Dickson v Police
[2017] NZHC 2815
•16 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-319
CRI 2017-404-320 [2017] NZHC 2815
BETWEEN AMANDA ANNE DICKSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 November 2017 Counsel:
J Griffin for the Appellant
H Benson-Pope & S Murphy for RespondentJudgment:
16 November 2017
JUDGMENT OF DUFFY J
This judgment was delivered by me on 16 November 2017 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau
Public Defence Service, Manukau
DICKSON v NEW ZEALAND POLICE [2017] NZHC 2815 [16 November 2017]
Introduction
[1] The appellant, Ms Dickson, was sentenced in the Manukau District Court to
21 months’ imprisonment on 13 charges involving dishonesty and drug-related offending.1 These were one charge each of: burglary, unlawfully taking a motor vehicle, cultivation of cannabis, possession of cannabis, possession of methamphetamine, theft (over $500) and driving under the influence of a drug; along with two counts each of possessing methamphetamine utensils, theft (under $500) and breaching a sentence of supervision.
[2] Ms Dickson appeals her sentence. She does not take issue with its length. Her sole contention is that the sentence should have included leave to apply for home detention.
The offending
[3] The 13 offences occurred between December 2015 and May 2017. The burglary occurred in December 2015 when Ms Dickson broke into her neighbour’s house and stole property. Police traced the offending to Ms Dickson through her fingerprints. On 26 February 2016, the police executed a search warrant, finding cannabis seedlings and seeds. That same day, Ms Dickson stole petrol from a station in Green Bay. Another theft of petrol occurred on 4 March 2017, in Mt Eden.
[4] On 15 May 2017, Ms Dickson stole a van that was unattended, along with personal items. She later removed and sold its wheels. The wheels were replaced and when stopped by police in the van on 20 May she failed a compulsory impairment test. She was found to be under the influence of methamphetamine. Just under half a gram of methamphetamine was found in her possession, along with pipes and syringes used for consumption.
[5] Ms Dickson pleaded guilty to all charges.
1 Police v Dickson [2017] NZDC 18886.
Judgment under appeal
[6] Judge Thomas took the charge of burglary as the lead charge and adopted a starting point of 18 months’ imprisonment. He then assessed the remainder of the charges together and uplifted the starting point to 24 months’ imprisonment.2
[7] Allowance was made for both aggravating and mitigating factors relevant to Ms Dickson. Judge Thomas took account of Ms Dickson’s previous convictions, and the fact much of the offending had occurred whilst she was on bail as well as when she was sentenced to a non-custodial sentence. This led to the Judge uplifting the starting point to 28 months’ imprisonment.3 The sentence was then reduced to take account of Ms Dickson’s guilty pleas. The Judge found these warranted a 20 per cent discount, which the Judge then increased to 25 per cent to reflect what he considered to be Ms Dickson’s genuine remorse.4
[8] On the issue of whether imprisonment or some alternative should be imposed, the Judge said:
[15] Imprisonment is the least restrictive outcome given the difficult issues you will have with compliance until you have been able to cure yourself of your methamphetamine addiction.
[9] Accordingly, the Judge sentenced Ms Dickson to one year and nine months’ imprisonment on the burglary and unlawful taking charges.5 On the other charges she was sentenced to three months’ imprisonment, to be served concurrently. Special conditions together with standard conditions were attached to the sentences of imprisonment.
The competing arguments
[10] Ms Dickson contends the correct sentence should have included leave to apply for home detention at a later date rather than solely a custodial sentence. Three
grounds are advanced to support this contention. First, an electronically-monitored
2 At [12].
3 At [13].
4 At [14].
5 At [16].
sentence would provide flexibility to complete rehabilitative courses. Secondly, an electronically-monitored sentence would alleviate concerns with non-compliance. Finally, Ms Dickson contends that the Judge failed to consider this alternative sentence and so failed to have proper regard to the requirements of the Sentencing Act 2002.
[11] The Crown contends that Ms Dickson’s last ground is the only ground that identifies an error of law; rather, the first two grounds merely question the merits of the District Court Judge’s decision. The Crown supports the Judge’s decision. In its submission Ms Dickson has failed to identify that type of error that would permit this Court to interfere with the sentence imposed.
The legal framework
[12] As this is a first appeal, the appellant must satisfy the Court that there was, for any reason, an error in the sentence imposed and that a different sentence should be imposed.6 The decision whether to impose home detention or imprisonment is (like all sentencing decisions) discretionary, so the appellant must do more than simply revisit the merits of the Judge’s decision.7
[13] The Sentencing Act 2002 requires judges to impose on an offender “the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences” in the Act.8 A sentence of imprisonment is the most restrictive sentence available under the Act and a sentence of home detention is the second-most restrictive.9 As summarised by the Court of Appeal in Fairbrother v R, where imprisonment is not a presumptive or mandatory sentence, s 16(2) of the Act prohibits a sentence of imprisonment, unless a judge is satisfied as to three things:10
First, the purpose for which imprisonment is to be imposed must be to hold the offender accountable, or to induce in him or her a sense of responsibility, or to serve the interests of any victim, or to denounce the offending, or to deter, or protect the community. Secondly, any such purpose must not be able to be achieved by any lesser sentence. Thirdly, there must be no other sentence that would be consistent with such of the 10 s 8 principles of sentencing as apply.
6 Criminal Procedure Act 2011, s 250(2).
7 James v R [2010] NZCA 206 at [17].
8 Sentencing Act 2002, s 8(g).
9 Section 10A(2).
10 Fairbrother v R [2013] NZCA 340 at [26].
(Footnotes omitted)
[14] Where the term of imprisonment is 24 months or less, the judge must decide whether a sentence of home detention would be appropriate.11 That involves making:12
… 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.
Discussion
[15] I agree with the respondent’s submission that the first two grounds raised in the appeal do not identify errors of law. The submissions, namely that the availability of an electronically-monitored sentence would provide flexibility for the appellant’s rehabilitation and would alleviate non-compliance, both appear to be attempts to re- argue the merits of an alternative sentence. They do not point to an error in the District Court’s decision. What these grounds must show is that the Judge erred in failing appropriately to consider rehabilitation or was mistaken in his view of non- compliance.
[16] Neither of these grounds reach that point. The Judge addressed the appellant’s rehabilitative needs but was not required to treat that purpose of sentencing as determinative.13 Further, as the Crown points out, the Judge attached special conditions to the sentence which require the appellant to be assessed by Community Probation for several rehabilitative courses, and require her to complete any programmes recommended for her.14 And while non-compliance may be addressed by home detention (and the conditions that may attach to it), the Judge made no error in weighing the risk of non-compliance in favour of a sentence of imprisonment. The offences on which the appellant was sentenced included breach of a community sentence and were in part committed whilst on bail. Though she has no other
convictions for breaching court orders, the appellant does have a history of non-
11 Sentencing Act 2002, s 15A(1)(b).
12 Fairbrother v R, above n 10, at [30].
13 Sentencing Act 2002, s 7(1)(h).
14 Police v Dickson, above n 1, at [19].
compliance. I am not satisfied the Judge erred in his assessment of issues of compliance.
[17] The third ground advanced by the appellant is that the Judge made an error of law by failing to adequately consider leave to apply for home detention and failing to consider the availability of home detention under the Sentencing Act. It is submitted that Judge Thomas merely concluded imprisonment was the least restrictive outcome without articulating any reasons for that conclusion.
