Jackson v Police

[2014] NZHC 2187

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-435-000007 [2014] NZHC 2187

APRIL LORNA MARIE JACKSON

v

NEW ZEALAND POLICE

Hearing:	9 September 2014
Counsel:	J M Elliott for Appellant M L Wong for Respondent
Judgment:	10 September 2014

JUDGMENT OF WILLIMAS J

[1]      Ms Jackson, 20, pleaded guilty to two charges of assault1  and one charge of conspiring to defeat the course of justice.2    On 24 July 2014 she was sentenced to

10 months’ imprisonment by Judge Tompkins.3

[2]      She now appeals that sentence on the grounds Judge Tompkins should have

imposed a sentence of home detention and as such, the sentence of 10 months’

imprisonment was manifestly excessive.

1      One charge of assault pursuant to s 196 of the Crimes Act 1961, carrying a maximum penalty of one year imprisonment; one charge of assault pursuant to s 9 of the Summary Offences Act

1981, carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $4,000.

2      Crimes Act 1961, s 116. This offence carries a maximum penalty of seven years’ imprisonment.

3      R v Jackson DC Masterton CRI 2014-035-000703, 24 July 2014. On that date Miss Jackson was also for sentence on one charge of breach of community work for which she was convicted and discharged.  Her extant supervision sentence was cancelled in response to an application to that effect.

JACKSON v NEW ZEALAND POLICE [2014] NZHC 2187 [10 September 2014]

Background

[3]      On 16 May 2014 Ms Jackson was walking the streets, drunk, after leaving a house she was visiting.  She came across a group of four males who were cleaning bottles out of a car they were driving.  Ms Jackson says the males said something to upset her, and she began kicking the bottles.

[4]      She picked up a bottle and threw it at the head of one of the males.  It missed, but Ms Jackson’s associate (her partner at the time) punched that male in the head. The victim’s friends tried to break up the fight, and Ms Jackson grabbed one of them and pushed him into a bush causing him to fall over.

[5]      In the days following the two assaults, Ms Jackson was interviewed twice by police.  She was on bail for the assaults.  During those interviews she stated that her partner was not present during the assault.  She said he was with a friend of hers that night, and the friend confirmed that story to police.  The police then obtained cell phone records that show Ms Jackson and her friend agreed to provide a false alibi for Ms Jackson’s partner.

Judge Tompkins’ decision

[6]      Judge Tompkins adopted a starting point of 16 months’ imprisonment on the conspiracy charge by reference to the case of R v Clarke in which the Court of Appeal upheld a starting point of 18 months’ imprisonment for similar offending. He said:4

[9]       It is clear from the material before the Court that Ms Jackson and her associate set out to craft a story which they could then use to deceive the police who were investigating the original assault.  That is as Ms Jackson now appreciates it seems a very serious matter which the various sentencing authorities referred to by counsel stress.

[7]      The Judge reduced that sentence by six months (or 37 per cent) allowing for

Ms Jackson’s early guilty plea and time already spent on remand.

[8]      He went on:

4      R v Clarke [2011] NZCA 336.

[12]     The  issue  then  becomes  whether  an  electronically  monitored sentences   is   properly   available.      The   obvious   hurdle   standing   in Ms Jackson’s way is her poor compliance with community-based sentences she having earlier convictions for breach of community work and breach of supervision.

[13]      There is also the factor that it was whilst Ms Jackson was on bail for the assault charges that she committed the conspiracy to defeat the course of justice.

[14]      She is also being sentenced today for one breach of community work and there is an application to cancel the sentence of supervision given her poor performance on that sentence.

[15]     In all of the circumstances I do not consider that an electronically monitored sentence is properly available.   Ms Jackson’s past conduct has made it all too clear that she regards community-based sentences as at best voluntary recommendations which she can chose (sic) whether or not to comply with.

[16]     In those circumstances I do not consider that she is an appropriate candidate for an electronically (sic) sentence.   In addition there are some reservations expressed in the pre-sentence report as to the sustainability of the proposed address.

[9]      The  Judge’s  final  sentence  was  one  of  10  months’ imprisonment  on  the conspiracy charge, and one month imprisonment concurrent on each of the two assault charges.

Grounds of appeal and legal principles

[10]     There are two grounds of appeal.  The first is that the sentence imposed was manifestly excessive, and the second that a sentence of home detention should have been imposed in this case.

[11]     Section 250 of the Criminal Procedure Act 2011 governs appeals from the

District Court to the High Court.  Section 250(2) provides:

(2)       The first appeal court must allow the 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.

[12]     On the first ground, the Court must be satisfied Judge Tompkins made an error in imposing the sentence that he did, and that a different sentence should be imposed.

