Espie v Police

[2017] NZHC 2741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000129 [2017] NZHC 2741

BETWEEN

LIAM DAVID ESPIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 November 2017
Appearances:	K Paima and C Gentleman for the Appellant C White for the Respondent
Judgment:	9 November 2017

JUDGMENT OF NATION J

[1]     On 30 September 2016, Mr Espie was sentenced to one year intensive supervision for possession of a knife in a public place, shoplifting, being unlawfully in a building and wilful damage.

[2]      On 27 June 2017, Mr Espie was charged with breaching the conditions of that sentence by failing to report between given dates on some 16 occasions and failing to attend an alcohol and drug assessment programme as directed.  He pleaded guilty to that charge on 25 July 2017 and was to be sentenced on 27 September 2017.

[3]      On 22 September 2017, Mr Espie stole two bottles of wine from Countdown and some meat from Pak’nSave.  On 24 September 2017, he stole various other items

ESPIE v POLICE [2017] NZHC 2741 [9 November 2017]

costing $74.83 from Pak’nSave.   He appeared in Court on theft charges for that offending on 27 September 2017 and pleaded guilty.

[4]      On 27 September 2017, Mr Espie was sentenced.1   On all charges, including a re-sentencing in respect of the matters for which he had been sentenced to intensive supervision, Mr Espie was sentenced to seven months’ imprisonment.  He appeals against that sentence.

Principles on appeal

[5]      Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2   I must dismiss the appeal in any other case.3     To allow the appeal,  I must be satisfied that the sentence imposed was manifestly excessive.4   Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.5

The District Court decision

[6]      Judge Strettell referred to the PAC report, which recommended imprisonment. The Judge noted that Mr Espie’s criminal history and the present charges were such that they would ordinarily be met by community-based sentences.   However, Mr Espie’s  apparent  struggles  with  alcohol  dependency and  proven  pattern  of  non- compliance led the Judge to say that “[Mr Espie] frankly is unlikely to be able to meet any community-based sentence”.6

[7]      The Judge noted that previous community-based sentences had been imposed for rehabilitative purposes.  He noted that Mr Espie had not complied with them and concluded the only option for the Court was to impose a sentence that would hold him

accountable, would be a deterrent, and might cause Mr Espie to readjust his thinking

1      Police v Espie [2017] NZDC 21980.

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

3      Criminal Procedure Act 2011, s 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.

6      Police v Espie, above n 1, at [3].

to avoid a continuation of what the Judge described as his previous “rather tragic lifestyle”.

[8]      Having considered that a sentence of imprisonment was the only realistic prospect, the Judge resolved on a starting point of five months’ imprisonment on the lead charges of breach of intensive supervision. In respect of the matters for which he was being re-sentenced, Mr Espie was sentenced to three months’ imprisonment, but this was to be concurrent with the breach sentences.   For one of the most recent shoplifting charges, Mr Espie received a cumulative sentence of two months’ imprisonment.  On the other two shoplifting and theft charges, he was sentenced to imprisonment for two months concurrent.   All this resulted in the effective end sentence of seven months’ imprisonment.

The submissions and discussion

[9]      For the Crown, Mr White supported in detail the approach taken by the sentencing Judge.  He argued this was a case where Mr Espie’s non-compliance with community-based sentences meant that a short term of imprisonment was the only appropriate method of making Mr Espie appreciate the consequences of non- compliance.  He argued that the refusal of an adjournment for home detention to be considered could not be a basis for allowing an appeal against sentence where the issue on appeal was whether or not a different sentence should have been imposed.  Mr White emphasised that, on an appeal, the focus of the Court must be on the end result rather than the means by which that result was reached.  On that basis, he argued the sentence was clearly within range and could not be described as manifestly excessive.

[10]     For Mr Espie, Mr Paima argued the Judge was wrong to conclude that further community-based sentences were precluded through Mr Espie’s non-compliance with earlier sentences.   He said Mr Espie had previously completed two sentences of community work.   He argued that community detention, in combination with community work, would have met relevant sentencing purposes/principles. He argued this was the appropriate sentence given the importance of imposing the least restrictive outcome and for imprisonment to be used as a measure of last resort.

