Dobbs v Police
[2012] NZHC 3136
•22 November 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-470-41 [2012] NZHC 3136
BETWEEN RENNEL RICHARD DOBBS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 22 November 2012
Counsel: OJ Brittain for Appellant
HJ Sheridan for Respondent
Judgment: 22 November 2012
ORAL JUDGMENT OF RODNEY HANSEN J
Solicitors: Public Defenders Service, 60 Durham Street, Tauranga for Appellant
(Email: [email protected] )
Ronayne Hollister-Jones Lellman, P O Box 13063, Tauranga for Respondent
(Email: [email protected] )
RENNEL RICHARD DOBBS V NEW ZEALAND POLICE HC TAU CRI-2012-470-41 [22 November 2012]
Introduction
[1] Mr Dobbs pleaded guilty in the District Court at Tauranga to charges of theft, male assaults female and burglary. He was sentenced by Judge Wolff to nine months imprisonment on the charge of theft and two months imprisonment (to be served concurrently), on the remaining two charges. He was convicted and discharged on a charge of failing to answer bail.
[2] He appeals against the sentences of imprisonment. He says that a community-based sentence should have been imposed.
The facts
Theft
[3] On 18 January 2012, Mr Dobbs was the driver of a car in a supermarket carpark at Henderson in Auckland. His co-offender, Richard Ropiha, was a front seat passenger. Mr Dobbs drove the car close to a woman who was walking back to her car with her handbag over her shoulder. Mr Ropiha leaned out the front passenger window and ripped the handbag from the woman. The bag contained
$500 in cash and bankcards. The victim suffered a sore right shoulder.
Male assaults female
[4] On 12 February 2012, Mr Dobbs went to the home of his cousin, Krystle Manning, in Mt Wellington, Auckland. She was in the bedroom with her partner. Mr Dobbs walked in the open front door carrying a hammer. When Ms Manning came out of the bedroom to see who was there, he shouted at her regarding money alleged to be owed to another. When she told him to “fuck off”, he punched her in the face. She suffered a cut and swollen lip.
Burglary
[5] On 7 August 2012, Mr Dobbs was living in a residential street in Tauranga. He entered a vacant neighbouring house by climbing through the front window. He removed six dining room chairs valued at $600 and took them back to his home. The police were called by an eye witness. Mr Dobbs admitted to taking the chairs from the house, claiming he had purchased them for $300 the previous evening. That explanation is untrue. The chairs were recovered and returned to the owner.
Sentencing decision
[6] In sentencing Mr Dobbs, Judge Wolff rejected a plea that the theft was a spur of the moment offence. He said it was clearly something that was discussed and contemplated before the event. He noted that Mr Dobbs and his co-offender had originally been charged with robbery and expressed puzzlement as to why the charge had been reduced to one of theft. He referred to the “dramatic” consequences for the victim. Judge Wolff noted that Mr Ropiha had been sentenced to nine months
imprisonment. He inferred that a starting point of twelve months had been adopted.[1]
Judge Wolff saw no real distinction between the two offenders, while acknowledging that Mr Ropiha had a more extensive offence history. On that basis, he adopted a starting point of twelve months and, giving Mr Dobbs 25 per cent credit for an early guilty plea, reached a sentence of nine months imprisonment.
[1] Ms Brittain advised that the sentence of nine months also dealt with convictions for two breaches of a protection order and breach of release conditions. The sentence was to be served concurrently with 18 months imprisonment on a serious assault charge.
[7] Judge Wolff described the assault as involving stand-over tactics in relation to a debt. He saw it as attracting a sentence of between two and three months imprisonment. Allowing for an early guilty plea, he fixed the sentence at two months.
[8] The Judge noted that the burglary was committed while Mr Dobbs was on bail for the male assaults female charge. Because the house he entered was
unoccupied, the Judge saw the absence of one of the frequent aggravating features of
burglary. As it was Mr Dobbs first offence of burglary, and allowing again for a
25 per cent credit for the early guilty plea, he imposed what he described as a relatively short sentence of two months.
