Dwyer v Police
[2021] NZHC 2563
•28 September 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-36
[2021] NZHC 2563
CHRISTOPHER NICHOLAS DWYER v
NEW ZEALAND POLICE
Hearing: 28 Septemer 2021 Counsel:
S Hunt for Appellant
J E Bourke for Respondent
Judgment:
28 September 2021
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 2 September 2021 Mr Dwyer was sentenced by Judge Hikaka in the New Plymouth District Court to four months’ imprisonment (with six months’ post- release conditions and reparation) on three charges: one charge or unlawfully taking a motor vehicle, and two charges of breaching home detention.1
[2] Mr Dwyer appeals on the grounds that the sentencing Judge erred by not imposing the least restrictive outcome available in the circumstances, and failing to have proper regard to s 26 of the Sentencing Act 2002.
1 Police v Dwyer [2021] NZDC 17585.
DWYER v NEW ZEALAND POLICE [2021] NZHC 2563 [28 September 2021]
[3] The primary issue for determination is whether imprisonment was the least restrictive outcome appropriate in the circumstances, and whether a combined sentence of community work and intensive supervision is sufficient to reflect the principles and purposes of the Sentencing Act.
Background
Factual background
[4] On 25 February 2021, Mr Dwyer convinced an associate to hire a vehicle from Budget Rentals New Plymouth. He then convinced his associate to extend the rental for a further five days and was provided a different vehicle – a Ford Ranger valued at
$50,000. Mr Dwyer took possession of that vehicle, used it for his personal use and did not return it. He told his associate that he had made arrangements with the rental company, which was false. Mr Dwyer then changed registration of the vehicle into his name, and when it was not returned the vehicle owners reported it to the police.
[5] The vehicle was recovered near Mr Dwyer’s address with his personal belongings inside it. He admitted the facts as outlined and explained that he had originally planned to return the vehicle, but that it had “all got out of hand”, and he could not afford the rental invoice.
[6] On 22 March 2021, Mr Dwyer was sentenced to five months’ home detention on charges of assault with intent to injure and wilful damage. A condition imposed as part of this sentence was that Mr Dwyer was not to associate with or contact the victim of these offences.
[7] It is significant that the associate referred to in relation to the theft charge was in fact the victim in relation to a charge of assault with intent to injure that Mr Dwyer had been sentenced to home detention on. It was a condition of that sentence that he does not associate with her.
[8] On 22 June 2021, Community Corrections visited Mr Dwyer’s address to verify his new accommodation and discovered that there was a female present.
Mr Dwyer introduced this person as “Rosie”, but she was identified at a later date as being the victim of Mr Dwyer’s prior offending.
[9] On 26 July 2021, Mr Dwyer left his home address and travelled to Taranaki Base Hospital. When contacted by the electronic-monitoring advisor from Corrections, he told them that he was having health issues. The advisor instructed him to remain there, but upon contacting the hospital to verify Mr Dwyer’s presence there, they were told that no-one of his name had checked into the emergency department. The advisor called Mr Dwyer, who subsequently terminated the call and returned to his address. Mr Dwyer later admitted that he was in fact transporting the victim to hospital for treatment on her leg.
[10] As noted in the sentencing Judge’s summary of the facts, throughout Mr Dwyer’s home detention sentence between June and August, he had been in contact with the victim without prior approval. When interviewed about it, he admitted that he had been associating with her for a while, but that he did not think he would get “caught out”. This formed the basis for the first breach of home detention charge.
[11] The second breach of home detention charge was similar to the first. On 17 August 2021, Community Corrections carried out an unscheduled visit to Mr Dwyer’s address. A female answered the door and told them that Mr Dwyer was at work and would be back at a later time. The female was identified as the victim. Mr Dwyer was challenged about that being the case but said that she was “a friend”. He eventually acknowledged however, that it was in fact the victim.
PAC report
[12] The PAC report classified Mr Dwyer as being at a medium risk of offending, as, despite his relatively minimal criminal history, he committed the current offences while on a sentence of home detention. The report noted that Mr Dwyer did not dispute the police summary of facts, and that in relation to the vehicle that he had leased, he reported that it had been involved in an accident, and that he had panicked upon realising that it was uninsured. Mr Dwyer stated that it was his belief that if he changed the vehicle into his own name, the issue “would go away”, but that it ultimately came back to bite him.
