Charlett v Police
[2022] NZHC 1029
•5 May 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-42
[2022] NZHC 1029
BETWEEN DANIEL CHARLETT
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 May 2022 Appearances:
A J McKenzie for Appellant
J H Whitcombe for Respondent
Judgment:
5 May 2022
Reasons:
13 May 2022
JUDGMENT OF OSBORNE J
[Reasons]
Introduction
[1] Daniel Charlett, 19 years old at the time of his offending, was sentenced1 in the Christchurch District Court by Judge Couch to a total of two years and four months’ (28 months’) imprisonment on the following charges:
(a)injuring by unlawful act;2
(b)threatening to damage a dwelling house with intent to intimidate;3
1 Police v Charlett [2022] NZDC 4014.
2 Crimes Act 1961, s 190 – maximum penalty of three years’ imprisonment.
3 Crimes Act, s 308(a) – maximum penalty of three years’ imprisonment.
CHARLETT v NEW ZEALAND POLICE [2022] NZHC 1029 [13 May 2022]
(c)exceeding the speed limit;4
(d)possession of cannabis plant for supply;5
(e)possession of cannabis utensils;6
(f)driving a vehicle while his licence was suspended;7 and
(g)operating a vehicle in a manner causing it to undergo sustained loss of traction.8
[2] Mr Charlett appealed against that sentence on the basis it was manifestly excessive and that a sentence of home detention was appropriate. In a Results Judgment, I allowed the appeal, quashing the sentence and replacing it with one of nine months’ detention (with conditions).9 These are the reasons for that decision.
Facts
AInjuring by unlawful act
[3] In the evening of 16 March 2021, Mr Charlett drove to a pizza store at Eastgate Mall, Christchurch. At the same time, the victim, a man whom Mr Charlett knew, arrived. He followed the victim into the store and began questioning him about an alleged debt. Without warning, Mr Charlett punched the victim with full force on his nose, causing him to stumble backwards, and his nose to become deformed and bleed. Mr Charlett then exited the store and drove away. The victim was treated at the scene by ambulance staff and sustained a broken nose. This led to a charge of injuring by an unlawful act.
4 Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, regs 3 and 4; Land Transport (Road User) Rule 2004, r 5.1(1) – maximum penalty of a fine of $1,000.
5 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c) – maximum penalty of eight years’ imprisonment.
6 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.
7 Land Transport Act, s 32(1)(c) and (3) – maximum penalty of three months’ imprisonment or a fine of $4,500; and at least six months’ disqualification from holding a driver licence.
8 Land Transport Act, ss 22A, 35(2), 36A(1)(c) and (4) – maximum penalty of three months’ imprisonment or a fine of $4,500; and at least six months’ disqualification from holding a driver licence.
9 Charlett v Police [2022] NZHC 938.
BThreatening damage
[4] This assault was witnessed by another man whom Mr Charlett knew. A short time later, Mr Charlett called this man and threatened him, saying: “Don’t go to the Police and get me charged or I’ll come to all your houses and burn them down. I’ll smash out all your windows of your house and car.” This led to a charge of threatening to damage a dwelling house with intent to intimidate.
[5] In explanation, Mr Charlett stated these two incidents were a result of ongoing issues between the parties.
CExcess speed
[6] On the evening of 13 May 2021, Mr Charlett was clocked by police as driving at 114 kilometres per hour in the Lyttelton Road Tunnel. The tunnel has a strict 50 kilometre per hour speed limit. A second vehicle, whose occupants Mr Charlett knew, was travelling immediately behind Mr Charlett at a similar speed. In explanation, Mr Charlett stated the vehicle behind was travelling too close. This led to the excess speed charge. Mr Charlett was also suspended from driving any vehicle until 11 June 2021.
D, E, F Possession of cannabis (for supply) and utensils/driving while suspended
[7] On 5 June 2021, while his licence was suspended, Mr Charlett was driving a vehicle on Uxbridge Street, Christchurch, when he was stopped by police. Police saw a cannabis bong in the footwell of the back-left passenger seat and invoked the Search and Surveillance Act 2012 to search for drugs. In his vehicle police found the cannabis bong, 10.83 grams of cannabis across seven point bags, a further bulk amount of 19.44 grams of cannabis, small electronic scales, 33 unused point bags and $780 in cash. This led to charges of driving while suspended, possession of cannabis for supply and possession of utensils.
