Carroll v Police HC Christchurch CRI 2010-409-230

[2010] NZHC 2276

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000230

MICHAEL JOSEPH CARROLL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 December 2010

Counsel:         R G Glover for Appellant

C J Boshier for Respondent

Judgment:      16 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This  is  an  appeal  against  an  end  sentence  of  11  months’  imprisonment imposed in relation to an offence of assaulting a female.  The appellant was, at the same time, for sentence in relation to other offending, being possession of cannabis, possession of a utensil for smoking cannabis, theft and two breaches of bail.   For reasons which I will explain in a moment, the end sentence was arrived at on a somewhat unusual basis and with reference to the lead charge alone.

[2]      The appeal, as advanced by Mr Glover, comprised a direct challenge to the sentencing Judge’s approach at sentencing.   In order to explain these aspects it is

necessary to refer to the background.

MICHAEL JOSEPH CARROLL V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000230  16 December

2010

[3]      On  29  November  2009  the  appellant  assaulted  his  partner.    They  were enjoying an evening meal.  Her nephew arrived at the address, apparently to borrow some salt.   There was some ill-feeling between the appellant and the nephew.   In consequence the appellant became angry and, after the nephew had left, assaulted his partner.  She was punched to the head several times and when she sought to protect her head, she was then punched in the stomach.  This caused her to fall to the ground and the assault continued momentarily until the complainant fought back, seemingly to the surprise of the appellant.  He paused and during that pause the complainant made her escape.  Fortunately she did not receive serious injuries but, nonetheless, extensive bruising and swelling to her body and particularly to her face.

[4]      The cannabis related charges arose on 12 June 2010.   The appellant was found in possession of a part tinnie and of a drink bottle which had been altered so that it could be used for smoking that drug.  Four days later, on 16 June, he stole some items from a supermarket.  The value of the items was $5.69.  That same day the appellant incurred the first conviction for breach of bail with a second on 6 July, both being failures to appear in the District Court when required to do so.

[5]      The appellant was sentenced by Judge Radford on 9 November.  The Judge first of all assessed the assault as the lead offence.   He considered that it was an assault of some duration and aggravated by the circumstances that the victim was in her own home at the time and also vulnerable at the hands of the appellant.

[6]      He  fixed  a  starting  point  in  relation  to  the  assault  of  six  months’

imprisonment.  He then said this in his sentencing remarks:

[9]     I then need to look to see whether there are any factors which would require an uplift and there certainly are.  You are not going to be punished for your previous actions but I am entitled to take them into account when assessing what a starting point would be, and I think another eight months would be appropriate, and there are, of course the other offences to which you have pleaded guilty, so that takes me to 14 months.

Hence, there was an uplift of eight months without division of that uplift between the part which represented an allowance for the appellant’s past record of like offending and the part which represented recognition of the lesser offending.

[7]      When it came to imposing sentence, the Judge imposed an 11 month term in relation to the assault, added a special release condition and then sentenced the appellant to one month  on each of the lesser  charges,  which  terms were to be concurrent.

[8]      The appellant, I note, is 52 years of age.  He is described in the pre-sentence report as a “damaged individual”.  There is reference in the report to a very difficult upbringing and to an adult history which has been blighted by various events as well. The appellant has been sent to prison on any number of occasions. Dating back to

1973 he has convictions for offences of dishonesty, driving matters and, most relevantly for present purposes, for violent offending.  In 1993 he was sentenced to three months’ imprisonment for assaulting a female; in 1995 to 12 months for that offence, and to further terms of nine months for the same offence in both 2002 and

2006.  He has also received, I note, lengthier terms, for example for a burglary and associated assault and for other offences of violence, terms ranging from 18 months to six months.

[9]      Unsurprisingly, Mr Glover’s first submission was that the uplift of eight months, being more than the starting point, was simply unprincipled and unsustainable.     His  essential  argument  hinged  on  this  proposition.     He  also contended that the Judge had simply failed to deal with the issue of home detention, albeit an appendix had been requested and a suitable address obtained.

[10]     Ms Boshier accepted that there were issues in relation to the way that the Judge had structured the sentence.  However, she submitted that it was open to the Judge to have arrived at the 11 month end starting point by a different route and hence, that the sentence, after allowance for the guilty pleas, was defensible and justified.

[11]     Having regard to the appellant’s previous convictions for assaults against females, Ms Boshier submitted that an uplift of four months from the six month starting point could well be justified.   Then, if the lesser offending in relation to cannabis, theft and two breaches of bail was visited with a one month term for each, the end starting point of 14 months’ imprisonment would result.  With an allowance

of three months as fixed by the Judge in relation to the pleas, the end sentence would become 11 months.  It was submitted that this was within the available range, albeit justified by an alternative process of reasoning.

[12]     I am concerned at the manner in which the sentence was structured in this case.  In my view it is necessary for this Court to revisit that exercise in light of the rival submissions which I have just heard.   I adopt, as the Judge did, a six month starting point in relation to the assault.

[13]     With  reference  to  any  uplift  to  recognise the  appellant’s  past  record  for violence, it seems to me that at most three months can be added on that account. Further, I consider that the better course was to properly evaluate the other offending and identify what sentence it warranted in the context of the case as a whole.  On that basis I cannot see that the cannabis offending, the theft and the breaches of bail could have warranted more than two months in total.  This would suggest an end starting point for the sentencing of 11 months’ imprisonment before consideration was given to the guilty pleas.

[14]     Although three months may indeed be a generous discount, I am not disposed to differ from the Judge’s assessment.   This indicates an end sentence of eight months rather than 11 months.   In my view this is a case where the sentencing process effectively miscarried in the District Court, rendering it essential that this Court re-examine the criminality of the various offences and effectively resentence applying a more conventional approach.  Having done that I conclude that the appeal should be allowed and the sentence of 11 months quashed and eight months substituted.  The one month concurrent terms on the lesser charges will, of course, remain.

[15]     This leaves the issue of home detention.  The Judge did not give reasons for not imposing home detention but to my mind there was every reason not to impose that sentence in relation to this offender.  The fact is he is a recidivist in relation to assaults on females.   This alone, in my view, rendered home detention an inappropriate response and, accordingly, I likewise decline to entertain that as the end sentence.

Solicitors:

Rupert Glover Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent