Duval v Police

[2018] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000042 CRI-2018-404-000043

CRI-2018-404-000044 [2018] NZHC 393

BETWEEN

JACOB JAMES DUVAL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 March 2018
Appearances:	Dennis Dow and Susan Giles for the Appellant Annabel Linterman for the Respondent
Judgment:	13 March 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 March 2018 at 2:45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

DUVAL v NEW ZEALAND POLICE [2018] NZHC 393 [13 March 2018]

Introduction

[1]                 The appellant, Jacob James Duval, aged 21, was sentenced to seven months’ imprisonment concurrently imposed  on a variety of  charges by Judge  J  Jelas on  14 February 2018 at the Waitakere District Court.

[2]                 Her Honour declined to convert that sentence to home detention on the grounds that given Mr Duval’s significant history of non-compliance she had no confidence he would complete the sentence without incident.

[3]                 Mr Duval appeals on the narrow question of whether the Judge should have exercised her discretion to order home detention.

Background facts

[4]                 In his submissions filed in support of the appeal, Mr Dow, for Mr Duval, helpfully provided a table which I have modified for present purposes. This sets out the seven charges Mr Duval pleaded guilty to. For convenience the charges may be divided into three categories  defined  by  the  dates  of  offending;  9  June  2017,  18 October 2017 and 24 December 2017.

Date	Charge	Maximum sentence	End sentence
9 June 2017	Common assault	1 year’s imprisonment	5 months
18 October 2017	Driving whilst disqualified (3rd or subsequent)	2 years’ imprisonment; $6,000 fine	7 months
18 October 2017	Dangerous driving	3 months’ imprisonment; $4,500 fine	3 months
18 October 2017	Failed to stop for red and blue lights (3rd or subsequent)	3 months’ imprisonment; $10,000 fine	2 months
18 October 2017	Breach of community detention	6 months’ imprisonment; $1,500 fine	2 months
24      December 2017	Escaping Police custody	5 years’ imprisonment	6 months

Date	Charge	Maximum sentence	End sentence
24      December 2017	Resisting Police	3 months’ imprisonment; $2,000 fine	1 month

[5]                 The description set out below  is drawn  from the summaries of fact which  Mr Duval accepted as accurate.

Assault (9 June 2017)

[6]                 On 9 June 2017 the victim was leaving his home to go to work. As he walked across the road Mr Duval, who was waiting with an associate, challenged him saying, “You’ve been talking shit about me …”.1 The victim denied this and threw a punch at Mr Duval who responded by running at the victim and tackling him to the ground. He then launched a prolonged attack on the victim punching him in the head and face several times while the victim attempted to shield his head in his arms. As a result of the attack, the victim was bruised and required treatment by attending ambulance staff. When spoken to by the Police Mr Duval admitted pursuing the victim, tackling him and punching him several times.

[7]                 Mr Duval pleaded guilty to assault on the morning the matter was scheduled for hearing. He was granted bail. At the time he was a disqualified driver.2

Driving charges and breach of community detention (18 October 2017)

[8]                 At about 6:30 pm on 18 October 2017 Mr Duval was seen by the Police driving in the Westgate area. At the time he was serving a sentence of community detention which required him to be resident at his home between 7:00 pm and 7:00 am. Conscious that he had been spotted by the Police Mr Duval took various evasive actions as he drove in and around the Westgate shopping area. The Police activated

1      Mr Dow advised that Mr Duval lived opposite the victim. The men had known each other for some years. Mr Duval’s partner was the victim’s former girlfriend.

2      On 11 August 2015 he was convicted and sentenced on various driving charges and was disqualified from driving as a result. On 30 August 2016 he was convicted for dangerous driving, failing to stop and driving while disqualified. He received a further disqualification. On 15 August 2017 he was convicted for dangerous driving, failing to stop and disqualified for driving. The disqualification period was scheduled to end on 14 May 2018.

their lights and siren. Mr Duval increased his speed in an attempt to escape. He was seen to accelerate towards a member of the public outside the Countdown supermarket before entering a roundabout in the wrong direction and then  accelerating up  to  120 kilometres per hour and driving through a red light. So concerned were the Police at Mr Duval’s dangerous driving they abandoned the pursuit.

[9]                 Despite this Mr Duval carried on at speed towards his home where he parked the car behind the house and covered it with a tarpaulin. He ran inside, pulled the curtains and hid in a bedroom where the Police later found him.

[10]              The breach of detention charge relates to Mr Duval’s curfew violation, i.e. not being at his home after 7:00 pm.

Resisting Police and escaping Police custody (24 December 2017)

[11]              The two final charges arise out of events on 24 December 2017. Mr Duval had been granted EM-bail. The Police arrived at his EM-bail address after neighbours had heard arguing. They placed Mr Duval under arrest. Mr Duval struggled violently in an unsuccessful attempt to prevent the Police from handcuffing him. He was escorted to the Henderson Police Station but later complained of a sore wrist. He was taken to Waitakere Hospital for an examination but as he was being discharged he escaped. In the darkness he ran about 100 metres before striking an obstacle and falling.

District Court decision

[12]              Judge Jelas bundled Mr Duval’s offending into the three categories as set out above. For the assault charge she fixed a starting point of five months’ imprisonment. She regarded as aggravating factors the level of premeditation, lack of provocation and the fact that the offending involved the delivery of multiple blows to the head and face area of the victim.

[13]              Next she addressed the 18  October 2017  driving charges.  She found  that Mr Duval had driven in a persistently dangerous manner placing members of the public at risk. She considered Mr Duval’s significant history of driving offending including two prior convictions for dangerous driving, convictions for reckless driving, two convictions for driving while disqualified and three for failing to stop.

[14]In this context she observed:

“[24] You have in effect three prior sets of convictions relating to driving matters. On each occasion you have failed to stop, you never comply with police red and blue flashing lights, and you drive in a manner that is either dangerous or reckless. On the more recent occasions you have always been disqualified. It would appear from your ongoing offending of that nature since 2015 that no matter what restrictions are put in place you continue to drive and drive poorly.

[25] I also note and emphasise as I have already mentioned that this offending reflects substantially the same offending you were sentenced for in August last year. The present offending occurred while you were serving that sentence of supervision and community detention. I am told today that you have not completed any programmes under your supervision sentence, but that was because none were offered to you.”

[15]              The Judge considered a further aggravating factor was that the driving offences occurred while Mr Duval was on bail for the assault. Combining these matters her Honour considered that an appropriate starting point was six months’ imprisonment.

[16]              She then turned to consider the resisting Police, escaping Police custody and breach of community detention charges. She uplifted the sentence by one month in recognition of that offending, bringing the global starting point to 12 months’ imprisonment.

[17]              Judge Jelas accepted Mr Duval was entitled to a credit for youth and for his pleas of guilty. Despite the recidivist nature of his driving offences the Judge applied a two and a half month discount on account of youth and gave a global two and a half month discount for the guilty pleas, acknowledging that the plea to the assault charge had come late.

[18]              Applying these discounts the Judge arrived at an end sentence of seven months’ imprisonment. It was at this point she considered whether to convert the sentence to one of home detention. The Judge acknowledged the need to impose the least restrictive outcome appropriate in the circumstances3 and whether the purposes and principles of sentencing could be met by Mr Duval serving a sentence of home detention. She considered they could not, primarily by reason of Mr Duval’s significant history of non-compliance. On this topic she said:

“[32] … I have no faith that if home detention was imposed that you would comply with it. I repeat again that this offending occurred while you were serving an electronically based sentence and further you have breached your electronically monitored bail conditions.

[33]  I believe that if you were given a community-based sentence you  would continue to drive which would only place the public at further risk.”

[19]              The Judge noted that even after participating in the Right Track programme Mr Duval had continued to re-offend on two separate occasions. She thus concluded a term of imprisonment was the only sentence which could hold Mr Duval to account and denounce his offending.

