Law v Police

[2020] NZHC 717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000045

CRI-2020-404-000046 [2020] NZHC 717

BETWEEN

RAYMOND LAW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 April 2020
Appearances:	P McNabb for the Appellant C Purdon for the Respondent
Judgment:	6 April 2020

ORAL JUDGMENT OF HINTON J

Solicitors/Counsel:

Public Defence Service, Auckland

Meredith Connell, Auckland

LAW v NEW ZEALAND POLICE [2020] NZHC 717 [6 April 2020]

Introduction

[1]    Mr Raymond Law appeals against a sentence of 26 months’ imprisonment imposed by Judge Gibson in the District Court at Auckland on 12 February 2020.1 This followed Mr Law’s entering of guilty pleas pursuant to a sentence indication given on 5 November 2019 by Judge Ronayne.

Background and Offending

[2]Mr Law pleaded guilty to:

(a)five charges of burglary;2

(b)one charge of theft of over $1,000 and two charges of theft of under

$500;3

(c)one charge of failing to answer District Court bail;4 and

(d)one charge of breaching community work.5

[3]    The burglary charges and theft of under $500 charges relate to events in April, May, and June 2019. Mr Law broke into locked areas in various laundromats around Auckland and stole various sums of money. He also damaged the premises and removed CCTV cameras. In total, over $11,000 was taken. This included over $500 he took from washing machine lockboxes using a key he stole during an earlier burglary. The charge of theft of over $1,000 relates to a separate incident in February 2019 where Mr Law stole a trailer from the forecourt of a business. Much of this offending took place while Mr Law was on bail for alleged offending in 2018.

[4]    The charge of failing to answer District Court bail related to Mr Law’s failing to attend a scheduled court appearance on 17 September 2019. Corrections’ Provision

1      New Zealand Police v Law [2020] NZDC 3037.

2      Crimes Act 1961, s 231(1)(a). Maximum sentence ten years’ imprisonment.

3      Sections 219 and 223(b) and (d). Maximum sentences seven years’ and three months’ imprisonment, respectively.

4      Bail Act 2000, s 38. Maximum sentence one year’s imprisonment.

5      Sentencing Act 2002, s 71(1)(a). Maximum sentence three months’ imprisonment.

of Advice to the District Court records that Mr Law explained his failure to appear on the basis he had been busy with childcare and had forgotten about his court date.

[5]    Prior to the present offending, Mr Law had received eleven convictions. His criminal history is not before me, but Corrections’ report suggests these related to relatively minor driving, dishonesty, drugs, and breach of sentence related offending, this being Mr Law’s first sentence of imprisonment.

[6]    Mr Law has previously, as indicated by the charges on which he was sentenced, been subject to a sentence of community service. His breach of community work charge relates to his failure to report to a probation officer within 72 hours of receiving that sentence.

[7]    He has also been sentenced to a period of community detention. The Corrections report indicates that there was at least one compliance issue in respect of that sentence, but no further details are available.

[8]    The report also refers to other active dishonesty charges against Mr Law outstanding as at the date of his being sentenced by Judge Gibson. These I gather are the charges relating to the alleged offending in 2018. The report notes those charges were to be heard in the District Court at Manukau in late January 2020. Ms McNabb, for Mr Law, advises these charges were dismissed, except for the breach of community work charge, which was transferred to the Auckland District Court and is one of the charges that is the subject of the appeal.

Sentence Under Appeal

[9]    As noted, on November 2019 Mr Law obtained a sentence indication from Judge Ronayne. The Judge, having considered the “careful” submissions made on Mr Law’s behalf by Ms McNabb adopted a starting point of 26 months’ imprisonment on the burglary charges. To this he added four months in respect of the other offending, and a further three months to reflect the fact most of the offending was committed while on bail. From this adjusted starting point of 33 months, the Judge indicated a guilty plea discount of 20 per cent, or seven months, would be available, producing a

nominal  sentence  of  26   months’ imprisonment.     As is standard with sentence indications, there is no reference to any mitigating factors personal to Mr Law.