G Loss of traction
[8] On 15 July 2021, Mr Charlett was driving on Maces Road, Christchurch. He accelerated heavily, causing the rear wheels of his vehicle to spin. He carried on spinning the wheels for long enough to create large plumes of smoke from both rear
wheels and to cause the rear of the car to “fishtail”. This led to a charge of sustained loss of traction.
Procedural background
Sentencing indication
[9] On 9 November 2021, Judge Couch gave Mr Charlett, at his request, a sentencing indication under pt 3 Criminal Procedure Act 2011. Mr Charlett did not accept the indication.
Sentencing
[10] On 9 March 2022, Mr Charlett appeared before Judge Couch for sentence. The Judge stated Mr Charlett’s immediate entry of guilty pleas to all charges after rejecting the sentence indication had the appearance of attempted “Judge-shopping”. In making this observation, his Honour footnoted the decision of the Court of Appeal in O’Connor v R. 10
[11] Judge Couch addressed various criticisms Mr Charlett’s counsel had made of his sentencing indication and submissions made on matters not previously raised. He directed that his sentence indication notes form part of his sentencing notes.
[12] The Judge rejected the submission of Mr Charlett’s counsel that, in setting the 12-month starting point for the charge of threatening to damage a dwelling house, the Judge should have taken into account that the charge had been amended to a more serious one in the course of it being before the Court.11 He viewed the original charge as insufficient in light of the facts. He found Mr Charlett’s threat to destroy the homes of several people and to damage their vehicles, which was made to avoid prosecution for the assault, could hardly be more serious.
[13] Whereas counsel had submitted Mr Charlett’s non-offending in the eight months before sentence was relevant, the Judge regarded it as no more than the
10 O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [32].
11 Mr Charlett was originally charged with intimidation under s 21(1)(a) of the Summary Offences Act 1981, which carries a maximum penalty of three months’ imprisonment or a fine of $2,000.
absence of an aggravating factor. He also explained that Mr Charlett’s rehabilitative prospects formed part of a 10 per cent discount provided on account of his youth. The Judge, while acknowledging Mr Charlett was willing to attend restorative justice, identified that no meeting took place and neither of the victims engaged with restorative justice services. He did not consider this justified a further reduction in sentence.
[14] Mr Charlett’s counsel additionally argued the eight per cent uplift applied in the sentence indication for offending on bail was excessive. The Judge observed that, putting aside the charge of exceeding the speed limit (which ordinarily would be an infringement matter), five of Mr Charlett’s offences (driving while suspended, sustained loss of traction, possession of cannabis for supply and possession of utensils) were committed while on bail. He noted the starting points taken in respect of those offences comprise more than half the adjusted starting point and in those circumstances an uplift of eight per cent was appropriate. Further, the Judge did not accept any discount was required for the fact Mr Charlett was subject to a curfew for part of the time he was on bail as a curfew was called for given the nature of the charges.
[15] The Judge’s sentence was structured as follows, beginning with adjusted starting points:
(a)possession of cannabis for supply — 18 months
(b)possession of cannabis utensils — 2 months
(c)injuring by unlawful act — 10 months
(d)threatening to damage a dwelling home with
intent to intimidate — 12 months (e), (f), (g) loss of traction, suspended driving,
speeding 2 months
44 months REDUCED FOR TOTALITY (8 Months) 36 months
Plus uplift for offending on bail 8% Less personal mitigating factors
- guilty plea 20%
-youth 10% 30%
NET reduction 22% (8 months) 28 months
[16] The Judge thereby arrived at an end point of a total of 28 months’ imprisonment, with the end sentences imposed as follows:
(a)possession of cannabis for supply
(cumulative) — 17 months
(b)possession of cannabis utensils — 1 month
(c)injuring by unlawful act — 8 months
(d)threatening to damage a dwelling home with
intent to intimidate (cumulative) — 11 months
(e)loss of traction — 1 month
(f)suspended driving — 1 month
(g) speeding — convicted and discharged together with disqualification for 8 months
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 As the Court of Appeal recorded in Tutakangahau v R a court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.13 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14
The appeal
Appellant’s submissions
[18] On behalf of Mr Charlett, Mr McKenzie submitted, as a preliminary issue, the same Judge whose indicated sentence was rejected should not have then sentenced Mr Charlett on the basis of preventing judge-shopping. When this issue was raised with the Judge at sentencing the Judge referred to the decision in O’Connor in support of his involvement in the sentencing. Mr McKenzie submitted that the O’Connor decision was focused on the unrelated issue of different judges sentencing co-
12 Criminal Procedure Act 2011, s 250(2).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Ripia v R [2011] NZCA 101 at [15].