Grounds of appeal

[20]              As previously noted Mr Duval advances only one ground of appeal; that the Judge erred by not commuting the sentence of imprisonment to one of home detention. Specifically Mr Dow, for Mr Duval, submits that the Judge erred by:

(a)sentencing Mr Duval on the wrong facts in relation to the common assault charge;

(b)not imposing the least restrictive outcome appropriate in the circumstances;

(c)failing to take into account a relevant consideration, being the pre- sentence report writer’s recommendation of a sentence other than imprisonment (over emphasis on deterrence and denunciation); and

3      Sentencing Act 2002, s 8(g).

(d)taking into account an irrelevant consideration, by considering earlier pre-sentence reports without giving counsel for Mr Duval the opportunity to address them.

Jurisdiction

[21]              This is a first appeal against sentence. The appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.4 The touchstone is whether the sentence imposed is manifestly excessive.5 The focus is on the sentence imposed, rather than the process by which it was reached.6

[22]              The Court of Appeal has specifically addressed the approach to appeals against refusal to grant home detention:7

“We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?”

Analysis

[23]I shall deal with each of the grounds advanced in turn.

Did the Judge err in her analysis of the facts?

[24]              Mr Dow’s principal criticism is that Judge Jelas’ analysis of the facts differed materially from the agreed summary of facts. In particular, he says that there was no factual foundation to support the Judge’s conclusion that the offending was premeditated or that Mr Duval threw the first punch. Mr Dow says that there is nothing in the summary of facts which would support the Judge’s conclusion that Mr Duval was waiting for the victim.

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

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

6 At [36].

7      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

[25]              As Mr Dow points out the summary of facts refers to the defendant “waiting with an associate by a vehicle” as the victim left his home and walked across the road. Given those circumstances it is understandable that Judge Jelas described the offending as premeditated. Other than Mr Duval’s claim to the author of the pre- sentence report that this was a chance encounter and that the victim had just turned up at his house, it was open to the Judge to draw this inference although for reasons which follow I do not regard the resolution of this issue as significant in terms of assessing the totality of the offending.

[26]              However, Mr Dow is correct, and Ms Linterman, for the Police properly accepts, that the Judge was wrong to state Mr Duval threw the first punch. The summary explicitly states that it was, in fact, the victim who took this first action. But, again, viewed in the broader context of Mr Duval’s attack; the pursuit, the tackling, the multiple punches when the victim was on the ground and the injuries sustained, any factual errors of the sort complained of assume only modest prominence in the assessment of overall culpability.

[27]              Moreover, the assault charge does not feature in Judge Jelas’ assessment of the appropriateness of home detention. Her concern was plainly with Mr Duval’s history of non-compliance. That being the case, the errors complained of did not affect the assessment which is in focus in this appeal.

[28]              It is for these reasons I do not accept Mr Dow’s submission that these errors of fact and what he describes as the excessive emphasis placed on them coloured the Judge’s decision on the appropriateness of home detention.

Did the Judge err in not imposing the least restrictive outcome appropriate in the circumstances?

[29]              Section 16 of the Sentencing Act 2002 (“the Act”) governs the imposition of a sentence of imprisonment. It requires the Court to have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the

safety of the community.8 It goes on to provide that the Court cannot impose a sentence of imprisonment unless it is satisfied that:9

“(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.”

[30]              Sentences of home detention meanwhile are available under s 15A. They may only be imposed if:10

“(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b) the court would otherwise sentence the offender  to  a  short-term sentence of imprisonment.”

[31]              A two-step process governs the imposition of sentences of home detention.11 To be an available option, at the first stage the Judge must have decided that the sentence which would otherwise be appropriate is a sentence of two years’ imprisonment or less.12 At the second stage, the Judge considers whether to commute that sentence to one of home detention. That exercise involves:13

“… 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 of the purposes of sentencing.”

[32]              This acknowledges that home detention is a significant sentence in its own right.14 But the introduction of home detention as a discrete sentence has not removed a short-term sentence of imprisonment as an appropriate sentencing option.15

8      Sentencing Act 2002, s 16(1).

9      Section 16(2).

10     Section 15A(1).

11     R v Vhavha [2009] NZCA 588 at [31], per William Young P.

12     There is no dispute that that stage is engaged in Mr Duval’s appeal.

13     Fairbrother v R [2013] NZCA 340 at [30].

14 At [28]. See also R v Iosefa [2008] NZCA 453 at [41].

15     Polyanszky v R [2011] NZCA 4 at [13].

[33]The Court in Fairbrother v R went on to state:16

“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 of the countervailing purposes of sentence.”

