Closey v Police

[2020] NZHC 990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-74

[2020] NZHC 990

BETWEEN

MATTHEW CLOSEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 May 2020
Appearances:	N Soondram for the Appellant J A Herring for the Respondent
Judgment:	14 May 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 14 May 2020 at 2 pm

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Counsel:  N Soondram, Auckland

CLOSEY v POLICE [2020] NZHC 990 [14 May 2020]

Introduction

[1]    The appellant, Matthew Closey, appeals a sentence of six months’ home detention imposed by Judge Fraser in the Auckland District Court on 28 February 2020.1

[2]    The sole ground of appeal is that the sentencing Judge failed to take into account the period of three months that Mr Closey had spent in custody on remand prior to sentence when determining the appropriate length of the sentence of home detention. No issue is taken with the starting point or how the original end sentence of 12 months’ imprisonment was reached (which was then commuted to six months’ home detention).

[3]    The respondent’s position is that the sentence is not manifestly excessive. There was no error in the Judge’s approach, the starting point was within the available range, and the overall discounts given were appropriate in the circumstances.

Background

[4]    In November 2016, a final protection order was issued in favour of the victim against Mr Closey. The charges arise from two separate incidents. At the time of the offending Mr Closey was aged 25 years.

[5]    First, in July 2019, the victim arrived at her home address around midday where she found Mr Closey inside her house intoxicated and drinking vodka. The summary of facts records that the victim had allowed Mr Closey to stay at her place from time to time. But it is not suggested that he had been invited to enter on this occasion. The victim attempted to remove the vodka from Mr Closey. Ultimately she helped him into bed and left the house. She returned some five hours later and found Mr Closey still in bed. He demanded more alcohol and cigarettes. At that time he began hitting the wall in the bedroom causing it to become damaged. In an attempt to calm Mr Closey down the victim agreed to his demands and went out and purchased alcohol and cigarettes.

1      Police v Closey [2020] NZDC 3630 (Sentencing Notes).

[6]    She then advised him she wanted him to leave the house. He began yelling loudly for her to help him. She allowed him to remain but in the early hours of the next morning called for assistance from family members. On their arrival he calmed down so the victim thought she would be safe if the family members left. A few hours later Mr Closey began verbally abusing the victim and became angry, punching walls in the bedrooms and kitchen. The victim called the police.

[7]    The second occasion was in August 2019. Mr Closey asked the victim to go for a drive with him. She reluctantly agreed. Whilst in the car Mr Closey began verbally abusing the victim. She felt fearful and as the car approached a set of traffic lights she jumped out of the car. She was then assisted by members of the public who offered her a ride in their vehicle. Mr Closey followed that vehicle for 15 minutes attempting to communicate with the victim through the car windows. After being told by members of the public to leave the victim alone he eventually did so.

The District Court

[8]    At a case review hearing on 1 October 2019, Mr Closey pleaded guilty to two charges of breaching a protection order,2 one charge of intentional damage,3 and one charge of breaching release conditions. The guilty plea was entered as part of a resolution, with other charges being withdrawn.

[9]    At sentencing, in fixing the starting point, the Judge took the first breach of the protection order as the lead offence. For that offending, the Judge adopted a starting point of nine months’ imprisonment. He uplifted this by six months for the second breach in August 2019. This resulted in a starting point of 15 months’ imprisonment. For totality reasons, the Judge did not add a further uplift for the remaining two charges, wilful damage and breach of release conditions.4

2      Family Violence Act 2018, ss 9, 90(a) and 112(1)(a). The maximum penalty is three years’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a). The maximum penalty is three months’ imprisonment or a $2000 fine.

4      Sentencing notes, above n 1, at [6].

[10]   The Judge applied a discount of three months (20 per cent) for Mr Closey’s early guilty plea, resulting in an end sentence of 12 months’ imprisonment.5

[11]   The Judge commuted the sentence of imprisonment to one of six months’ home detention.6 I will return to the Judge’s decision later in this judgment in the context of considering whether the end sentence was manifestly excessive.

Approach on appeal

[12]   Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been an error in the sentence imposed and a different sentence should have been imposed. While there is no mention in s 250(2) of a “manifestly excessive” sentence being a ground of appeal, it is consistent with the statutory language and “there is no reason not to use it when considering s 250(2)”.7 Mr Closey must show that an error occurred in sentencing and that this error resulted in a sentence which was outside the range or otherwise not justified by accepted sentencing principles.8

Approach to deduction for time spent in custody on remand on a sentence of home detention

[13]   In Kidman v R9 the issue on the appeal concerned the means by which time served on remand should be taken into account where the sentence imposed was one of home detention. The Court of Appeal said:

[15] … For example if a discretionary approach is retained, a judge may  take time served into account in order to bring a person’s end sentence down below two years so that home detention can be considered, the approach advocated by [counsel for the appellant] would prevent this. …

[14]    In Laloni v R,10 the appellant appealed a sentence of 10 months and 15 days’ home detention on the basis that he should have received credit for time spent on

5 At [6].

6 At [8].

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

8      Ripia v R [2011] NZCA 101 at [15].

9      Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.

