F v Police

[2016] NZHC 1638

NOTE PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-44 [2016] NZHC 1638

IN THE MATTER	of s 200 Criminal Procedure Act 2011
BETWEEN	F Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 July 2016
Counsel:	M W Anderson for Appellant S T Ellis for Respondent
Judgment:	19 July 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4.45 pm on the 19th day of July 2016

F v NEW ZEALAND POLICE [2016] NZHC 1638 [19 July 2016]

[1]      F appeals against an effective sentence of 12 months’ imprisonment on eight charges of making an intimate visual recording.1     He says  a sentence of home detention should have been imposed.

[2]      I record at the outset that the District Court Judge granted F permanent name suppression on the grounds that he was satisfied that F’s wife’s mental state was such that extreme hardship would result if his name was published.

Facts

[3]      Put crudely, F used a camera secreted inside a shopping basket or bag to film up the skirts of young women while they were in busy public places.  The recordings he made were between four and 30 seconds in length.  F downloaded them onto a computer or storage device.   He was caught when he was seen doing this by a security guard in a Farmers store.  He ran out of the store and was arrested.  Police later searched his home and seized computers and storage devices.   They found videos of 27 young women, most of which had been made in late 2014 and 2015.

[4]      Three  of  the  videos  found  were,  however,  made  in  2012,  prior  to  F’s convictions on six charges of making intimate visual recordings in the same way. On that occasion he had been sentenced to 10 months’ home detention.  Those three earlier videos were uploaded onto F’s computer while he was still subject to post- detention conditions in relation to that home detention sentence.

District Court decision

[5]      Judge Mill was the sentencing Judge.  He noted: (a)    that F had entered early guilty pleas;

(b)      that the identification of a starting point was difficult because of the

variation in the facts and circumstances of offending of this kind;

1      Police v [F] [2016] NZDC 10053.   Making an intimate visual recording is an offence under s 216H of the Crimes Act.   One charge related to offending in 2012.   The others related to offending in 2014 and 2015.   He was sentenced to 12 months’ imprisonment for the later offending, and three months’ imprisonment (concurrent) for the 2012 offending.

(c)       that F’s recordings were less intimate than in some of the other cases;

(d)the persistence of  F’s  offending,  the  number of  offences,  and  the number of victims;

(e)       the level of planning involved in the offending; (f)     the relative length of some of the recordings; and

(g)that the offending occurred within a few months of F’s completion of his earlier sentence of home detention and while he still remained on release conditions.

[6]      The Judge then adopted a starting point of 15 months’ imprisonment for the seven 2014/15 charges.

[7]      Next, the Judge noted that F had attended the Wellstop programme as part of his earlier sentence and that he had attended a Wellstop meeting on 24 February

2015   with   his   wife,   his   probation   officer   and   his   Wellstop   therapists. Notwithstanding that F had, unbeknownst to the others, reoffended just three days earlier, he confirmed at the meeting that he was ready to be discharged from treatment.

[8]      The Judge also recorded the probation officer’s advice that: (a)         F was remorseful;

(b)      he had engaged well with his psychologist since his arrest; (c)           his wife was committed to him;

(d)he had been excommunicated from his church and had limited support in the community; but

(e)       his employer supported him and would keep him on.

[9]      The Judge then:

(a)       uplifted the starting point by three months for F’s previous, recent, offending; and

(b)      discounted the resulting 18 months by six months for the guilty pleas,

F’s personal circumstances and remorse.

[10]     As  I  have  said,  the  result  was  an  effective  end  sentence  of  12  months’

imprisonment.2

[11]     The Judge rejected the submission that home detention was appropriate.  He said:

[19]     There then remains two final issues: whether home detention is the appropriate penalty in this case and whether your name should be suppressed from publication.   On the question of [home detention], Mr Anderson has submitted to me in accordance with the Court of Appeal in R v Hill CA

559/07; [2008] NZCA 41 that, “Where an offender is motivated to change and where there is a realistic prospect that he or she will be able to change,

there  are  obvious  benefits  in  a  sentence  of  home  detention,  both  from

society’s perspective and that of the offender.”

[20]      You seek home detention so you can continue with your employment and support your wife.  It is said by Mr Anderson there is no suggestion that any offending took place at work.   I do not know what to make of that submission in particular but that apparently is the case and, of course, one of the charges relates to footage taken prior to your previous offending.   He points out that you have been diagnosed with a mental condition and that it is submitted on your behalf that you have engaged in honest treatment of it and that home detention is the appropriate penalty in this case.  The police do not agree that that is necessarily the case at all.

[21]    In my view, home detention is not appropriate in this case. Notwithstanding the serious [e]ffects on you so far as your employment is concerned and also the effects on your wife, you have had the opportunity to rehabilitate and be treated in the community and you have abused that opportunity and also abused members of the community.  The need to deter you and others and hold you accountable outweighs the rehabilitative aspects in this case that would be available on home detention.   The community needs to be protected from you, at least for a short period of time, and your offending, which is persistent, and rehabilitative measures can be adopted during a prison sentence and after. Accordingly, I decline home detention.