[13] Mr Dwyer also acknowledged that he had associated with the victim of his offending throughout his home detention sentence, but that he thought that he would not get caught and that if he did, there would be no “real” consequences” due to there only being a “few days left” on his home detention.
[14] In light of this information, the report-writer recommended a sentence of intensive supervision, coupled with community work. A special condition which stipulated that Mr Dwyer was not to associate with the victim was recommended. The report-writer noted an electronically monitored sentence of either community detention or home detention was considered but was not recommended because no suitable address was available and the report-writer was unsure as to whether Mr Dwyer “could maintain the integrity of such a sentence”.
District Court decision
[15] After setting out the relevant factual background, Judge Hikaka summarised the PAC report, describing Mr Dwyer as having a sense of entitlement and poor problem-solving skills and attitudes. The Judge noted that, what had grated with probation services was that Mr Dwyer was deceitful and had lied to Community Corrections over a lengthy period of time in relation to his breaches of the sentence of home detention.
[16] The Judge noted that the victim who owned the car stolen by Mr Dwyer provided a schedule of close to $9,500 loss to the company on account of him unlawfully converting it, which had been revised down to $2,900 to cover the cost of repair for the vehicle, fuel and unpaid fees with respect to the hireage.
[17] Counsel had referred the Judge to several cases including Moka v Police, Turnbull v Police, and R v Rolleston.2 Those cases all included charges of unlawfully taking a motor vehicle, and the Judge noted that in R v Rolleston, a community-based sentence was imposed to try and break the cycle of offending, but also Moka v Police,
2 Moka v Police HC Auckland CRI-2007-404-268, 11 December 2007; Turnbull v Police [2021] NZHC 828; and R v Rolleston [2018] NZHC 2656.
where a nine month sentence of imprisonment on a single charge of unlawfully taking a vehicle was upheld on appeal.
[18] The Judge then turned to the mitigating factors for Mr Dwyer and his offending. These included his guilty plea (which the Judge held deserved full credit), his remand in custody of some 16 days (which the Judge described as a “wake-up call”), and also the fact that Mr Dwyer had been suffering from mental health issues such as depression, as well as having suicidal ideations leading to him being prescribed medication. The Judge noted that Mr Dwyer also had the support of his ex-partner, and Prisoners Aid and Rehabilitation Service had indicated to Mr Dwyer’s counsel that they were prepared to assist in finding a temporary residential option for him.
[19] Counsel for both the police and Mr Dwyer submitted that a sentence of intensive supervision and community work was the appropriate response, although counsel for the police did express concern about the current charges due to Mr Dwyer’s deception, and breaking the condition to not associate with the person to whom he had previously been violent.
[20] Overall, the Judge concluded that in line with purposes and principles of the Sentencing Act, and particularly noting the length of time that Mr Dwyer deliberately deceived Corrections, the starting point should be eight months’ imprisonment.
[21] The aggravating features of the offending included the length of time Mr Dwyer continued the deception, the abuse of trust working with others to secure the rental car in his possession and control, the length of time he kept it in his possession and control, and the costs incurred by the rental company as a result of his deceptive behaviour. The Judge expressed his concern that not only did Mr Dwyer breach the conditions of his home detention sentence, but that he spent a lengthy period of time attempting to deceive those who were trying to assist him to properly rehabilitate back into the community.
[22] The Judge expressed the view that he was “not inclined” to grant a community- based end sentence, or for Mr Dwyer’s prison sentence to feature leave for him to apply for home detention. The Judge’s view was that Mr Dwyer had already shown
through his disregard of his last sentence that he was not a person who could be trusted on a community-based sentence.
[23] The Judge did acknowledge that Mr Dwyer was entitled to the maximum discount for a guilty plea, and also for what he described as individual factors. He noted that while Mr Dwyer was only a few days away from completing the sentence of home detention, he was several months away from seeing an end to the condition that he was not to associate with the victim of his prior offending, which needed to be taken into account.