[34]The Court concluded as follows:17

“Sometimes, as this Court said in R v D CA 253/2008 that can prove a very difficult exercise of judgement; 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.”

[35]              One factor which will assume significance in appropriate cases is a history of failure to comply with Court orders in similar circumstances.18 Mr Dow submits the Judge also erred in this assessment. He submits that if the Judge had undertaken a proper and careful analysis of Mr Duval’s non-compliance the result would have been different. Mr Dow points out that Mr Duval spent three months on electronically- monitored bail with a 24 hour curfew. There is no evidence he drove or was otherwise in breach of his conditions during that time. He points out that while the driving offences were committed when Mr Duval was the subject of community detention, the dangerous driving was not committed during his curfew hours. He says that the only breach of curfew occurred on 24 December 2017 when Mr Duval was involved in a domestic dispute with his partner. However, no charges were laid in respect of that incident. In summary, Mr Dow submits that Mr Duval has no previous convictions for non-compliance with Court-imposed sentences, but accepts he has contravened various Court and official orders.

[36]              Applying those principles it is plain that Judge Jelas approached her task correctly. She expressly considered the principle of the least restrictive outcome and whether or not the purposes and principles of sentencing could properly be met by Mr Duval serving a community sentence in the form of home detention. Her Honour stated that she reached the view that imprisonment was the only outcome that could

16     Fairbrother v R, above n 13, at [29].

17     Fairbrother v R, above n 13 at [31].

18     Hampton v Police [2014] NZHC 2423 at [28]-[29].

properly be imposed and in doing so took into account Mr Duval’s criminal history and, in particular, his significant history of non-compliance, giving weight to the fact that some of the offending occurred while Mr Duval was serving an electronically- monitored sentence. She also took into account that Mr Duval had had the benefit of attending a rehabilitative programme but had continued to re-offend.

[37]              Mr Dow is correct that on the authority of Fairbrother the principle of deterrence should not be given complete priority without regard to any of the other countervailing purposes and principles of sentence. But that is not what Judge Jelas did and a reading of her sentencing remarks as a whole reveals that. The other principles implicit in the Judge’s decision not to grant home detention included holding Mr Duval accountable, promoting in him a sense of responsibility and the need to reflect the harm done to the victim; principles which could not be fulfilled other than by a short sentence of imprisonment.

[38]              The Judge reached her conclusion that only a term of imprisonment would suffice after a reasoned and principled assessment of the competing factors. While it might be said that her analysis focused primarily on the risks of non-compliance, I do not consider she failed to weigh other relevant factors such as Mr Duval’s prospects of rehabilitation. Indeed she observed that shortly after participating in a rehabilitative programme, he continued to re-offend on two separate occasions. She was plainly conscious of the countervailing considerations, but concluded there was little option but to impose a short term sentence of imprisonment.19

[39]              In my view that was the correct conclusion to reach. The harms associated with incarcerating young offenders are well documented,20 and Mr Duval’s relative youth is not a trifling consideration. But by the time of sentencing he had been offered various opportunities to demonstrate his ability to comply with Court orders. He gave the Court few grounds for confidence as to his ability to comply with a further order in the form of home detention.  It is significant that each of the charges for which  Mr Duval was being sentenced related to offending committed while he was subject to a Court order. He was serving a sentence of supervision and community detention

19     I return to this below at [44] and the paragraphs that follow.

20     See, for example, Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

when he committed an assault. He was then released on bail, during which time the driving offences occurred. At the time he was a disqualified driver. He was then released on EM bail. While subject to electronic monitoring, and still on community detention, the Police were called to a domestic dispute involving his partner. He resisted arrest, and then escaped from their custody.

[40]              In those circumstances I agree with Judge Jelas that she had little option but to sentence Mr Duval to a short term of imprisonment. To do otherwise would be to attract the inevitable; further episodes of anti-social and risky conduct likely to endanger the health and safety of the public.