offenders. Mr McKenzie rejected the suggestion Mr Charlett had been judge- shopping. He argued confidence in the justice system is corroded where an appellant is sentenced by the same judge who provided the rejected sentencing indication. In such a case, he submitted the outcome is largely pre-determined because the sentencing judge effectively sits in judgment of his or her own sentence indication. In his oral submissions, Mr McKenzie recognised that, for the purpose of this sentence appeal, this Court must determine the correctness or otherwise of the sentence imposed, whether or not the District Court sentencing should have been attended to by a different Judge.
[19] In respect of the length of sentence, Mr McKenzie submitted the total end sentence reached (28 months’ imprisonment) was manifestly excessive and should have been in the vicinity of 18 to 24 months’ imprisonment, with conversion to home detention. He submitted a more appropriate approach was to adopt a starting point of
18 months’ imprisonment for the cannabis and utensils offending, a 12 month (combined) uplift for the injuring and threatening offending, and a further two month adjustment for the three driving offences. This would result in a total of 32 months which he submitted would appropriately become 27 to 30 months on a totality basis (in contrast to the Judge’s 36 months).
[20] Mr McKenzie further submitted the eight per cent uplift for offending on bail was excessive, taking into account that Mr Charlett has no history of offending on bail as an adult and there is no nexus between bail and the March offending.
[21] Mr McKenzie submitted the discount of 20 per cent for guilty pleas was appropriate but that an additional discount (beyond the 10 per cent allowed) was required for Mr Charlett’s rehabilitative prospects, with the Judge erring by not considering the pre-sentence report in relation to Mr Charlett.
[22] Finally, it was submitted that the Judge erred by failing to acknowledge the time Mr Charlett spent on restrictive bail, having limited the possibility of such a discount to circumstances where bail restrictions are assessed as unjustified.
Respondent’s submissions
[23] Mr Whitcombe, for the Crown, recognised that aspects of the sentence imposed could not be justified. In particular, he recognised the combined 22 months starting point on the violence offending was outside the range and that totality adjustments would still be required. He accepted that, were the Court to determine that the appropriate end sentence is two years’ imprisonment or less, then a sentence of home detention should be considered.
Was the sentence imposed manifestly excessive?
[24] The two lead incidents for sentencing purposes were (as identified by the Judge) the March 2021 violence offending and the June 2021 drug offending. A cumulative approach was appropriate given the two sets of offending were different in kind and unconnected to each other.15 Where cumulative sentences are imposed they must not result in a sentence wholly of out of proportion to the gravity of the overall offending.16
Violence offending
[25] Mr Charlett’s March 2021 violence-related offending comprised charges of injuring by unlawful act and threatening to damage a dwelling house with intent to intimidate. The first charge arose when Mr Charlett, without warning, punched an associate forcefully in the nose, with the result that the associate’s nose was broken, deformed and bled. Mr Charlett then drove away and called another associate who had witnessed the incident. He told him “Don’t go to the Police and get me charged or I’ll come to all your houses and burn them down. I’ll smash out all your windows of your house and car.” This gave rise to the threatening charge.
[26] Mr Whitcombe provided a number of cases that assist in determining the appropriate starting point on each charge:
15 Sentencing Act 2002, s 84.
16 Sentencing Act, s 85(2).
(a)Ngatae v R:17 the appellant was charged with injuring by an unlawful act. He was at a street party and approached the victim. He told the victim he wanted to punch him. He left only to return a short time later. He stood in front of the victim and punched him on the jaw, causing the victim to fall to the ground and to suffer a concussion. The High Court noted the punch was severe enough to knock the victim to the ground and was totally unprovoked, and upheld a starting point of 12 months’ imprisonment on that charge.