[24] The Judge ultimately imposed an end sentence of four months’ imprisonment, without leave to apply for home detention and six months’ post-release conditions, namely:
(a)attend any assessment for any programme or counselling that is recommended and follow up with any treatment that the assessment discloses would be appropriate;
(b)non-association with the victim of his earlier offending without written approval of the probation officer; and
(c)undertaking employment, voluntary work or training as approved by his probation officer.
[25] Finally, the Judge made an order that the remaining post-detention conditions end on that day, and made a reparation order for $2,900 to the victim in the unlawful taking charge (in payments of $10 per week upon release).
Position of the parties
Mr Dwyer
[26] On the first ground of appeal (that the sentencing judge erred by not imposing the least restrictive outcome appropriate in the circumstances) counsel submitted that Mr Dwyer’s imprisonment in this case was disproportionately severe. While not
ruling out a starting point of imprisonment, counsel stressed that the end sentence ought to have been a community-based sentence, as this was the least restrictive sentence available in line with s 8(g) of the Sentencing Act. Counsel referred to R v Rawiri, where the Court of Appeal observed:3
[17] These changes are consistent with a discernible legislative policy of keeping offenders within the community wherever appropriate. Parliament’s intention was plainly to increase the range of sentencing alternatives available to a Judge other than home detention or imprisonment. Significantly, the legislature placed community-based sentences well up the hierarchy, immediately below home detention.
[18] … The statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort.
[27] It was submitted that instead of following the approach required under s 8(g), the judge had imposed the most restrictive sentence for Mr Dwyer’s first dishonesty conviction. This was despite Mr Dwyer’s near “blemish free” criminal record (with only two prior convictions and no recorded breaches of bail or Court orders), and the fact that Corrections (via the PAC report) and police (whose counsel had suggested the sentence of intensive supervision and community work). Judge Grieg, who had heard Mr Dwyer’s application for bail on 18 August 2021 had also expressed a view that this might be the ultimate outcome.
[28] While counsel acknowledged that the Judge was not bound to follow any of these views, they provided evidence that a sentence of imprisonment was not the least restrictive one in the circumstances. Counsel again referred to R v Rolleston,4 where the Court dealt with a 21-year-old recidivist offender, who was sentenced to a combination of supervision and community work to “break the cycle of offending”, and submitted that the same approach should be taken here.
[29] Also, in assessing the two breaches of Mr Dwyer’s home detention, counsel submitted that alone, they did not warrant a prison sentence. They did not involve circumstances where the integrity of a home detention sentence had been compromised. Mr Dwyer’s liberty was still severely constrained; he did not cut off his bracelet, leave his address for a sustained length of time, or commit further offences
3 R v Rawiri [2011] NZCA 244.
4 R v Rolleston [2018] NZHC 2656.
whilst on sentence. When viewed in isolation, a first and second breach of this kind could have attracted a convict and discharge or to come up if called upon sentence, with further breaches climbing the hierarchy of sentences.
[30] Turning to the second ground (that the sentencing judge failed to have proper regard to s 16 of the Sentencing Act) counsel noted that s 16 confirms that when considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety. Under s 16(2), a Court cannot impose a sentence of imprisonment unless it is satisfied that:
(a)the sentence is being imposed for a statutory purpose or purposes – that is: 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; and
(b)that those purposes cannot be achieved by a sentence other than imprisonment; and
(c)that no other sentence would be consistent with the statutory principles as applied to the particular case.
[31] It was counsel’s position that the Judge did not adequately address s 16(1) or give appropriate weight to the s 16(2) factors. In particular, the Judge did not explicitly discuss which purposes and principles of the Sentencing Act were guiding his decision, or note the s 16 factors, before settling on a starting point of eight months’ imprisonment. There was little expansion of the Judge’s reasoning for imposing a prison sentence or declining leave for home detention (except for several references to Mr Dwyer’s deception).
[32] Under s 16(1), counsel submitted that Mr Dwyer’s risk of re-offending was assessed as moderate, but counsel submitted that he was still relatively young and with a limited previous conviction history and mental health issues, suggesting that it was unlikely that he fully understood the severity and consequences of his actions.