10     Laloni v R [2015] NZCA 55.

restrictive bail conditions and on custodial remand prior to trial and sentencing. The Court of Appeal said:

[8]        … We are not persuaded in this case that the Judge erred in not reducing the sentence to reflect the time spent remanded on bail.

[9]        Different considerations arise in respect of the time spent in custody. In such cases, an allowance is commonly made to reflect the time spent on remand in fixing the period in respect of a sentence of home detention.11

[15]   As to the point at which recognition should be given for time spent in custody on remand, the Court said:

[14]   In  this  respect,  we  do  not  consider  it  appropriate  to  deduct    three months from the sentence of home detention, as Mr Holland urged us to do. Rather, the appropriate course is to deduct three months from the calculated term of imprisonment, reducing that to 18 months. The result that follows is a sentence of nine months’ home detention.

[16]   In her written submissions Ms Soondram, following the approach of the Court of Appeal, submitted that the deduction of three months should be made from the starting point of 12 months’ imprisonment. This would result in a sentence of nine months’ imprisonment, leading to an end sentence of four and a half months’ home detention.

[17]   In oral submissions, Ms Soondram argued that the deduction should in fact be six months’ imprisonment, rather than three months’ imprisonment. In other words, Ms Soondram submits that each month served prior to sentencing should equate to an additional two months. The consequence would be that six months would be deducted from the end sentence of 12 months, making a sentence of six months’ imprisonment. That would result in a sentence of three months’ home detention.

[18]   That was a submission rejected by this Court in Saunders v R.12 I agree with Dunningham J that any amount deducted could not be more than the time spent in custody. I therefore do not accept Ms Soondram’s submission that six months is the period that should be deducted.

11     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; R v Ford [2008] NZCA 64; R v Stempa

[2008] NZCA 254.

12     Saunders v Police [2015] NZHC 1964 at [26].

Did the Judge take in account the time spent in custody on remand?

[19]   Mr Herring, for the respondent, acknowledges that while a discrete discount could have been given for the time spent on custodial remand, this would have formed part of an overall evaluative process.

[20]   It is clear that Judge Fraser was alert to the time that Mr Closey had spent in custody. The discussions with counsel prior to the Judge formally passing sentence are included in the document containing the sentencing notes. The Judge questioned counsel appearing for Mr Closey and Mr Closey himself regarding the time he had spent on remand and on EM bail prior to sentencing. But this is not specifically mentioned in the formal sentencing remarks and there is nothing in those remarks to otherwise suggest that the Judge did in fact take time served into account.

[21]   However, even accepting that the Judge failed to have regard to the time spent in custody on remand, I go on to consider, first, whether the sentence was manifestly excessive and, second, even if it was not manifestly excessive, whether there was an error which requires correction.

Was the sentence manifestly excessive?

[22]   Mr Herring submits that when the sentence is looked at as a whole, it was an already lenient sentence oriented to rehabilitation. Mr Herring submits that it cannot be said the failure to give a discrete discount resulted in a sentence which was outside the range that could be justified properly by accepted sentencing principles.

[23]   At the start of the sentencing remarks the Judge acknowledged there had been no physical violence to the victim when breaching the protection order but he viewed Mr Closey’s conduct as “significant concerning behaviour” which distressed the victim.13 The Judge then focused on the lack of any effective rehabilitative efforts by Mr Closey and his explanation that re-offending had stopped his rehabilitative

13     Sentencing notes, above n 1, at [1].

progress.14   The Judge referred to the pre-sentence report which he viewed as “charitable” when suggesting home detention as an available sentence.15

[24]   The Judge identified the following aggravating features of the offending: harm to the victim; the victim’s vulnerability; that it was a family violence situation; the events were sustained over a period of time; and Mr Closey’s previous convictions.16

[25]   In mitigation, the Judge noted Mr Closey’s guilty pleas and his age. However, he stated that in terms of age, Mr Closey was “right at the outer perimeter of the decision of Churchward v R”.17

[26]   In commuting the sentence of imprisonment to one of six months’ home detention, the Judge stated:18

It is tempting simply to send you off to jail because it may well be that is what needs to happen acknowledging your failure to do anything rehabiliatively. Why I am not going to do that is we have tried that, it has been a failure and it may be, again acknowledging your age, the fact that you tell me that you are in stable accommodation, it might be that the people that you are living with are what we call pro-social and they might support your rehabilitation.

[27]   The Judge then said that he would judicially monitor Mr Closey for the following 12 months and warned Mr Closey as follows if he did not make any progress with his rehabilitation:19

I can tell you without doubt, if I do not see you making a genuine effort with rehabilitation you will see me, and you will see me quickly, and you will go to jail, and you will go for a lengthy period of time. You will not get an opportunity like this again. As I say, it is tempting to just lock you up but your age and the possible stability, possible support might mean that we can see some turnaround. As I say it will not happen again, you will not get this chance again. So do not abuse it and I look forward to the first report in three months.

[28]   Before referring to the cases cited by the Crown, I note that there is no tariff case for this type of offending. Sentences for breach of protection orders vary widely

14 At [3].

15 At [3].

16 At [5].

17     Churchward v R [2011] NZCA 531. Note that Mr Closey was born on 15 July 1994, making him 25 years old at the time of the offending.

18     Sentencing notes, above n 1, at [7].

19 At [9].

because the offending is always highly contextual. Comparison between cases is difficult in these circumstances. However, it is not impossible: consistency in sentencing is an important principle in the sentencing regime.20

[29]   In Morris-Stewart v Police,21 this Court held that a starting point of 12 months’ imprisonment on a single charge of breaching a protection order was appropriate. The appellant had sent his former partner a large number of text messages over the course of a day. He had a history of family violence charges against the victim and also of breaching protection orders. The Judge referred to statements by the Court of Appeal that the Court should uphold the integrity of protection orders and respond sternly to those who flout their force and effect.22 Orders are intended to ensure that the recipient of a protection order is secure and inviolate.23 Wylie J went on to say that where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.24

[30]   In Crean v Police,25 the appellant was at the victim’s home in contravention of a protection order. They were drinking alcohol together; they began to argue; and the appellant refused to leave the address after being asked repeatedly to do so. Nine days later the appellant was again at the victim’s home drinking. The appellant again refused to leave when asked. The victim left and the appellant followed her. She locked herself in a public toilet and contacted the police. In that case the appellant had two recent previous convictions for breaching protection orders. The High Court was of the view that concurrent sentences of 15 months’ imprisonment for each breach of the protection order were appropriate.

[31]   In Mataiti v Police,26 the appellant had pleaded guilty to two charges of breaching a protection order against his former partner. There were two incidents that had occurred several months apart. On each occasion the appellant had become verbally abusive towards the victim and had refused to leave her property when asked.

20     Jackson v Police [2019] NZHC 281 at [41].

21     Morris-Stewart v Police [2016] NZHC 1030.

22 At [15].

23 At [15].

24 At [15].

25     Crean v New Zealand Police [2015] NZHC 3203.

26     Mataiti v Police [2014] NZHC 1675.

His previous convictions included three convictions for breaching a protection order. The sentencing Judge imposed a term of 12 months’ imprisonment on each of the two breach charges, to be served concurrently. On appeal Heath J concluded that while the sentence may have been stern, there was no basis to interfere with it on the grounds of manifest excess.

[32]   In this case, the aggravating features of the offending were: uninvited entry into the victim’s home while she was absent from the home; the offending occurred while Mr Closey was still subject to a previous sentence; it was a family violence offence; and it caused emotional harm to the victim. In terms of Mr Closey’s previous convictions, there are nine for family violence against the victim beginning in 2016. Five of those were for breaching protection orders.

[33]   Having regard to the maximum penalty of three years’ imprisonment, the cases I have referred to and the aggravating factors, I consider the starting point was appropriate and the final sentence was not manifestly excessive.

Was there an error?

[34]   However, while the sentence cannot be said to be manifestly excessive, that of itself does not persuade me not to correct what I consider was an error. As was said by the Court of Appeal in Laloni, an allowance is commonly made to reflect the time spent on remand in fixing the period in respect of a sentence of home detention.27 As in Laloni, it was Mr Closey’s conduct that resulted in his remand in custody because he breached his bail conditions. But as was said by the Court of Appeal in Laloni:28

That factor however should not disentitle him from the normal allowance, which is made to reflect time spent in custody in imposing a sentence of home detention.

[35]   The three months Mr Closey spent in custody prior to sentence should have been deducted from the initial end sentence of 12 months’ imprisonment, resulting in

27 See also Longman v Police [2017] NZHC 2928 at [9], where Simon France J held that the clear default position is that full credit should be given for time spent on custodial remand where the sentence is one of home detention.

28 Laloni v R, above n 10, at [10].

an end sentence of nine months’ imprisonment, leading to a final end sentence of four and a half months’ home detention.

[36]   I note, but do not accept, the respondent’s submission  that a deduction of  one and a half months is tinkering, when viewed in the  context of a sentence of     six months’ home detention.

Result

[37]The appeal is allowed.

[38]   The sentence of six months’ home detention imposed on each of the four charges is quashed and a sentence of four and a half months’ home detention is substituted on each of the four charges. The conditions are unchanged.

Gordon J