Colvin v The Queen
[2021] NZHC 400
•5 March 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000099
[2021] NZHC 400
BETWEEN PAUL LAURENCE COLVIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 10 February 2021 Appearances:
T Sutcliffe for the Appellant A Alcock for the Respondent
Judgment:
5 March 2021
JUDGMENT OF HINTON J
This judgment was delivered by me on 5 March 2021 at 4:30 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Thomas Sutcliffe, Barrister, Hamilton Hamilton Legal, Hamilton
COLVIN v R [2021] NZHC 400 [5 March 2021]
[1] Mr Colvin appeals against sentence on one charge of assault with a weapon; six charges of assault on a child and two charges of assault with intent to injure. The charge notice was dated October 2015. He entered pleas to an amended charge notice on 27 August 2020 and was convicted. He was sentenced on 19 October 2020 by Judge Menzies in the Hamilton District Court to 12 months’ intensive supervision.1
[2] Mr Colvin appeals on the basis that Judge Menzies did not adequately consider his remand in custody and time spent on electronically monitored bail. He says he should be convicted and discharged, or at most the sentence should be six months’ supervision.
[3] The respondent says that the end sentence imposed was within the range available to the sentencing judge; intensive supervision was consistent with the relevant purposes and principles of offending; and accordingly the appeal ought to be dismissed.
Law
[4] The appellant has an appeal as of right under Section 244 of the Criminal Procedure Act 2011 ("the Act").
[5] Section 250 of the Act sets out how a court must determine a sentence appeal and requires both identification of an error and a need to be satisfied that a different sentence should be imposed.
[6] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:2
…the standard of appellate review in sentence appeals… requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.
1 R v Colvin [2020] NZDC 25392.
2 Palmer v R [2016] NZCA 541, at [17].
[7] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply, and the Court would not intervene where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.3
Factual background
[8] The key facts of the offending were summarised by Judge Menzies at sentencing. It involved assaults over a period of three years from 2013 to 2016. There were three victims. The two oldest were stepdaughters and the third child was the appellant’s natural child. The oldest of the three children was aged between eight and 12 when the offending occurred, the second child aged between seven and 11 and the youngest aged between three and five years.
[9] In relation to child S one charge involved grabbing her by the neck and marching her into the house. A further charge, which was assault with a weapon, involved using a belt. It was doubled over and used to whip her on the back of her thighs four times causing significant bruising for several days. A second charge of assault with a weapon involved throwing a glass of water at the same child. It missed her but she was wet by the water which spilled. A further assault charge on the same child involved grabbing her arm, taking her to her bedroom and locking her inside because the appellant was angry with her. A further representative charge of assault on a child involved smacking the child’s bottom on a number of occasions when angry with her.
[10] In terms of the offending against the child K, the assault with intent to injure charge involved lifting the child by her neck, holding her against the wall and strangling her. She struggled to breathe. She thought she was going to die. The appellant told her not to tell her mother. As a result of this offending the child had red marks on her neck. A further charge of assault with intent to injure was a second occasion on which the appellant grabbed the child round the neck and strangled her again. A representative charge of assault on that particular child involved again frequent occasions of smacking her bottom when mad at her.
3 Tutakangahau v R [2014] 279, at [35]-[36].
[11] The charges in relation to the third child N included a representative assault charge on a child which involved smacking the child’s legs and body to stop her from crying. A further representative charge of assault on that child involved the appellant pulling her into her mother’s bedroom, smacking her bottom with his hand when he became annoyed with her, then slamming the door shut and telling her she was in time- out.
[12] Overall the offending involved deliberate and repeated physical violence against the two step-daughters and young daughter, in anger.
[13] As a result of the appellant’s violent conduct, the children were left with bruises and/or swelling and marks.
Sentencing in the District Court
[14] Judge Menzies adopted a two-year starting point which the appellant does not challenge.
