D v Police HC Christchurch Cri-2010-409-63

[2010] NZHC 784

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000063

CRI-2010-409-000064

BETWEEN  D

Appellant

AND  POLICE

First Respondent

ANDDEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICE Second Respondent

Hearing:         20 May 2010

Appearances: E M Ebborn for Appellant

K B Bell for Police

Judgment:      20 May 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following a plea of guilty, the appellant was convicted in the District Court of one charge of breach of supervision.  He also appeared at the same time for re- sentencing on three charges of male assaults female, following applications to review a sentence of community work and supervision that had been imposed in respect of those three charges in February 2009.

[3]      The appellant received a total sentence of six months’ imprisonment.

D V POLICE AND ANOR HC CHCH CRI-2010-409-000063  20 May 2010

Facts of the offending

[4]      The facts of the offending were as follows.

[5]      The first assault occurred on 19 September 2008, when the appellant was at home with the complainant, his partner.   There was an argument, after which the complainant went to have a shower and was followed by the appellant.  He turned the shower water to cold and began throwing items, including a shaving foam can which hit her in the lower right leg, causing bruising.

[6]      Less than a week later, on 24 September, there was another incident when over a period of 30 minutes he hit and argued with the same partner.   He had a pepper  shaker  with  him,  and  threw  pepper  into  her  eyes,  causing  temporary blindness.

[7]      When spoken to by police, the appellant admitted hitting the victim and throwing pepper in her face.   By way of explanation he stated he was angry, frustrated, and that it was only an isolated event.

[8]      The appellant was then released on bail, but while on bail there was a third assault, on 21 October 2008.  Again, it followed an argument.  Both parties pushed each other, then the appellant held the complainant down, striking her around the head and shoulder areas with his hand several times.

[9]      In explanation, the appellant admitted to striking his partner a few times but stated he could not remember what happened as he was intoxicated.

[10]     When the appellant appeared on the assault charges in February 2009, the sentencing Judge sentenced him to 120 hours’ community work and 12 months’ supervision with five special conditions:

i)Undertake an alcohol and drug assessment and complete any programmes, counselling or treatment as recommended by and to the satisfaction of the probation officer.

ii)Attend a relapse prevention or maintenance programme to the satisfaction of the programme facilitators and as specified by the probation officer.

iii)      Undertake and complete a violence prevention programme.

iv)Undertake     such     counselling,     including     relationship counselling, as directed by the probation officer, designed to reduce the appellant’s risk of reoffending.

v)Attend all appointments with health professionals as directed by the probation officer.

[11]     The Judge concluded her sentencing remarks with a warning:

It  is  really  important  that  you  understand  that  none  of  these  things  are optional so I am pleased that your girlfriend is here so she can listen to this too.   When appointments are made for you Mr D  , you must attend them.  If you do not you will be breached and you will be back in Court and then prison is a real option. Do you understand that?

[12]     It  is  clear  from  the  sentencing  notes  that  the  Judge  considered  it  was important there was a punitive element to the sentence.  However, the primary focus was rehabilitation, designed to “try and change things” for the appellant so that he did not appear back in Court again.

[13]     On 11 December 2009 an application was filed to cancel the sentence of community work.  The application outlined:

a)       The appellant had originally been directed to complete his work at an agency placement, however that had been cancelled due to poor attendance.

b)The appellant was then directed to report to the work centre for a Work Centre Induction Programme on 5 September 2009, but failed to attend.

c)       The appellant indicated that he felt very intimidated by the prospect of attending the work centre to complete his remaining hours.

d)Community Probations had agreed with the appellant that if he could make some progress dealing with both anxiety issues and with alcohol treatment then Court action would be deferred with a view to seeking an outright cancellation of his community work.

e)        The appellant had not made significant progress with either issue.

f)        The appellant had not returned a phone message left on his answer phone on 3 December 2009.

g)       As at 10 December 2009 the appellant had completed 66 hours of community work, leaving 54 hours outstanding.

[14]     The application was due to be called in the District Court on 25 January. However before that could happen, a further application was filed with the District Court applying to vary the sentence of supervision that had been imposed.   This application outlined:

a)       That the appellant had completed a Stopping Violence Programme and he had been attending appointments with his doctor to ensure his sickness benefit remained active.

b)He was assessed as requiring long-term residential treatment for his dependence on alcohol but was unmotivated to undertake that form of intervention.

c)       That  when  the  sentence  was  imposed  the  appellant  was  in  a relationship with the victim of his offending, but that this relationship had subsequently ended and therefore the requirement of him to address the relationship issues contributing to the offending were no longer present.

[15]     The variation sought to the sentence of supervision was to cancel one of the five special conditions relating to counselling.   A breach of supervision was also before the Court.   This related to the appellant’s unwillingness to undertake the residential treatment programme in respect of addressing his alcohol dependence.

[16]     All these matters then came before a different District Court Judge on 28

April 2010.

The District Court decision

[17]     The information before the District Court Judge in April 2010 included a pre- sentence report.   It told the Judge that the appellant was a 30 year old male, a sickness beneficiary who suffers from chronic depression, anxiety and alcohol dependence.   The report describes the appellant as an intelligent yet anxious and fragile young man with a propensity to become obsessive about his ex-partner.   It says that to cope with his internal distress he has developed a lifestyle designed to avoid any stressors.  This was said to include the excessive consumption of alcohol. The report states that it is rare, if ever, that a day goes by that the appellant does not consume alcohol.   Further, despite knowing this, he regards his consumption in a positive light as it assists him to remain calm and deals with his grief and aids his creativity.

[18]     The pre-sentence report goes on to state:

He  has  consistently  been  unwilling  to  address  reliance  on  alcohol  or cannabis via formal treatment.  In fact his alcohol and drug assessor, at Care New Zealand, raised concern he may have a mental health issue which is underpinning his dependence on substances. To remove this (via abstinence) without adequate supports being in place may lead to an increase[d] state of mental unwellness.  Kyle D   has strongly indicated he is not “ready to commit” to any formal treatment and he presents often as suspicious about taking prescription  medicines,  preferring to  self  medicate  via  alcohol  or illicit drugs.  Essentially he remains static in his style of living and fixed in his choice of coping styles and perceptions of the outside world.

[19]     Other information included in the pre-sentence report told the Judge that the appellant has two previous convictions for assault, one in 2008 and one in 2004.  The report confirmed that the appellant was not prepared to consider home detention or

community detention and that he would prefer not to have any sanctions imposed in respect of his non-compliance.

[20]   In sentencing the appellant to an effective total term of six months’ imprisonment, the Judge adopted the following reasoning process.  He identified an appropriate starting point in the order of nine months to a year to be appropriate – nine months for the first two assaults and a year for the third – with a deduction for guilty pleas and the fact that there had been partial compliance with the original sentence.

[21]     The Judge does not specify the exact percentages attributable to each, but arrived at end sentences of five months concurrent on the first two assaults and six months on the third, also concurrent.   On the charge of breaching the supervision order the Judge sentenced the appellant to two months’ imprisonment, again concurrent.

Grounds of appeal

[22]     On  appeal,  counsel  Ms  Ebborn  submits  the  sentence  was  manifestly excessive, and advances grounds which may be conveniently summarised as follows:

i)That the starting points of nine months and one year were too high for the assault charges, having regard to the fact that the first assault could properly be described as only nuisance behaviour and the third, while more serious, did not require the complainant to receive any medical attention.

ii)That  the  Judge  failed   to  give  sufficient  weight  to  the components of the original sentence completed by the appellant.  There was only 48 hours of community work left to serve, and a term of imprisonment of six months is not comparative with that number of community hours.

iii)That insufficient weight was given to the appellant’s personal circumstances.   In Ms Ebborn’s submission, the appellant’s

failure to comply with the direction was not one of outright disobedience with the intent to be disrespectful to the Court, but rather an inability on his part to contemplate coping on a

day-to-day basis without alcohol.  For him alcohol is a crutch.

Discussion

[23]     Ms  Ebborn  has  argued  the  case  for  the  appellant  with  force,  and  has submitted all that could be possibly said on his behalf.

[24]     I accept that a starting point of nine months, particularly for the first assault, could properly be regarded as too high.  However, as has been stated repeatedly, the focus of an appellate Court should not be so much on the individual components of the sentence, but rather the appropriateness of the end sentence.

[25]     In this case, I conclude that the end sentence of six months’ imprisonment, while stern, was one that was open to the Judge on the material that was before him. It is also clear that he has correctly addressed himself in terms of the factors he was required  to  consider  under  ss  54  and  68  of  the  Sentencing  Act  2002,  when considering the applications to vary or cancel the sentences and the re-sentencing.

[26]     Further, in my view, Ms Ebborn’s submissions do not pay sufficient regard to the statements in the Court of Appeal in R v Morgan [2008] NZCA 232:

[14]     Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to  take  advantage  of  it.  The  re-sentencing  Judge  is  likely  to  weigh  the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community  based  sentence  was  imposed  because  the  sentencing  Judge placed particular weight on the offender’s rehabilitation, that factor may assume less weight on re-sentencing given the offender’s failure to comply with the community-based sentence.

[15]      Accordingly,    while   we   accept   that   there    must    be    some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed

initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

[27]     In this case the Judge was faced with an offender whose drinking problem was a direct cause of his offending.   Further, the re-sentencing exercise involved three separate assaults on the same victim.  Each assault, as Ms Bell has submitted, was an escalation of the previous, and notably, the third assault occurred while the appellant was on bail for the first two assaults – a significant aggravating factor.

[28]     In addition, the appellant had had the benefit of the warning from the original sentencer, and yet despite this did not undertake what that Judge clearly regarded as a key factor of rehabilitation.

[29]     In   my  view,   rehabilitation  was  no  longer  an  appropriate  sentencing consideration for the Court at the time of re-sentencing.  The Judge took into account the pleas of guilty, and also, as he was required to do, took into account the sentence that had been partially completed.  In total, a 50 per cent discount was applied.  The Judge of course also dealt with the breach of supervision on a concurrent basis, which again was a further recognition of the personal mitigating factors.

[30]     All in all, having regard to the nature of this offending, the fact of the breach of supervision and the nature of that breach, I have come to a clear view that appellate intervention would not be warranted.

[31]     The appeal is accordingly dismissed.

Solicitors:

Layburn Hodgins, Christchurch

Crown Solicitor’s Office, Christchurch