Geros v The the Queen
[2022] NZHC 2269
•7 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-245
[2022] NZHC 2269
BETWEEN CAMERON GEROS
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 September 2022 Appearances:
Q Duff (on behalf of D Dufty) for Appellant H Brown for Respondent
Judgment:
7 September 2022
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 7 September 2022 at 10.15 am.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
GEROS v R [2022] NZHC 2269 [7 September 2022]
[1] Mr Geros pleaded guilty to a charge of wounding with reckless disregard for the safety of a victim.1 On 4 July 2022, Judge A-M Skellern sentenced him to 19 months imprisonment.2
[2] Mr Geros appeals against sentence on the basis that a sentence of home detention ought to have been imposed. Mr Geros is currently unable to provide a suitable address at which to serve such a sentence. However, he seeks leave to apply for the sentence to be converted to one of home detention should he and his partner be able to find a suitable address in coming months. Mr Geros’ partner remains supportive of him even though his EM bail was revoked on 23 May 2022 following an incident in which Mr Geros allegedly offered violence or threats of violence towards her.
The offending
[3] Mr Geros pleaded guilty on the basis of an agreed summary of facts. This records that on 2 December 2020 the male victim was sitting outside the motel room where he was living in emergency housing. He was talking on his cellphone. Mr Geros approached the victim and then went into his room, where he sat down on a couch. The victim followed Mr Geros into the unit and Mr Geros accused him of having caused him trouble when they first met.
[4] Mr Geros walked over to the victim and pushed him in the chest with both hands. The victim responded by pushing him back. At this point Mr Geros pulled out a knife he had been carrying in his pocket. Upon seeing the knife, the victim punched Mr Geros in the face and pushed him away. This caused Mr Geros to stumble back and the victim ran from the room. Mr Geros then left the unit and drove away.
[5] At some stage during this struggle Mr Geros had pushed the sharp end of the knife into the victim’s stomach. This caused a two to three-centimetre-long wound to his stomach that required stitches.
1 Crimes Act 1961, s 188(2).
2 R v Geros [2022] NZDC 12437.
The sentence
[6] Mr Geros was originally charged with wounding with intent to cause grievous bodily harm.3 The maximum penalty for that offence is 14 years imprisonment. The Crown subsequently amended the charge to one of wounding with reckless disregard for the victim’s safety. Mr Geros sought a sentence indication on that charge and this was given by the Judge Skellern on 15 March 2022.
[7] The Judge selected a starting point of two years eight months imprisonment. This reflected the aggravating features of the offending, including the fact that it involved the use of a knife Mr Geros had taken to the motel unit with the intention of confronting the victim. The offending therefore involved an element of premeditation and it occurred in the victim’s place of residence, where he ought to have been able to feel safe. It also reflected the fact that the victim suffered a moderate injury, although it had the potential to be much more serious.
[8] Mr Geros has 31 previous convictions, eight of which are for offending involving violence. The Judge applied an uplift of four months to reflect this factor. She then indicated she would apply a discount of 20 per cent for an early guilty plea. However, the Judge said she was “unable to comment on” a submission by Mr Geros’ counsel that a reduction was also required to reflect totality principles. These were potentially relevant because Mr Geros was currently serving a sentence of home detention imposed on other charges.
[9] At sentencing the Judge accepted the sentence should be reduced by four months to reflect totality principles. This was necessary because Mr Geros had been sentenced on 16 August 2021 to eight months home detention on a raft of driving and drug-related offences. He committed these offences between July 2020 and January 2021. He therefore committed the present offence during the period covered by the earlier charges. Mr Geros had completed the sentence of home detention by the time he was sentenced on the present charge.
3 Crimes Act 1061, s 188(1).
[10] The Judge then applied a discount of 15 per cent to reflect mitigating factors identified in a cultural report tendered under s 27 of the Sentencing Act 2002. The Judge also accepted that a five per cent discount was available to reflect remorse Mr Geros had expressed following the offending. Finally, she applied the indicated discount of 20 per cent to reflect the guilty plea. This resulted in an end sentence of
19.2 months imprisonment, which the Judge rounded down to 19 months.
[11] The Judge was then required to decide whether to convert the sentence to one of home detention. In this context his counsel, Mr Dufty, relied heavily on the fact that Mr Geros had successfully completed the sentence of eight months detention imposed in August 2021. He submitted this meant it was appropriate for a sentence of home detention to be imposed in respect of the present charge as well.
[12] The Judge had rejected this submission in her sentence indication for the following reasons:4
[5] In terms of the purposes of sentencing, I consider the predominant purposes are to hold Mr Geros accountable for harm done, to promote responsibility and acknowledgement of harm, to provide for the interests of the victim, to denounce and deter Mr Geros and others for similar offending, and protection of the community, particularly given Mr Geros’ background.
[6] In terms of the principles, which are important in this exercise, I need to consider the gravity of the offending, the comparative seriousness of the type of offence, consistency with appropriate sentencing levels for similar offending and the least restrictive outcome that is appropriate in the circumstances.
…
[34] I agree that a discount of 20 per cent for an early guilty plea is appropriate. In terms of an appropriate sentence, however, I do not consider that a sentence of home detention satisfies the purposes and principles of the Sentencing Act, particularly when denunciation and deterrence is considered and protection of the community. Mr Geros has a history that I consider precludes anything other than a sentence of imprisonment.