[11]     Mr Paima argued that Mr Espie’s sentence of intensive supervision was almost bound to fail given the family situation in which he was living.  At the time of the offending, Mr Espie was aged 23 and was living with his parents who had significant problems with alcohol and were, themselves, involved in criminal offending.   His father had recently appeared on a 12th  drink driving conviction.   His mother had recently been sentenced to community work following a conviction for assault.  He said that the non-compliance with the conditions of intensive supervision and the further offending had occurred at times when Mr Espie was homeless.  He said these particular circumstances were highlighted in the pre-sentence report prepared when Mr Espie was sentenced to intensive supervision in September 2016.  He speculated that Judge Strettell may not have had the benefit of that earlier report when he sentenced Mr Espie on 27 September 2017.

[12]     I do not accept that there could have been an error with the sentencing through the Judge being unaware of the way in which Mr Espie’s living situation was a factor in his offending.

[13]     The PAC report prepared for the 27 September 2017 sentencing stated that attitudes, alcohol and drugs were the contributing factors to Mr Espie’s previous and current offending, and noted that he had been abusing alcohol and drugs for a number of years.   The report advised that Mr Espie blamed his addiction on his family environment and reported that his parents also drank heavily and that he was exposed to a harmful drinking culture and violence within the family.  This later report also referred to the integrated safety response team’s concerns, with regard to a potential EM sentence, that there had been previous serious family violence incidents at his parents’ address.  It also appears, from the material made available to the High Court for the appeal, that Judge Strettell did have the earlier report at the time he sentenced Mr Espie.

[14]     I do not consider the Judge could realistically have considered a community- based sentence would have been a viable option on the basis that a major factor in the previous offending was the family environment in which Mr Espie was living.  The PAC report of 22 September 2017 indicated that Mr Espie was then proposing that he

would live at his parents’ address.  He was in fact wanting to be subjected to an EM

sentence at that address.

[15]     There was also no information before the Judge on which he could have concluded that Mr Espie would have been likely to comply with the terms of a further community-based sentence.  Alcohol and drugs had been a contributing factor to his offending but one of the charges he was being sentenced for related to his failure to attend an alcohol and drug programme.  The PAC report said several attempts were made to motivate Mr Espie to engage in that programme but he had rejected the support offered.  The report said that he was unwilling to comply with any of the conditions of his sentence.  It also stated that the Alcohol, Smoking and Substance Involvement Test had been administered and indicated that Mr Espie was at high risk of harm from alcohol and drugs.

[16]     A previous PAC report, prepared on 29 September 2016, referred to Mr Espie then as being “only marginally suitable for Community Work as a result of the erratic reporting which was evident during a recently completed eighty hour sentence”.  The summary of facts for the breach of intensive supervision, involving non-attendance at a drug and alcohol programme, also referred to the Corrections Department being advised by Odyssey on 24 April 2017 that Mr Espie had been discharged from their programme given his non-compliance. The summary for the other breach of intensive supervision charge referred to his failing to report on 16 different occasions between

12 December 2016 and 30 May 2017, and his failure to report at all after 28 April 2017 despite promising to re-engage with his sentence and to provide an address. He failed to do either.

[17]     The Judge said that Mr Espie’s offending was of the sort that would not normally attract a sentence of imprisonment.   It is clear from his remarks that he imposed that sentence of imprisonment as a last resort, demonstrating the caution that is appropriate when an offender is receiving a first sentence of imprisonment and as

required by s 16 Sentencing Act 2002.7

7      See Tarrant v Police HC Palmerston North CRI-2007-454-10, 14 May 2007; R v Earle CA 414/91,

9 March 1992.

[18]     In R v Morgan, the Court of Appeal was considering an eight month sentence of imprisonment for offending for which the appellant had originally been sentenced to 150 hours’ community work.8  The appellant completed only four hours of that work before the completion date for his sentence.  The Court of Appeal allowed an appeal with regard to the length of the sentence but, in doing so, commented:9

In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable.

[19]     In my view, that was also the situation here, where Mr Espie had so seriously failed to comply with the conditions of intensive supervision and also committed further offences.

[20]     Next, Mr Paima submitted there was an error with the sentencing in the refusal of the Judge to allow an adjournment to give Mr Espie an opportunity to find an address which might have been appropriate for a sentence of home detention.

[21]     In his submissions, Mr Paima said, on 27 September 2017, he asked that Mr Espie have the opportunity for his grandmother’s residence in West Melton to be assessed for community/home detention. He submitted the refusal of an adjournment resulted in an error in that, in all the circumstances, home detention could have been an appropriate sentence.