[18] The Crown contends that, while the Judge did not explicitly provide reasons for every applicable factor, he did have regard to: the seriousness of the offending as a whole;15 the gravity of the lead offending and its impact on the victims;16 the seriousness of reoffending while on bail and subject to another sentence;17 the requirement to impose the least restrictive outcome;18 and the offender’s personal circumstances (such as rehabilitation).19
[19] I acknowledge that in a general way the Judge addressed the factors the respondent identifies in its submission. However, nowhere in the judgment is there any reference to the possibility of granting leave to apply for home detention. I know the issue was raised before the Judge because Ms Dickson submits her counsel raised it at sentencing, and the respondent has responsibly brought to my attention a note made by the police officer who appeared for the respondent at the sentencing which records that leave to apply for home detention was not given. Against that background I consider the Judge was required to address that topic in the sentencing notes.
[20] Leave to apply for a sentence of home detention is quite different from imposing a sentence of home detention. When Ms Dickson was before Judge Thomas for sentence she had no fixed abode. This in itself would disqualify her from receiving
a sentence of home detention.
15 Sentencing Act 2002, s 8(a).
16 Sections 7(a), (b) and (c); and 8(a), (b) and (f).
17 Sections 7(f) and 8(a).
18 Section 8(g).
19 Sections 7(h), 8(a) and (i).
[21] Judge Thomas referred to Ms Dickson’s drug problem and the likelihood she would continue to offend while the problem remained. Accordingly, he was alive to the fact that something needed to be done to address her drug use. Indeed, he sought to achieve that end by the imposition of special conditions following her release from prison. However, in his reasoning the Judge never said why he thought imprisonment was the only option for Ms Dickson. In the result part of the sentencing notes, the Judge said that imprisonment was the “least restrictive outcome given the difficult issues you will have with compliance until you have been able to cure yourself of your methamphetamine addiction.” But he does not say why that is so.
[22] It is open to question whether the Judge formed that view because Ms Thomas was of no fixed abode and for that reason as well as her drug addiction she could not comply with a sentence of home detention, or whether it was because her drug addiction excluded any other sentence but imprisonment. I note that Ms Dickson has never served a sentence of home detention before. This means that how she would perform in that context is unknown. In the right circumstances the electronic monitoring the sentence entails may well be enough to ensure compliance.
[23] Had the question of leave to apply for home detention not been raised before the Judge, I would have concluded that his sentencing remarks, whilst mainly conclusory, do not reveal any error that would permit this Court on appeal to interfere with the sentence. However, once Ms Dickson raised the prospect of leave to apply for home detention I consider the Judge was obliged to specifically address that issue as part of the s 16(2) assessment, and then to determine whether leave should be granted or not. Ms Dickson was entitled to that much. It is not good enough to expect her and others to attempt inferentially to reach an understanding on what the Judge thought in this regard. I consider that to this extent only the Judge has erred in a way that enables this Court to consider the question afresh.
[24] Ms Dickson’s counsel provided me with material that showed a place was available for Ms Dickson to serve a sentence of home detention from an address under the management of the Grace Foundation. However, that material reveals Ms Dickson would not be under supervision all the time. Given her drug addiction I consider such supervision is essential to the success of any sentence of home detention for Ms
Dickson. Accordingly, the suggested address is not suitable for Ms Dickson to serve a sentence of home detention.
[25] Nonetheless, provided Ms Dickson’s issues with drug addiction and compliance can be overcome, I consider a sentence of home detention would be suitable for her. If she were able to find a place which provided full-time supervised residential care and treatment for her drug addiction, I consider that in terms of s 16(2) a sentence of home detention to be served at such facility would qualify as an appropriate sentence for her. Whether such a place is available to her is a separate question.
[26] Accordingly, I am prepared to allow the appeal to the extent that in addition to the sentence of one year nine months’ imprisonment, I also grant leave to Ms Dickson to apply for a sentence of home detention. However, any such sentence would need to be on the terms set out at [25] herein.
Result
[27] The appeal is allowed to the extent leave is granted to Ms Dickson to apply for a sentence of home detention should she find a facility from which it is suitable for her to serve such sentence.
Duffy J
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