Fisher v The Queen

[2021] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000110

[2021] NZHC 2602

BETWEEN

JUSTIN TIAKI FISHER

Appellant

AND

THE QUEEN

Respondent

Hearing:	30 September 2021
Appearances:	P F Johnson for Appellant S J Mallett for Crown
Judgment:	30 September 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1]    Mr Justin Fisher was sentenced1 to 17 months’ imprisonment by Judge Gilbert on one charge of burglary,2 one charge of receiving3 and one charge of failing to comply with obligations under the Search and Surveillance Act 2012.4

1      R v Fisher [2021] NZDC 14645.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.

4      Search and Surveillance Act 2012, ss 130(1) and 178; maximum penalty three months’ imprisonment.

FISHER v R [2021] NZHC 2602 [30 September 2021]

[2]    Mr Fisher appeals that sentence. He says the Judge erred in not commuting the sentence of imprisonment to home detention.

Background

[3]    At about 5:15 am on 3 August 2020, Mr Fisher and an associate were at the Hawarden Four Square supermarket. Together they attempted to jemmy the front door using a crow bar. They were unsuccessful, so they climbed the fence at the rear of the supermarket and, using the crow bar, they removed a large sliding door from its rails and entered the supermarket. Mr Fisher made his way to the cigarette cabinet and attempted to open it. He failed and left the supermarket empty handed.

[4]    Between 2 and 4 August Mr Fisher’s associate arrived at his address with a plastic tub containing various power tools. These had been stolen in a burglary in Leithfield overnight on 1 August.

[5]    On the morning of 4 August, Mr Fisher’s associate arrived at Mr Fisher’s address with several firearms of various calibres, ammunition, shearing equipment and a Husqvarna chainsaw.   Those items were stolen from a burglary  committed on     3 August 2020. Mr Fisher helped the associate hide the firearms under a mattress in  a caravan on Mr Fisher’s property. At about 12:50 pm the same day police executed a search warrant at Mr Fisher’s address and located all the items. Mr Fisher stated he was aware the property was stolen because his associate “steals everything”, and he had told the associate he did not want the stolen property at his home.

[6]    Police seized Mr Fisher’s cell phone for further investigation. He was given the opportunity to provide his pin number/ passcode to police. He was warned that failure to provide it constituted an offence. Mr Fisher withheld his pin number/ passcode from police.

[7]    Mr Fisher’s explanation for the offending was that his associate showed up at his address needing somewhere to stay. He told the pre-sentence report writer he and his partner told the associate to leave when they realised he was committing crime. He said he committed the burglary in the hope if he did so his associate would leave.

District Court decision

[8]    In sentencing Mr Fisher, Judge Gilbert considered the purposes and principles of sentencing and the gravity of the offending. He found it was aggravated by premeditation, the involvement of firearms and that Mr Fisher was subject to sentence. The Judge adopted a starting point of 12 months’ imprisonment for the burglary then uplifted it by six months for the other matters, to reach an adjusted starting point of 18 months.

[9]    The Judge applied a 20 per cent uplift for Mr Fisher’s previous convictions but set it off against a 20 per cent discount for Mr Fisher’s guilty plea and five per cent for the curfew he has been under. That led to an end sentence of 17 months’ imprisonment.

[10]   The Judge acknowledged that was at the level he could consider home detention but declined to commute the sentence. He did so because Mr Fisher had been placed on a final warning by Judge Kellar when he was sentenced to home detention in December 2019, which Mr Fisher had breached. The Judge found there was no real indication that that sentence had the desired effect given Mr Fisher offended within a couple of weeks of being physically able to leave his address. The Judge also took into account the fact the pre-sentence report records Mr Fisher’s attitude of self-entitlement during home detention.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

[12]   Home detention is an alternative to a short-term sentence of imprisonment.8 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.9

[13]   An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.10 The Court of Appeal in Manikpersadh v R said:11

[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”

[14]In Fairbrother v R, the Court of Appeal stated:12

[30]      … the judge must 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.

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…

Submissions

Appellant’s submissions

[15]   Mr Johnson, for Mr Fisher, did not take issue with the length of the sentence of imprisonment. However, he submitted that Judge Gilbert erred in the following two ways:

7      Ripia v R [2011] NZCA 101 at [15].

8      Sentencing Act 2002, s 15A(1)(b).

9      Section 15A(1)(a).

10     Doolan v R [2011] NZCA 542 at [39].

11     Manikpersadh v R [2011] NZCA 452.

12     Fairbrother v R [2013] NZCA 340.

(a)he placed excessive weight on the fact that Mr Fisher offended while subject to post detention conditions; and

(b)he gave too little regard to the considerations in favour of home detention in particular, not considering like cases where home detention was imposed.

[16]   In oral submissions, Mr Johnson also submitted that Mr Fisher’s family circumstances should be taken into account and says they point in favour of home detention. In particular:

(a)Mr Fisher has a stable partner with whom he has three children, the oldest of whom is autistic;

(b)upon Mr Fisher being imprisoned his partner suffered a stroke and now suffers from severe headaches and cannot drive;

(c)Mr Fisher has employment with a demolition company if he is released.

[17]   Mr Johnson submitted home detention is a real alternative to imprisonment and a serious  sentence  which imposes major  restrictions on liberty.  He pointed out   Mr Fisher has been on electronically monitored bail for close to a year and only breached it once when a close friend threatened to commit suicide and Mr Fisher went to his house and talked him down.

[18]   While acknowledging Mr Fisher’s extensive criminal history and the fact he has served a number of sentences of imprisonment, Mr Johnson says Mr Fisher’s personal circumstances, in particular, warranted a sentence of home detention.

Respondent’s submissions

[19]   Mr Mallett, for the Crown, submitted the Judge referred directly to the appropriate principles and factors and analysed them accurately. He submitted the decision on whether or not home detention is appropriate will require an independent

analysis of all the facts. When the factors set out by the Judge are considered, it is clear that imprisonment was the least restrictive outcome in the circumstances.

Analysis

[20]   As already noted, the sentence length is not challenged. The issue on appeal is whether the Judge correctly exercised his discretion not to commute that sentence to home detention. In that regard, as discussed above, the focus on appeal is on whether the Judge made an error.

[21]   The first alleged error is that the Judge erred in placing significant weight on the fact Mr Fisher was subject to post-detention conditions when he offended. The Judge relied on this, stating “[f]irst, you were still on a sentence of home detention albeit on the post detention condition phase for a number of charges, including burglary”. The Judge noted Mr Fisher had offended “within weeks of being off the bracelet” even though Judge Kellar had given Mr Fisher a “final warning”, when sentencing him to home detention for similar offending.

[22]   In my view the Judge was  right  to  give this  factor  considerable weight.  Mr Fisher offended within weeks of being released from electronic monitoring as part of the sentence he now says is appropriate. One of the purposes of sentencing is deterrence.13 Mr Fisher was clearly not deterred by his previous sentence of home detention. I agree with Mr Mallett that the Judge’s analysis of this factor was accurate and appropriate.

[23]   The second ground is that the Judge did not consider like cases where home detention was imposed. While it is true the Judge did not consider any like cases, that was not an error. Mr Johnson has not provided any like cases where home detention was imposed nor, does it seem, were any provided to the Judge in the District Court. I do not consider it arguable that the Judge erred by exercising his discretion on the basis of the information before him as opposed to relying on other decisions.

13     Sentencing Act, s 7(f).

[24]   While Mr Johnson submits I should take account of the hardship to his family, this is only one of a number of factors to be taken into account when sentencing the offender. In this case, the Judge noted that Mr Fisher had not just had a “final warning” from Judge Kellar, but had also had one from his partner. It is clear that deterrence was a primary purpose of sentencing in this case, and it was not wrong to prioritise that purpose in the circumstances of this case.

[25]   In saying that, I note that although Mr Fisher says he is now planning to concentrate on his whanau and do the right thing by them, his explanations for his offending reported in the pre-sentence report appear dubious and display a tendency to minimise responsibility for his actions. Furthermore, the pre-sentence report writer describes his past behaviour as follows:

While subject to Home Detention and Post Detention Conditions Mr Fisher continually presented with attitude drive by self entitlement … he has, in the past presented full of bravado, a dismissive attitude toward the law, blaming of others for his actions and with a reluctance to comply with any special conditions imposed or engage programmes, treatment or counselling.

[26]   These reasons were sufficient for the Judge to conclude prison was the least restrictive outcome that met the purposes and principles of sentencing. I consider this conclusion was clearly open to him notwithstanding the personal circumstances raised by Mr Johnson. The fact Mr Fisher is unavailable to assist his partner, continue his employment or parent his children is an inevitable consequence of his decision to reoffend.

Conclusion

[27]   There was no demonstrable error in the Judge’s decision and the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch