Cleven v R HC Auckland CRI 2011-404-268
[2011] NZHC 1892
•18 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-404-268
BETWEEN PETER WILLIAM CLEVEN Appellant
ANDTHE QUEEN Respondent
Hearing: 15 November 2011
Appearances: R Mansfield for appellant
B Hamlin for respondent
Judgment: 18 November 2011
JUDGMENT OF ALLAN J
Solicitors:
R Mansfield, Auckland [email protected]
Crown Solicitor Auckland, [email protected]
CLEVEN V R HC AK CRI 2011-404-268 18 November 2011
[1] This is an appeal against a sentence of 20 months imprisonment imposed upon the appellant by Judge Lovell-Smith in the Pukekohe District Court on 25 July
2011. Mr Cleven had pleaded guilty to a charge of theft in respect of a 2005 Ducati motorcycle, valued at $15,000.
[2] Mr Mansfield does not cavil at the Judge’s assessment of an appropriate term of imprisonment, but argues that a sentence of home detention ought to have been imposed instead.
Factual background
[3] On 7 January 2011 the appellant sent a text message to the complainant, asking him to come to the appellant’s address with his Ducati motorcycle. The complainant did so. When he arrived, the appellant accused him of having had a relationship with the appellant’s partner in his absence. There was an allegation of attempted drug rape.
[4] Both the appellant and the complainant had an extensive criminal history. The appellant, a friend of the complainant, felt betrayed. Motivated by a desire to protect his partner he took matters into his own hands and asked the complainant what the latter thought ought to be done. Although the complainant denied any wrong-doing, he offered to repair the appellant’s driveway without charge. He also suggested that the appellant give him (the complainant) a hiding. Neither alternative was accepted by the appellant, who instead asked for the keys to the motorcycle. They were handed over by the complainant, who later said he had felt intimidated. The appellant indicated to the complainant that he did not intend to keep the bike, but that he would do so until the problems had been “sorted out”.
[5] When the complainant returned to the appellant’s residence on 10 January
2011 (three days later), he was told he could have the bike back for $10,000. Later, the appellant telephoned the complainant to advise that the price was now $11,000.
[6] On the following day, the appellant went to the complainant’s residence. There he waved a stick at the complainant, shouted at him and complained that the complainant had “disrespected” the appellant. But the price for return of the motorcycle had fallen back to $10,000 once more.
[7] On 13 January 2011 the appellant sent a text message to the complainant, asking if he wanted his bike back. Thereafter, the appellant transferred the ownership of the bike into his own name.
[8] The complainant complained to the police. The motorcycle was subsequently returned undamaged.
District Court sentencing
[9] The Judge commenced her detailed sentencing remarks by reviewing the facts and then the appellant’s personal and offending history. In particular, she noted the contents of the pre-sentence report, including a recommendation for a sentence of community work, saying that:[1]
… it seems as if home detention and community detention were carefully
considered by the probation officer, but not recommended.
[1] Sentencing notes at [10].
[10] The Judge then noted that, as was accepted by counsel, there is no tariff sentence for theft, but that in R v Duncan,[2] the Court of Appeal had identified as relevant factors to consider when determining a starting point, the value of the property taken, the level of premeditation, the degree of intrusiveness, and victim impact. She noted that the Crown had contended for a starting point of between two and two and a half years imprisonment, to be increased by reason of the appellant’s criminal history, and the fact that he was subject to a sentence of community work and on parole at the time of the offending.
[2] R v Duncan [2009] NZCA 408.
[11] The Judge said that counsel for the appellant had argued for a non-custodial sentence, in the light of a guilty plea at an early opportunity, genuine remorse,
absence of economic loss on the part of the victim, and evidence that the appellant was re-establishing himself in the community and within his family.
[12] The Judge then turned to an extensive review of sentencing purposes and principles, following which she identified as aggravating features the level of premeditation, a degree of intrusiveness, the effect on the victim and the value of the property concerned. In other words, she considered each of the Duncan elements as relevant to the assessment of an appropriate starting point.
