L v Police

[2014] NZHC 2747

NOTE: PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000240 [2014] NZHC 2747

BETWEEN

L

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 November 2014
Appearances:	N C Wintour for Appellant K Muirhead for Respondent
Judgment:	4 November 2014
Reasons:	5 November 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 5 November 2014 at 2.30 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Snedden & Associates, Auckland

Copy to:            N Wintour, Auckland

L v NZ POLICE [2014] NZHC 2747 [4 November 2014]

Introduction

[1]      Mr L pleaded guilty in the District Court at Auckland to five counts of assault on a child and one of common assault.  On 25 July 2014 Judge E P Paul sentenced Mr L to 10 months’ imprisonment.   Mr L appeals against the sentence of imprisonment.  He was granted bail pending the appeal.

[2]      At the conclusion of submissions I indicated to counsel the appeal would be allowed and the sentence of imprisonment quashed and replaced with a sentence of eight months’ home detention to commence on 5 November with reasons to follow. These are the reasons.

Background facts

[3]      I take the summary of offending from the Judge’s notes.

[4]      The offending was against two children who were Mr L’s stepchildren.   In relation to I, Mr L on one occasion flicked the cap off his head and slapped his head several times.   He then grabbed him by the neck and squeezed for a couple of seconds leaving red marks.  He grabbed the child’s clothing, grabbed the back of his head and pushed it into a wall resulting in the child falling to the ground.  The child received swelling and bruising to his nose as a result.

[5]      E was placed in the toilet on the toilet seat for time out and also was struck by Mr L across the thigh, across the back of the head and on the bottom numerous times using his open palm.  On one occasion Mr L grabbed E’s clothing around the neck, lifting him off his feet for a matter of seconds.  He was then dragged against a door frame causing scratching and grazes to his lower back.  On another occasion he was picked up with his pants pulled down and struck 10 times to the bottom area over his boxer shorts.  He was pushed against the wall, pushed into the toilet and struck three to four times around the bottom.  Mr L also pulled the child’s hair.

[6]      The offending against both occurred over a number of years.

District Court sentence

[7]      The Judge took a starting point of 18 months’ imprisonment.  He then gave credit for Mr L’s remorse, which was practically demonstrated by him undertaking a number of parenting programmes and non-violence programmes (four months) and then a discount of 25 per cent of a further four months for the guilty plea.  The Judge noted that he had a pre-sentence report which did not recommend home detention and in rejecting home detention said:

In my view home detention would send entirely the wrong message for this type of cruel and bullying offending by you sir.  The only punishment can be a term of imprisonment …

Grounds of appeal

[8]      The appeal was advanced on three principal grounds:

(a)       that the Judge failed to acknowledge there was a dispute about certain facts;

(b)that  the  sentence  of  10  months’  imprisonment  was  manifestly excessive in the circumstances;  and

(c)       the Judge made an error of law in rejecting home detention as an appropriate sentence in this case.

The disputed facts issue

[9]      Mr Wintour submitted Mr L did not accept the hair pulling, grabbing around the neck or that he had thrown the children against a bed, door, wall or toilet or had caused bruising or injury.  There were some amendments made to the summary of facts but they were never finally agreed.

[10]     However, it is too late for Mr L to raise a dispute about the summary of facts at this stage on appeal.  The time to raise any such issue was at the time the guilty plea was entered.   If the disputed facts could not be resolved then counsel should have alerted the Court to that dispute and sought an indication under s 24(2) of the

Sentencing Act 2002 as to the significance of the disputed facts.  In the absence of that process being engaged the sentencing Judge was entitled to proceed on the basis of the amended summary before him.

[11]     In any event the fact of dispute does not advance the appellant’s case.  If the s 24 issue had been advanced and a disputed fact hearing held it is likely to have affected the full discount provided for the guilty plea, as one reason for the discount for the guilty plea is that it avoids the need for the complainants to give evidence. There is nothing in this point.

