L v Police

[2017] NZHC 1463

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2017-463-26 [2017] NZHC 1463

BETWEEN

L

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 June 2017
Counsel:	G Schweizer for Appellant S Casey for Respondent
Judgment:	29 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 29 June 2017at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Solicitor, Rotorua

L v NEW ZEALAND POLICE [2017] NZHC 1463 [29 June 2017]

[1]      L appeals against her sentence on one charge of assaulting a child, her 13 year old daughter.1     She was sentenced to two months’ home detention plus six months’ post-detention conditions and 160 hours of community work. Judge Hollister-Jones also granted name suppression in the interests of the victim. As such I suppress L’s name throughout this judgment.

[2]      L claims the sentence was manifestly excessive.

Background

[3]      L had been contacted by the father of her daughter about some behavioural problems he was facing with her.  L found her at the local netball courts and punched her to the left side of the head.  She then took her home and told her to go outside to the carport area and punched her again in the face, to the left side of the head, and kicked her three times in the buttocks with steel-capped gardening boots.  The victim was standing up throughout, so L had to swing her leg three times to connect with her buttocks.

[4]      The summary of facts records that the victim received bruising to her left eye, bruising to her hip area and tenderness to her lower back.  But the plea of guilty had been entered on the basis that there was soreness to the victim but no bruising, and the medical report describes tenderness in these areas rather than bruising.

The sentence

[5]      In   fixing   sentence,   Judge   Hollister-Jones   noted   L   had   no   previous convictions. The Judge set out the frame adopted for his sentence as follows:2

In terms of the purposes and principles of sentencing, I need to hold you accountable, to promote the interests of the victim, to denounce and deter family violence, to sentence you in a consistent way and to have regard to the least restrictive outcome.

[6]      The Judge then identified the following aggravating features of the offending:

(a)      some premeditation because, as a result of the phone call from the victim’s father, L sought the victim out and then took her home to deal with her;

(b)      the use of steel-cap boots; and

(c)       a significant breach of trust.

[7]      He said there were no mitigating features of the offending, but referred to letters of support which spoke very highly of L, including in particular her contribution over many years to the M Kohanga Reo. He noted the pre-sentence report described L as having limited insight into her offending, but having some remorse. It also stated that physical discipline had been part of L’s background and upbringing, and that she had resorted to it on this occasion.

[8]      The Judge cited the decision of Kawhena v Police3  in which a High Court Judge adopted a start point of six months for offending of a parent against a 13 year- old.  The Judge noted that there were a slightly greater number of blows and slightly greater injuries in that case, but that it lacked the premeditation and prolonged nature of the incident present in this matter.

[9]      The Judge adopted the same starting point, noting that counsel agreed that a starting point of six months’ imprisonment would be appropriate.  This was reduced by one month for good  character.   No further discount was  given for remorse. Observations made in the restorative justice report were noted, including that L was still insisting that her actions were to discipline her daughter, while also expressing remorse.  The Judge concluded, however, that he did not think this was a case of full insight and full remorse.  From a starting point of five months, a 25 per cent discount was given for guilty plea, resulting in an adjusted start point of 3.75 months.

[10]     In discussing the form of sentence, the Judge noted:4

The  pre-sentence  report  recommends  supervision  and  community  work. Your counsel emphasises that approach and suggests that community work is a sufficient punitive response.   I do not accept that community work and supervision is an adequate response to premeditated violence on a young person by someone in a position of trust.  It resulted in facial bruising and bruising to other parts of the body.   Home detention is available.   It is a suitable sentence here.  You have a low risk of re-offending and I consider home detention meets the principles of deterrence and denunciation.

[11]     A sentence of two months’ home detention plus six months’ post-detention conditions and 160 hours of community work was handed down.5

Grounds of appeal

[12]     The key grounds of appeal are:

(a)      The sentence was wrong in principle:

(i)       The Judge did not refer to the statutory requirement at ss 8(g),

10A, 15A and 16 of the Sentencing Act 2002 to impose the least restrictive outcome appropriate, and by excluding the possibility  of  a  community  based  sentence  failed  to  have regard to it and to L’s rehabilitative needs under s 15A(1)(a).

(ii)The Judge erroneously relied on Kawhena as a reference point for fixing sentence - unlike Kawhena, there was no alcohol involved and the defendant had a long list of previous (though historical convictions).