[10]   On 12 February 2020, Judge Gibson “accepted” Judge Ronayne’s indication, imposing a sentence of 26 months’ imprisonment on the charges of burglary and theft of over $1,000 and concurrent lesser sentences in respect of the other charges. I can take it that the Judge has adopted a starting point of 33 months’ imprisonment on totality, then allowed a 20 per cent discount in respect of guilty plea following the indication. He makes no reference to any consideration of mitigating factors personal to Mr Law.

Submissions

[11]   Ms McNabb says Judge Gibson did not allow her to make submissions in respect of mitigating factors personal to Mr Law before passing sentence. She submits that, had the discounts for which she would have contended been allowed, Mr Law’s end sentence would have been a short-term sentence of imprisonment. Ms McNabb therefore submits that I should reserve to Mr Law leave to apply for home detention.

[12]   Mr Purdon, for the respondents, accepts that Judge Gibson erred and that the appropriate end sentence is a short-term sentence of imprisonment. He does not expressly oppose the grant of leave to apply for home detention.

[13]   The respondents’ submissions do highlight, however, a few points that call for further consideration of whether home detention is an appropriate sentence. Accordingly, having first briefly set out the relevant approach on appeal, and recorded the manner of the Judge’s error, I will return to the question of whether leave to apply for home detention should be granted.

Approach on Appeal

[14]   This first appeal against sentence is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. I must allow the appeal if satisfied that, for any reason, either intrinsic to the Judge’s reasoning or appearing from additional material

submitted on appeal,6 there is an error in the sentence under appeal and a different sentence should be imposed.7 I must dismiss the appeal in any other case.8

[15]   In deciding whether to impose a different sentence, I must not simply substitute my own view for that of the original sentencing Judge.9 Rather, I must be satisfied the sentence is manifestly excessive or wrong in principle.10 Within that framework, the focus is on the end result rather than the process by which the sentence was reached.11

Analysis

Should a different sentence have been imposed, and if so, what?

[16]   Mr Purdon has responsibly, and in my view correctly, accepted that the sentence was wrong in principle and manifestly excessive. I cannot know, on the available material, whether the Judge in fact heard Ms McNabb on the question of mitigating factors personal to Mr Law. However, no consideration of such factors is apparent on the face of his decision and that is the important point. To the extent that I have concluded below that discounts for personal factors should have been awarded, the failure to do so was a clear departure from the accepted three-stage approach to sentencing.12 The whole second step was effectively omitted. It was also a departure from the requirements of the Sentencing Act 2002 (the Act).13

[17]   I consider that Mr Law should have received discounts in respect of, first, the impact of any sentence on his family and, secondly, his demonstrative remorse and rehabilitation efforts.

[18]   Turning first to the impact on Mr Law’s family, I am mindful that at least some degree of inconvenience and hardship resulting to a convicted person’s family is an ordinary incident of that person’s participation in the criminal justice system. That will not often give rise to a discount. In the case of serious and premeditated offending

6      R v Shipton [2007] 2 NZLR 218 (CA).

7      Criminal Procedure Act 2011, ss 250(1)-(2).

8      Section 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

10     Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].

11     Tutakangahau v R at [36].

12     R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

13     Sentencing Act 2002, ss 9(2)(f) and 10.

the Court of Appeal has said the impact of a sentence on a convicted person’s family can carry little, if any, weight at sentencing.14

[19]   Yet, the Court of Appeal in Heta held that a discount of about seven per cent should have been afforded to a person convicted of welfare fraud offending to recognise the particular difficulty her imprisonment would cause her family, particularly her two younger children.15 I note that, in saying this, the Court was obviously mindful of the fact that Ms Heta’s eldest son had given up a lucrative job to care for her younger children, producing especial hardship and inconvenience not as expressly present here.16 Nonetheless, the point remains that hardship to an offender’s family can sometimes be a relevant consideration at sentencing.