Furthermore, there were also community supports in place to ensure his smooth transition back into the community.
[33] It was submitted that under s 16(2), a community work sentence adequately denounces and deters Mr Dwyer and holds him accountable for his behaviour, while intensive supervision, with the special conditions, serve the interests of the victim, protect the community, and promote the rehabilitation of the appellant.
[34] For these reasons, counsel submitted that the sentence imposed was manifestly excessive, and therefore in error.
The police
[35] Counsel for the police stresses that the charge relating to converting the motor vehicle occurred while the appellant was subject to bail conditions and a sentence of home detention. It was also submitted that the breaches of the home detention sentence were not fleeting or careless breaches but were prolonged and premeditated.
[36] It was submitted that the imposition of a sentence of home detention, in the context of domestic violence offending, served multiple purposes: deterrence, denunciation, and also offered an opportunity for rehabilitation by way of such courses as may be directed.
[37] It was noted that the victims of domestic violence may, on occasions, wish to remain in a relationship with a defendant and, in those circumstances it was the duty of the Court to protect those who could not protect themselves.
[38] It was not acknowledged that Judge Hikaka did not explicitly refer to s 16 or the hierarchy of sentences but was submitted that this was “clearly at the forefront of the Judge’s mind” when he noted that Mr Dwyer was “not a person who can be trusted on a community-based sentence”.
[39] Counsel emphasised that the offending showed a disregard for sanctions imposed by the Court and referred to the approach of the Courts imposing stern responses when offenders deliberately fail to abide by Court-imposed conditions. It
was submitted that any lesser sentence than imprisonment would not meet the purposes of sentencing, in particular deterring others from deliberating flouting Court- imposed conditions.
Approach to appeal
[40] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6
Relevant law and analysis
[41] The focus for a sentencing Court is to impose the least restrictive outcome appropriate in the circumstances, in accordance with the hierarchy of sentences set out in s 10A of the Sentencing Act.7
[42] If an offender is convicted of an offence punishable by imprisonment,8 and the end sentence reached is a short-term sentence (meaning a sentence of imprisonment of up to 24 months),9 home detention becomes available as a sentencing option. However, whether or not it is appropriate to impose this sentence, in the circumstances of a particular case, is a matter for the discretion of the sentencing Judge. There is no presumption in favour of home detention being imposed.10
[43] The Court of Appeal in R v Thomas11 noted that where there was a real dispute as to whether a community-based sentence was appropriate, it was necessary for a sentencing Judge to refer to the ascending scale of sentences
5 Tutakangahau v R [2014] NZCA 279.
6 Ripia v R [2011] NZCA 101 at [15].
7 Sentencing Act 2002, s 8(g).
8 Sentencing Act 2002, s 80A(1)(a).
9 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).
10 At [21].
11 R v Thomas CA138/05 6 July 2005.
set out in ss 11 to 18 of the Sentencing Act 2002, and also to specify the purpose of the sentence.
[44] In the present case, Judge Hikaka followed a course different to that recommended in the PAC report and contrary to the submissions of counsel for both the prosecution and defendant. In those circumstances, it was necessary for him to articulate why he had reached that view and the basis upon which he was satisfied that the requirements of s 16(2) were met.
[45] It is therefore necessary for me to consider both the hierarchy of sentences and orders set out in s 10A and to consider whether the requirements of s 16(2) are met.
[46]In terms of the hierarchy, the most restrictive sentences are:
(a)sentence of imprisonment;
(b)sentence of home detention;
(c)community-based sentences of intensive supervision and community detention;
(d)community-based sentences of community work and supervision;
(e)sentences of a fine and reparation; and
(f)discharge or order to come up for sentence if called upon.
[47] I accept, as noted by the Court of Appeal in R v Rawiri that the statutory hierarchy of sentencing options is an affirmation that prison is a measure of last resort and that a sentence of community service can be a real
and effective alternative to imprisonment and should not be regarded by the public as a minor or insignificant response.12
[48] I accept that a sentence of community work is designed to achieve the principles of accountability, deterrence and denunciation traditionally associated with imprisonment while avoiding the default option inherent in that sentence, as well as promoting a sense of community participation and awareness.