[9] Judge Wolff considered whether the sentence should be cumulative or concurrent. He decided on concurrent sentences because Mr Dobbs had not previously been sentenced to a term of imprisonment. He said that also took into account, “to an extent”, the difference between Mr Dobbs and Mr Ropiha on the theft charge.
[10] The Judge was asked to consider a sentence of home detention. He responded:
[11] I am satisfied that offending of this type, the driving at people outside supermarkets and snatching material from them, warrants and demands a sentence that reflects its seriousness and I am not prepared to grant home detention or community detention on this charge.
[11] The Judge went on to discuss the fact that Mr Dobbs had gone to the police and admitted his role in the theft. He explained how that had come about at the instigation of Mr Dobbs’ partner who had been contacted by the police after the registration number of the vehicle Mr Dobbs was driving had been identified. The Judge said that, recognising that she could be in trouble unless the police were told, she insisted that Mr Dobbs inform the police. She took the bag in and Mr Dobbs’ involvement was disclosed. The Judge said that it was because of the integrity of Mr Dobbs’ partner that the matter was resolved as quickly as it was. But it would have been resolved inevitably because of the identification of the type and registration of the vehicle.
Appellant’s submissions
[12] For Mr Dobbs, it is submitted that the Judge erred in his approach to sentence by excluding community detention and home detention solely on the basis that the offending was too serious. It is submitted that he failed to take into account other relevant purposes and principles of the Sentencing Act 2002, in particular s 7(h) which focuses on the rehabilitation and reintegration of an offender and s 8(g) which
requires that the Court most impose the least restrictive outcome appropriate in the circumstances.
[13] It is contended that a sentence of community detention, intensive supervision and community work is the least restrictive outcome appropriate in the circumstances. Alternatively, it is submitted that Mr Dobbs should be sentenced to home detention.
[14] I was informed by Ms Brittain that the address put forward as suitable for a sentence of home detention at the time of sentencing is no longer available. There is an alternative address available. She proposes that if I were to accept that a sentence of home detention is appropriate, Mr Dobbs should be released on bail pending the completion of a report as to the suitability of the proposed address.
[15] In support of the appeal, Ms Brittain also refers to a number of features of the offending and matters relating to Mr Dobbs himself which are said to militate against a sentence of imprisonment. They include the contention that in participating in the theft Mr Dobbs was under the direction of a more experienced offender and the absence of previous convictions for violence and burglary. This offending was submitted to be out of character, Mr Dobbs not having offended since 2002 and not previously having been sentenced to a term of imprisonment. There is also reliance on the fact that previous sentences of community work and supervision had been completed without incident or breach and on positive references from Mr Dobbs’ employer and others who attest to his good character.
[16] Ms Brittain also relied on Mr Dobbs having, prior to sentence, self-referred to a Living Without Violence programme. He had attended two counselling sessions at the time of sentence.
Crown submissions
[17] In her admirably balanced and constructive submissions, Mrs Sheridan begun by conceding that the Judge’s sentencing remarks clearly indicated that he regarded the seriousness of the charges as operating decisively against a sentence of home
detention and that he apparently excluded from consideration other relevant purposes and principles of sentencing, including those specifically relied on by the appellant. She submits that this omission notwithstanding, the Judge was right to impose a short sentence of imprisonment. She argues that community detention, supervision or community work would be an inadequate response to the seriousness of the offending and that considerations of denunciation and general and personal deterrence properly should prevail over countervailing factors.
[18] Mrs Sheridan also relied on reservations expressed by the probation officer in the pre-sentence report as to the appropriateness of a community-based sentence. In the pre-sentence report, the probation officer, characterised Mr Dobbs as having limited insight into his offending behaviour, issues with alcohol, low and selective empathy with his victims and a low motivation to address his needs.
Discussion
[19] I agree with Mrs Sheridan that a sentence of community detention or a combination of community detention and/or supervision and community work would not be a sufficient response to serious offending over quite a lengthy period of time. Because the Judge appears to have failed to have regard to all relevant considerations, my task is to consider then whether the sentence of imprisonment should be commuted to one of home detention.