[15] After adopting that starting point the Judge imposed a sentence of intensive supervision, recognising time spent on EM bail, time spent in custody, rehabilitation, remorse and the appellant's guilty pleas:
[25] If I were to take a starting point of two years, which is where I regard the starting point should be, reflecting for all this offending and then to make allowances for the pleas that have been entered, the rehabilitative measures that you have taken, the remorse that has been reflected and the period of time in prison plus the electronically monitored bail does take us to a point where the imposition of a sentence such as home detention or of course imprisonment would be in the Crown terminology moot. I believe we do reach that point for the reasons that I have articulated. I do however consider the appropriate sentence is intensive supervision. That is to reflect the conditions that would be included as part of a sentence as part of the recommendations in the pre- sentence report.
[16] In the regrettably unusual circumstances of this case the appellant had spent nine months in custodial remand and two years on EM bail.
[17] In terms of rehabilitation the Judge recognised a number of positive features that had come out of Corrections’ PAC report dated 14 October 2020, suggesting that
Mr Colvin had recognised he needed assistance. Mr Colvin had a long history of drug abuse. By the time of the report Mr Colvin’s only addiction was to smoking cigarettes. He had been attending Community Alcohol and Drug Services for over three years4 and said he had been clean for approximately four years. He was on methadone at the time that the report was prepared, which is prescribed for those with an addiction to morphine-like drugs. A letter from Mr Colvin’s counsellor at CADS confirmed that his attendance had been extensive and reliable. The report from the counsellor was that he was doing well, reliable on attending appointments, did not drink alcohol, did not use illicit substances and was continuing to show stability because of the programme.
[18] The PAC report acknowledged the time spent on EM bail, the appellant's previous convictions and his personal circumstances. Mr Colvin was assessed as being of low risk of harm in the community and low risk of re-offending. Mr Colvin had not offended while on EM bail and had breached bail only once which the Judge described as not significant.
[19] In recommending a sentence of home detention with other possible sentencing options of intensive supervision and community detention Corrections proposed the following special conditions in the case of intensive supervision:
(a)To attend an assessment for a non-violence programme for men (HAIP) as directed by a Probation officer;
(b)To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of a Probation officer;
(c)Not to possess, consume or use any alcohol or non-prescribed drugs.
[20]The Judge’s sentence was made on the basis of those conditions.
4 The District Court judgment refers to attending the service for a period of two years but the PAC report says he was still attending CADS at the date of it and had been since July 2017.
Discussion
[21] The Judge clearly accepted the defence submission that the periods of time spent in custody and subject to EM bail served as the punitive element of sentence. It was also clearly appropriate that the Judge factor in, as he did, remorse and rehabilitative measures taken by Mr Colvin.
[22] I note that while the Judge was required to recognise time spent on EM bail as a mitigating factor, it is clear that is not to be the equivalent of the time spent on EM bail and that it involves an evaluative assessment of all the circumstances before the Court.5 If there were any question of a custodial sentence time spent on remand would be deducted by Corrections.
[23] Judge Menzies did not quantify the discounts he granted but his remarks on sentencing make it clear that material discounts were given when converting the sentence to intensive supervision and that while a prison sentence would customarily apply to this sort of offending he did not consider either a prison sentence or home detention justified in these unusual circumstances.
[24] The Judge clearly considered it appropriate that Mr Colvin still face a sentence, albeit in the community, given the nature of the offending and the still outstanding need for rehabilitation and reintegration. These were determinative considerations for the Judge. I agree that these concerns remained as relevant sentencing principles regardless of the fact that any punitive element may have been expunged.
[25] In these circumstances and particularly given the strides that Mr Colvin had made already towards rehabilitation, at least in terms of becoming drug-free, the logical sentencing choice was between intensive supervision or supervision, and over the term to be imposed. In substance argument from both counsel proceeded on that basis.
5 Section 9(2)(h) Sentencing Act 2000; R v Tamou [2008] NZCA 88; Parata v R [2017] NZCA 48.
[26] The appellant submits that at most a sentence of six months’ supervision, as opposed to 12 months’ intensive supervision, was the least restrictive sentencing outcome.