2    A concurrent three month sentence was imposed for the 2012 offence.

Grounds of appeal and approach on appeal

[12]     Mr Anderson says that the Judge was wrong not to impose a sentence of home detention for three reasons:

(a)      the Judge did not place sufficient weight on F’s ongoing rehabilitation and re-engagement with his psychologist since January 2016;

(b)the  Judge  placed  too  much  weight  on  the  need  for  community protection, when this could be met by a sentence of home detention; and

(c)      the decision that home detention was not an appropriate sentence was wrong and demonstrated an error of principle.

[13]     An appeal against a refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a fettered discretion.3

That discretion is confined in part by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.  The Court of Appeal has said that there is no presumption in that Act in favour of home detention rather than imprisonment and nor is there a presumption favouring imprisonment. There is only the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances.

[14]     An appeal against a refusal to impose home detention is not a platform on which to recanvass the merits. The appellant must demonstrate an error by the Judge in exercising his or her sentencing discretion.4 The usual principles governing appellate review of first instance discretion apply: irrelevancy, omitted relevancy or plain error.   The weight accorded by the sentencing judge to a particular relevant factor and the balancing of competing considerations will not usually constitute such

error.5

3      Manikpersadh v R [2011] NZCA 452 at [10]–[12].

4      Fraser v R [2013] NZCA 250 at [20].

5      See for example the discussion in Brownlow v Ministry of Social Development [2013] NZHC

3538 at [43].

Discussion

[15]     Mr Anderson submitted, and it is not in dispute, that home detention is a serious sentence which is, in general terms, capable of adequately denouncing and deterring offending of the present kind.   Whether it does so in any given case, however, will depend on the particular circumstances.  And as I have said, there is a discretionary aspect to the relevant assessment.

[16]     Mr Anderson  relied,  in  particular,  on  Wells  v  R,  where  the  Crown  had submitted  that,  when  sentencing  Mr  Wells  for  low  level  sexual  offending  that occurred soon after the expiry of his parole conditions for more serious sexual offending,   denunciation   and   deterrence   should   be   given   more   weight   than

rehabilitation.6   Duffy J rejected that submission, saying that rehabilitation is always

relevant and, in that case, was particularly important to prevent future offending. She said that a sentence of home detention achieved the purposes of denunciation and deterrence, as well as yielding better prospects of rehabilitation than a sentence of imprisonment.

[17]     In F’s case, Mr Anderson pointed to the extent to which he has already engaged in rehabilitation – 12 sessions with a psychologist since January (prior to sentencing) with apparently increased success.  He said that F is unable to engage in any significant treatment programme while in prison (due to the shortness of the sentence) whereas on home detention, he could continue to see his psychologist and could engage in any other rehabilitative treatment that was made a condition of his sentence.

[18]     Similarly,   Mr   Anderson   submitted   that   the   Judge’s   concerns   about community protection could be met by a sentence of home detention.  Although F’s recent offending began while he was still subject to post-detention conditions, there is no indication that any offending occurred while he was on home detention, or that he breached any conditions of that sentence. There is no indication that he would not comply with a sentence of home detention, and accordingly, the community would

be adequately protected during the sentence.

6    Wells v R [2015] NZHC 2371.

[19]     Lastly,  Mr Anderson referred me to  a number of other cases of varying degrees of similarity where home detention had been imposed.7

[20]     The difficulty faced by F is that on my reading of the sentencing notes Judge Mill did not, in fact, disregard rehabilitation as a factor.  Rather, he said it was outweighed in this case by other sentencing purposes and principles.  It is clear that he was  influenced  in  particular by the fact  that  F’s  previous  sentence of home detention had had no discernible deterrent effect.   It is also clear that the Judge considered F’s blatant lack of probity at the Wellstop meeting in February entitled him to be sceptical of the psychologist’s report of his rehabilitative progress since then.  That report was necessarily based at least in part on F’s own account of his thoughts and behaviours.

[21]     And even if F did not offend while on home detention previously there can be no dispute that the extent of community protection offered by a sentence of imprisonment is greater than the protection offered by a sentence of home detention.

[22]     I accept entirely that another judge might have weighed the competing factors differently and exercised his or her discretion in favour of home detention.  But the proposition that someone else might have come to a different conclusion on the same facts is no basis for interfering with an exercise of discretion on appeal.  I can only agree with Ms Ellis that there is no discernible error in Judge Mill’s decision.  There is no failure to consider a relevant factor and no obvious irrelevancy taken into account.   On the contrary, the Judge exercised his discretion on a principled basis and the sentence imposed was clearly open to him in this case.

[23]     The appeal must be dismissed accordingly.

“Rebecca Ellis J”

7      SNP v Police HC Rotorua CRI-2011-463-7, 8 March 2011; R v L [2014] NZHC 1229 and Kelly v

Police [2014] NZHC 3168.

Solicitors:           Thomas Dewar Sziranyi Letts, Lower Hutt, for Appellant

Crown Solicitor, Wellington, for Respondent