Keil v Police
[2020] NZHC 682
•2 April 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2020-441-006
[2020] NZHC 682
BETWEEN PAUL PHILLIP KEIL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 April 2020 (via telephone) Counsel:
L P F Lafferty for appellant L M Marshall for respondent
Judgment:
2 April 2020
RESERVED JUDGMENT OF DOBSON J
[1] The appellant (Mr Keil) was sentenced in the Napier District Court on 17 December 2019 on convictions for possession of methamphetamine for supply and common assault.1 District Court Judge Rea imposed a sentence of 23 months’ imprisonment on the methamphetamine conviction and a three month concurrent sentence on the assault conviction.
[2] Mr Keil has appealed the sentences on the basis that the District Court Judge erred by failing to consider the least restrictive outcome appropriate in the circumstances under s 8(g) of the Sentencing Act 2002, because there was no consideration of the alternative sentence of home detention.
1 Police v Keil [2019] NZDC 25610 at [7].
KEIL v POLICE [2020] NZHC 682 [2 April 2020]
Circumstances of the offending
[3] On 6 August 2019, after an altercation at another address with his ex-partner (the victim), Mr Keil drove to 3 Maxwell Place, Napier. Shortly after he arrived, the victim followed Mr Keil to 2 Maxwell Place in her vehicle, where both parties continued to argue. The victim then drove her vehicle at Mr Keil. Mr Keil picked up a large rock that was nearby and threw it at the vehicle’s windscreen, causing the windscreen to shatter. Mr Keil then dragged the victim out of her car and punched her to the side of the head, causing her to fall to the ground. Mr Keil continued to abuse the victim and argue with her. The Police arrived a short time later and subsequently arrested Mr Keil. In the course of his arrest, Mr Keil was searched. A black pouch containing 18.5 grams of methamphetamine was located in the pocket of his shorts. A set of electronic scales and $362 in cash were also located.
The sentencing analysis
[4] The District Court Judge treated Mr Keil as a street level methamphetamine dealer, and assessed him as a lesser offender within this category. He set the starting point for the methamphetamine conviction at two and a half years’ imprisonment.2 An uplift of three months was imposed for the assault, leading to a total starting point of two years and nine months’ imprisonment.3
[5] The Judge then considered several mitigating factors. A helpful cultural report obtained pursuant to s 27 of the Sentencing Act, as well as evidence that Mr Keil had struggled with a methamphetamine addiction for a significant period of time, warranted a discount of 15 per cent.4 A further discount of 20 per cent was given for relatively early guilty pleas, leading to an end sentence of 23 months’ imprisonment for the methamphetamine conviction, and three months’ concurrent imprisonment for the assault charge.5 The Judge also imposed special release conditions to run for six months after the expiry date of the sentence. These were:
22 Police v Keil, above n 1, at [5],
3 At [5].
4 At [6].
5 At [7].
· completion of a psychological assessment with a departmental psychologist;
· an alcohol and drug assessment;
· any treatment/counselling recommended following either assessment; and
· no consumption of illegal drugs or alcohol.
The ground of appeal
[6] None of this reasoning in the sentencing analysis was challenged on appeal. The sole ground advanced was that, given the end sentence of a short term of imprisonment, the Judge was obliged to consider whether a less restrictive form of sentence could be imposed. The Judge’s sentencing notes made no reference to that consideration. The ground is advanced notwithstanding that counsel for Mr Keil did not raise the prospect of home detention in making submissions on sentencing. In oral submissions, Mr Lafferty acknowledged that this omission was his error, which he suggested should not be visited upon Mr Keil.
[7] In addition, home detention was not recommended in the pre-sentence report. The appendix assessing the prospects confirmed the existence of a technically suitable address, but raised concerns. The report advised that Police and Oranga Tamariki had not had sufficient time to respond.
[8] The appeal is brought under s 250 of the Criminal Procedure Act 2011. The appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.6 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.7
6 Tutakangahau v R [2014] NZCA 279.
7 Ripia v R [2011] NZCA 101 at [15].
A short term of imprisonment or home detention?
[9] There is no presumption for or against the commutation of a short-term sentence of imprisonment to home detention.8 What is called for is the exercise of a sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Sentencing Act.9 This approach was affirmed in Palmer v R, where the Court of Appeal also held that, in marginal or borderline cases, the margin of appreciation extended to judges is usually significant.10
[10] The approach to appeals against a sentence of imprisonment where home detention is available has also been outlined in Manikpersadh v R:11
[11] This Court identified the appropriate approach in James v R in this way:
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[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, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.
[11] In Fairbrother v R, the Court of Appeal outlined specific guidelines governing the discretion of a sentencing judge when considering between a sentence of imprisonment and home detention:12
8 R v Vhavha [2009] NZCA 588 at [29].
9 At [29].
10 Palmer v R [2016] NZCA 541 at [19].
11 Manikpersadh v R [2011] NZCA 452 at [11]–[12].
12 Fairbrother v R [2013] NZCA 340 at [29]–[30].
Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that 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.