[27] Supervision is governed by ss 45-54A of the Sentencing Act 2002 and intensive supervision by ss 54B-54L. Section 10A of the Act, which sets out the hierarchy of sentences, states that intensive supervision is a more restrictive sentence than supervision. However, I do not consider intensive supervision is fairly described as a punitive sentence, as Mr Sutcliffe submits. It is more appropriately classified as a rehabilitative sentence. Offenders who are sentenced to intensive supervision are likely to have more complex rehabilitative needs and require more substantial assistance with their rehabilitative needs than supervision.
[28] In Soloman v R the Court of Appeal identified the differences between the two sentences as essentially three-fold:6
The first is duration. Supervision can be for a period of up to one year while intensive supervision can be for any period up to two years.7 Secondly, a programme imposed as a special condition under supervision cannot be residential in nature.8 There is no such limitation for intensive supervision. Thirdly, only intensive supervision can have as a special condition a requirement for compliance with judicial monitoring.9
[29] I note in addition that a sentence of intensive supervision requires more frequent reporting,10 and as Mr Sutcliffe emphasised a greater penalty applies to breach.11
[30] Section 54C of the Sentencing Act 2002 provides when a sentence of intensive supervision can be imposed:
6 Soloman v R [2012] NZCA 300, at [14].
7 Sentencing Act 2002, s 45(2).
8 See s 50.
9 Section 54I.
10 Section 54F(1)(b), a standard condition of intensive supervision is that an offender must report to a probation officer once a week for the first three months of the sentence then at least once a month for the remainder of the sentence. Compared to s 49(1)(b) where there are no requirements for how frequently an offender sentenced to supervision must report to a probation officer.
11 Compare s 70 to s 70A, an offender who breaches intensive supervision is liable to six months’ imprisonment as compared to three months’ imprisonment for breach of supervision.
54C Guidance on use of sentence of intensive supervision
A court may impose a sentence of intensive supervision only if it is satisfied that—
(a) a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and
(b) the nature of the offender’s rehabilitative or other needs requires the imposition of conditions—
(i) for a period longer than 12 months; or
(ii) that are not available through the sentence of supervision.
[31] Section 46 of the Sentencing Act 2002 provides when a sentence of supervision can be imposed:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[32] The Judge must be taken to have identified that a period of 12 months’ rehabilitation was required, as opposed to some lesser period, in order to protect the public and to rehabilitate the appellant effectively. I agree with that in circumstances where, although Mr Colvin has participated extensively in drug and alcohol programmes, he has had no treatment of which I am aware to address family violence or parenting issues. Although Mr Sutcliffe says the HAIP course runs for only six months that does not mean it necessarily fits into a six month period of supervision or that some further follow-up course may not be required. As the Judge said, this was serious offending.
[33] However, while I agree with the Judge’s conclusion that there needed to be a community based sentence imposed and that it should require monitoring and treatment for 12 months, s 54C of the Act stands in the way of that sentence being intensive supervision. The Judge has not considered conditions were required for longer than 12 months (s 54C(b)(i)), nor has he imposed conditions not available through the sentence of supervision (s 54C(b)(ii)). At least in terms of the special
conditions imposed by the Judge, these can be and as I understand it are, regularly imposed on a sentence of supervision.
[34] The Judge therefore did not have jurisdiction to impose a sentence of intensive supervision.12 In those circumstances the sentence is in error and a sentence of 12 months’ supervision should be substituted.
[35] The offending here was grievous but I commend Mr Colvin for the extensive work he has already done and hope that he might rehabilitate sufficiently that he can resume contact of some sort, at least with his natural daughter.
Conclusion
[36] The appeal is allowed. The sentence of 12 months’ intensive supervision is quashed and replaced with a sentence of 12 months’ supervision on the same conditions imposed by the Judge.
Hinton J
12 The same conclusion was reached for similar reasons in Soloman v R, above n 6 and Mahu v R
[2015] NZHC 3155.
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