[13]     An appeal against a Judge’s refusal to impose home detention as opposed to a sentence of imprisonment is an appeal against a fettered discretion, constrained by the purposes and principles of sentencing.5   Further, it is well established that there is no presumption for or against imposing home detention over imprisonment, only that the court must impose the least restrictive outcome that is appropriate in the circumstances.6

[14]     Given s 17 of the Sentencing Act 2002 (which gives the court discretion to impose a sentence of imprisonment if it is satisfied that the offender is unlikely to comply with any other sentence), the second ground of appeal is against the exercise of discretion.   In that case, the court must be satisfied the District Court Judge: (1) made an error of law or principle; (2) took into account irrelevant considerations; or (3) failed to take account of relevant considerations; or (4) made a decision that

was plainly wrong.7

[15]     This kind of appeal does not allow the appellate court to look into the merits of the refusal.  The appellant must demonstrate an error by the sentencing Judge in refusing to exercise his or her discretion.8

Ground 1 – manifestly excessive

[16]     Mr  Elliot   submits  that  Judge  Tompkins  failed   to   take  into   account Ms Jackson’s age together with the potential rehabilitation programmes that would be available to her on a sentence of home detention.  He submits the rehabilitation of the offender should assume primacy in the sentencing exercise.

[17]     Judge Tompkins adopted a starting point of 16 months’ imprisonment relying

on the decision in R v Clarke.9    In that case, the Mr Clarke was sentenced to eight

5      Fraser v R [2013] NZCA 250 at [20]; citing Manikpersadh v R [2011] NZCA 452.

6 At [20].

7      Kacem v Bashir [2010] NZSC 112 at [32].

8      James v r [2010] NZCA 206.

months’ home detention and 200 hours’ community work after pleading guilty to one charge of intentional damage and one of wilfully attempting to defeat the course of justice.  On the second charge, Mr Clarke arranged for a friend to give a false alibi to the police.  He paid that friend $700 on two separate occasions.

[18]     The starting point of 18 months was upheld by the Court of Appeal on the grounds that the offence of wilfully attempting to pervert the course of justice strikes at the very heart of the administration of justice and a condign sentence ought to be imposed.10     On that charge, Judge Tompkins was right, in my view, to consider Ms Jackson’s offending as less serious than that in Clarke.

[19]     There are other cases based upon which a lower starting point might have been set, but in the end they do not assist the appellant.11  The learned Judge gave the appellant a very generous discount of nearly 40 per cent so that the end sentence of

10 months’ imprisonment is clearly within the permissible range, and could not be

upset on appeal.

[20]   I accept Mr Elliott’s submission that Ms Hickey, the appellant’s “co- conspirator” had been charged with making a false statement to the police and had received a sentence of four months’ community detention.  But I do not consider that creates  a parity problem.    Making a false  statement  is  much lesser charge,  the appellant in this case was clearly the instigator and she faced two other assault counts.  Nor do I think the learned Judge was in error by not putting rehabilitation to the forefront of his sentencing objectives.   The pre-sentence report suggested that there  were  real  concerns  about  her  level  of  motivation  to  address  alcohol consumption as a cause of her offending.

[21]     On this ground, I find Judge Tompkins made no error. This ground of appeal is dismissed accordingly.

9      R v Clarke, above n1.

10 At [6].

11     See for example Gunn v Police [2014] NZHC 356; R v Churchward CA439/05, 2 March 2006 (CA); and Buchanan v Police HC Rotorua CRI-2008-470-26, 27 August 2008.

Ground 2 – exercise of discretion

[22]     Mr Elliot, for Ms Jackson, submits that a sentence of imprisonment should not have been imposed as home detention was legitimately an option.  It was argued that because Ms Jackson had not been sentenced to an electronically monitored sentence before, and because the pre-sentence report recommended home detention, the Judge should have exercised his discretion in favour of home detention.

[23]     Judge Tompkins’ reasons for imposing a sentence of imprisonment were the deliberate and planned nature of the offending, that it occurred while on bail, the appellant’s previous record of non-compliance with community-based sentences and the reservations he experienced about her proposed home detention address.  Despite the rehabilitative programmes that would be available to Ms Jackson on home detention,   the   Judge   considered   that   these   factors   justified   a   sentence   of imprisonment over one of home detention.

[24]     I do not discern any error in the manner in which the learned Judge exercised his discretion in this respect.  The appellant’s previous non-compliance record with community-based sentences was clearly a relevant factor even though that history did not relate to compliance with electronically monitored sentences.  It showed the appellant’s overall attitude to compliance with sentencing requirements.  So was the history of problems  at  her mother’s  address  when  the appellant  was  previously serving  a  community-based  sentence  there.     Relevant  also  was  the  relative seriousness of the count in relation to perverting the course of justice.

[25]     This ground of appeal, too, is dismissed.

Conclusion

[26]     The appeal is dismissed.

Williams J

Solicitors:

Main Street Legal Limited, Upper Hutt
Crown Law, Wellington