(b)Prasad v Police:18 the appellant pleaded guilty to a raft of charges, including injuring by unlawful act. He was at a restaurant in the early hours of the morning. The victim was also there. The two knew each other. The appellant demanded the victim meet him outside. The appellant began “dancing around in a fighting mode” and, without provocation, punched the victim in the jaw, instantly knocking him unconscious. The victim spent a night in hospital with stretched tendons and soreness to the jaw for a number of weeks. A starting point of 12 months’ imprisonment was considered to be at the higher end of the range.
(c)R v Nielsen:19 the offender pleaded guilty to a charge of theft and a charge of doing a threatening act. The offender and two others went to the victim’s address. He went into the property and told the victim he was there to collect a debt the victim owed. When the victim refused to give the offender anything the offender said, “I will just take something from the house”, then picked up a television and removed it from the address. The offender said, “If you do go to the police I will come back and burn the house down.” He then said that he would come back to burn the house down with the victim in it. Lang J adopted a starting point of 10 months’ imprisonment for the offending.
17 Ngatae v R [2016] NZHC 3068.
18 Prasad v R [2017] NZHC 509.
19 R v Nielsen [2020] NZHC 1222.
(d)Ferguson v Police:20 the appellant pleaded guilty to doing a threatening act. The victim was his ex-partner. The appellant saw a picture of the victim with her brother and thought she was in a new relationship. He became angry and jealous, proceeding to send her menacing text messages and attempting to call her. One message said “I’ll kick the door in and find out who that cunt is.” The victim was terrified and fled to her house to hid in a bush until police arrived. On appeal, Gendall J considered this threat to be at the lowest end as it did not involve a weapon or violence directed at any person. A starting point of four months’ imprisonment was deemed appropriate.
[27] Ngatae and Prasad involved the infliction of more serious injuries than in this case, but with a similar lack of provocation. I am satisfied that a starting point of 10 months’ imprisonment was available for the charge here of injuring by unlawful act. Mr Charlett’s threat was more serious than that in Ferguson but similar to that in Nielsen. Standing on its own, a starting point in the range of six to eight months’ imprisonment would have been justified.
[28] Considering the March 2021 offending in totality, a starting point of around 16 months’ imprisonment was justified. The combined starting point of 22 months’ imprisonment adopted for Mr Charlett’s violence-related offending was outside the available range.
Cannabis offending
[29] R v Terewi remains the tariff judgment for cannabis-related offending.21 The Court of Appeal set out three categories of offending:22
(a)Category 1: small-scale offending for personal use or non-commercial supply. Sentences range from a fine to a short period of imprisonment.
20 Ferguson v Police [2015] NZHC 644.
21 R v Terewi [1999] 3 NZLR 62 (CA).
22 At [4].
(b)Category 2: small-scale offending for a commercial purpose. A starting point between two and four years’ imprisonment is generally appropriate but a lower starting point may be justified for more limited offending.
(c)Category 3: large-scale, sophisticated and commercial offending. A starting point of four years’ imprisonment or more will be justified.
[30] Mr Charlett’s offending falls at the lower end of category 2. He was found in possession of 30.27 grams of cannabis (contained in seven point bags and in one bulk amount). He also had other paraphernalia and $780 in cash. This was limited offending of its kind.
[31]Codlin v R provides a helpful point of comparison.23
[32]In Codlin, approximately 32.3 grams of cannabis and various equipment and
$1,970 in cash was found at the appellant’s home. The Court of Appeal confirmed that a starting point of two years and nine months’ imprisonment was within the available range.
[33] The Judge’s starting point of 20 months’ imprisonment for Mr Charlett (18 months for possession of cannabis for the purpose of supply and two months for possession of a utensil) cannot be considered manifestly excessive.
Totality analysis
[34] The modest uplift imposed by the Judge of one month each to take account of the charges for driving while suspended and sustained loss of traction was appropriate (as was the discharge of the speeding charge). When combined with 16 months for the violence offending and 20 months for the cannabis offending, a starting point of 38 months (before adjustments for personal factors) is indicated.
23 Codlin v R [2012] NZCA 71.
[35] I accept an adjustment downwards is appropriate to reflect the overall totality of the offending across the March, May, June and July events. I agree with Mr Whitcombe that a sentence of 32 months’ imprisonment would not be wholly out of proportion to the gravity of the overall offending.
Aggravating and mitigating factors personal to the appellant
[36] I agree with the Judge than an uplift was appropriate to reflect the fact that some of the offending, including importantly the cannabis offending, occurred while Mr Charlett was on bail. Offending while on bail is a discrete head of personal aggravation, which a sentencing judge must take into account.24 It is intended to reflect the offender’s disregard for Court processes25 and applies whether or not the offending on bail is similar to the previous offending. As Mr Whitcombe observed, any uplift on this account relates not to a propensity to commit similar offences but rather to such disregard.
[37] The uplift of eight per cent applied to the Judge’s adjusted starting point of 36 months amounted to just under three months. In Barney v Police, the High Court held a three-month (11 per cent) uplift in the context of an adjusted starting point of 27 months’ imprisonment was solidly within range and could well have been higher.26 Here, an eight per cent uplift to the figure of 32 months equates to approximately two and a half months. I do not consider such an uplift is excessive in the circumstances.
[38] Mr McKenzie submitted the Judge erred by failing to provide a discount for the time Mr Charlett spent on restrictive bail conditions. In Kreegher v R, the Court of Appeal held:27
[49] We consider … a discount for the very lengthy period spent on bail is also available. While the Sentencing Act 2002 only identifies time spent on electronically-monitored bail as a mandatory mitigating factor, it is common ground that discounts may be given for time spent on bail simpliciter. Whether
24 Sentencing Act, s 9(1)(c).
25 Clunie v R [2013] NZCA 110, at [22].
26 Barney v Police [2021] NZHC 1471 at [12], citing R v Vailea [2010] NZCA 67 at [7] and [12], where the Court of Appeal considered an uplift of three months to a starting point of three years’ imprisonment (over eight per cent) could have been higher.
27 Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622.
there should be a discount and the scale of it will depend on the restrictiveness of the bail conditions and the level of compliance with them. …
(footnotes omitted)
[39] I am not persuaded that any credit was appropriate for the time Mr Charlett spent on bail. He was not subject to EM bail. On 8 June 2021, Mr Charlett was remanded on bail subject to a 24-hour curfew but this was subsequently reduced on 29 July 2021 to a curfew between 10 pm and 6 am. Although his conditions of bail were restrictive for a short period (close to two months), he then offended while on bail. I am satisfied credit for his time on bail would be inappropriate.
[40]I am satisfied the 20 per cent credit for guilty pleas was appropriate.
[41] In addition, Mr McKenzie submitted a discount should have been provided for Mr Charlett’s rehabilitative prospects that was not sufficiently captured in the youth discount provided of 10 per cent. I recognise the Judge omitted to explicitly take into account the pre-sentence report but importantly I am here able to take into account the matters Mr McKenzie raises in terms of the report.
[42] Mr Charlett is currently 20 years old and was aged 19 at the time of the offending. Apart from convictions for driving at a dangerous speed and driving while disqualified committed in April 2019, Mr Charlett’s previous offending occurred while he was subject to the jurisdiction of the Youth Court. The pre-sentence report writer assessed Mr Charlett’s offending-related factors to be violence, anti-social peers, his attitudes and drugs. He was assessed as being at medium risk of reoffending due to the number of his previous offences and as presenting a medium risk of harm to others due to his current and previous violence-related offending. The report writer noted Mr Charlett appeared to lack awareness and insight into the potential harm his actions may cause others. However, the writer also emphasised Mr Charlett has not previously been subject to a rehabilitative community-based sentence as an adult and that it is assessed he would benefit from such a sentence. The report writer recommended a sentence of home detention.
[43] The report writer then reported that Mr Charlett’s closest support is his mother. Mr Charlett told the report writer he is currently in receipt of a benefit due to a serious
hand injury that requires surgery. He told the report writer he has previous work experience in scaffolding and he would like to return to building work when he recovers from his hand surgery.
[44] It was reported that, while Mr Charlett has taken responsibility for some of his active charges, he appeared to minimise his role in the offending and did not appear to grasp the full gravity of the serious harm to others his assault and driving behaviours could have caused. It was recorded that Mr Charlett also completed a brief alcohol and drug screening assessment, which indicated he has a moderately harmful pattern of cannabis use.
[45] The Judge, in providing a 10 per cent discount to reflect Mr Charlett’s youth during his sentence indication, noted he was only 19 years old at the time and seemingly immature for his age. At sentencing, he then clarified this discount incorporated any potential rehabilitative prospects Mr Charlett had.
[46] Mr Whitcombe here submitted the 10 per cent discount was appropriate on the basis Mr Charlett had numerous convictions as a youth and that his rehabilitative prospects cannot be viewed as strong as those of someone with no or few previous convictions.
[47] Although proceedings in the Youth Court do not (with limited exceptions) result in the “conviction” of an offender, they can have some relevance to sentencing and will likely preclude any credit for previous good character.28 In this case, Mr Charlett’s Youth Court appearances included for aggravated robbery and common assault offending, which lend support to the concerns identified by the report writer. The report writer also provided a balanced assessment that Mr Charlett would benefit from a rehabilitative community-based sentence. It does not appear Mr Charlett has had the benefit of any form of treatment, counselling or other assistance to address the causes of his offending as an adult. In circumstances where he has also indicated a willingness to regain employment and has pro-social family support, I consider a higher discount of 15 per cent would appropriately have accounted for Mr Charlett’s youth and rehabilitative prospects.
28 Waikato-Tuhega v R [2021] NZCA 503 at [32]–[33].
Conclusion
[48] When these uplifts and discounts are applied to the adjusted starting point of 32 months (applying an uplift of eight per cent, less discounts of 35 per cent, resulting in a net reduction of 27 per cent), an end sentence of 23 months’ imprisonment is indicated. Standing back I am satisfied that the sentence imposed — 28 months — was manifestly excessive, and that 23 months’ imprisonment would have been appropriate.
Home detention
[49] Having reached an end sentence of 23 months’ imprisonment, the Court is required to consider whether the short-term sentence of imprisonment should be commuted to one of home detention.29 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.30 Imprisonment is therefore “a measure of last resort”.31 Section 16(1) of the Sentencing Act 2002 requires regard to be had to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. As the Court of Appeal observed in Fairbrother v R, when deciding whether to commute a sentence of imprisonment to one of home detention:32
… 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.
[50] I note that the pre-sentence report confirmed Mr Charlett’s home address and its occupants (his mother and 14-year-old brother) were suitable for an electronically monitored sentence. The report writer advised that his mother continues to support him, as do Mr Charlett’s paternal grandparents in Nelson and his 21-year-old brother in Auckland.
29 Sentencing Act, s 15A(1)(b).
30 Section 15A(1)(a).
31 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
32 Fairbrother v R [2013] NZCA 340 at [30].
[51] Notwithstanding the violence and threats involved in Mr Charlett’s offending, I consider a sentence of home detention would sufficiently serve the principles of deterrence and denunciation at the same time as better assisting in his rehabilitation and reintegration into the community. Mr Charlett is still a young man who has not yet been offered the opportunity of a rehabilitation-focused, community-based sentence. While Mr Charlett does not appear to grasp the full gravity of his offending, that lack of insight appears to relate at least significantly to his immaturity. It is a fact he has not been exposed to treatments and programmes capable of addressing the underlying causes of his offending. While the pre-sentence report writer understandably assessed his risk of harm to others as medium, I have regard to the fact that all of his previous offences occurred while Mr Charlett was aged between 14 and
17. The sentence of imprisonment would significantly undermine Mr Charlett’s pathway towards rehabilitation and deny him an important opportunity to meaningfully address the causes of his offending with the support of his family.
[52] On this basis, it is appropriate that a sentence of some 11 months’ home detention be substituted for the sentence of imprisonment. Having regard to Mr Charlett’s having already served some two months in prison, the period of home detention I impose is nine months. The standard conditions, attaching to the home detention sentence together with the general conditions imposed in the Results Judgment, will serve to promote the utility of the home detention sentence as a rehabilitative tool.
Who should be the sentencing Judge?
Mr Charlett’s complaint
[53] Once it was accepted that this Court on appeal would determine the appropriate sentence, it was self-evident that the Court did not need to resolve Mr Charlett’s complaint that Judge Couch was the Judge who sentenced Mr Charlett after Mr Charlett had not accepted the sentence indication provided by Judge Couch but had nevertheless pleaded guilty to the charges.
[54] The complaint is essentially one that the Judge ought to have recused himself, thereby leaving the sentencing to be dealt with by any other Judge.
[55] In Mr Charlett’s case, he was initially remanded on bail to appear for sentence before the next available Judge on 9 February 2022 (Judge Phillips then being scheduled). On 27 January 2022, the Deputy Registrar sent an email to Mr McKenzie in which she noted those arrangements but then recorded:
I have spoken to Judge Couch who has directed that this matter be called before him as he gave the initial indication. Therefore the sentencing on the 9 February is vacated and Mr Charlett is remanded on Bail to continue to the 9 March 2022 at 2.15pm before Judge Couch [on] his Judge Directed Day.
[56] In Mr Charlett’s grounds of appeal, Mr McKenzie recorded that the approach taken — rescheduling the sentencing before the Judge who had given the sentence indication — corroded confidence in the system as:
(a)the sentencing outcome is largely pre-determined;
(b)the sentencing judge sits essentially in judgement of his or her own sentence indication;
(c)that brings the sentencing judge into the arena, in essence justifying the sentence indication; and
(d)this process undermines the sentence indication process by effectively requiring the indicated sentence to be imposed (subject only to alteration justified by fresh information).
[57] Mr McKenzie’s submissions initially came close to suggesting that the Judge who provides a sentence indication should never become the sentencing judge in such situations. That said, he retreated somewhat to suggest that an appropriate principle would be that the sentencing judge be identified on the standard scheduling or rotation basis and not by a pre-set policy directing the sentencing back to the sentence indication Judge (other than where that Judge has become unavailable).
[58] It appears clear from the Deputy Registrar’s email in this case that a specific direction was made, cutting across the previous scheduling, that the sentencing hearing
was to be before Judge Couch. It is not clear whether that was pursuant to a policy whether adopted at Christchurch or more broadly in the District Court.
[59] When Mr Charlett subsequently appeared for sentence, the Judge expressly referred to the Court of Appeal’s decision in O’Connor in support of his observation that Mr Charlett’s rejection of the sentence indication followed by immediate guilty pleas “had the appearance of an attempt at judge shopping”.33
Discussion
[60] Given that the determination of this appeal has turned on standard sentencing principles and I received only the briefest of submissions concerning the recusal issue raised by Mr McKenzie, any considered response to the submission must be for another day when and if the issue is directly in play and comprehensive submissions are made.
[61]I therefore limit myself to the following observations.
[62] The situation that had occurred in the District Court in O’Connor was explained and discussed in the Court of Appeal’s judgment in the following passage:
[31] For reasons that are not known to us, on the same day that Judge Marshall sentenced Ms Fraser-Jones consistent with his sentencing indication, the present appellants had a sentence indication hearing before a different Judge, Judge Burnett. Her Honour indicated she was not willing to take the same starting point as had been taken for Ms Fraser-Jones. Our earlier discussion indicates that we agree with Judge Burnett's assessment.
[32] The appellants did not accept Judge Burnett’s sentencing indication but decided to plead guilty anyway. It was then suggested by all counsel that as the sentence indication had not been accepted, there was no need for Judge Burnett to sentence the appellants. Instead, applying normal principles, the same Judge that had sentenced their co-defendant should sentence them. The Court did not agree, considering this had the flavour of Judge-shopping.
[33] We consider that the situation should not have arisen. Two Judges in the same court should not have been dealing with co-defendants on the same day. However, once the situation had happened, we agree with what occurred. Judge Burnett should, as she did, have completed the sentencing and if the defendants she sentenced were unhappy with the outcome, they can appeal, as they have.
33 Police v Charlett, above n 1, at [3], citing O’Connor v R, above n 10, at [32].
[63] In other words, the Court of Appeal found that hearings in relation to the sentencing of co-defendants should not have been scheduled before different judges on the same day. But, once that happened, the Court of Appeal observed, it was appropriate that Judge Burnett “completed the sentencing”.
[64] The Court of Appeal decision in O’Connor defeats Mr McKenzie’s original submission that a sentence indication judge should never become the sentencing judge in the circumstances of a case such as Mr Charlett’s. What the judgment in O’Connor does not resolve is whether, at the point of scheduling, the sentencing hearing should have been set down before Judge Burnett in preference to any other Judge. The Court of Appeal, in O’Connor, was commenting on a situation where the defendant was already before Judge Burnett for sentencing on the day.
[65] I do not read O’Connor as either express or implied support for any practice or policy that requires the sentencing of a defendant in Mr Charlett’s (or Mr O’Connor’s) position to be scheduled (if possible) before the same judge who provided the (rejected) sentence indication.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Copy to: A McKenzie, Barrister, Christchurch
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