Dennis v Police
[2018] NZHC 886
•2 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-424
CRI-2017-404-438 [2018] NZHC 886
BETWEEN RICHARD DESMOND DENNIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 April, 1 May 2018 Appearances:
M W Ryan for Appellant
A R C Linterman for Respondent
Judgment:
2 May 2018
JUDGMENT OF WHATA J
This judgment is delivered by me on 2 May 2018 at 11.00am pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Counsel/Solicitors:
M W Ryan, Barrister, Auckland Meredith Connell, Auckland
DENNIS v NEW ZEALAND POLICE [2018] NZHC 886 [2 May 2018]
[1] Mr Dennis pleaded guilty and was sentenced to 21 months’ imprisonment on multiple charges, including injuring with intent to injure, assault with a weapon, five charges of male assaults female, one charge of indecent assault, disorderly behaviour and one charge of threatening behaviour. The central issue on appeal is whether Judge D J Sharp was wrong not to impose a sentence of home detention.
Background
[2]Mr Dennis pleaded guilty to the following summary of facts.
Male assaults female
[3] Sometime in 2006, Mr Dennis returned home after being out drinking. An argument ensued with the complainant. He picked up a baby bottle and threw it directly at the complainant’s head. The bottle struck her cheek, resulting in a black eye.
Injuring with intent to injure
[4] In late July 2006, Mr Dennis and the complainant were at a show. An argument ensued about Mr Dennis wanting to go out drinking afterwards. The complainant went home. A brief time later, the defendant also returned home. The defendant punched the complainant in the chest with a closed fist and said, “I will stop your heart”. Mr Dennis also kicked the complainant once to the buttock area, causing her ear to contact a skirting board, resulting in her ear splitting. She required several stitches.
Assault with a weapon
[5] Sometime in 2009, Mr Dennis accused the complainant of sleeping with her brother’s friends. He picked her up by the throat with his left hand. He lifted her off the ground, causing her head to bump the extraction fan. He grabbed a knife with his right hand and held it towards her face. He held the knife to the complainant’s cheek and said he would, “Fucken kill her”.
Male assaults female
[6] Between September and October 2011, the defendant kicked a second complainant in the groin with his foot.
Indecent assault
[7] The same complainant stood up and Mr Dennis grabbed her around the throat and forced her onto her knees. They walked further down the road and Mr Dennis urinated on her. They then got into a taxi together.
Male assaults female
[8] Between 1 January 2012 and 31 December 2012, Mr Dennis and the complainant were at a lodge. They got into a car together. The defendant slammed the complainant's head against the steering wheel of the vehicle and punched her in the arm. Because of the assault, the complainant received a large bruise on her arm.
Male assaults female
[9] Between 15 January 2013 and 31 December 2013, the defendant threw a packet of cigarettes at the complainant and then kicked her in the chest, knocking the wind out of her. Because of the assault, the complainant could not breath properly for three days but did not require medical attention.
Male assaults female
[10] Between 1 January 2014 and 31 January 2014, the defendant and the complainant were at the lodge. The defendant pushed the complainant into a couch and shut a window on her hand. She did not require medical attention.
Disorderly behaviour
[11] On 9 April 2014, Mr Dennis arrived at the address of the defendant and the complainant and started kicking the front door. She let him in. The defendant aggressively pushed the door open. The complainant went into the bathroom to get
away from him. He followed and pushed the bathroom roller door in, causing the complainant to fall on the sink. She sustained no injuries.
Mr Dennis
[12] Mr Dennis is 51 years of age. He has one conviction in 2008 for male assaults female and a conviction for assaulting with intent to injure. At that time, he was sentenced to supervision, together with directions to undertake alcohol and anger management programmes. He complied with his sentence. The PAC report states that in discussing the offences with Mr Dennis, his right of entitlement appeared paramount within the relationships subject to the offending. The report also notes, however, that Mr Dennis was also in a long-term relationship with his current partner who contends that violence has not been evidenced towards her during this period.
[13] Having regard to the seriousness of Mr Dennis’ offending, the report considers EM a suitable sanction, as would be imprisonment. Due to the historical nature of some of the offences, and without the availability of either victim impact statements or a restorative justice report, the impact of Mr Dennis’ assaults upon the two victims is unknown. The report writer also considers him suitable for management within the community. He has an ability to continue gainful employment, however, due to his precarious immigration status, continued paid employment may not be an option.
Sentencing notes
[14] Mr Dennis was sentenced on 7 November 2017. Judge D J Sharp identified the lead charge as the injuring with intent to injure. The Judge refers to:
(a)the need to deter and denounce domestic violence;
(b)the need to make Mr Dennis accountable;
(c)the requirement to take into account Mr Dennis’s rehabilitative needs;
(d)the requirement to impose the least restrictive outcome in the circumstances.
[15] The Judge considered that the lead charge by itself would justify a starting point of 18 months. He uplifts this starting point by 12 months, to 30 months’ imprisonment for the other offending, noting that the other offending is indicative of Mr Dennis’ desire to dominate other people and exercise control. Judge Sharp then uplifts the start point sentence by four months to account for prior convictions.
[16] Turning to mitigating factors, Judge Sharp noted that Mr Dennis has attended courses, and having regard to his prospects for rehabilitation, reduces the start point from 34 months to 30 months. He then gives a further separate discount for restrictive bail of two months, to 28 months. The end sentence is reduced to 22 months’ imprisonment after remorse and guilty plea discounts.
[17]The Judge then has this to say about an electronically monitored sentence:
[12] That brings on the lead charge a sentence of 22 months imprisonment. That sentence is within the jurisdiction for electronically monitored sentences. I have considered the position in relation to the number of offences here, the length of time which offending took place and my requirement to meet denunciation and deterrence requirements. In this situation, notwithstanding the fact that your counsel has said everything that could be said for you and your pre-sentence report is one which is in your favour. I do not consider that an electronically monitored sentence can be sufficient to deal with the issues that I am required to deal with in terms of the Sentencing Act 2002.
[18]Accordingly, the Judge handed down a sentence of 22 months’ imprisonment.
Grounds of appeal
[19]Mr Ryan, for Mr Dennis, submits that:
(a)the sentencing Judge wrongly focused on the purposes of denunciation and deterrence and failed to consider the other principles and purposes of sentencing;
(b)the Judge failed to give adequate weight to all of the principles of home detention taken from the Sentencing Act;
(c)the sentence of home detention has, in any event, sufficient deterrence and denunciation in the present case;
(d)the offending is largely historical, so there were and are no risks to the community that would warrant a sentence of imprisonment rather than home detention; and
(e)Mr Dennis has completed counselling sessions, assisting his rehabilitation, but this factor was not considered by the Judge in the home detention assessment.
Alternate sentencing notes
[20] It emerged during the hearing that my signed copy of the sentencing notes did not precisely correspond to the sentencing notes provided to counsel. Relevantly the last sentence of my signed notes at [12] did not refer to the Sentencing Act. Rather it stated:
I do not consider that an electronically monitored sentence can be sufficient to deal with the requirements for denunciation and defence [sic] given the severity and scale of the offending.
[21] I sought clarification from Judge Sharp as to which of the notes was the correct set. The Judge confirmed that the set provided to counsel, being the transcript of the delivered sentence, is the correct version. I must proceed on that basis. Mr Ryan accepted this, but submitted, in a careful way, that the alternate version of the notes reveals the underlying focus of the Judge on denunciation and deterrence. I disagree. A Judge’s sentence stands or falls on what is delivered in open Court.
Assessment
[22] The Court of Appeal in Fairbrother1 provides a helpful frame for assessment of appeals against a decision not to impose a sentence of home detention. The Court stated:
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing Judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any countervailing purposes of sentence.