[13] She then took into account the appellant’s long list of previous convictions, including convictions for what she called “related offending” and indicated that the starting point should be increased on that score. She took into account also the fact that, at the time of the offence, the appellant was subject to a sentence of community work and was in the last stages of serving a sentence of imprisonment for criminal harassment, albeit he was on parole during the final few weeks of that sentence. She considered there to be no mitigating features relating to the offending, putting to one side the suggestion that the victim had provided a degree of provocation or justification for the appellant’s behaviour. The Judge adopted a starting point of two years four months imprisonment, which she reduced by eight months in order to accommodate mitigating factors. Given that she agreed that a discount of 25% was appropriate for an early guilty plea, the additional discount for other mitigating factors was just one month.
[14] At the conclusion of her sentencing remarks, the Judge said:
I note that the community probation report does not consider that either community detention or home detention is appropriate in your case. In my view, imprisonment is the only outcome.
[15] Mr Mansfield is critical of the Judge’s approach. He argues that she has misunderstood what the probation officer said in the pre-sentence report about prospects for home detention or community detention. Alternatively, he argues that she paid insufficient attention to the desirability of home detention as an alternative to imprisonment.
Appellate principles
[16] Section 15A(1) of the Sentencing Act 2002 authorises the imposition of a sentence of home detention:
15A Sentence of home detention
(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short- term sentence of imprisonment.
[17] A short term sentence of imprisonment is a sentence of two years or less.
[18] A decision as to whether home detention will meet sentencing objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.[3]
[3] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 (CA).
[19] The choice between home detention and a short sentence of imprisonment constitutes the exercise of a fettered discretion. Appellate review should focus upon the identification of error, if any, in the court below.[4]
Analysis
[4] Manikpersadh v R [2011] NZCA 452 at [12].
[20] Mr Mansfield contends that the sentencing Judge must be taken to have misread or misunderstood the contents of the pre-sentence report when she noted that the report did not consider that either community detention or home detention
was appropriate.
[21] I do not agree that the Judge has been wrongly influenced by the contents of the report. In the home detention appendix, the writer said of the appellant:
He is considered to be very genuine in his ability to apply (sic) with an electronically monitored sentence, but for reasons mentioned above, the probation officer is not confident that this will be a suitable environment for such a sentence.
The reasons mentioned above are:
…the possible presence of other persons who are visiting the adjacent house
on the property …
[22] To put that observation in context, it appears that the appellant owns a property comprising about three acres. On the property is a barn/workshop where the appellant and his partner live. Mr Cleven also works there in a well established woodworking workshop. The house is not tenanted, rather it is being used as a parlour, supervised by Mr Cleven’s partner. There is no further explanation as to precisely what is meant by the term “parlour”. Evidently, the writer of the report entertained concerns about the number and type of visitors who might be visiting the parlour, but no concerns are expressed about the appellant’s own ability to comply with a sentence of home detention.
[23] The home detention appendix runs to two pages. There is no reason to think that the sentencing Judge did not read both pages, or to believe that she fell into error in assessing the thrust of what was being said in the report.
[24] That in my view becomes even clearer when one considers what occurred immediately following the sentencing procedure itself. Counsel who appeared for the appellant at sentence made an oral application for bail pending appeal, immediately following the passing of sentence. The notes of what then transpired have been provided to this Court on appeal. Counsel indicated that the proposed appeal would be:
…based primarily on the pre-sentence report saying that community detention and home detention are not an option. The pre-sentence report on my understanding was that there was a possibility that it is suitable.
[25] So the Judge was put on notice at that point of the appellant’s view of the pre- sentence report. There was then something of a discussion between counsel for the appellant and the Judge, as to whether bail would be appropriate pending appeal. During the course of that discussion, which runs to some four pages of transcript, the Judge had occasion to reiterate the reasons which had prompted her to impose a sentence of imprisonment rather than home detention. The discussion culminated with the following explanation from Her Honour:
In imposing the sentence, Mr Munro, I have taken all of what you said to me now into account. There is no issue with his compliance with the terms of the sentence. What is in issue and what he chose to disregard was the fact that he accepts, and has pleaded guilty to offending, which took place while he was subject to those sentences. That has indicated to me that he effectively disregards any sentence that is imposed. It has no effect. It does not deter him from offending and that is one of the matters under the Sentencing Act that I have taken into account, the need to deter him. Plainly community work did not have that effect on the last sentence, neither did the sentence of imprisonment that was last imposed.