Manifestly excessive

[12]     Nor can it be said that the starting point of 18 months’ imprisonment for offending of this nature extending over a period of years was manifestly excessive. In S v R,1  for example, S pleaded guilty to three counts of offending against three complainant children and was found guilty by the jury of a further three counts.  The offending involved slapping and smacking, kicking and slapping, striking with a belt causing an obvious mark, kicking to the stomach, and slapping on the mouth, including slapping on the mouth of a two year old.  The Court of Appeal considered

18 months’ imprisonment was an appropriate starting point.

[13]     Given the extended period of the offending in this case and having regard to

S v R the starting point of 18 months’ imprisonment was open to the Judge.

Home detention

[14]     The only issue in this appeal is whether the Judge erred in not imposing home detention in the circumstances of the offending and the offender.  The Judge noted that the pre-sentence report did not recommend home detention.  However, three pre- sentence reports had been prepared in this matter by three different report writers. The first recommended supervision with special conditions;    the second, imprisonment;  the third, home detention, (despite the fact the proposed address was

not at the time suitable).  However the only reason the address was not suitable was

1      S v R [2011] NZCA 178.

there was a one year old child of a flatmate or tenant of the appellant living at the property. That is no longer the case. The address was otherwise suitable.

[15]     The  Judge  also  rejected  home  detention  as  the  appropriate  sentence considering that that would send entirely the wrong message for this type of “cruel and bullying offending”.   However with respect, having regard to the authority of S v R it is clear that the Court of Appeal has endorsed home detention can be an appropriate sentence in response to extended offending of this nature.   Each case must be determined on its own circumstances in terms of the relevant offending and the offender.

[16]     It  is  implicit  in  the  Judge’s  reasoning  that  he  considered  the  sentencing purposes of denunciation and deterrence could only be met by a sentence of imprisonment.   However, as the Court has said on a number of occasions home detention is a real sentence as it is the next in hierarchy down from imprisonment.

[17]     The Judge did err in characterising the offending as cruel and bullying, which he repeated during the course of the sentencing notes.   Cruelty towards a child is more properly categorised as offending under s 195 of the Crimes Act, which carries a significantly longer maximum penalty than the offences to which L pleaded guilty.

[18]     Further, in the present case the following features are relevant:

(a)      the appellant had done everything possible to address the causes of his offending;

(b)the   offending   occurred   at   a   time   when   the   family  unit   was dysfunctional;

(c)      the appellant acknowledged his offending, indicated the intention to plead guilty and took steps to obtain and complete an anger management programme, a parenting during separation programme, alcohol assessment and counselling and further parenting learning. These programmes were satisfactorily completed;

(d)the issues between the appellant and his partner were resolved in the Family Court.  That led to the Judge in the Family Court discharging the interim protection order on 8 April 2014.  Parenting orders were made allowing day to day care to the mother and weekly and holiday care to the father.  (These children are not the complainants).

[19]     The Judge should have considered home detention without rejecting it out of hand.   A sentence of home detention should only have been departed from and elevated to a full term custodial sentence in prison if there was a particular aspect of the offending or the offender that justified it.   There were no such aspects in this case.  To all intents and purposes the appellant was a first offender.  Offending of this nature that has led to imprisonment generally has involved much more serious offending,  such  as  the  use  of  a  belt  or  other  instrument.   A number  of  useful

comparators are referred to in the decision of Williams J in Solomon v Police.2

[20]     For those reasons and having regard to the case of S v R which does not appear to have been cited to the Judge I am satisfied that the appropriate sentence in this case was one of home detention.

Result

[21]     The sentence of imprisonment is quashed.   In its place the appellant is to serve a sentence of eight months home detention.  The sentence is to commence on 5

November 2014.   The  appellant  is  to  serve that  sentence  at  26  St  Jude Street, Avondale.  He is not to move to any new residential address without the prior written approval of a probation officer

[22]     The appellant is to attend and complete an appropriate programme if directed and to the satisfaction of a probation officer.  The specific details of the appropriate

programme shall be determined by the probation officer.

Venning J

2      Solomon v Police HC Wanganui CRI-2010-483-063, 3 December 2010.