Goodwin v Police
[2021] NZHC 1526
•24 June 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-000024
[2021] NZHC 1526
BETWEEN CONNOR JAMES GOODWIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 June 2021 Appearances:
N Bourke for the Appellant G Milne for the Respondent
Judgment:
24 June 2021
JUDGMENT OF GRICE J
(on sentence appeal)
Overview
[1] Mr Connor Goodwin appeals his sentence of six months’ imprisonment for two charges:1 possessing an offensive weapon2 and assault with intent to injure.3
[2]Mr Goodwin’s appeal falls into two main grounds:
(a)that the Judge erred in assessing the appropriateness of the proposed address for home detention, taking into account extraneous information relating to his partner; and
1 NZ Police v Goodwin [2021] NZDC 10509.
2 Crimes Act 1961, s 202A(4)(b): maximum penalty of three years’ imprisonment.
3 Section 193: maximum penalty of three years’ imprisonment.
CONNOR JAMES GOODWIN v NEW ZEALAND POLICE [2021] NZHC 1526 [24 June 2021]
(b)that the Judge failed to adequately consider and assess whether alternative non-custodial sentences were appropriate.
[3] The central issue is whether I should quash the sentence of imprisonment and, if so, what sentence should be imposed.
Background
[4] Just after midnight and following a day of heavy drinking, on 1 January this year, the victim arrived at an address to see his sister. Mr Goodwin had been asleep but woke when the victim knocked on the windows and door. When Mr Goodwin confronted the victim, he pushed him against a sink and punched him in the face and head between 10 to 20 times. The victim was unsuccessful in trying to throw Mr Goodwin off. Mr Goodwin’s partner came between the two and separated them, getting Mr Goodwin into the bedroom.
[5] Mr Bourke’s submissions state that Mr Goodwin had mistaken the victim for an intruder. This was not recorded in the summary of facts, which states no explanation was offered for the offending.
[6] As the victim left, Mr Goodwin ran out of the address, holding a knife and shouting he was going to stab him. When the victim was in his car, Mr Goodwin further threatened him.
[7] Mr Goodwin has accepted these facts and pleaded guilty. I therefore proceed on the basis of the summary of facts.
District Court Decision
[8] The Judge had sentenced Mr Goodwin to 18 months’ intensive supervision just six weeks before the present offending, for common assault and unlawful taking of a motor vehicle. The Judge had placed Mr Goodwin under judicial monitoring but subsequently noted “you have not been doing well”.
[9] The Judge did not impose a sentence of home detention, although the pre-sentence report had recommended such a sentence. The Judge said that the recommended motel address posed safety and welfare concerns as there was a child living there, and that police had attended eight family violence incidents between Mr Goodwin and his partner. The Judge also commented on Mr Goodwin’s partner, saying she had “a tendency to get into violent relationships”.
[10] The Judge took a starting point of 12 months and uplifted this to 14 months for the breach of intensive supervision. Taking into account Mr Goodwin’s guilty plea and his age, the Judge discounted the sentence to six months’ imprisonment – in practical terms Mr Goodwin would serve three months in prison.4
[11] The Judge noted his displeasure in having to send young men to prison but considered that there was no other option. The comment was made that the three months would hopefully be “too short a period to really make things much worse”.
[12] The Judge also allowed leave to apply for home detention if a suitable address could be found.
Other Material Before the Court
[13] The Judge had before him a pre-sentence report. It noted Mr Goodwin is 22 years of age. He had reoffended in a short span of time and the offending had escalated. Mr Goodwin’s risk of reoffending and risk of harm were considered moderate. It recommended cancelling the sentence of intensive supervision, and that a sentence of home detention be imposed, with conditions of attending family violence counselling to continue. The proposed address was technically suitable for electronic monitoring (at that stage). Remorse was expressed to the report writer.
[14] A progress report from the family violence counsellor states that Mr Goodwin engaged well during sessions, applied his experience to the activities and talked about the experiences at home. He applied what he had learnt in the sessions at home.
4 Parole Act 2002, s 86(1).
Mr Goodwin had completed 10 hours and requested more time, and apart from two occasions of non-compliance and excusal due to work, he had engaged and attended sessions on time. The counsellor said completion of the programme would be very beneficial, and Mr Goodwin seemed motivated and enjoyed the sessions.
Law
Appeal
[15] An appeal against a sentence is an appeal against discretion. Under s 250 of the Criminal Procedure Act 2011 (Act), the Court must allow an appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[16] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to sentence appeals.5 The Court cannot “tinker” with an end sentence if it is within range.6
[17]Under s 251 of the Act, if the Court allows an appeal, it must;
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
[18] The focus is on the sentence imposed and not the process adopted to reach that end sentence.7
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
6 Ripia v R [2011] NZCA 101, at [15].
7 Tutakangahau v R, above n 5, at [36].
Sentencing
[19] No particular issue is taken with the underlying sentence of six months’ imprisonment. It is therefore the issue of whether an alternative/s to imprisonment should have been the sentence.
[20] Counsel for the appellant emphasises that the focus of the Court in sentencing is to impose the least restrictive outcome appropriate in the circumstances.8
[21] In Brittin v Police, Woodhouse J set out several factors relevant to the assessment of whether home detention should be imposed:
(a)Imprisonment is a last resort.
(b)Home detention is still a severe sentence, second only to imprisonment.9 It still carries in considerable measure the principles of deterrence and denunciation.
(c)The Court must consider the desirability of keeping offenders in the community as far as practicable and consonant with the safety the community.10
(d)Imprisonment should not be imposed unless the Court is satisfied the purposes of deterrence, accountability and denunciation cannot be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the application of s 8 of the Sentencing Act 2002.11
(e)It is an error of law to give deterrence complete priority without regard to the countervailing purposes of sentencing.12
8 Sentencing Act 2002, s 8(g).
9 See the hierarchy of sentences at s 10A of the Sentencing Act 2002.
10 See also s 16(1) of the Sentencing Act 2002.
11 Section 16(2).
12 Manikpersadh v R [2011] NZCA 452 at [17]–[19].
(f)A purpose of sentencing is to assist with the offender’s rehabilitation.
(g)The Judge is making a considered and principled choice between two forms of sentence. The Judge must identify which best qualifies as the least restrictive to impose when taking into account all purposes of sentencing.
Submissions
[22] Counsel for the appellant submitted two grounds of appeal. The first was as to the suitability of the address. Counsel said that the Judge erred by relying on the concerns about family violence. This is now a moot issue to the extent the address is no longer available. However, the points raised were:
(a)The Judge had presided over a protection order involving Mr Goodwin’s partner and her former-partner, and therefore was using pre-existing knowledge of Mr Goodwin’s partner, which did not involve him, and base a perception of her vulnerability.
(b)After the sentencing, counsel received information from a social worker, Ms Vaitupu, that is extremely supportive of Mr Goodwin. In particular, the social worker notes the many positive steps taken. That includes that both Mr Goodwin and his partner have engaged with Corrections officers, and Oranga Tamariki, they have gained temporary emergency housing, and they both meet with the social worker weekly. Mr Goodwin cares for a child and is caring for his partner who is pregnant with their first child. The drug levels have also de-escalated in the home, and there is ongoing therapy for Mr Goodwin’s partner.
(c)Counsel also notes that no family violence convictions have been entered against Mr Goodwin, and therefore none in relation to his partner. Mr Goodwin has been living on bail with his partner for six months since his arrest without incident. Oranga Tamariki has been working with Mr Goodwin’s whānau. It has not raised any concerns.
Mr Goodwin’s supervising probation officer has not had any issues with the recommended sentence of home detention. The prosecuting sergeant raised no safety concerns at the hearing. A protection order has also been granted as an additional protective factor, which Mr Goodwin has never breached. Ms Vaitupu gave an explanation for the order,13 which instils confidence in Mr Goodwin’s proactiveness in this regard.
(d)Counsel also responded to the Judge’s comments that “you have not been doing well” on judicial monitoring by pointing to the memorandum and judicial monitoring report. The report deemed compliance was satisfactory. Counsel also points to the notes of the counsellor, which I have canvassed above.14
(e)Mr Goodwin has no other recorded breaches of his sentence. He had completed eight sessions of the Stopping Violence Programme, according to the probation officer.
(f)Mr Goodwin has also found new employment in the forestry industry, which requires abstinence from drugs and alcohol.
(g)In addition, he has said he is willing and able to engage in alcohol and drug counselling. This has not yet recommenced.
(h)In relation to the motel accommodation, counsel notes this should not have been a factor that counted against the granting of home detention, given the address was technically suitable. It was also a result of increased emergency housing, which the Ministry of Social Development has noted has become more necessary for
13 Ms Vaitupu notes that Mr Goodwin agreed to have a protection order taken out against him, when one was also sought against his partner’s ex-partner, “as a proactive measure to ensure that his partner always felt safe and had power and control in the relationship for her to learn that he is not the same person as the ex-partner”. No breaches have come from this protection order.
