Carson v Police
[2015] NZHC 2603
•22 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-58 [2015] NZHC 2603
BETWEEN NEVILLE GLYNN CARSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 October 2015 Counsel:
G A M Schweizer for Appellant
M S Jenkins for RespondentJudgment:
22 October 2015
JUDGMENT OF BREWER J
Solicitors/Counsel: GAM Schweizer (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent
CARSON v POLICE [2015] NZHC 2603 [22 October 2015]
Introduction
[1] On 12 October 2015 in the District Court at Rotorua, Judge MA MacKenzie sentenced Mr Carson to 10 months’ imprisonment.1 Mr Carson had pleaded guilty to one charge of assault with intent to injure and one charge of threatening to cause grievous bodily harm. The former charge carries a maximum penalty of three years’ imprisonment and the latter charge carries a maximum penalty of seven years’ imprisonment.
[2] Mr Carson appeals his sentence of imprisonment. He does not seek to challenge the term of the imprisonment. He accepts the end sentence of 10 months’ imprisonment as being appropriate and within range. I agree.2 The sole ground of appeal relates to the Judge’s refusal to impose a sentence of home detention. Mr Carson submits that the Judge erred in deciding that imprisonment was required having regard to the principles and purposes of sentencing contained in the Sentencing Act 2002.
Facts
[3] The first victim, Mr Waru is a self-employed tiler who has been disabled for the past 25 years after having his right leg amputated as a result of an accident. Mr Waru uses crutches to assist him in his day-to-day activities. Mr Carson had worked for Mr Waru part-time for a few months until recently when his employment was terminated. Mr Carson had a grievance against Mr Waru for the termination of his employment.
[4] On 25 May 2015 at around 1:20 pm, Mr Carson drove to Mr Waru’s home address. He approached Mr Waru on his driveway and a verbal altercation took place relating to the termination of Mr Carson’s employment. Mr Carson pushed Mr Waru in his chest causing him to lose his balance and to fall to the ground. Mr Carson then picked up one of Mr Waru’s crutches and struck him four times to the upper body. Mr Waru raised his arms defensively and Mr Carson continued to
strike him with the crutch, landing approximately another nine blows. Mr Carson
1 Police v Carson [2015] NZDC 20534.
2 See Tamihana v R [2015] NZCA 169; R v Kahia & Ors [2015] NZHC 344; Yong Pan v Police
HC Auckland CRI 2005-404-325, 3 February 2006.
then threw the crutch at Mr Waru before leaving the property. The blows to Mr Waru were hard enough that they caused damage to parts of the steel constructed crutch.
[5] Mr Waru himself suffered significant bruising and was left shaken and concerned. Mr Carson lives nearby and for a time Mr Waru moved his family away because he was concerned for their safety.
[6] That same day, at around 2:30 pm, Mr Carson returned to Mr Waru’s home address. Mr Carson walked up to the property in possession of a Swiss army knife with the intent to confront Mr Waru for a second time. The second victim, Mr Anscombe, saw Mr Carson and asked him to leave the property. Mr Carson refused and advanced towards Mr Anscombe with the knife in his hand and said that he would cut both of their throats. Mr Anscombe grabbed a hockey stick from a nearby motor vehicle for self defence before asking Mr Carson to leave the address for a second time. After a verbal altercation, Mr Carson did so.
Judge MacKenzie’s sentencing
[7] I set out the relevant paragraphs of Judge MacKenzie’s decision in which her
Honour considers whether home detention is an available sentence. The Judge said:
[18] The starting point is a term of imprisonment because of the sentencing objectives here. There is firstly a need for consistency. When defendants embark upon violence using weapons on a vulnerable victim, then there is a need for denunciation and deterrence as primary sentencing objectives. There are rehabilitative needs, but they are secondary to the fact that this sort of vigilante action must be deterred. Those sorts of things are for other forums, if there are employment issues or grievances. It would be a society that descends into chaos, if every person who had an employment grievance, went round to see an employer and attacked them.
[19] The very real question here is whether a term of imprisonment needs to be the end point. There is a PAC report which recommends home detention, because of the fact that:
(a) There are no issues with compliance on your part.
(b) That whilst imprisonment is a definite sentencing option home detention is deemed technically suitable and rehabilitative programmes can be utilised to focus on your offending-related factors.
(c) You are considered to be at low risk of reoffending based on your conviction history and medium risk of harm with this
current offence, and the identified related offending drivers are violence and attitudes.
[20] I accept that you have an address available to you. I am concerned about the fact that it is in the same community as the victim. That does not necessarily preclude the sentence. I accept that there is no issue with your compliance which would mean that it is ruled out.
