De Silva v Police

[2019] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0400

[2019] NZHC 195

BETWEEN

SCOTT DE SILVA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 February 2019
Appearances:	C Newton for the appellant H Watts for the respondent
Judgment:	18 February 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Friendship Chambers, Manukau Kayes Fletcher Walker, Manukau

DE SILVA v NEW ZEALAND POLICE [2019] NZHC 195 [18 February 2019]

Introduction

[1]                 Scott De Silva appeals his sentence of 13 months’ imprisonment imposed by Judge G A Fraser in the District Court at Manukau on 16 November 2018.1 Mr De Silva was convicted on one charge of male assaults female.2 Mr De Silva’s counsel, Colleen Newton, contends the sentence “border[s] on being” manifestly excessive. She says the Judge erred in adopting too high a starting point; failing to give sufficient credit for the guilty plea; and failing to consider an electronically monitored sentence.

Approach on appeal

[2]                 I must allow the appeal only if satisfied there is an error in the sentence imposed, and a different sentence should be imposed.3 Otherwise, I must dismiss the appeal.4 The measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in the Court’s approach to sentence appeals.5 That is to be determined by reference to the final sentence, not the route adopted to reach it.6

Offending

[3]                 In the morning of 18 September 2016, the victim – then in a relationship with Mr De Silva for some 14 years – arrived home to find Mr De Silva drunk and asleep in his daughter’s bed. The daughter was not present. The victim was angered by Mr De Silva’s intoxication, and told him to leave once he had finished sleeping. An argument ensued. Rising from the bed, Mr De Silva grabbed the victim’s hair before punching her twice in the head. When he let her go, she demanded he leave the house. He did not.

[4]                 She ran upstairs to call the police. Mr De Silva followed later, yelling at the victim. After talking to the police, she followed him back downstairs. There, he punched her three times in the face, hitting her once in the eye. He then violently shook her – described in the accepted summary of facts as a ‘rag-dolling’ – before picking

1      New Zealand Police v De Silva [2018] NZDC 23776.

2      Crimes Act 1961, s 194(b). Maximum sentence is two years’ imprisonment.

3      Criminal Procedure Act 2011, s 250(2).

4      Criminal Procedure Act 2011, s 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].

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

her up by the hair. The victim was scared, crying and pleading with Mr De Silva to stop. He let her go briefly, before kneeling on her stomach, causing breathing difficulties. Let go again, she ran upstairs and awaited police arrival. She suffered swelling, tenderness, and facial bruising, which she described in her victim impact statement as a black eye.

The District Court Judge’s approach to sentencing

[5]                 The Judge clearly was frustrated and concerned by the two-year period between offending and sentencing. Mr De Silva pleaded guilty after a second trial date was abandoned for lack of Court time in July 2017. The presiding Judge directed he attend a family violence programme. On a monitoring appearance on 9 November 2017, it transpired he had been exited from the programme. Further directions were made he attend a Community Alcohol and Drug programme and a Stopping Violence programme. Sentencing was adjourned twice, on account of Mr De Silva’s failure to attend pre-sentence report interviews. On 12 September 2018, Judge Fraser cautioned Mr De Silva the only available option would be imprisonment if he failed to attend his pre-sentence report.

[6]                 Judge Fraser began his sentencing noting Mr De Silva’s previous convictions for violence (there are 10), while “somewhat historical”, then most recently in January 2015. His record shows 24 occasions of police family violence intervention, which the Judge characterised a “massive police commitment”.7

[7]                 The Judge considered he had been “unusually patient” in his attempts to get Mr De Silva to address his offending through engagement with programme work,8 but Mr De Silva had not, at that time, taken any such steps. The offending to which this appeal relates occurred only two months after Mr De Silva completed a short rehabilitation programme, during a sentence of intensive supervision ending in July 2017. The Judge also noted Mr De Silva’s failure to attend for three different pre- sentence reports, observing – as with the rehabilitation programmes – there had “been absolutely nothing done at all” by Mr De Silva.9

7      New Zealand Police v De Silva, above n 1, at [4].

8 At [8].

9 At [6].

[8]                 The Judge was particularly concerned by the victim’s impact statements. Her most recent statement, on 18 September 2016, stated Mr De Silva “gets drunk more often” since gaining his current employment, and that he remains violent and argumentative. She was no longer in a relationship with him, yet remained fearful.

[9]                 The Judge considered the need for Mr De Silva to be held accountable and the need for a sentence to be denunciating and deterrent, especially in situations like this. He considered the interests of the victim. He noted the sentence imposed must be the least restrictive appropriate in the circumstances, having regard for the principles and purposes of sentencing.