14 See above at [14]Error! Reference source not found..
lower-to-middle income households that have been pushed into the housing market as a result of the COVID-19 pandemic.15
(i)Finally, Mr Goodwin’s counsel notes that the issue of safety was not raised in the bail application, nor did the offending involve family violence. Imprisonment would impact employment and progress in Mr Goodwin’s counselling sessions. After three months, Mr Goodwin would still be released to live back with his partner.
[23] The second ground is the failure to impose the least restrictive outcome. Counsel says:
(a)The Court of Appeal in R v Rawiri16 noted that the Sentencing Act made clear the legislative policy was to keep offenders within the community wherever appropriate, with the requirements of the Sentencing Act. This supports imprisonment being a last resort.
(b)In Lopeti v Police,17 the High Court reduced a sentence from four months’ imprisonment to three months’ community detention, recognising also Mr Lopeti’s time served in custody. The offending involved punching the victim once in the head, and as the victim fell, trying to punch the victim, which did not connect, raising a single charge of assault with intent to injure. The Judge also noted that the 10–month starting point was “at the upper end of the available range, [and] should not be displaced”.18 I note that the present offending is more serious.
(c)In Nortje v Police,19 Mr Nortje approached the victim, his partner’s former partner, from behind, punching him numerous times at the back of the head, and continued to punch him when the victim was on the
15 Ministry of Social Development Briefing to the Incoming Minister 2020 at 26.
16 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [17].
17 Lopeti v Police [2015] NZHC 3209.
18 At [20].
19 Nortje v Police [2019] NZHC 334.
floor. He then shoulder-charged the victim and kicked him repeatedly when on the ground. The end sentence imposed was two months’ community detention.
(d)In Police v Filipo,20 Mr Filipo and his brother attacked two men and two women, punching the first victim who fell to the ground, before stomping on his head. He shoved the second victim in the throat and struck the third victim on the chin, causing them both to fall down. He then punched the fourth victim in the head. This gave rise to charges of injuring with reckless disregard, assault with intent to injure and two charges of male assaults female. An end sentence of six months’ supervision was imposed.
(e)In White v Police,21 on two separate incidents when Mr White and the victim were driving their children to school, Mr White had grabbed the victim, with whom he had been in an on-and-off relationship, forcefully by the ear and headbutted the dashboard, causing damage to the airbag and glovebox, before ripping off the side sun-visor and breaking the rear-view mirror. On the second occasion, while on bail awaiting sentencing for the first set of offending, Mr White hit the victim with an open palm, and also bit her nose after they had exited the vehicle. On a third occasion at a counselling session, Mr White yanked her fingers back, one at a time, after a comment the victim made about Mr White’s friends. This offending led to charges of assault with intent to injure, assault on a person in a family relationship and wilful damage. The appeal was allowed, with an end sentence of nine months’ home detention.
[24] Counsel had initially suggested that a sentence of community detention coupled with intensive supervision, or a sentence of intensive supervision, coupled with community work, would be the least restrictive sentence.
20 Police v Filipo [2016] NZHC 2620.
21 White v Police [2020] NZHC 684.
[25] The police had adopted a relatively neutral position. They said the sentence was “possibly” within range, and that it was open for the Judge to determine that a custodial sentence was the least restrictive sentence, as was the case in Carson v Police.22 The police however acknowledge the sentence was “stern” while noting that the offending occurred less than two months after previous offending for common assault. That could be an aggravating factor, although the majority of Mr Goodwin’s previous offending was for motor vehicle offending. The police also acknowledge there is no history of violent offending and that the pre-sentence report raised no concerns about a community-based sentence.
[26] The police point to Carson v Police, where Mr Carson struck his former employer with the former employer’s crutches 13 times and returned later in the day with a swiss army knife intending to confront the first victim, when a second victim approached. Mr Carson threatened to slit the throats of both victims. This offending led to charges of assault with intent to injure and threatening to cause grievous bodily harm. At the time of the offending, Mr Carson was subject to come up for sentence if called upon, following a common assault conviction 11 months earlier. The High Court Judge held that he was not satisfied home detention was appropriate, in line with the District Court which had imposed a sentence of 10 months’ imprisonment. However, due to mental hardship arising from events following the District Court sentencing, the sentence was quashed and substituted with a sentence of five months’ home detention.
Discussion
[27] There is an error in the sentence imposed, and a new sentence ought to be imposed. It is manifestly excessive, in light of the factors stated by counsel, and the information made available following the District Court sentencing.