[21] The sole issue is whether it sufficiently meets the sentencing objectives of this case. It is a fine line, but the line falls win terms of a term of imprisonment, Mr Carson. A strong deterrent message is required for you and anyone else. There are specific and general deterrence issues here because this is a serious assault on a vulnerable victim which requires clear and unequivocal condemnation which would not be adequately met by a sentence of home detention in my view. It would send a very wrong message that it was appropriate to act in the way that you did towards Mr Waru because of his particular vulnerability and the use of his crutch to perpetrate the assault in the way that you did. Accordingly, I decline to impose a sentence of home detention.
Approach to appeal
[8] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.3 The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.4 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.5
[9] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.6
Home detention principles
[10] When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the
3 Sentencing Act 2002, s 250.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 At [33], [35].
6 Ripia v R [2011] NZCA 101 at [15].
community so far as that is practicable and consonant with the community's safety.7
It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.8 The Court of Appeal has identified that the “statutory hierarchy of
sentencing options is a blunt affirmation that prison is a measure of last resort”.9 The
Court cannot impose a sentence of imprisonment unless it is satisfied that:10
(a) the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or protect the community; and
(b)that those purposes cannot be achieved by a sentence other than imprisonment; and
(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.
[11] In R v Iosefa, the Court of Appeal emphasised that a sentence of home detention provides a real alternative to imprisonment:11
It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.
[12] So, where the sentence proper is a short-term period of imprisonment, the Judge must decide whether to commute that sentence to a sentence of home detention.12 But as the Court of Appeal has said:13
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error
7 Sentencing Act 2002, s 16(1).
8 Section 8(g).
9 R v Rawiri [2011] NZCA 244 at [28].
10 Sentencing Act 2002, s 16(1).
11 R v Iosefa [2008] NZCA 453 at [41].
12 Sentencing Act 2002, s 15A(1)(b).
13 Fairbrother v R [2013] NZCA 340 at [30].
of law. What it does mean is that 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.
[13] The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the factors that really count.14
Sentences of imprisonment have been quashed and home detention substituted where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.15
[14] Finally, the Court of Appeal in R v D (CA253/2008) has held that in cases where an offender is on the cusp of home detention, an appellate Judge will ordinarily defer to the assessment of the sentencing Judge and decline to interfere with a decision not to grant home detention:16
The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
Decision
[15] Before I turn to evaluate whether, in the light of the purposes and principles of the Sentencing Act 2002, Judge MacKenzie erred in sentencing Mr Carson to imprisonment, I note that Ms Schweizer for Mr Carson has relied on two decisions of the Court of Appeal in support of her submission that a sentence of home detention should have been imposed. I have given little weight to those decisions because I do not think they are particularly helpful to Mr Carson’s appeal. The
decision in R v Norman17 involved a situation where the Court commuted a sentence
of imprisonment to one of community detention in a situation where the offender was 17 years’ old and community detention was a significant penalty when that
14 At [31].
15 Fairbrother v R, above n 13, at [29]; Manikpersadh v R [2011] NZCA 452 at [17].
16 R v D (CA253/2008) [2008] NZCA 254 at [66].
17 R v Norman [2007] NZCA 351.
offender’s circumstances were considered. In R v Bishop,18 the Court of Appeal denied home detention to an offender where she assaulted her son and had previous convictions of a serious nature. The fact that Mr Carson’s offending lacks the features of the offending in Bishop which led the Court to conclude a sentence of home detention was inappropriate does not help me decide whether a sentence of home detention is appropriate in Mr Carson’s case. The circumstances in Bishop are too different.
[16] The first relevant sentencing purpose is to hold the offender accountable for the harm done to the victim and the community by the offending. In order to properly hold Mr Carson accountable, he must be punished in a manner that is proportionate to his offending. Mr Carson’s offending is serious. He attacked a disabled victim with that victim’s crutches. He left the victim on his driveway and then returned with a knife and threatened to cut throats. I am not satisfied that a sentence of home detention would be proportionate to punish Mr Carson for this level of violence.
[17] The second relevant sentencing purpose is to promote in Mr Carson a sense of responsibility for, and acknowledgment of, the harm he has caused to the victims. Ms Schweizer submits that Mr Carson has now participated in a restorative justice programme and has received a positive report. She says that Mr Carson is incredibly remorseful for the offending. But I agree with Judge MacKenzie that, having read Mr Carson’s pre-sentence report, he does not appear to have taken responsibility for the harm he has caused. Mr Carson describes Mr Waru as “not disabled” and appears to justify his actions on the basis that the victim baited him into the assault by not making him aware of the termination of his employment. Judge MacKenzie put it aptly where she said that while Mr Carson may have had a legitimate issue with the way his employment was handled, “vigilante justice is not the way to sort
out those issues”.19 In the light of Mr Carson’s attitude following his offending, I am
of the view that a sentence of imprisonment would better achieve this second sentencing purpose.
18 R v Bishop [2008] NZCA 97.
19 Police v Carson, above n 1, at [15].
[18] I add that Mr Carson’s criminal history is relevant. He has three previous
convictions for violence. Two were over 30 years ago and do not count, but in June
2014, 11 months before the current offending, he was convicted of common assault and ordered to come up for sentence if called upon in a nine months period.
[19] The third relevant sentencing purpose is denouncing the conduct. I entirely agree with Judge MacKenzie that Mr Carson’s serious assault “requires clear and unequivocal condemnation which would not be adequately met by a sentence of home detention”.20
[20] I agree also with the Judge’s comment that, having regard to the fourth relevant sentencing purpose, deterring the offender or other persons from committing the same or a similar offence: “It would send a very wrong message that it was appropriate to act in the way that you did towards Mr Waru because of his particular vulnerability and the use of his crutch to perpetrate the assault in the way that you
did”.21 As the Judge quite correctly said, “this sort of vigilante action must be
deterred” in the context of employment grievances.22 The purpose of general deterrence can, in my view, only be achieved through a sentence of imprisonment. I do acknowledge, however, that the pre-sentence report classifies Mr Carson at low risk of reoffending based on his criminal conviction history. Accordingly, a sentence of imprisonment is less likely to be required to achieve personal deterrence.
[21] Finally, I turn to the purpose of assisting in the offender’s rehabilitation and reintegration. Since his offending, Mr Carson has participated in a restorative justice programme, has referred himself to Family Focus in Rotorua and has obtained employment. I am told that if granted home detention, he would be able to maintain this employment. These are all positive steps. But the Judge did consider how a sentence of imprisonment could address Mr Carson’s rehabilitative needs and I quite agree with the Judge’s conclusion that these needs must come second to the other sentencing purposes. Mr Carson’s rehabilitative needs can be addressed by way of
release conditions.
20 At [21].
21 Above.
22 At [18].
[22] Having regard to the sentencing purposes, I am satisfied that Judge MacKenzie did not err in her assessment when deciding that the least restrictive sentence was a term of imprisonment.
[23] But, between the sentencing and this appeal, new information has come to light. Ms Schweizer has told me that on the day of the offending Mr Carson’s niece committed suicide and that this may have been a factor that was operating upon Mr Carson when he offended. She says that as a result of the suicide, Mr Carson’s daughter has been suffering from fragile mental health. Her mental health will deteriorate if Mr Carson is imprisoned.
[24] Ms Schweizer has presented me with two letters on this point. The first is from Ivan Rewi, a family violence facilitator at Family Focus. He speaks of Mr Carson’s daughter having suffered exceptional emotional trauma and that to remove Mr Carson from the whanau environment will also mean removing the trust and support base to his daughter, which could have a negative impact on her mental health and wellbeing.
[25] The second is a letter from Victoria Lewis who is part of the Crisis Assessment and Treatment Team for Mental Health and Addiction Services for the Lakes District. Ms Lewis records that Mr Carson’s daughter presented to the Rotorua Emergency Department with suicidal ideation and distress and that she assessed Mr Carson’s daughter in a crisis capacity. Ms Lewis reports that the daughter is frightened about how she will cope with her father in prison. Ms Lewis writes that she has referred Mr Carson’s daughter for psychological treatment.
[26] I acknowledge that s 8(h) of the Sentencing Act 2002 states that the Court must take into account any particular circumstances of the offender that means that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe. The Court of Appeal has held that it is inevitable that serious criminal offending by a child’s parent will result in hardship for the child. That factor cannot override the dominant purposes of deterrence, denunciation and
accountability for serious offending.23 But the Court has acknowledged that where
the impact is “particular” and beyond the usual range of circumstances that follow from imprisonment, then it might be sufficient to displace the deterrence, denunciation and accountability purposes so as to be a basis that renders a sentence of imprisonment disproportionately severe in terms of s 8(h) of the Sentencing Act.24
[27] I am satisfied that the likely effect on Mr Carson of his niece’s suicide on the day of the offending, and the fragility of his daughter, are sufficient to render imprisonment disproportionately severe. I understand that Mr Carson has provided his daughter significant support in the past and that, in the light of the recent family tragedy, the effect of Mr Carson’s incarceration would cause him and his whanau significant hardship.
Decision
[28] Mr Carson’s appeal is allowed. The sentence of 10 months’ imprisonment is quashed. Although I bear in mind that Mr Carson has been in custody since being sentenced by Judge MacKenzie, I consider nevertheless that the substituted sentence should be five months’ home detention, and I now impose that sentence. The conditions of home detention will be the standard conditions and the recommended special conditions set out in the Provision of Advice to Courts Report dated
14 September 2015 and provided to Judge MacKenzie at the sentencing.
Brewer J
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