Chapman v Department of Corrections HC Napier CRI-2011-441-002

[2011] NZHC 36

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-002

DARIN JOHN CHAPMAN

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         2 February 2011

Counsel:         P Ross for appellant

F E Cleary for respondent

Judgment:      2 February 2011

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Chapman appealed against his conviction and sentence in relation to a charge under s 69G(a) of the Sentencing Act 2002 (the Act) for failing to comply with a condition of a sentence of community detention that had previously been imposed on him.

[2]      Mr Chapman defended the charge on the basis that he could make out a reasonable  excuse  for  breaching  a  curfew  that  required  him  to  remain  at  his residential address from 8pm to 6am.  In an oral judgment given by Judge Adeane at the conclusion of the hearing on 18 January 2011, the Judge found that Mr Chapman had not discharged the onus of demonstrating he had a reasonable excuse for non-

compliance with his curfew.

CHAPMAN v DEPARTMENT OF CORRECTIONS HC NAP CRI-2011-441-002 2 February 2011

[3]      The breach of curfew occurred on 23 October 2010, which was the Saturday of Labour Weekend.   Mr Chapman’s domestic partner and her two children had travelled to Turangi for her grandfather’s tangi, and found themselves stranded there. It was submitted for Mr Chapman that this occurred in circumstances where the partner  did  not  have  money  for  public  transport,  and  that  Mr Chapman  could reasonably perceive there were no realistic alternatives to his travelling to Turangi to bring his partner and her children back to Napier.

[4]      Mr Chapman set off for Turangi in sufficient time to have completed the return  journey  to  Napier  before  his  8pm  curfew,  if  all  were  to  go  well. Unfortunately, his car broke down in Taupo on the return journey at about 5pm. Counsel for the respondent accepts that on the basis of the evidence, had the breakdown not occurred, the journey would have been completed without any breach of curfew.

[5]      When the breakdown occurred, Mr Chapman telephoned his sister in Napier and she took another car to Taupo to retrieve Mr Chapman, his partner and her children.  Mr Chapman’s sister was unable to leave immediately because she needed to borrow money to put petrol in her car and they eventually returned to Napier some time after 11pm that night.

[6]      Judge  Adeane  dealt  with  the  defence  argued  for  Mr Chapman  on  the following terms:

The question is whether this is reasonable excuse.  In my view, it falls well short of reasonable excuse against a background where he had been refused permission to attend this tangi.  Mr Chapman made a decision to get into his motor car and embark on a four and a half hour journey with his curfew commencement impending.  The risk of interruption to his plans with impact on his curfew obviously arose.  Self-evidently there were other options, one for his partner to make other transport arrangements.  Perhaps she needed a ride but Mr Chapman was not the man in the circumstances to provide it. The whole thing, of course, will be suspected by the Probation Service as a jacked up explanation for attending a tangi which Mr Chapman had been told he may not attend, or at least may not breach his curfew to attend.  But, even on the evidence given by Mr Chapman, which is not seriously disputed, his grounds for going and doing as he did fall short of a reasonable excuse given his obligations as a community detainee under the sentence imposed by the Court.  That had priority.  As I say, there were other options, the most obvious being that his partner should have obtained public transport to return home even if that meant she had to wait a day or so.

[7]      The appeal is pursuant to s 119 of the Summary Proceedings Act 1957 and is by  way of  rehearing.    The  appellate  Court  is  to  come  to  its  own  independent conclusion  and  there  is  no  presumptive  level  of  deference  to  the  trial  Court.[1]

Judge Adeane had the advantage of seeing Mr Chapman and, whilst suggesting a healthy level of cynicism about Mr Chapman’s explanation, ultimately dealt with the matter on the basis that there was no serious dispute to the evidence Mr Chapman had given.

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

[8]      The learned Judge attributed relevance to Mr Chapman having earlier been refused permission to attend the tangi.   However, that request had contemplated Mr Chapman remaining away from his curfew address overnight, and the journey subsequently undertaken to retrieve his partner and her children was distinctly different in that, if completed as contemplated, it would not have involved any breach of his curfew.  There is therefore no sense in which the reasonableness of the proposed journey should be reduced because it constituted travel of a type for which permission had been refused.

[9]      Once the journey actually undertaken is recognised as entirely distinct from travel to the same place in quite different circumstances that would have required prior permission that had been declined, the issue of the reasonableness of the excuse is to be assessed in a materially different context.

[10]     There is no suggestion that Mr Chapman did or ought to have anticipated before embarking on the journey he undertook that his vehicle would not be able to complete the round trip in time to have him back at his address before curfew time. What transpired was an unforeseen disruption to the return journey.