[28] In short, there was not enough material to support the conclusion that Mr Goodwin posed a safety risk of being at the proposed address for home detention. A sentence of home detention would have held him accountable and denounced his actions.
22 Carson v Police [2015] NZHC 2603.
[29] A sentence of home detention would have allowed him to continue his counselling arrangements, as well as support his partner during her pregnancy with their child, and the child for whom he has taken responsibility. Mr Goodwin also has employment, which is an important factor to keep him motivated and engaged in the community. I also take judicial notice of the fact that short sentences of imprisonment “have proved to be the least successful in achieving sentencing principles, including because of the anti-social environment the offender is placed in”.23
[30] Mr Goodwin’s previous convictions were mostly vehicle-related, with the exception of the current offending, and the charge of common assault. This is an increase in the seriousness of his offending. But the circumstances surrounding the present offending do not support a sentence of imprisonment. Instead, they suggest even greater support and intervention are needed, especially given Mr Goodwin’s age and responsiveness to the interventions.
[31] In relation to the suitability of motel housing there are already factors weighing against low-income households from low, and now middle-income households, due to the pandemic, from being able to find suitable accommodation. This has put a barrier in the way of home detention.
[32] However, those matters are now academic. Just before the hearing of this application counsel received advice from the emergency housing motel, in which Mr Goodwin was residing with his partner and child, that it was no longer going to be accepting long-term emergency housing residents. Therefore, it withdrew the consent for the address to be used as an electronically-monitored address.
[33] Nevertheless, I am satisfied imprisonment is not appropriate and that a sentence other than imprisonment and home detention is appropriate in the circumstances.
[34] The current offending is more serious than that in Lopeti v Police, and comparable, although less serious, than in Nortje v Police. The current offending is
23 White v Police, above n 21, at [17]; citing the analysis of Duffy J in Richmond v New Zealand Police [2019] NZHC 2001 at [73]–[79].
less serious than Police v Filipo and White v Police, given the scale of the attack in the former and the ongoing nature of the family violence in the latter. The offending in Carson is also more serious, given the fact Mr Carson returned later to threaten the victim and reflected in the nature of the charges.
[35] Based on those cases, and the factors identified in relation to Mr Goodwin’s rehabilitation needs such as retaining his employment, continuing the family counselling and engaging in the drug and alcohol programme, a sentence of community detention and/or intensive supervision, coupled with community work, would be the least restrictive sentence available.
[36] Counsel for Mr Goodwin referred to the case of R v Royal.24 Ms Royal was sentenced to 18 months’ intensive supervision and 350 hours community work on a charge of being a party to kidnapping. Ms Royal played a limited but, nonetheless, active role. In that case electronic monitoring for home detention was not an option because of the defendant’s accommodation circumstances.
[37] Here, the home detention option is no longer available. Mr Bourke said as a matter of stark reality it was unlikely there would be any other suitable address even if time were given to search. He said the real problem was there was just no housing available in the area. Therefore, he urged me to consider other options.
[38] However, Ms Milne pointed out that the report on the intensive monitoring condition had not been good. The judicial monitoring report from the Department of Corrections was dated 22 February 2021. Progress was recorded as:
(a)Compliance with the sentence deemed satisfactory.
(b)Further active charges were a cause for concern that he had re-offended within a relatively short timeframe of being sentenced for the previous offending (common assault, (Crimes Act 1961) and unlawfully taking a motor vehicle).
24 R v Royal [2020] NZHC 1321.
(c)Mr Goodwin had completed his alcohol and drug assessment, but Corrections were informed that he appeared to be under the influence while attending his appointments and due to his lack of engagement he was exited from the programme.
(d)He would be re-entered for alcohol and/or drug counselling once he was willing and motivated to address the substance use.
(e)He had started his sessions with a Family Works family violence counsellor however, he had only just commenced, and it was unclear as to how it was going at that point.
[39] Based on that report the Judge, in his judicial monitoring minute dated 1 March 2021, expressed his disappointment that Mr Goodwin faced further charges. He requested that Mr Goodwin be advised how serious the charges were and that if he were found guilty or pleaded guilty to the charges and was reported to be doing badly on intensive supervision, then he risked a much more severe sentence.
[40] However, as Mr Bourke submitted, since that report Mr Goodwin had responded positively. He had:
(a)attended 10 family violence sessions;
(b)done well in counselling, according to the report from the family violence counsellor;
(c)sought more counselling sessions with his partner; and
(d)obtained a job as a forestry contractor. A report from his employer said he was very punctual and hard-working. He had been given the opportunity to sit his Level 3 thinning tickets while working at the same time. Upon completion he was going to be moved to his Level 4 tree-felling tickets and a possible apprenticeship. He had already sat the first two units and had his chainsaw handling tickets. The employer
expressed concern to lose Mr Goodwin as he had a lot of options available at present which would be lost if he went to prison.