[22]     In  his  submissions,  Mr  Paima  recorded  the  Judge  as  having  specifically declined leave to apply for home detention under s 80I of the Sentencing Act 2002. It is clear from the Judge’s sentencing notes that he did not consider home detention would be a viable sentence.  He referred to the probation report’s recommendation of imprisonment and said:10

The difficulties that faces Mr Espie is that because of his alcohol dependency which has been present for a number of years he frankly is unlikely to be able to meet any community-based sentence.

8      R v Morgan [2008] NZCA 232.

9 At [15].

10     Police v Espie, above n 1, at [3] (emphasis added).

[23]     Later, the Judge referred to Mr Paima’s submission that Mr Espie was not yet at the point where a sentence of imprisonment had to be imposed. The Judge said:11

… the answer to that is there is simply no sentence which I consider could be imposed of a community-based nature, which he would comply with and his failing to do the intensive supervision is indicative of that.

[24]     In the 29 September 2016 report, the Department of Corrections did not assess Mr Espie as being suitable for an electronically-monitored sentence, in part because he had openly acknowledged he could not handle the physical constraints of home detention.

[25]     There was no error in the Judge’s assessment of the situation in this regard. There was nothing in the information before the Judge to suggest that, if Mr Espie was to live with his grandmother, it would have led to a changed attitude on his part and his meeting the conditions of a community-based sentence.  Neither Mr Espie nor his grandmother had considered he could live with her when his living with his parents had such adverse consequences for him.

[26]     There is no basis on which it can be said that the refusal of an adjournment has led to the wrong sentence being imposed. The appeal cannot succeed on this ground.

[27]     Finally, Mr Paima submits the end sentence of seven months’ imprisonment was manifestly excessive.  He argued the offences could have been dealt with by way of a shorter term of imprisonment. Mr Paima rightly acknowledged that, on appeal, it is the end sentence which is of focal concern so that sentence should not be “unpicked by process”.  Despite that acknowledgement, he then looked at the sentences which the Judge arrived at for the various components of the offending.  He referred to the maximum sentence for a breach of intensive supervision of six months’ imprisonment. He submitted the original offences for which Mr Espie was to be resentenced would not normally have attracted imprisonment and suggested a sentence of three months’ imprisonment for that offending was problematic, but he also acknowledged that sentence for the original offending was concurrent with the sentence for breaches of

intensive supervision.

11     Police v Espie, above n 1, at [7].

[28]     Mr  Paima  did  not  suggest  an  uplift  of  two  months  for  the  most  recent shoplifting offences was inappropriate but suggested the sentence should not have been cumulative.

[29]     In relation to the breaches of intensive supervision, it is significant that there were separate and distinct breaches.  One charge dealt with 16 instances of failing to report. The other related to Mr Espie’s failure to attend a programme.

[30]     In R v Morgan, referred to above, the Court of Appeal considered a sentence of two months’ imprisonment where there was an almost complete failure to perform

150 hours’ community work.  That sentence was cumulative on a sentence of three months’ imprisonment for the original charge of assault with a weapon on which the sentence of 150 hours’ community work had originally been imposed.  The effective sentence for both the original offence and the breaches was thus five months’ imprisonment, the same that was imposed in this instance for the two breach offences and the original offending of unlawfully being in a building, wilful damage, possession of a knife in a public place and shoplifting.

[31]     There were then the further three instances of shoplifting, separate in time and circumstance from the earlier offending, and distinct from the breach of intensive supervision offences. That offending occurred when Mr Espie was subject to intensive supervision, was on bail and just prior to his being sentenced for the other matters. The offending, associated with his alcohol problem, was consistent with what the Department of Corrections had described as his antisocial attitude. The Judge did not expressly refer to a discount for a guilty plea but nor was there any expressed uplift for the fact this offending occurred while he was subject to sentence and on bail.

[32]     With there being no viable alternative to a sentence of imprisonment, Judge Strettell was justified in deciding a short term of imprisonment could be the deterrent which Mr Espie now needs to make a determined effort to deal with his alcohol and drug problems and avoid the sort of offending which has made him a potential danger to himself and to others.   Both nominally and in reality, this was a short term of imprisonment.   Mr Espie will be subject to pre-release conditions and post-prison sentence conditions requiring him to attend a departmental programme and/or an

alcohol and drug programme.  The sentence will mean there should be oversight and support for him in taking the steps he needs so as to avoid further offending. There is thus a rehabilitative component to the sentence.

[33]     For all these reasons, I have not been persuaded there was any error in the end sentence imposed or that there should have been a different sentence.

[34]     The appeal is dismissed.

Solicitors:

K Paima, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.