Johnnie v Police

[2012] NZHC 3561

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-037

CRI-2012-443-038 [2012] NZHC 3561

BETWEEN  WILLIAM TE MOANA NUI JOHNNIE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 December and 19 December 2012

Counsel:         R Rai for Appellant

SA Law for Respondent

Judgment:      19 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 December 2012 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Till Henderson (Stratford) for Appellant

C&M Legal (New Plymouth) for Respondent

JOHNNIE V POLICE HC NWP CRI-2012-443-037 [19 December 2012]

Introduction

[1]      The  appellant  appeals  against  a  sentence  of  12  months’  imprisonment

imposed on him by Judge AC Roberts in the District Court at Hawera on 14 August

2012.  The sentence relates to two charges of male assaults female and one charge of assault with a weapon.

[2]      The appeal was brought on the basis that the term of imprisonment was too high and that the District Court Judge should have assessed the appellant as being suitable for home detention.

Background

[3]      The appellant has no previous convictions for violent offending.   He does have a criminal history but it relates to some incidents of dishonesty, driving with excess breath alcohol, and breaching periodic detention.  The most recent conviction is in 2003.

[4]      The  charges  of  male  assaults  female  refer  to  an  incident  in  which  the appellant attacked his partner of many years and his daughter.  He punched them to the head repeatedly.  I am told there had been considerable tension in the appellant’s household resulting from a relationship which the daughter had struck up with a somewhat older male. An argument over the situation was apparently the catalyst for the violence.

[5]      The charge of assault with a weapon (a broom handle) arose from an incident which occurred while the appellant was on bail for the charges of male assaults female.   The appellant  discovered the said male in his daughter’s bed  and lost control.

The District Court Judge’s sentence

[6]      During the course of the hearing on 5 December 2012, the focus shifted from the appropriateness of the term of imprisonment to whether home detention should

have been preserved as an outcome.  That was sensible.  On the cases, I find that the overall sentence of 12 months’ imprisonment could not be said to be manifestly excessive.

[7]      On the issue of home detention, the only address which the Judge had to consider was the family home where the offending occurred.   The pre-sentence report said that that address met the technical  requirements of an electronically monitored sentence but raised the obvious concern of the appellant being restricted to that address which was also where his two female victims resided.   For that reason, neither home detention nor community detention were recommended. Somewhat surprisingly, given that home detention is available only in circumstances where a term of imprisonment would otherwise be ordered, the report recommended supervision and community work.

[8]      The District Court Judge commented that he might have been persuaded that a monitored sentence for the charges of male assaults female was appropriate but that the assault with a weapon while the appellant was on bail for that offending precludes it.  He was also clear that the address was unsuitable.

Discussion

[9]      This is an appeal by way of rehearing.  That does not mean that I resentence the appellant.  It means that I have to consider the material before the District Court Judge, and any other material which I consider is relevant and necessary to the just determination of the appeal.  If I find that the sentence imposed by the District Court Judge is manifestly excessive, then I should substitute the sentence which I find to be appropriate.

[10]     The examination I have to undertake is slightly different when it comes to considering whether home detention should be imposed.  That is because granting home detention is the exercise of a discretion.  I should approach my examination of whether home detention is called for by looking at whether the District Court Judge failed to take into account relevant matters, took into account irrelevant matters, or was otherwise in error.

[11]     This  case  is  somewhat  unusual.     When  it  was  called  before  me  on

5 December  2012,  Mr  Rai  for  the  appellant  contended  that  the  address  of  the appellant’s mother-in-law should have been considered by the District Court Judge for suitability for electronic monitoring.  However, there was no report available for the District Court Judge as to the suitability of that address and none was available as at 5 December 2012.  I proceeded to hear the submissions of counsel on the merits of the appeal and then adjourned the hearing to consider my options in the event that home detention seemed on its face to be an available sentence.  Having done so, I directed that a further pre-sentence report be obtained as to the suitability of the mother-in-law’s address for home detention.  I further adjourned the hearing of the appeal until after I received the report.  I said I would then give counsel a further opportunity to be heard.

[12]     The report has now been received.  It does not refer to the mother-in-law’s address.   Instead, it advises that the family home [addressed suppressed] is now acceptable for a sentence of home detention because, due to a family arrangement, the appellant’s partner and their children can move to another address, leaving [address suppressed] available for the appellant alone.  The report now recommends a sentence of home detention.

[13]     I convened a telephone hearing with counsel to give them the opportunity to make submissions.   Ms Law for the respondent maintains her opposition to the appeal.  In particular, she emphasises that home detention for the appellant would not adequately address the risk of further offending against his victims.

Decision

[14]     I  have  reached  the  view  that  the  District  Court  Judge  was  in  error  in concluding that the charge of assault with a weapon precluded consideration of home detention.   It was not an offence unrelated to the earlier offending.   It was a continuation  of it,  the appellant  was  sorely provoked,  and  it  was  not  a serious example of its kind.

[15]     There are a number of other factors relating to the appellant which indicate that home detention should be considered as a proper alternative to a sentence of imprisonment.  They include the appellant’s lack of a history of violence, the support of his whanau, his evident remorse, and the steps he was taking to address his violent behaviour.   The pre-sentence report dated 10 August 2012, which was before the District Court Judge, assessed the appellant’s risk of re-offending as low.

[16]     The  level  of  denunciation  and  deterrence  inherent  in  home  detention  is sufficient for this case.  The risk of further offending can be addressed by conditions attaching to the sentence.

[17]     I allow the appeal.  The sentence of imprisonment is quashed and a sentence of home detention is substituted.   Making allowance for the four months that the appellant has spent in custody, the period of home detention will be two months commencing on 20 December 2012.  This sentence will apply to each of the charges and  will  be  served  concurrently.    In  addition  to  the  statutory  conditions,  the following conditions will apply:

(a)      Following his release from custody, the appellant is to travel directly to [address suppressed] and await the arrival of a probation officer and monitoring company representative;

(b)He is to remain at [address suppressed] for the duration of the home detention,  unless  with  the  prior  written  approval  of  a  probation officer;

(c)      He is not to reside with his partner or daughter who were victims of his offending without the prior written approval of the probation officer;

(d)He  is  not  to  possess  or  consume  alcohol  or  any non-prescription medication for the duration of the home detention;

(e)      He is to attend an assessment for domestic violence counselling and attend and complete any counselling as may be recommended to the satisfaction of the probation officer and programme provider;

(f)      He is to attend and complete any parenting course he is directed to attend  to  the  satisfaction  of  the  probation  officer  and  programme

provider.

Brewer J