Dear v Police
[2022] NZHC 2474
•29 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000257
[2022] NZHC 2474
BETWEEN ROYCE ATFIELD DEAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 September 2022 Counsel:
PJ Syddall for Appellant
BS Rorrison for Respondent
Judgment:
29 September 2022
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 29 September 2022 at 12 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. PJ Syddall, Auckland.
DEAR v POLICE [2022] NZHC 2474 [29 September 2022]
The case
[1] Royce Dear appeals a sentence of nine months’ imprisonment on a charge of attempted burglary, two charges of receiving stolen property, and one charge of breaching conditions of intensive supervision.1 An appeal must be allowed if there was an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3
Background
[2] In the early hours of 24 October 2021, Mr Dear and another attempted to break into a commercial refrigerator using crowbars and a hammer, causing $600 worth of damage. Police intervened, hence the charge of attempted burglary. Earlier that month, Mr Dear twice received stolen property totalling $600. Earlier again—on 18 May 2021—Mr Dear failed to report as required by a sentence of intensive supervision.
[3] Judge N R Dawson treated the attempted burglary as the lead offence, for which he adopted a starting point of 10 months’ imprisonment. The Judge added a total of three months for the other offending, then another month for Mr Dear’s record; Mr Dear has an extensive criminal history.
[4] The Judge deducted 25 percent for Mr Dear’s guilty pleas, and a further 10 percent for mitigating features identified in a cultural report. The Judge declined to impose a sentence other than imprisonment. He noted Mr Dear had received community-based sentences, including sentences of supervision, “none of which have deterred you from offending”.4
The appeal
[5] On Mr Dear’s behalf, Mr Syddall takes no issue with the starting point or increases, which he accepts are “entirely within range”. However, Mr Syddall
1 Police v Dear [2022] NZDC 14712.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4 Police v Dear, above n 1, at [15].
contends the Judge should have given greater discount for the cultural report-based features, particularly “addiction and mental health issues”. He also contends the sentence should have been commuted to home detention. Mr Syddall argues Mr Dear has embarked on a rehabilitative path, which home detention would facilitate.
Analysis
[6] Mr Syddall relies heavily on the cultural report Mr Dear placed before the District Court. The report was written by Lara Syddall, who has a Masters in Education,5 and Vanna Blucher, a specialised education needs coordinator. The report says Mr Dear:
(a)Began using alcohol at the age of 10, then cannabis and methamphetamine from the age of 12.
(b)Was expelled from school when 14.
(c)Began to experience psychotic episodes relating to schizophrenia at the age of 18, and this led to the (ongoing) involvement of mental health services.
(d)Has been “clean” since the age of 21, hence for 14 or 15 years, in part because of Mr Dear’s completion of a long-term rehabilitative programme.
[7] The report offers not in-extensive observations about the effects of methamphetamine “on the brain and Mr Dear’s offending”, and the “Biological and Psychological Impact of Schizophrenia on Mr Dear’s conduct”.
[8] Mr Syddall contends the report reveals addiction “causative of his offending, and therefore a mitigating consideration warranting a discount”. Alternatively, Mr Syddall contends the report reveals a nexus between the offending and Mr Dear’s ill mental health.
5 Lara Syddall is completing a diploma in psychology.
[9] There are difficulties with the argument, quite apart from the point the report relies heavily on Mr Dear’s self-reporting.6 First, Mr Dear last used methamphetamine 14 or 15 years ago. Second, the offences do not disclose an obvious link to an addiction to that drug. Third, it is unclear the writers are qualified to offer the opinions they do. Addiction can be a difficult, complex area, and one in which Courts typically expect expert assistance; more particularly, from experts operating within their field of expertise. The same is even more true of ill mental health, and whether it can be causatively linked to the commission of an offence.
[10] Expressed more simply, and in terms borrowed from Zhang v R, Mr Dear has not offered “persuasive evidence” or “an evidential basis” to establish mitigation based on an addiction to methamphetamine or mental health problems to justify a discount.7
[11] Mr Syddall also advances an alcohol-based addiction given these observations in the pre-sentence report:
Mr Dear reported being under Mental Health Services, he acknowledged that he has a severe drinking problem, he added that he had recently been diagnosed by his doctor as having cirrhosis of the liver with a limited life expectancy. He said he “wanted to live for his children” and had engaged with Waitemata Community Mental Health Services to volunteer for a detox rehabilitation programme with Pitman House. Confirmation was received from Mental Health Services who advised that Mr Dear is actively engaged with a full range of their services and has been referred to a CAD’S programme, is seeking employment and awaiting a referral outcome for Pitman House.
Mr Dear reported that he drinks at least a box of beer a day, and often needs a beer first thing in the morning to feel “normal”. A departmental tool ASSIST, which is based on a self-assessment, showed that Mr Dear is at high risk of experiencing severe health, social, financial, legal, and relationship problems as a result of his current pattern of use and that he is likely to be a dependent.
[12] These observations are also based upon self-reporting, albeit arguably buttressed by use of a departmental tool. However, even assuming this factor played some role, a 10 percent deduction for the factors identified in the cultural could not be considered erroneous. Deductions in this context have a discretionary aspect, the information before the Judge was limited, and discounts based on cultural reports vary
6 The writers spoke to Mr Dear and his former partner. They also completed, or referred to, two forms of assessment and a literature review.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148] and [152].
according to circumstance.8 Another Judge might give greater discount, but that is not the test. Furthermore, the Judge gave Mr Dear full credit for his guilty pleas. Mr Syddall responsibly accepted this was “generous”.
[13] Mr Syddall contends the Judge should have commuted the sentence to home detention because Mr Dear may be eligible to participate in a residential programme offered by the Salvation Army, has “strong pro social supports”,9 and offered to attend a restorative justice conference. As observed, Mr Syddall contends Mr Dear has embarked on a rehabilitative path. He contends this is underscored by the fact Mr Dear spent approximately nine months on bail, apparently without incident.
[14] There is no presumption a sentence of 24 months or less of imprisonment will be commuted to home detention. Every case turns on its facts.
[15] The aspects identified by Mr Syddall supported a sentence of home detention. However, as Judge Dawson observed, Mr Dear has been the beneficiary of many community-based sentences, and yet continued to offend. The pre-sentence report is something of a mixed bag in that while it supported home detention (largely because of Mr Dear’s support), it also noted he had “very little insight” and posed a “medium” risk of re-offending. Mr Dear’s criminal history is extensive.
[16]Given all this, I am not persuaded of error.
A final observation
[17] As observed, one of the (two) authors of the cultural report is Lara Syddall. Mrs Syddall is Mr Syddall’s wife. I raised the connection during the hearing. Mr Syddall said he considered there was nothing inappropriate about his wife preparing the report as she did so independently of him.
[18] I do not doubt that. However, in my view, a cultural report should not be prepared by a member of counsel’s family or someone close to them. The reasons are obvious. Mr Syddall could not be wholly objective about a report written by his wife.
8 See for example Whittaker v R [2020] NZCA 241 at [46].
9 Pre-sentence report, p 2.
A reasonable observer would consider the connection gives rise to concerns of bias. Awkwardness can also arise. This case is an example. In expressing reservations about the expertise of the report writers—a necessary incident of this decision—I have expressed an observation about a member of Mr Syddall’s family.
Result
[19]The appeal is dismissed.
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Downs J
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3
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