[10]              He identified five aggravating factors of Mr De Silva’s offending: the actual violence inflicted; the harm sustained; the offending occurring within two months of Mr De Silva’s completion of a short rehabilitation programme; that offending occurring five months into Mr De Silva’s intensive supervision sentence and against a background of previous violence; and the victim’s vulnerability.

[11]              Judge Fraser determined that the least restrictive outcome appropriate was a sentence of imprisonment.10 He took the view Mr De Silva’s continued failure to accept responsibility and acknowledge his offending through primarily rehabilitative sentences meant a sentence emphasising denunciation and deterrence was required.

[12]              The starting point was placed at 12 months, with an uplift of three months to reflect Mr De Silva’s prior convictions.11 He gave credit for a guilty plea. As it was not entered at the earliest possible juncture, a discount of two months was applied (just over 13 per cent). This resulted in an end sentence of 13 months’ imprisonment. Six months’ standard and special conditions prohibiting possession and consumption of alcohol and drugs, requiring attendance at assessment for domestic violence, drug and alcohol, and other appropriate programmes as required by Probations, were imposed.

10 At [8].

11 At [10].

Submissions

[13]              Ms Newton primarily advances Mr De Silva’s positive lifestyle change – securing a lawnmowing contract, enabling him to provide for his family – was not considered by the Judge, due to Mr De Silva’s failure to attend for pre-sentence reports. She suggests the Judge could have remanded Mr De Silva in custody to allow a pre-sentence report to be carried out. Otherwise, she acknowledges the sentence imposed was not specifically manifestly excessive. But she complains the starting point was excessively high, and Judge Fraser did not allow a sufficient discount for a guilty plea.

Discussion

[14]              The Judge did not cite any comparable cases to establish his starting point. As he correctly identified, there is no tariff case for male assaults female. The range of conduct “can vary greatly”.12 While a more severe starting point than the five- to nine- months starting points often adopted,13 it is well short of the offence’s two-year maximum. Mr De Silva’s domestic attack on the victim was sustained through several phases and modes of attack, including repeatedly to her head and interfering with her breathing, more seriously than cases at the high end of that range.14 Fifteen-month starting points were affirmed on appeal in similar circumstances, although respectively extending to a second less serious attack,15 and in the other the victim’s unconsciousness.16

[15]              A three-month uplift applied in respect of Mr De Silva’s previous convictions. Mr De Silva has appeared for sentencing on 28 previous occasions related to 88 prior convictions. Thirty-nine of these were for non-compliance with court orders and police and probation directives, ten for the use of violence against people (of which two are noted to be family violence offences and five male assaults female), one for wilful

12     R v Reihana CA143/03, 3 July 2003 at [43]; Kelly v R [2018] NZCA 347 at [10].

13     Police v Wuetaki [2016] NZHC 2515, citing Wawatai v Police [2015] NZHC 406 at [4].

14     Yeo v Police HC Auckland CRI-2006-404-283, 8 September 2006 (eight months); Taueki v Police

[2015] NZHC 2238 (eight to nine months); Shepherd v R [2018] NZCA 232 at [10] (eight months).

15     Wallace v R [2012] NZCA 546 at [14].

16     Moa v R [2015] NZCA 429 at [9].

damage, and nine for drug and alcohol related offending. Such an uplift is entirely appropriate in those circumstances.17

[16]              Mr De Silva’s complete lack of co-operation, which suggests his lack of awareness as to the consequences of his offending, is a significantly aggravating factor, particularly in the context of his criminal history. The Judge was right to emphasise denunciation and deterrence in sentencing, particularly after the extended failed attempts to address Mr De Silva’s accountability, responsibility and rehabilitation.18 In that context, the Judge’s discount for Mr De Silva’s belated guilty plea, after trial was twice deferred, was generous.

[17]              There is no presumption in the Sentencing Act for or against commutation of imprisonment to home detention, and substantial latitude allowed to sentencing judges in considering its application.19 Mr De Silva’s attitude renders him a poor candidate for home detention, the utility of which significantly turns on the offender’s compliance. Imprisonment, as the Judge predicted, was inevitable.20

Result

[18]              Viewed overall, the Judge’s final sentence was not manifestly excessive. Mr De Silva’s offending was more serious than others in which an end point of 12 months’ imprisonment was upheld on appeal.21 That same term recently was imposed concurrently in the context of more serious offending.22 The appeal is dismissed.

—Jagose J

17 At [9].

18     Sentencing Act 2002, s 7(1).

19     Twomey v R [2018] NZCA 206 at [14].

20     Sentencing Act 2002, s 17.

21     Nixon v R CA87/01, 19 June 2001 at [26].

22     Franklin v R [2018] NZCA 495 at [28].