[41]              I have considered whether by analogy attention should be drawn to EM bail decisions where the Court has stated that a history of offending on general bail is not a helpful indicator of risk of re-offending while on EM bail.21 That is, in my view, the essence of Mr Dow’s submission: that home detention is more restrictive than community detention, and other types of Court orders. I do not consider such an analogy should be drawn. The grant of bail turns on the assessment of various risks, one of which is the risk of offending while on bail. It is in that context that the nature of constraints placed on defendants carries particular weight. By contrast at sentencing the  governing considerations are  those contained in the Act, namely at  ss 15A and 16 and the purposes and principles in ss 7 and 8. For the reasons stated I consider the Judge arrived at her conclusion guided by those considerations. In doing so she did not err.

Did the Judge err in failing to take into account the pre-sentence report author’s recommendation of a sentence other than imprisonment (over emphasis on deterrence and denunciation)?

[42]              Judge Jelas made no explicit reference to the pre-sentence report which recommended a sentence of home detention. Mr Dow accepts that her Honour would have read the report. He also accepts that the Judge’s failure to mention the report is not in itself a ground for challenge. However, his submission is more nuanced. He says that where a Judge elects to impose a sentence which is starkly different to that recommended there is an obligation to make explicit reference not only to the report

21     See, for example, Mulitalto v Police [2017] NZHC 2591 at [26].

but also the reasons why the recommendation has not been followed. He submits that in this case such an approach is particularly important given that Mr Duval has no previous convictions for non-compliance with Court sentences. He submits the Judge erred in placing emphasis on deterrence and denunciation to the detriment of other relevant considerations, including the principles of imposing the least restrictive sentence appropriate and the desirability of keeping offenders in the community.

[43]              Ms Linterman, in response, observes that the probation officer’s recommendation of home detention is just that, a recommendation. She also points out that the pre-sentence report makes reference to factors tending to operate against the imposition of a sentence of home detention.

[44]              It is in that context that the observations of the Court of Appeal in James are apposite.22 There the Court observed that an appeal against a refusal to grant home detention does not provide an opportunity to re-visit or review the merits. The question is whether the Judge erred in exercising his or her sentencing discretion. In James the Court determined that the decision as to whether home detention will meet the objectives of deterrence and denunciation in a particular case is a strictly evaluative exercise.23 It is a matter of judgement for the sentencing Judge to determine whether that sentence is an adequate response to the seriousness of the offending.

[45]              The Court went on to state that that does not mean that a short term of imprisonment must always be commuted to a sentence of home detention, noting that that would equally amount to an error of law. As stated above, what it requires is for the Judge to 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.

22     James v R, above n 7.

23 At [17].

[46]              For the reasons stated I do not consider the Judge erred in determining home detention was not an adequate response to the offending, after weighing the relevant purposes and principles. Having properly carried ouit that exercise, she did not err by not explicitly referring to the Probation officer’s observations about home detention.

Did the Judge err by considering earlier pre-sentence reports without giving counsel the opportunity to address them?

[47]              A further ground of appeal advanced by Mr Dow relates to earlier pre-sentence reports. These appear to have been prepared for unrelated sentencings in August 2015, July 2017 and August 2017. It is not clear how or why these reports came to be on the file.

[48]              According to Mr Dow he only became aware of the existence of these reports after the appeal had been filed and the contents of the Court file reviewed. He accepts there is no evidence that the Judge considered these reports.

[49]              For these reasons it is difficult to see how the reports may have compromised Mr Duval’s position at sentencing even if they had been read by Judge Jelas. She made no reference to them in her sentencing remarks and it is plain, in my view, that they had no influence on her decision not to order home detention.

[50]              Furthermore, that a sentencing Judge elects not to adopt a recommendation contained in a PAC report cannot be elevated to a claim that the Judge erred in principle. It is the Judge’s task to assess the totality of the offending and the extent of the criminality involved.

Conclusion

[51]              For these reasons I am not satisfied that Judge Jelas erred in not converting the sentence of imprisonment to one of home detention.

Result

[52]The appeal is dismissed.

Moore J

Solicitors/Counsel:

Public Defence Service, Auckland Crown Solicitor, Auckland