Analysis
[12] The Judge had substantial information about Mr Keil on which to assess his likely compliance with a sentence of home detention and his rehabilitative needs. The PAC report stated that Mr Keil had been addicted to methamphetamine for 15 years. The report noted the significant history of past convictions, including 16 for violence. The report writer assessed Mr Keil as being at high risk of re-offending and having a propensity for violence. Given the nature of the present offending, the lack of remorse and an increase in risk of offending due to a significant methamphetamine addiction, the recommendation was for a sentence of imprisonment with release conditions.
[13] The Judge also had the s 27 cultural report, which detailed a tragically difficult upbringing in an “extremely intensive gang environment”. Mr Keil has been a victim of domestic and sexual abuse as a child and teenager, contributing to drug addiction from an early age. There is also a prospect that he suffered a traumatic head injury in his youth.
[14] Mr Keil has 10 convictions for non-compliance with community-based sentences, a total of 92 previous convictions and has been the subject of 10 family violence reports. He has received 38 terms of imprisonment. Whilst helpful in enabling a much better understanding of the context in which Mr Keil’s substantial offending has occurred, the cultural report could not be determinative in the decision required as to whether a short sentence of imprisonment ought to have been commuted to one of home detention.
[15] Mr Lafferty advised that a former employer of Mr Keil as a plasterer is prepared to have him back, so there is the prospect of regular employment.
[16] I infer that the materials available to the Judge would also have included three Department of Corrections reports on the suitability of addresses and of Mr Keil for electronically monitored (EM) bail completed in September and October 2019. The consistent theme of those reports was concern at Mr Keil’s unsuitability to be placed on EM bail, given his propensity for violence and gang associations in the area of the bail addresses that had been proposed.
[17] A street level dealer in possession of 18.5 grams of methamphetamine, and with a substantial history of offending, would generally be vulnerable to a sentence of imprisonment, given the presumption in s 6(4) of the Misuse of Drugs Act 1975, and applying the sentencing considerations specified in Zhang v R.13 The level of violence was also of concern, notwithstanding suggestions that Mr Keil’s former partner wished to recant on the complaint. Accordingly, although discounts enabled the length of the sentence to come below two years, it was sentencing for a type of offending where positive reasons in relation to the offender and his rehabilitation would most likely be required before it was appropriate to commute the sentence to one of home detention.
[18] Here, there were no such compelling personal circumstances weighing in favour of home detention. The existence of a possible address and work are not sufficient. Weighed against it were numerous relevant considerations that suggest home detention would be inappropriate. Submissions for the respondent opposing the appeal included the following list of factors which operated against home detention:
a.The recommendation of imprisonment in the pre-sentence report;
b.The offending occurred whilst subject to a sentence which was in turn imposed for breaching a community based sentence;
c.An application for EM bail pending trial was declined, the report writer noting that his gang affiliation and history of violent offending render him unsuitable, particularly given the risk of potential violence towards staff involved in the management of EM bail;
d.An application for compassionate bail was declined;
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
e.The defendant is a self-professed drug addict who is not eligible for departmental rehabilitative programmes within the community due to his risk levels;
f.Issues identified in the cultural report indicate that, whilst the defendant is not without all hope, his current situation favours incarceration;
g.The defendant has previously been sentenced to multiple terms of imprisonment and home detention, none of which have failed to deter him from further offending;
h.The defendant’s compliance with a sentence of home detention in 2016 can best be described as modest;
i.The defendant’s respect for authority is poor, as evidenced by 10 convictions for non-compliance with community based sentences;
j.The family harm reports involving the defendant and the complainant suggest somewhat of an obsession with her, such that there must be real concerns for her safety, should he receive a non-custodial sentence; and
k.He has 92 previous convictions, including assaulting a probation officer with intent to injure and assaulting a police officer.
[19] I invited Mr Lafferty to respond on each of these considerations during oral submissions, and he did make points challenging the relevance or accuracy of some, and limiting the weight that should be given to others.14 In the end, however, it is a relatively compelling list.
[20] With respect to the sentencing Judge and to defence counsel, it is quite unsurprising that defence counsel did not raise the prospect of home detention at sentencing, and that the Judge overlooked an explicit acknowledgement of what is clearly implicit in his reasoning, namely that this was not a case in which home detention was a viable alternative.
[21] Even without affording the Judge a degree of latitude in the exercise of the discretion, which I am bound to do, I would inevitably have come to the conclusion that this is not a case in which to commute the prison sentence into one of home detention.
14 Mr Lafferty cited the terms of the judgment of District Court Judge Mackintosh on Mr Keil’s application for EM bail, which noted that Mr Keil’s compliance with a recent sentence of supervision had been good and that he had served a term of home detention in 2015 where no breaches were recorded: Police v Keil [2019] NZDC 19640.
[22]Accordingly, the appeal is dismissed.
Dobson J
Solicitors:
Leo Lafferty, Napier for appellant Crown Solicitor, Napier for respondent
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