Couper v Police HC Whangarei CRI-2011-488-76

[2011] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-76

BETWEEN  HARLEN RAYMOND COUPER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 December 2011

Appearances: A B Fairley on instructions from M Dodds for Appellant

D B Stevens for Crown

Judgment:      12 December 2011

ORAL JUDGMENT OF PETERS J

Solicitors:           Marsden Woods Inskip & Smith, Crown Solicitor, PO Box 146, Whangarei email: [email protected]

Thomson Wilson, P O Box 1042, Whangarei 0140 email: [email protected]

Counsel:            M Dodds, Barrister, Butler Chambers, P O Box 199, Kerikeri email:  [email protected]

COUPER V NEW ZEALAND POLICE HC WHA CRI-2011-488-76 12 December 2011

Introduction

[1]      This is an appeal against a sentence imposed in the District Court at Kaitaia on 4 November 2011.  The appellant had pleaded guilty to one charge of injuring with intent to injure for which the maximum sentence was a term of imprisonment of five years. The Judge sentenced the appellant to two years’ imprisonment.  The issue on appeal is whether the Judge erred in not imposing a sentence of home detention.

[2]      The offending occurred on the evening of 3 July 2011 when the appellant, who is aged 23, and an associate were in the Mangonui Coopers Beach area.  The appellant and his friend were doing what is described as “doughnuts” in the vehicle they  were  driving,  one  matter  led  to  another  and  ultimately  a  local  resident, Mr Caulfield, came to investigate.  Mr Caulfield was/is aged 55.

[3]      There  was  an  exchange  between  Mr  Caulfield,  the  appellant  and  the associate.  Mr Caulfield was on his own but had come armed with an axe handle. Either the appellant or his associate got hold of the axe handle, struck Mr Caulfield with it and it is possible there were other blows also to Mr Caulfield.  Ultimately, Mr Caulfield managed to return to his house where he telephoned the police and ambulance services.

[4]      The assault was a serious one and entirely gratuitous.  In terms of physical injuries Mr Caulfield sustained seven breaks to five ribs, serious bruising to different parts of his body, and was hospitalised for five days.   In so far as concerns non- physical injuries, naturally Mr Caulfield was extremely alarmed by the attack and it has been, and will be, difficult for him to put the matter behind him.

[5]      It appears that the appellant was intoxicated at the time.  The appellant read an article in the paper a day or so later about the assault.   Shortly after that, the appellant  and  his  father  in  law  went  to  the  police station  and  made  a  detailed statement regarding what the appellant recalled of his participation in the offending.

[6]      I have not read that statement but it appears that the appellant gave a full account of his involvement, at least to the extent he could remember it.

[7]      The appellant was charged, came before the Court at Kaitaia, entered a guilty plea and, as I say, he was sentenced on 4 November 2011.

[8]      It is not necessary for me to discuss how the Judge arrived at the length of sentence he imposed because no issue is taken with the length of that sentence.  In written  submissions,  counsel  for  the  appellant  (Mr Dodds),  submitted  that  the sentence might be on the high side, but, as I say, that is not the point of the appeal.

[9]      Ultimately  the  Judge  came  to  the  conclusion  that  the  appropriate  final

sentence was two years’ imprisonment.

[10]     The nub of this appeal concerns paragraph [14] of the Judge’s sentencing

notes which read as follows:

[14]      The next issue is whether or not having arrived at that end point as to whether or not this is a sentence that should be served by way of home detention.  I note from the pre-sentence report that there is a suitable home detention address that is reported in the pre-sentence report.   In my view, [the appellant] this is not one of those cases.  Given the nature of the injuries that were sustained, the extent of the violence that was involved and, in my view, says that this is not a situation where home detention is appropriate. There are some lines in society that must not be crossed and, in my view, you have done so with the offending that has occurred and for which you are for sentence today.

[11]     Counsel for the appellant submits that the Judge erred because he failed to consider the possibility of imposing a sentence of home detention in the way the Sentencing Act 2002 (“the Act”) requires.  In particular, counsel submits the Judge failed to have regard, or adequate regard, to s 8(g) of the Act.  Section 8(g) requires the Court to impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders set out on in s 10A.

[12]     Counsel for the appellant also submits that the Judge was required to give consideration to the various matters set out in s 16 of the Act. Amongst other things, s 16 requires the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

[13]     Counsel for the Crown submits that, whilst he may not have dealt with the issue of home detention in great detail, the Judge did turn his mind to the critical matter of whether  a sentence of  home detention  ought  to  be imposed.    Crown counsel  submits  that it is  clear from  the manner in  which  the Judge expressed himself that he took the view this was far too serious an assault for such a sentence.

Appeals

[14]     The High Court’s jurisdiction in sentencing appeals from the District Court is governed by Part 4 of the Summary Proceedings Act 1956.  Section 121(3) of that Act provides that, in considering an appeal, the High Court may:

121     High Court to hear and determine appeal

...

(3)      In the case of an appeal against sentence, the [High Court] may—

(a)      Confirm the sentence; or

(b)       If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        Quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefor as the [High Court] thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      Quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)      Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

...