Given the nature of this offending, and the summary of facts to which he pleaded guilty, coupled with his history and the matters that I have covered in the sentencing, whilst I have some sympathy for the submissions you have made, Mr Munro, and undoubtedly he has complied with everything else, what he has not complied with is the law. He continues to re-offend, and for those reasons I am declining bail pending appeal.
[26] It is abundantly plain that the Judge took into account at that time, and by inference must have taken into account during the sentencing process itself, the fact that the appellant had a poor previous record, and in particular that he had offended while still formally subject to sentences imposed for recent offending. In other words, the Judge refused to impose a sentence of home detention for reasons associated with the appellant himself, and not by reason of the possibility of visitors to the parlour, as Mr Mansfield contends.
[27] He argues that it would have been illogical for the Judge to have held on the one hand that the appellant was likely to comply with a sentence of home detention, and on the other that, the integrity of such a sentence would be imperilled by reason of the risk of unknown visitors to the parlour. I agree, but I do not think that would have been uppermost in the Judge’s mind. She had simply decided that the appellant was too ready to break the law when it served his purpose to do so.
[28] Mr Mansfield argues that, on appeal this Court should put to one side the transcript of the hearing of the application for bail pending appeal. He says by the time the bail application was made the sentencing process was over, and this Court ought to be confined to the formal reasons given by the Judge. I reject that submission. The bail application was made immediately following the completion of the sentencing process, and was in effect, part of the same hearing. The Judge’s further explanation of her reasons for imposing a sentence of imprisonment, given during the course of the bail application, are illuminating and ought to be read as part and parcel of her overall reasoning.
[29] The issue is therefore whether, for the reasons the Judge gave both in the course of her sentencing remarks and her later observations in the course of the bail application, she fell into error.
[30] During the course of his very detailed and skilfully presented submissions, Mr Mansfield identified a number of reasons for the imposition of a non-custodial sentence in this case. They included:
(a) the appellant’s advanced woodworking skills which he uses to run a furniture making business on his property, coupled with his work for the community in donating his time and skills to the provision of two Maori carvings in the foyer of the Department of Corrections in Pukekohe;
(b)his recent completion of a sentence of 180 hours community work without negative reports or breaches;
(c) the low risk he presents to the safety of others;
(d)the circumstances in which the offending occurred, namely the deeply felt insult which he believed had been offered to him by the complainant;
(e) a significant degree of remorse and an early guilty plea;
(f) the support of a young woman who is a positive influence in his life;
(g)the fact that he owns the property at which home detention was proposed, and so provided a stable home detention address;
(h)his regular contact with his seven year old daughter, which would be disrupted by the service of a sentence of imprisonment.
[31] I agree that these considerations provide a respectable framework for an argument in favour of home detention. But there are other considerations as well. This was not minor offending. There was a disturbing flavour of intimidation about it. Moreover, the Judge was obliged, as she plainly did, to consider the appellant’s case for home detention against a background of prior offending, including dishonesty, drug and violent offending. Most significantly, this offence was committed at a time when Mr Cleven was on parole, having served a sentence of imprisonment for an offence which bore some similarity to the present case.
[32] In the earlier case, for a fee of $5,000, Mr Cleven had intimidated a person and his adult daughter for the purpose of endeavouring to extract payment of a substantial debt said to be owing to the appellant’s client. The intimidation included an unheralded visit to the male victim, during the course of which photographs of dead animals were displayed, the disclosure that the appellant had conducted a great deal of research as to the personal circumstances of the victim and his adult daughter, the leaving of a note in the letterbox of the daughter, and implied threats to her safety.
[33] As the sentencing Judge on that occasion, Lang J, held, there were significant sinister overtones. The appellant’s intention was plainly to frighten his victims to the point at which a payment was made to the appellant’s client.
[34] The appellant pleaded guilty to criminal harassment. Lang J imposed a sentence of ten months imprisonment. He noted that the appellant had a very significant list of previous convictions for a variety of offences, but he thought that the offending for which he was then imposing sentence was so different from
previous offending that an uplift was unwarranted. Of particular relevance, is the following passage in the Judge’s sentencing notes:[5]
You need to know, however, Mr Cleven, if you become involved in offending such as this again, there can really be no doubt a significant uplift will be applied.
[5] R v Cleven HC Auckland CRI 2008-004-17744, 17 December 2008, at [40].
[35] Mr Mansfield submits that the Judge’s concern was with a further offence of criminal harassment or blackmail. I disagree. I consider that there were elements of intimidation in the present case which mirrored certain features of the earlier offending.
[36] I accept Mr Hamlin’s submission that the proximity of the present offending to the earlier case tells against home detention. So does the fact that Mr Cleven was still on parole when he offended again.
[37] I accept that the sentencing purposes and principles set out in ss 7 and 8 of the Sentencing Act must be taken into account in exercising a discretion whether to commute a sentence of imprisonment to home detention.[6]
[6] Manikpersadh fn 4 at [14].
[38] Section 7 requires the Court to have regard to the desirability of assisting an offender’s rehabilitation and re-integration. But the section also requires the Court to provide for the interests of victims and the wider protection of the community. So the effect on the victim is to be taken into account.
[39] Here, Mr Mansfield says that the victim is no better than he ought to be, and that he has a significant criminal record of his own. Although the detail of that is not before the Court, I accept his assurance on that score. But that does not mean that the complainant is not entitled to any consideration at all. In a written statement given to the police on 7 July 2011, he says that he and his partner moved out of town for a period of time due to fears of retribution, that he knows what Mr Cleven is capable of, and that is why they both moved away. He concludes by saying that “this
fear is on-going for both of us”.
[40] Mr Mansfield asks the Court to exercise care over the weight to be placed on that statement, because it is inconsistent with an earlier indication given to a victim adviser to the effect that the complainant did not want the defendant to end up in jail, and that as far as the victim was concerned, the matter had been resolved. That note is also signed by the victim.
[41] However, as Mr Hamlin points out, there is always a concern in cases such as this that a plea for leniency by a victim may be influenced to some degree by pressure from the offender. Moreover, the later statement amounts in effect, to a retraction of the earlier one.
[42] A plea for leniency from a victim will not usually be accorded great weight, given that a crime is a public wrong.[7] Of course the views of the victim are not to be totally ignored.
[7] R v AM [2010] 2 NZLR 750 (CA) at 63-64; R v Taueki [2005] 3 NZLR 372 (CA) at [33].
[43] Here, there seems to be a thread of lingering concern on the part of the victim. Mr Mansfield does not suggest that the victim’s views constitute a mitigating factor. Rather, his concern is that they not become an aggravating consideration. But offending of this sort is insidious. Sentencing Judges are entitled to take that into account in considering an argument for home detention. The need to protect victims and the general public looms large at that point in the sentencing exercise.
[44] That was an aspect that plainly concerned Lang J when he rejected a plea for a sentence of home detention in December 2009. The case for home detention appears to have been advanced then on a basis largely similar to the present argument. Now, of course, there are further aggravating factors arising from the commission of this offence so soon after the criminal harassment offending, and during the currency of the earlier sentence.
[45] In my opinion, the circumstances of this offence, Mr Cleven’s poor previous
record, and the remarkable similarity of this case to the offence for which Lang J
imposed a sentence of imprisonment, provide an unpromising foundation for a home
detention argument. Although Mr Mansfield submits that this case is different from the earlier criminal harassment case, in that there was a real debt to collect in that case, the distinction is relatively fine. The nature of the appellant’s culpability is similar in each case. It might even be said that this is the more serious offending.
[46] Against that background, the appellant’s personal considerations would need
to be compelling to justify a sentence of home detention.
[47] Mr Mansfield refers to the appellant’s relationship with his partner and with his young daughter, to the apparently stable character of his life in recent times (he is now 47), to his successful business making furniture, and to the difficult financial repercussions of a sentence of imprisonment. Those repercussions include the risk of a loss of business and possibly of established customers. There are also obvious difficulties in meeting mortgage payments in respect of the appellant’s property.
[48] But these considerations do not outweigh countervailing factors, which suggest the unavailability of home detention. That was the view to which Judge Lovell-Smith came. It has not been demonstrated, in my view, that she fell into error in reaching that conclusion.
Result
[49] For the foregoing reasons the appeal is dismissed.
C J Allan J
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