(b)      The sentence was manifestly excessive.

Threshold

[13]     This is an appeal pursuant to s 250(2) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that:

5      The conditions as set out in the pre-sentence report were to undertake and complete an anger management programme and to attend and complete an appropriate programme, counselling or treatment to the satisfaction of the probation officer.

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[14]     It is now settled that a sentence may be set aside as manifestly excessive. Whether a sentence is manifestly excessive is to be determined in terms of the sentence given, rather than the process by which the sentence is reached.6

Assessment

[15]     The Judge did not refer expressly to the statutory duty to impose the least restrictive outcome or L’s rehabilitative needs when identifying the principles to be applied in sentencing.7  Indeed, there is no mention anywhere in the sentence of rehabilitative needs. Conversely, the Judge expressly referred to the principles favouring incarceration, including accountability, the interests of the victim, denunciation  and  deterrence.    He  refers  to  the  nature  of  the  violence  and  the principles of deterrence and denunciation again when settling on home detention.

[16]     Given this, I agree that, on the face of the record, the Judge did not have regard to a mandatory relevant consideration, namely L’s rehabilitative needs, while emphasising public interest considerations in deterrence and denunciation.  In simple terms it appears the Judge failed to have regard to mandatory relevant consideration.

[17]     The significance of rehabilitation has also been emphasised in a numerous authorities8   and  the  apparent  failure  to  have  regard  to  it  is  not  immaterial, particularly in this case, involving a first time offender of otherwise very good character. While I doubt the Judge closed his mind to L’s rehabilitative needs (it was raised by counsel during the sentencing hearing)9, I am prepared to take a closer look

at the sentence, having regard to this important factor.

6      Ripia v R [2011] NZCA 101 at [15] and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR

482 at [26]–[27].

7      He did however comment that he did not consider community work and supervision was an adequate response to such premeditated violence, and that he considered home detention was available and suitable.

8      R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18]-[22].

9      At the request of counsel for the appellant a copy of the transcript of sentencing was provided to

[18]     A start point of a short term of imprisonment, in the order of five to nine months for multiple violent attacks on a child, including with steel cap boots, is clearly within range.  In this regard, I disagree with Ms Schweizer that the offending in Kawhena was not sufficiently analogous to provide guidance in this case.   In Kawhena, a 13-year-old victim was struck to the head about five times and then kicked  a number of times  to  the upper leg.   This  left  her with  bruising and  a blackened eye.  While arguably this offending was worse than the offending in this case, it was sufficiently comparable so that the start point adopted by Moore J in that

case provided useful guidance to the Judge in this case.10   L’s personal circumstances

however equally clearly make imprisonment inappropriate. As the Judge observed she is of low risk to the community and this was one-off offending.

Is home detention excessive?

[19]     As Ms Schweizer submits, a sentencing judge is obliged to impose the least restrictive sentence available. But with respect to her careful submissions, while L’s good character and good prospect of rehabilitation are strong factors in her favour, it cannot be said that home detention is wrong in principle. While it was available to the Judge to impose a sentence lower in the hierarchy (for example community work), it was well within his discretion to place considerable weight on factors such as denunciation and deterrence in a context involving violence to children.

[20]     I was invited by Ms Schweizer to closely scrutinise the cases where home detention had been imposed. It was suggested that common to most of those cases the defendant had aggravating personal factors.11 But even so, it cannot be seriously suggested that home detention is always going to be excessive in case involving child abuse and a person of otherwise good character. It is essentially a discretionary matter for the sentencing judge in light of all the background facts. In this case there is no suggestion that the judge did not consider them and, in any event, a short

period of home detention is not excessive.

me.     Rehabilitation,  within  the  context  of  a  discussion  about  appropriate  sentence,  was mentioned twice by counsel.

10     Kawhena v Police, above n 3, at [19]. See also Hendry v Police [2012] NZHC 3581.

11     I observe that in Kawhena v Police, above n 3, in imposing a sentence of nine weeks’ home detention on appeal Moore J did not actually uplift for Mr Kawhena’s long list of previous convictions.

[21]     Mr  Casey  however  agreed  that  the  combination  of  home  detention  (a significant sentence) and community work was excessive. To that extent only I am prepared to allow the appeal.

Outcome

[22]     The appeal is allowed only to the extent that the community work component is set aside, as Mr Casey accepted was appropriate.