(Emphasis added)
[13] At sentencing, Mr Dufty renewed his submission that a sentence of home detention was appropriate. However, the Judge maintained her stance that nothing
4 R v Geros, above n 2.
short of a sentence of imprisonment was appropriate given the nature of the present offending. She expressed her conclusion as follows:
[5] So Mr Geros, you appear today for sentencing in respect of a charge of wounding with reckless disregard committed on 2 December 2020. You accepted a sentence indication given by me on 15 March 2022. You pleaded guilty to the charge on the basis of my indication. My indication was that a sentence of imprisonment was at that point the only possibility in terms of meeting the purposes and principles of the Sentencing Act 2002.
…
[19] In my view, the relevant purposes and principles of sentencing are to hold you accountable for your offending, to promote in you a sense of responsibility, to denounce and deter you and others from offending in this manner, rehabilitation and reintegration as far as possible and given your background, also a consideration of protection of the community.
[20] In terms of the principles I need to consider the gravity of the offending, consistency with appropriate sentencing levels for similar offending and the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentencing.
…
[27] Your total sentence is then one of 19.2 months’ imprisonment which I would round down to 19 months. I acknowledge that that brings you into the range of consideration for an electronically monitored sentence. However, as I said in my sentence indication when I consider the purposes and principles of the Sentencing Act, I do not consider that a sentence of home detention is sufficient, nor a proportionate response given the needs for denunciation, deterrence and protection of the community.
(Emphasis added)
The appeal
[14] Counsel for Mr Geros on appeal, Mr Duff, contends the Judge erred by focussing on the sentencing principles of deterrence, denunciation and the need to protect the public. He says she was also required to consider the need to impose the least restrictive outcome and to impose a sentence that provided for rehabilitation and reintegration into the community.
[15] Mr Duff submits that, viewed through this lens, several factors suggested a sentence of home detention was not only the least restrictive outcome but also the most appropriate. First, he points to the fact that Mr Geros had served his earlier sentence of eight months home detention without any breaches occurring. He says this
demonstrates Mr Geros has the ability to comply with an electronically monitored sentence. Mr Geros had also completed several rehabilitative courses during this period. This showed he could make changes to his lifestyle.
[16] Mr Duff also points out that Mr Geros served the previous sentence at his partner’s address, which enabled him to play an active role in looking after their infant child. Mr Geros’ partner is now pregnant with their second child and is due to give birth within the next few months. Mr Duff submits it would assist in Mr Geros’ rehabilitation and reintegration into the community to remain within his home environment and provide support to his partner.
[17] Mr Duff acknowledges that the substitution of a sentence of home detention on the present charge would require cancellation of the earlier sentence. Mr Geros is still subject to post-detention conditions on that sentence, and this means he is still technically subject to the earlier sentence.5 He would be required to serve a new sentence of home detention either cumulatively on or concurrently with the earlier sentence.6 However, he cannot serve a total of more than 12 months home detention.7 Mr Duff suggests I should grant leave to Mr Geros to apply for cancellation of the existing sentence of home detention when he finds a suitable address, so that a new sentence of home detention can be imposed on the present charge.
Decision
[18] A decision whether to convert a sentence of imprisonment to one of home detention involves the exercise of a discretion that is fettered only by the purposes and principles contained in the Sentencing Act 2002.8 An appeal against the exercise of that discretion will therefore only succeed where the sentencing court has erred in principle by failing to take into account a relevant consideration or taking into account an irrelevant consideration.9 Alternatively, the appellant must show that the decision in question was plainly wrong.10
5 Sentencing Act 2002, s 20A(5).
6 Section 80B(1).
7 Section 80B(2).
8 Smit v Police [2016] NZHC 2518 at [16]; Manikpersadh v R [2011] NZCA 452 at [15]-[16].
9 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; Singh v R [2020] NZCA 487 at [37].
10 James v R [2010] NZCA 206 at [17].
[19] I do not accept Mr Duff’s submission that the Judge failed to have regard to the principle that it was necessary to impose a sentence that promoted Mr Geros’ rehabilitation and reintegration into the community, and that was the least restrictive outcome available in the circumstances. The highlighted portions of the passages set out above at [12] and [13] demonstrate that the Judge expressly took those principles into account in both the sentence indication and at sentencing. Viewed overall, I take the Judge to be saying that the sentencing principles of deterrence, denunciation and the protection of the community were to the forefront given the nature and seriousness of the present offending and Mr Geros’ criminal history.
[20] As the Judge pointed out, Mr Geros has been convicted for offending involving violence on several previous occasions. He received a sentence of six years imprisonment on 8 October 2010 on a raft of charges, including aggravated robbery (x 2) and wounding with intent to cause grievous bodily harm with a weapon. He then received a sentence of three years imprisonment on 11 April 2017 on a charge of assaulting a person with a stabbing or cutting instrument. As Ms Brown points out for the Crown, that offending occurred less than a month after Mr Geros had been sentenced to five months home detention on five charges of burglary as well as charges of wilful damage and resisting arrest.
[21] As was the case with some of the earlier offending, the present offending involved the wounding of a victim with a weapon. It could easily have resulted in much more serious injury. It also involved intrusion into the victim’s place of residence. In those circumstances, and given Mr Geros’ previous convictions for similar offending, the Judge was plainly entitled to consider that sentencing principles of deterrence, denunciation and the need to protect the community were to the forefront. It follows that I have identified no error of principle in the Judge’s reasoning process and there is no basis on which I can say the sentence of imprisonment was plainly wrong.
Result
[22]The appeal against sentence is dismissed.
Lang J
3
0