Cavanagh v Police

[2012] NZHC 3539

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-56 [2012] NZHC 3539

BETWEEN  GRAEME CAVANAGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 December 2012

Appearances: S N Claver for the appellant

R W Donnelly for the respondent

Judgment:      17 December 2012

Reasons:        19 December 2012

REASONS FOR JUDGMENT OF CLIFFORD J

[1]      The appellant, Graeme Cavanagh, pleaded guilty to one charge of injuring with intent to injure.  Mr Cavanagh was sentenced in the District Court at Gore to seven months’ home detention, to undertake 200 hours community work and to pay emotional harm reparation to the victim of $1,500.   Mr Cavanagh appeals against that sentence.

[2]      I heard Mr Cavanagh’s appeal on Monday 17 December and gave a brief oral judgment.    I  allowed  the  appeal  only  to  the  extent  of  quashing  the  order  of reparation, and otherwise dismissed the appeal.  I said I would provide my reasons later.  I now do so.

Facts

[3]      The charge Mr Cavanagh faced arose out of an incident that occurred on

15 June 2012.

CAVANAGH v POLICE HC INV CRI-2012-425-56 [17 December 2012]

his victim worked for a weed spraying business that frequently took them away from home on work.

[5]      At about 8.45pm on the evening of 15 June, Mr Cavanagh went, with two associates,  to  his  victim’s  home.    Mr Cavanagh  wanted  to  confront  his  victim regarding a work-related matter.   Mr Cavanagh and his two associates entered the victim’s dwelling and cornered the victim in his lounge.   To protect himself, the victim grappled with one of Mr Cavanagh’s associates.  During that struggle he was punched a number of times and received a cut to his scalp that bled profusely. Mr Cavanagh then grabbed the victim by the shirt and lifted him off the ground and punched  him  in  the  face  a  number  of  times.    The  summary of  facts  to  which Mr Cavanagh  pleaded  guilty  records  that,  at  one  stage,  one  of  Mr Cavanagh’s associates said “we have to leave”.  To that Mr Cavanagh replied “No, he is going to get a hiding” and then continued to punch the victim in the face.

[6]      The  attack  only  stopped  when  the  victim’s  wife  returned  home  and Mr Cavanagh and his associates left the address.  Mr Cavanagh’s victim, a 49 year old man, received facial bruising and swelling to both eyes, a cut to his scalp and bruising to the right side of his jaw.  The effect of the assault has caused ongoing medical and psychological problems including bad headaches, post traumatic stress syndrome, lack of sleep and delayed concussion.   Mr Cavanagh’s victim has also suffered psychologically, has lost confidence and finds it difficult to go outdoors.

[7]      Mr Cavanagh is 52 years old.  He has a lengthy criminal and traffic history including a number of assault and other disorder charges.  It is, however, important to note that the last entry in that lengthy history is in April 1999, an excess breath alcohol charge.  No non-traffic offending has been recorded since 1993.

The Judge’s sentencing decision

[8]      Mr Cavanagh   pleaded   guilty   on   18   October,   following   a   sentencing

point would be a full time custodial sentence with a starting point of between two to two and a half years.  The Judge acknowledged that an early guilty plea could result in an end sentence that would make home detention an available sentencing option. The Judge was not, however, in a position to give any indication as to whether or not Mr Cavanagh was a suitable candidate for home detention.

[9]      Mr Cavanagh was then sentenced on 9 November.   The sentence imposed was in line with the sentence indication.  The Judge adopted a starting point of two years and four months’ imprisonment.  In recognition of Mr Cavanagh’s late guilty plea the Judge allowed a discount of 15 per cent – fairly I think – which he described as generous.   That made the end point of the sentencing exercise a term of imprisonment of two years.

[10]     The Judge then acknowledged that Mr Cavanagh was a suitable candidate for home  detention,  expressed  concern  at  the  implication  of  a  sentence  of  home detention  of  12  months  and  sentenced  Mr Cavanagh  to  seven  months’  home detention, with community work and emotional harm reparation as already outlined.

Submissions

[11]     For Mr Cavanagh Mr Claver advanced five points on appeal:

(a)      The Judge has misdirected himself in saying that the term of home detention must be half of the end term of imprisonment.

(b)The Judge was misguided by “tailoring the sentence” so that, in place of a 12 month home detention sentence, he imposed seven months’ home detention, with 200 hours of community work and $1,500 of emotional harm reparation.

(c)      The Judge was wrong in law in the approach he took in the imposition of emotional harm reparation.   In particular, it had been made clear that whilst Mr Cavanagh could afford to pay $500 emotional harm

Therefore, by ordering the payment of $1,500 emotional harm reparation, to be paid prior to the expiry of the period of his home detention, Mr Cavanagh had been “set up to fail”.

(d)The imposition of 200 hours’ community work and the reparation order were both excessive and unnecessary.

(e)      In his sentencing notes the Judge had made reference to matters that were not disclosed by the statement of facts to which Mr Cavanagh’s guilty plea had been entered.

[12]     Overall, Mr Claver submitted that at the most a sentence of seven months’ home  detention  was  appropriate  but,  as  he  had  submitted  at  Mr Cavanagh’s sentencing, a maximum term of community detention would have been the more appropriate sentencing outcome.  That would have enabled Mr Cavanagh to keep his job and pay any award of reparation.