[20] I was referred by Ms Brittain to the Court of Appeal decision in Manikpersadh v R[2] in which the approach to the exercise of what has been described as a fettered discretion should be adopted.[3] What is required in a particular case is to give full consideration to the purposes of sentencing in s 7 and the matters set out in s 8 and to decide whether or not in a particular case a sentence of home detention might be imposed. Section 8 factors include the gravity of the offending and the
[2] Manikpersadh v R [2011] NZCA 452.
[3] At [12].
culpability of the offender. On the other hand, s 8 also requires the Court to have
regard to the least restrictive appropriate outcome, the offender’s personal
circumstances including his personal and family background, and to the interests of his rehabilitation.
[21] I was referred to a number of cases in which sentences of imprisonment have been commuted on appeal to sentences of home detention. They include Martin v Police,[4] Couper v Police,[5] Te Whakaara v R[6] and Manikpersadh. In some of those, as Ms Brittain pointed out – Couper and Te Whakaara, in particular – offending had been of such gravity that prison sentences of 24 months and 18 months respectively had been contemplated.
[4] Martin v Police HC Tauranga CRI-2011-470-23, 16 September 2011.
[5] Couper v Police HC Whangarei CRI-2011-488-76, 12 December 2011.
[6] Te Whakaara v R [2012] NZHC 784, Toogood J.
[22] There are a number of factors favourable to Mr Dobbs which point towards a sentence of home detention, notwithstanding the seriousness of his offending. They include the fact that his previous convictions dated back to 2002, the fact that he had
– so I am told – been in regular employment for some years including a job as a sales representative at which he had excelled, and to the other factors relied on by Ms Brittain including his having self-referred to a Living Without Violence programme.
[23] Against that there are a number of indications that a sentence of home detention is unlikely to promote his rehabilitation. It is clear that, particularly over the last year, he has experienced serious alcohol abuse issues. He has had major difficulties in his relationship with his partner. The probation officer reported that his partner had initially refused to allow him to be electronically monitored in the family home. She observed that the relationship appears strained. She reported that Mr Dobbs’ partner’s mother, with whom they had been living, had told her that her daughter and Mr Dobbs were “as bad as each other when it comes to domestic arguments”. One had apparently resulted in police intervention.
[24] Ms Brittain has provided me with a report that has been prepared during Mr Dobbs’ incarceration. It reveals some encouraging changes from the attitudes he had conveyed to the probation officer. He has acknowledged and shown remorse for
his offending. He is quoted as saying, “coming to prison is timely, I deserve
imprisonment for what I have done, I want to change, I will do any programmes I
need to do”.
[25] It is regrettable that a short term of imprisonment would not permit Mr Dobbs to undertake any of the programmes that would assist in addressing his various issues. Ms Brittain has urged on me that the benefits associated with an immediate release on home detention would be that Mr Dobbs could commence those programmes. However, I am not persuaded that release on home detention would be in his interests.
[26] The current proposal is that he would live with his partner and their child. That relationship is clearly experiencing real difficulties. It would not be a satisfactory environment in which to undertake what is, in any event, a sentence which imposes high stresses both on the sentenced person and other occupants of the house. I was told in the course of the hearing that Mr Dobbs’ mother would make her home available if I were to determine that home detention were appropriate. I have had the benefit of a letter from her which is helpful and positive in which she has offered to supervise his progress from Auckland with visits to Tauranga were he to be served a sentence of home detention with his partner.
[27] However, I have reached the view that it is in Mr Dobbs’ best interests that he complete his short sentence of imprisonment so that when he is released into the community, he can – with the release conditions imposed by Judge Wolff – attend appropriate drug and alcohol programmes and other counselling programmes directed by the probation officer. Most importantly, he can immediately embark on those programmes in an environment which is likely to optimise their benefit to him in the long-term.
[28] In short, my view is that even having regard to those factors which might favour a sentence of home detention, the prison sentence imposed by the Judge was the right one.
[29] The appeal is accordingly dismissed.
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