[41] An up to date report from Mr Goodwin’s employer was received the day before the hearing. It indicated:
Connor has still been very punctual and hardworking despite the tough times has been going through. Since he was released, Connor has sat his Level 3 Chainsaw Handling and Maintenance tickets through our company. … he will also have Level 3 planting module available for him to complete if he is given the chance to do so. … and then his Level 4 Felling. Our funding & tutors are only available to us all now. So, if Connor is not given the chance, then I’m afraid these opportunities will not still be here for him when he is released next time.
… it would be a shame to lose Connor as he has a lot of potential and opportunities to further himself available right now. I feel working out in nature with some good male role models would really help Connor grow and shape into the man and Father his child will need in the coming years. Here at [the forestry company] we [are] hoping to be able to do this for Connor.
[42] It appears that alcohol is a factor in Mr Goodwin’s offending. Mr Bourke played this down and indicated there had only been one alcohol-related offence, being the New Year’s Eve offending, for which he is before this Court. However, given the comments by the alcohol counsellor and the violent reaction by Mr Goodwin which led to the New Year incident, it appears that he has a problem with alcohol which he has not yet addressed satisfactorily.
[43] Mr Goodwin and his partner were present at the hearing of the sentence appeal. He indicated to Mr Bourke that he had taken onboard the warnings from the Judge and since then he had done all he could to meet the requirements to stay out of jail. Mr Goodwin had not been able to get back on the alcohol and drug courses, as there was a waiting list, but he fully intended to do so and would refrain from alcohol and drugs.
[44] Ms Milne had accepted that realistically an appropriate alternative to a term of imprisonment would have been home detention. However, without the address available she indicated the options were few. She had been discussing possibilities with Mr Bourke and they agreed the remaining option other than imprisonment was a
further sentence of intensive supervision coupled with appropriate conditions. Ms Milne did not agree that this was appropriate.
[45]I note the following positive progress made here:
(a)The family violence counselling was successful and there is to be a self-sought continuation of that.
(b)Mr Goodwin had obtained work and a positive reference from his employer.
(c)Mr Goodwin performed well at work and training and has been offered further training opportunities that will be forfeited if he goes to jail.
(d)Mr Goodwin has a positive intention to re-engage with alcohol and drug rehabilitation.
(e)Mr Goodwin has undertaken to cease drinking.
[46] Mr Goodwin is supporting his partner, his partner’s child and they are expecting another child. His partner is also supporting him in the counselling initiatives.
[47] I am of the view that the appropriate sentence is a term of intensive supervision, together with community work. The sentence of intensive supervision is likely to reduce the likelihood of further offending through rehabilitation and reintegration of Mr Goodwin. He has shown progress toward those ends since the last formal supervision report
[48] I am satisfied that with Mr Goodwin’s history, a period of more than 12 months’ intensive supervision is required to ensure that the conditions concerning rehabilitation and integration are met and an alcohol and drugfree lifestyle is achieved.25
25 Sentencing Act 2002, s 54C.
[49] An overlay to emphasise the importance of the engagement in rehabilitation and continue the progress shown to date will be the imposition of judicial monitoring. This provides a further incentive for Mr Goodwin to meet the conditions. I will be receiving a report on his progress in approximately three months and, thereafter, at six-monthly intervals. His response will dictate whether lesser conditions or further measures will be required, as I may modify the sentence to reflect progress.
[50]In the circumstances I therefore:
(a)Quash the sentence of six months’ imprisonment.
(b)Impose a period of 18 months’ intensive supervision with the special conditions:
(i)Not to possess, consume or use any alcohol or drugs not prescribed.
(ii)To attend an assessment for substance use counselling as directed by a probation officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by, and to the satisfaction of, a probation officer.
(iii)To continue to attend family violence counselling with Family Works or other appropriate provider.
(iv)To attend any other counselling, programme or treatment identified to reduce the risk of re-offending.
(v)Judicial supervision as follows.
[51] A written report on progress by the supervising probation officer must be provided to the Court within three months, and thereafter at six-monthly intervals, until completion of the period of intensive supervision.
[52] The intensive supervision is to run concurrently with the remaining period of the current intensive supervision order.
Grice J
Solicitors:
Crown Solicitor, New Plymouth for the Respondent.
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