[13]     The Crown response basically comprises two propositions:

(a)      First, the starting point sentence identified by the Judge was available in terms of R v Harris.1

(b)Secondly, even if that starting point sentence had been too high, the final end sentence of seven months’ home detention – together with the   ordered   community   work   and   reparation   –   could   not   be challenged.  It was that end sentence that was important.

Analysis

[14]     In my view, Mr Cavanagh’s offending was moderately serious injuring with intent to injure offending.   I do not think it constituted, in Taueki terms,2  extreme

1      R v Harris [2008] NZCA 528.

number of assailants during a home invasion.  The violence here was unprovoked and, in terms of the group going to the victim’s home, involved a degree of pre- meditation.  In terms of the guidance provided by the Court of Appeal in R v Harris as to the application of the Taueki guidelines for intent to injure offending, I think the starting point of two years and four months adopted by the Judge was clearly available to him.

[15]     On that basis, an end sentence of two years and, accepting Mr Cavanagh’s suitability for home detention, an alternative sentence of 12 months’ home detention, would be unimpeachable.

[16]     As expressed, Mr Claver’s criticisms were principally addressed to the basis upon which the Judge had arrived at the composite sentence he did.  I address each of those criticisms in turn:

(a)      The Judge did not misdirect himself and say that the term of home detention must be half of the end term of imprisonment.  Rather, what the   Judge   said   was   that   “normally   for   a   two   year   term   of imprisonment the term of home detention would be for 12 months”.3

That is a correct statement of the law.

(b)By  reference  to  the  decision  of  French  J  in  Solicitor-General  v Senelale,4    Mr  Claver  criticised  what  he  said  was  the  Judge’s “tailoring” of the sentence to fit his belief that a 12 month home detention sentence was inappropriate.  In Solicitor-General v Senelale French J criticised a District Court Judge for tailoring a sentence so that the term of imprisonment fell within the two  year maximum which allowed for home detention.   Here, Judge Phillips was not

“tailoring” in that sense: rather he was trying to arrive at a composite sentence which he felt best responded to Mr Cavanagh’s offending

and the principles of the Sentencing Act 2002. There is no error there.

2      R v Taueki [2005] 3 NZLR 372 (CA).

3      NZ Police v Cavanagh DC Gore CRI-2012-017-000343, 9 November 2012 at [8].

4      Solicitor-General v Senelale [2009] BCL 665 (HC).

up to fail”, I think Mr Claver may here have a point.  Mr Cavanagh had offered to pay $500 reparation, and had indicated that, if he were to be unemployed, he was not able to pay that or any other reparation. The Court of Appeal has made it clear that the availability of adequate information about the financial capacity of the offender is important in order to establish whether the making of an order would result in

undue hardship under s 12(1) of the Sentencing Act.5    A sentencing

Judge is required to have a “reasonable measure of confidence” that the payment of reparation is able to be made,6 and care must be taken before   the   order   is   made.7    Here   the   Judge   was   aware   that Mr Cavanagh had made an offer of $500, which he said he could only pay if he was able to continue in work, which he would not be able to do if sentenced to home detention.   The Judge did not make any

further assessment of Mr Cavanagh’s financial position.  It is not clear to me that the Judge had the necessary measure of confidence that payment could be made in the terms ordered.  I therefore quash that part  of  Mr Cavanagh’s  sentence  which  comprised  the  order  for reparation.

(d)I do not think it can be said that the imposition of the 200 hours’ community work was either excessive or unnecessary.  As I have indicated, in a way which I think was quite open to the Judge, he relieved Mr Cavanagh from some of the period of home detention that would normally otherwise have been imposed and substituted 200 hours’ community work.

(e)      As  to  the  submission  that  His  Honour  made  references  in  his sentencing notes to matters not admitted by the appellant, Mr Claver explained that this was a reference to the Judge having commented, in

his sentencing notes, that the “work issues” involved comprised a

5      R v Wonnacott [2009] NZCA 414; R v Story [2012] NZCA 98.

6      F v Pender & Roberts [2007] NZCA 465 at [15].

7      R v Wonnacott supra.

decision Mr Cavanagh’s victim had made or comments he had passed in  relation  to  Mr Cavanagh’s  work,  as  he  was  entitled  to  do. Mr Cavanagh’s explanation, offered by Mr Claver from the Bar, was that in fact Mr Cavanagh was concerned about what he regarded as dishonest conduct by his victim in the work environment.  I am not in a position to reach a view on the actual facts here, but I do not think the Judge’s natural inference, even if it were to be wrong, is material in terms of the sentence imposed.   This was, as I have already recorded, an act of serious violence that had associated with it a number of the Taueki aggravating factors.

[17]     Mr Cavanagh’s appeal is therefore dismissed, except to the extent that I allow

his appeal as regards the reparation ordered and quash that part of his sentence.

[18]     Pursuant to s 399(3) of the Crimes Act 1961, Mr Cavanagh was on the filing of his notice of appeal released from home detention, as his sentence was thereupon suspended by operation of law.8    Accordingly, pursuant to s 399(4) Mr Cavanagh’s sentence of home detention is to be resumed (if not already done so on Monday, then from today’s date) subject to the appropriate arrangements being made by the Department of Corrections.

[19]     The term of home detention as ordered by the District Court Judge will now resume.

“Clifford J”

Solicitors:

S N Claver, Barrister, P O Box 6273, Dunedin 9059 ([email protected]) The Crown Solicitor, P O Box 355, Invercargill ([email protected])

8      Vu v Ministry of Fisheries SC 101/2010, 20 October 2010 at [5].