[15]     Recently, the Court of Appeal has confirmed that the approach to be taken in appeals concerning a decision as to whether or not to impose home detention is that of reviewing the exercise of a fettered discretion.  The Court remarked that:1

... the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”

[16]     An error may include an error of legal principle, a failure to take into account a matter which is a necessary consideration in the sentencing process under ss 7 to 9 of the Act, or an over-emphasis on one sentencing principle, such as deterrence, to the exclusion of others.2

[17]     That said, it is quite clear that a Court will not readily interfere with an exercise of discretion by a Court on  a sentencing matter.   There are  numerous examples of that, not least of which is the Court of Appeal’s decision in Polyanszky v R.3   In that case the Court confirmed that when an offender is a borderline case for a sentence of home detention the Court will ordinarily defer to the assessment of the sentencing judge.

Discussion

[18]     Counsel for the appellant makes the point, quite rightly in my view, that it is not apparent in the decision that the Judge reminded himself of the mandatory nature of ss 8(g), 16 and 17 of the Act.

[19]     Having arrived at a term of imprisonment of 24 months it was open to the Judge to impose a sentence of home detention.  Given that, it was for the Judge to consider the circumstances which might make such a sentence appropriate or inappropriate.  The Judge was required to address the factors in favour and against.

The Judge did comment on the severity of the violence and assault but went onto say

1 Manikpersadh v R [2011] NZCA 452 at [12].

2 Ibid [17]-[19].

3 Polyanszky v R [2011] NZCA 4.

“there are some lines in society that must not be crossed”.   That latter comment indicates that the Judge failed to give adequate consideration to the imperatives in the Act and simply ruled it out.  I consider the Judge erred accordingly.

[20]     In the circumstances I consider the appropriate course is to set aside the Judge’s decision to sentence the appellant to a term of imprisonment and to consider afresh whether a sentence of home detention ought to be imposed.

[21]     In making that decision I bear in mind all the matters the Judge mentioned. This  was  an  entirely  gratuitous  act,  it  was  violent  and  Mr  Caulfield  sustained physical and other injuries.

[22]     On  the  other  hand,  the  appellant  is  23  years  of  age,  has  no  previous convictions, made a voluntary disclosure to the Police, has a partner and a new baby and has excellent family support.  I have had the benefit of reading no fewer than 15 references filed in support of this appeal, all of which are to the effect that this offending  was  quite  out  of  character  for  the  appellant,  that  he  is  an  excellent employee and work colleague and has been a hard working and valuable member of the community.  It is not clear to me whether this material was before the District Court Judge but in any event, given that I am taking a fresh view of the matter, I consider I am entitled to take those matters into account.

[23]     In  saying  that  I  do  not  diminish  in  any  way  the  serious  nature  of  the offending.  The Judge was correct in referring to these matters.  What the Act does require, however, is a balancing exercise to be undertaken.

[24]     In addition, in terms of s 16 of the Act, I do not believe any matters arise which give me concerns as to the safety of the community if the appellant serves a sentence of home detention.  I am also satisfied that the matters which influenced the Judge, particularly the need for deterrence and denunciation, can be achieved by a

sentence other than imprisonment.4      I also  have no  reason  to  consider  that  the

appellant would not comply with a sentence of home detention.5

4 Sentencing Act 2002, s 16(2)(b).

5 Ibid, s 17.

[25]     A sentence of home detention is no “soft option” as the appellant and those he is going to be staying with will discover shortly.  I set aside the Judge’s decision and, as the appellant has already spent one month in prison, sentence the appellant to nine months’ home detention.  I impose the detention conditions set out in appendix one to the full pre-sentence report dated 2 November 2011.   Those conditions are that the appellant is:

(a)      To travel directly to 488 Honeymoon Valley Road, Peria, Kaitaia; unless directed otherwise by a Probation Officer and await the Probation Officer or Security Guard.

(b)To  reside  at  488  Honeymoon  Valley  Road,  Peria,  Kaitaia  for  the duration of the sentence of home detention and not move from the address without prior approval from the Probation Officer.

(c)      Not to permit, purchase, possess or consume alcohol or illicit drugs at the home detention address for the duration of the sentence.

(d)Not to permit, purchase, possess or consume alcohol or illicit drugs at the  home  detention  address  for  the  duration  of  the  sentence  and submit  to  a  passive  alcohol  test  if  so  requested  by  Police  or  a Probation Officer.

(e)      To attend an assessment for an alcohol and drug programme(s) or counselling.   To attend and complete an appropriate alcohol/drug programme(s)   or   counselling   if   and   as   recommended   by   the assessment to the satisfaction of the appellant’s Probation Officer and programme provider.

(f)      To attend  an appropriate anger management programme if  and  as directed by the Probation Officer and to the satisfaction of the Probation Officer and Service Provider.

(g)To attend any other such counselling or programmes, including grief counselling, as may be directed by the Probation Officer.

[26]     By consent, I also make an order for reparation of $1,000.00, to be paid within two months of the date of this judgment.

..................................................................

PETERS J