1 Fairbrother v R [2013] NZCA 340.
[30] That does not mean that a short term of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D(CA253/208), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.
[23] Three decisions cited by Mr Ryan, Brittin v Police,2 Box v Police3 and McLean v Police4 are each an illustration of correction for failure to properly consider and apply the purposes and principles of sentencing when fixing a sentence of imprisonment instead of home detention. Those judgments do not, however, evince a fresh principle that might independently justify an appeal against sentence in this case.5
[24] It is evident that the sentencing notes at [12], when dealing specifically with home detention, focus on denunciation and deterrence. But this passage immediately follows a relatively detailed evaluation of the offending and Mr Dennis’ personal circumstances against the relevant principles of sentencing. I am not satisfied therefore that the Judge, by process of improbable intellectual gymnastics, disregarded that overall evaluation when deciding to impose a sentence of imprisonment.
2 Brittin v Police [2017] NZHC 2410 at [56] – [58]. This case involved one charge of harm by digital communication. The Court found the 12 month sentence of imprisonment was excessive and imposed a sentence of 7 months imprisonment. That sentence was substituted for 12 months’ home detention, the Court noting that improper emphasis was given to deterrence.
3 Box v Police [2018] NZHC 286 at [39] – [41]. This case involved a combination of charges, including possession of methamphetamine and cannabis, failing to appear, driving while disqualified; and giving false identity. A sentence of 4 months imprisonment was set aside and a sentence of three months home detention imposed.
4 McLean v Police [2018] NZHC 102 at [40] – [42]. Mr McClean was sentenced to 12 months imprisonment for one charge of intent to injure. He knocked a victim unconscious. On appeal, the Crown conceded the sentencing Judge only referred to deterrence and denunciation. A home detention sentence of four and half months was imposed.
5 In Brittin, the High Court observed the sentencing Judge was wrong, on the facts of that case, to identify general deterrence as an essential reason for setting a high starting point and for refusing to impose a sentence of home detention. That specific issue does not arise in this case. However, as the High Court also noted in Brittin, general deterrence may be relevant to the assessment of whether home detention is appropriate. For reasons set out at [26], I consider general deterrence to be a relevant factor in this case.
[25] I accept however, that by referring only to the principles of denunciation and deterrence when expressly considering home detention, the sentencing evaluation is amenable to appeal in light of the guidance afforded by Fairbrother and the approach taken by the High Court in Brittin, Box and McLean. I propose therefore to briefly address the merits, and whether the sentence of imprisonment was open to the Judge.
[26] Mr Dennis’ rehabilitation was plainly a crucial factor to be weighed, as is the deterrent value of a sentence of home detention. But the aggravating features of his offending – especially his unbroken propensity over several years to physically abuse his partners, on one occasion involving strangulation and on another, in a grossly demeaning way, strongly support the conclusion that a period of imprisonment rather than home detention, was required. Notably this offending is markedly more serious than the offending in Brittin (causing harm by digital communication), Box (possession of methamphetamine and cannabis, failing to appear, driving while disqualified and giving false details) and McLean (one charge of assault with intent to injure). This brings into sharp focus whether the requirement for deterrence, particularly of domestic abuse of this kind, is met by a sentence of home detention. In this regard, the requirement to deter is not limited to Mr Dennis, but to all persons engaged in repeated, serious domestic violence. As this Court has previously noted, drawing on reports by the Ministry of Social Development, a history of domestic violence is a key risk factor to be carefully managed.6
[27] I should be clear that not every case of serious domestic violence will attract a sentence of imprisonment.7 But the combination of features in this case meant that it was open to Judge Sharp to conclude that the proper balance of competing purposes and principles demanded a sentence of imprisonment not home detention.
[28]The appeal is therefore dismissed.
6 S v Police [2017] NZHC 2916.
7 See for example Solicitor-General v SC [2017] NZHC 2252.
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