[11]     Mr Ross argued that it was reasonable for Mr Chapman to embark on the journey instead of refusing his partner’s request because of the relatively remote risk that a mechanical breakdown might prevent them returning within time.  He invited analogy with the standard of reasonableness applied in requiring the appreciation of

risk of harm in tort situations.[2]   In that context, it is not unreasonable for an alleged

tortfeasor not to take steps to prevent harm that might arise from a risk that is a relatively  remote  one.    Mr Ross  argued  that  Parliament  must  have  intended  a meaningful scope for the concept of a “reasonable excuse” for breaching conditions of  a  community detention  sentence,  when  the  alternative  would  be  to  take  the consequences of any breach of condition close to circumstances of strict liability.

[2] For example, Bolton v Stone [1951] AC 850.

[12]     Ms Cleary acknowledged some unease that the learned Judge’s finding on absence of a reasonable excuse was influenced by his characterisation of the journey as being of a type that Mr Chapman had been forbidden to undertake when he was declined consent to attend the tangi.  That was not the character of the journey that was subsequently disrupted in circumstances causing the breach of curfew.

[13]     Each  such  assessment  of  the  reasonableness  of  an  excuse  for  failing  to comply with a condition of sentence of community detention has to be weighed in its own context.  Shorn of the irrelevancies, Mr Chapman’s excuse in the present case is that he embarked on a car trip that would have been completed without any breach of his curfew condition, but the journey was disrupted by his car breaking down.

[14]     Given the absence of material challenge to Mr Chapman’s version of the events, I would place an unforeseen mechanical breakdown causing breach of curfew as constituting a reasonable excuse.   Ms Cleary was inclined to characterise such circumstances as “a line call”, and of course the reasonableness of such an excuse would be questionable if the prospect of mechanical breakdown was reasonably foreseeable.  I do not treat this as such a case.

[15]     Accordingly, I regrettably take the opposite view from the learned Judge on the nature of the excuse, and find that Mr Chapman did have a reasonable excuse.  I accordingly quash the conviction entered in respect of the charge on 18 January

2011.

Sentence appeal

[16]     For the sake of completeness, I also briefly address the matters raised on the alternative appeal against sentence, given the concerns raised by both counsel, and against the prospect that my view on the appeal against conviction is not correct.

[17]     Judge Adeane sentenced Mr Chapman the day after the defended hearing, on

19 January 2011. The Judge dealt with the matter on the following terms:

...He had requested permission to attend his partner’s grandfather’s tangi at Turangi, had been refused this and, in all likelihood, simply ignored that refusal and went anyway.  His excuse conjured up in explanation is that in fact his partner alone had gone to the tangi but had transport troubles and requested him to drive to Turangi, pick her up and bring her back, hence his lateness.   It is an unconvincing explanation against the background of his request to attend the tangi which was declined.  He also has two previous, very recent convictions for the breach of community detention for which he was placed on deferred sentence and is now ordered to come up for sentence.

Those factors led to the imposition of a sentence of two months’ imprisonment.

[18]     Without opposition, further evidence was adduced on the appeal by way of an affidavit from Alan Paul Cressey, the solicitor who had acted for Mr Chapman at his defended hearing of the charge of breach of community detention.   Mr Cressey deposes  that  he  had  intended  to  call  two  further  witnesses  in  support  of Mr Chapman’s defence of the charge, namely Mr Chapman’s partner and his sister. Mr Cressey’s affidavit annexes affidavits from those two and the latter also annexes a letter from the sister’s employer, confirming a request by the sister for an advance on her wages to enable her to buy petrol to drive to Taupo to pick up Mr Chapman. On their terms, those other proposed witness statements are generally corroborative of Mr Chapman’s version of events.

[19]     However, Mr Cressey deposes that before either of them were called, the Judge questioned the need to do so, given that Mr Chapman’s own evidence had not been challenged and was not disputed.  The transcript of the District Court hearing

bears that out.[3]

[3] Transcript, p 10/11-22.

[20]     In those circumstances, Mr Ross argued on the appeal that the sentencing occurred  on  a  view  of  the  factual  circumstances  materially  more  adverse  to Mr Chapman than could  ever be justified on  Mr Chapman’s  evidence  heard the previous day, and accepted by the Judge as undisputed.

[21]     The Crown accepts that Mr Chapman was sentenced on the basis that his explanation at the defended hearing was not credible or wholly fabricated when that is not consistent with the evidence being unchallenged during the hearing.  On the basis of the facts as found at the hearing, the Crown conceded that time already served is sufficient to mark the seriousness of the offending, if the appeal against conviction did not succeed.

[22]     I agree with that view and accordingly, had the appeal against conviction not succeeded, I would have allowed the appeal against sentence by reducing the period of imprisonment from two months to the period already served, namely 15 days’ imprisonment.

[23]     The consequence of quashing the conviction on the charge of the most recent breach is that the Court did not have the jurisdiction under s 111 of the Act to impose a sentence on the two previous breaches on which Mr Chapman had been called upon to appear for sentence, and was dealt with on 19 January 2011.  The previous status of those breaches as matters on which he is required to appear for sentence if called upon, is reinstated.

Dobson J

Solicitors:

Crown Solicitor, Napier