[49] There are cases where an offence of unlawfully taking a motor vehicle under s 226(1) of the Crime Act in relation to a defendant being supplied with a courtesy car from a garage and not giving it back for over two weeks, was held to justify a sentence of six months’ imprisonment. 13 But there have also been cases where defendants facing a charge of unlawfully taking a motor vehicle and other dishonesty offences have not been sentenced to imprisonment.
[50] In particular, the appellant relies on the decision of R v Rolleston where Fitzgerald J sentenced a defendant facing a lead charge of unlawfully taking a motor vehicle, as well as other dishonesty offences, to nine months’ supervision and 100 hours community work. 14 The youth of the defendant and the need to address a pattern of offending appear to have been the principal factors relied upon by the Judge in that case. There was also an issue of relativity with a co-offender who had been sentenced to home detention.
[51] The respondent submits that what is likely to have been at the forefront of the Judge’s mind in this case is that Mr Dwyer was not a person who could be trusted on a community-based sentence. There is some force in that observation.
12 R v Rawiri, above n 3, at [18].
13 See Peka-Hazel v Police [2016] NZHC 2696.
14 R v Rolleston [2018] NZHC 2656.
[52] The most relevant purposes of the Sentencing Act in this case would appear to be:
(a)s 7(1)(c) to provide for the interests of the victim;
(b)s 7(1)(e) to denounce the conduct in which the offender was involved;
(c)s 7(1)(f) to deter the offender or other persons from committing the same or similar offence; and
(d)s 7(1)(g) to protect the community from the offender.
[53] A particularly relevant feature of this offending is that the person who was the victim of the original assault with intent to injure charge which resulted in the sentence of home detention was the same person that Mr Dwyer manipulated into obtaining the vehicle from the rental car company. He deceived and lied to her about what he had done with the vehicle.
[54] In imposing the sentence of home detention, the Court felt it necessary to impose a non-association condition between Mr Dwyer and the victim. The Court would not have done that unless it believed such a condition was necessary for the protection of the victim. Mr Dwyer systematically ignored that condition and persisted in associating with the victim throughout the home detention even to the point of having her reside at his residence. He compounded this breach of the conditions by repeatedly attempting to deceive the Department of Corrections on a number of occasions. This was not spontaneous offending but a calculated and sustained contempt of the directions given to Mr Dwyer by the Court. The fact that the victim would appear to have acquiesced in Mr Dwyer’s conduct does not excuse or mitigate it. She is clearly one of those people whom the Court needs to protect from an offender.
[55] The offending in relation to the motor vehicle can also not be described as spontaneous. It involved significant elements of premeditation including the manipulation of the victim of the assault charge to obtain a rental vehicle and attempts to avoid detection including the registration of the vehicle into his own name.
[56] The PAC report described Mr Dwyer as someone with a medium risk of harming others, particularly in a domestic setting. That observation seems justified.
[57] As to an explanation for his breaching the conditions of home detention, the PAC report lists Mr Dwyer as saying he thought that there would be no real consequences. It needs to be demonstrated to both Mr Dwyer and others who might be considering breaching home detention conditions that there are real consequences for such action.
[58] Having considered the various purposes set out in s 7, in particular the purposes set out in s 7(c), (e), (f) and (g) set out above, I have come to the conclusion that a term of imprisonment was the least restrictive outcome available and that the requirements of s 16(2) are met, and that the purposes of s 7(1) of the Act cannot be achieved by a sentence other than imprisonment, and that no other sentence would be consistent with the application of the principles of s 8.
[59] Mr Dwyer, and those who would follow his example, need to understand that there are consequences for breaching an order of home detention, particularly where breaches are accompanied by repeated attempts to deceive those charged with enforcing such a sentence.
[60] On the facts of this case, the protection of the community from Mr Dwyer and, in particular the protection of the victim from his ongoing manipulation of her strongly favour a custodial sentence.
Result
[61]Appeal dismissed.
Churchman J
Solicitors:
Nicholsons Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent
0
6
0