Davidson v Department of Corrections

[2019] NZHC 1379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000206

[2019] NZHC 1379

IN THE MATTER OF

an appeal against sentence

BETWEEN

KRYSTLE LILLIAN MELLISA DAVIDSON

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	17 June 2019
Counsel:	T M Cooper and A Wei for the Appellant L L Lim for the Respondent
Judgment:	18 June 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 18 June 2019 at 3.00 pm.

Registrar/Deputy Registrar

Counsel:     T M Cooper, Auckland

A Wei, Auckland

Solicitors:    Meredith Connell (Office of the Crown Solicitor), Auckland

DAVIDSON v DEPARTMENT OF CORRECTIONS [2019] NZHC 1379 [18 June 2019]

[1]                 On 23 May 2019, Ms Davidson was sentenced to a term of imprisonment of four months at the North Shore District Court for breach of an intensive supervision order.1 Post-release conditions apply for a period of six months after the sentence expiry date. These include a requirement that Ms Davidson attend and complete an alcohol and drug programme, and any other nominated programme, to the satisfaction of the probation officer. Ms Davidson appeals that sentence.

Personal circumstances

[2]                 Ms Davidson is 34 years old. She has two children aged 11 and nine years old respectively. Immediately prior to her imprisonment, she resided with both her parents. Ms Davidson was heavily involved in caring for her ill mother, which allowed her father to work to support the family. Prior to her incarceration, Ms Davidson also cared for her children on Monday and Tuesday after school until their father, her ex- partner, finished work. They were then in her sole care from Wednesday to Saturday each week.

[3]                 It is apparent from the material before the Court that Ms Davidson struggles with a methamphetamine addiction.

The offending

[4]                 On 3 December 2015, Ms Davidson was sentenced to intensive supervision for possession of methamphetamine and utensils.

[5]                 On 14 February 2018, Ms Davidson was sentenced to 18 months’ intensive supervision for breaching her 2015 sentence of intensive supervision. The 2015 sentence was cancelled. Ms Davidson was required to report to a probation officer as soon as practicable and no later than 72 hours after the substituted sentence was imposed. She failed to do so.

[6]                 Community Correction Services attempted to contact Ms Davidson by her last known contact number and left a number of messages. They conducted an unscheduled home visit to her last known address on 14 May 2018. Ms Davidson was

1      Department of Corrections v Davidson [2019] NZDC 9690.

present and told the probation officer she was unable to comply with the requirements of intensive supervision as she was unable to travel to the reporting centre.

[7]                 Ms Davidson also explained that she had told her lawyer on the day of sentencing that she could not comply with a sentence of intensive supervision as she was unable to report to the probation officer.

[8]                 On 13 August 2018, the Department of Corrections filed an application to cancel Ms Davidson’s sentence of intensive supervision and substitute a new sentence. Ms Davidson entered a guilty plea to this charge on 24 September 2018.

[9]                 Pre-sentence reports were completed on 31 October 2018, 4 March 2019, and 15 May 2019. The first of these reports recommended imprisonment as the proposed address for an electronically monitored sentence could not be checked. It appears that Ms Davidson had failed to meet Corrections officers at the appointed time. Subsequently, the address was checked and was assessed as technically suitable. That was recorded in the 4 March 2019 report.

[10]              The final report, on 15 May 2019, recorded that Ms Davidson had reported to Community Corrections twice (on 6 and 13 May 2019) since her last appearance on 13 March 2019.

[11]Ms Davidson was sentenced on 23 May 2019.

Approach on appeal

[12]              An appeal court must allow an appeal against sentence if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should have been imposed.2 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence was reached.

2      Criminal Procedure Act 2011, s 250.

Was the end-sentence manifestly excessive?

[13]              In her written submissions in support of the appeal, Ms Cooper, counsel for Ms Davidson, identified several errors in the Judge’s approach which, she said, resulted in a manifestly excessive sentence. An order quashing the sentence of imprisonment and imposing an electronically monitored sentence of home detention was sought on appeal.

[14]              However, Ms Cooper was subsequently provided with a copy of Latham- Johnstone v Department of Corrections.3 In that case, a sentence of two months’ imprisonment for breach of an intensive supervision order was imposed in the District Court. On appeal, Gendall J noted that given the history of non-compliance in that case, a short term of imprisonment was the only appropriate method of sheeting home the consequences of non-compliance and the appeal was subsequently dismissed.4 On the back of that case, Ms Cooper now submits that the appeal should be allowed, the sentence quashed, and replaced by a sentence of two months’ imprisonment.

[15]              In terms of the first limb of s 250 of the Criminal Procedure Act 2011, I am satisfied that there were several errors in the Judge’s sentencing approach in this case. The Judge appears to have jumped straight to imprisonment as the only available option and did not engage with the reasons for Ms Davidson’s non-compliance, her personal circumstances, nor her rehabilitation and reintegration needs. The failure to consider whether home detention might meet the purposes and principles of sentencing was also in error in my view. And, even if a term of imprisonment was theoretically available, then on the basis of Latham-Johnstone v Department of Corrections, it is plain that the four-month term was manifestly excessive in all the circumstances. That was not disputed by the Department of Corrections which adopted a neutral stance on the length of the term imposed.

3      Latham- Johnstone v Department of Corrections [2014] NZHC 2451.

4 At [15].

[16]              It follows that there were errors in the Judge’s approach leading to a manifestly excessive sentence in the circumstances. The appeal must be allowed on those grounds.

What sentence should now be imposed?

[17]              The next question is what sentence should be imposed. As Ms Davidson has now served nearly one month of her sentence of imprisonment, she will be eligible for parole if a two-month term is imposed. There is no challenge to the post-release conditions which will remain in place for a period of six months. Those conditions require Ms Davidson to be assessed for drug and alcohol programmes and to attend and complete such programmes as the probation officer may nominate. Those conditions are directed towards Ms Davidson’s rehabilitative and reintegrative needs.

[18]              There is merit in Ms Cooper’s submission that a short sentence of home detention on top of the one-month imprisonment already served may be disproportionately severe in the circumstances. Home detention is the second-most restrictive sentence in the hierarchy of sentences and it must be served in full. Further, it appears that Ms Davidson’s rehabilitative and reintegrative needs will not be met if a short sentence of home detention is imposed at this stage. As matters currently stand, and given the time already served, I do not consider a home detention sentence would be in accordance with the principles and purposes of the Sentencing Act 2002.

[19]              For these reasons, I consider the appeal should be allowed, the sentence of four months’ imprisonment quashed, and substituted with a sentence of two months’ imprisonment subject  to  the  same  post-release  conditions  imposed  in  the  District Court. Orders accordingly are set out at the end of this judgment.

Result

[20]The appeal is allowed.

[21]              The sentence of four months’ imprisonment is quashed and replaced with a sentence of two months’ imprisonment. The release conditions imposed in the

District Court shall continue to apply. For the avoidance of doubt, those conditions apply for a period of six months after the sentence expiry date and are as follows:

(a)Ms Davidson shall attend an assessment for alcohol and drug programmes;

(b)Ms Davidson shall attend any programme that may be nominated, completing those to the satisfaction of the probation officer and service provider;

(c)Ms Davidson is not to possess or consume alcohol or non-prescription drugs.

Edwards J