curfew to a particular address and may not leave it unless circumstances set out in s 69E(2) apply. In particular, Mr Brown-Haysom would only be able to leave his curfew address with the permission of the Probation Officer. On its face this is inimical with the on-call employment outlined in the pre-sentence report.
[23] There is an explanation for the matter not being referred to during the District Court sentencing. It had been counsel’s expectation during sentencing that there would be no difficulty with imposing a sentence of community work as the Police had not indicated any opposition to that sentence. Therefore the difficulty that would result from a sentence of community detention was not traversed in submissions and the Judge may not have been aware of the need for 24 hour availability.
[24] Now on appeal, the problem has been elaborated on in submissions. I have also received a letter from Mr Brown-Haysom’s employer confirming his importance as an employee, and that it is a requirement that Mr Brown-Haysom be available after hours on call for mechanical breakdowns. There has been no objection to the admission of the letter. It does not go so far as to categorically assert that Mr Brown-Haysom will lose his job if there is a sentence of community detention, but I infer that he would most likely have to change his role, and this would impose
significant inconvenience on his employer. I accept it is possible he would lose his job, as has been submitted to me.
[25] In all these circumstances, not all of which were fully traversed before the Judge, I am satisfied that the term of community detention was disproportionately severe. With the benefit of all the information I have, this job loss should have been a factor taken into account in the sentencing process and it was not.
[26] The Judge also relied on the negative aspect of community work, which would involve Mr Brown-Haysom having contact with persons who the Judge appeared to think might influence him for the worse. I must say I see little risk of that given Mr Brown-Haysom’s mature years, his immediate remorse and what appears to be a significant amount of self-awareness as to the foolishness of his actions. His good record to date would indicate that usually he is able to find his own lawful way through the pressures and temptations of adult life.
[27] Further, I am informed by Ms Murphy that there is an option for those sentenced to community work known as agency placement, where Mr Brown- Haysom if regarded as an appropriate person, might do work on his own for community organisations away from other offenders.
[28] In all the circumstances, the possibility of Mr Brown-Haysom mixing with other offenders does not appear to be a strong reason for refusing a sentence of community work.
[29] I should add that counsel for the Police have been most helpful in submissions and have not sought to argue that community work was not an available sentence.
[30] I accept Ms Murphy’s submission that the appropriate amount of community work is 100 to 150 hours. In the circumstances 150 hours is appropriate, given the three instances and the breach of trust.
[31] Therefore, I will allow the appeal and substitute the sentence of three months’ community detention on each of the six charges by a sentence of 150 hours community work on each of the six charges. The sentence of supervision for nine months on the terms set out in the pre-sentence report remains unaffected by this order.
Result
[32] The appeal is allowed. The sentence of three months’ community detention on each charge is quashed and substituted for a sentence of 150 hours community work on each charge (concurrent). The sentence of supervision imposed by the District Court remains.
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Asher J
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