[20]   Other Judges of this Court have afforded similarly modest discounts to offenders who were principal caregivers until the time of their detention, even in respect of more serious and premeditated offending than that seen here. This was said by those Judges to recognise both the hardship caused to the offenders’ families, and also the fact that allowing a quicker return to family life would aid in promoting the offenders’ rehabilitation.17

[21]   It is significant, in light of those cases, that Mr Law is father, and also caregiver and principal provider to, not one, two, three, or four (as in the cases I have referred to), but eight, children. Until the time of his detention, Mr Law was actively involved in caring for the children, together with his partner. In a letter of remorse, Mr Law says his partner has struggled to care for eight children, three of whom are infants, on her own. That is not hard to believe. The sheer number of children involved, and Mr Law’s prominent role in their lives until his being remanded in custody, satisfies me that a compassionate deduction from his sentence is appropriate in the particular, somewhat unusual, circumstances of this case.

[22]   Mr Law told the author of Corrections’ report, and wrote in his letter of remorse, that he stole in order to support his family. Obviously, that does not excuse

14     McGregor v R [2015] NZCA 565 at [46].

15     Heta v R [2012] NZCA 267 at [38].

16 See [35].

17     R v Walker [2017] NZHC 2303 at [18]; R v F [2018] NZHC 3377.

his actions, but Mr Law has indicated he understands as much. In his letter of remorse, Mr Law accepts that he has brought shame on his family and himself through his actions, and that he has not acted, in his words, as a “responsible father, partner, and son” by seeking to support his family through dishonesty offending. He realises that, practically, they are also victims of that offending. He says he accepts that it is important that he works to be able to overcome financial stress in a lawful manner. It is material that the author of Corrections’ report considered Mr Law to be genuinely remorseful and insightful in their interview and noted an offer on his part to make reparations once released.

[23]   The report writer’s positive impression is supported by the contents of a certificate attached to the appellant’s submissions. This details Mr Law’s attendance at a work programme in the kitchen at Mount Eden Correctional Facility. Mr Law’s work ethic, punctuality, and attitude are described as “very good”, and the supervisor states that Mr Law was “polite and always keen to work”, tending to “keep his head down and just do the work without a fuss.” This aligns with Mr Law’s comments to the report writer, who he told that he had enjoyed studying towards a carpentry qualification in the past, but that he found the associated academic work hard.

[24]   Having reviewed these materials and considered Mr Law’s family circumstances and the impact of imprisonment on them, I am satisfied that the sentence imposed in respect of Mr Law’s offending should emphasise assisting him in his desire to rehabilitate and reintegrate into the community.

[25]   I am satisfied that the purposes of deterrence, denunciation, and community protection are adequately served by Mr Law’s time spent on remand before his sentencing. This is Mr Law’s first time in prison, and in his letter to the District Court, he said he had been distressed by what he has seen in there. Certainly, it has been noted elsewhere that imprisonment is particularly harsh on those imprisoned for the first time, and that imprisonment can hamper rehabilitation by exposing first-time prisoners to even greater criminality.18 I am satisfied that Mr Law’s sooner returning

18     See R v Hernton HC Palmerston North CRI-2007-031-536, 18 December 2009 at [21]; Kaihau v New Zealand Police [2012] NZHC 191 at [53]; and R v Tarawa [2018] NZHC 3205 at [41].

to his family will both lessen the blow to them and better assist in his rehabilitation than lengthening his time in custody.

[26]   For these reasons, I am satisfied that a discount of about ten percent in respect of personal mitigating factors is appropriate.

[27]   From the starting point of 33 months’ imprisonment adopted (with which no issue is taken on appeal, and which appears within range), and rounding in Mr Law’s favour, this produces an adjusted starting point of 29 months’ imprisonment. Applying also the 20 per cent guilty plea discount, and again rounding in Mr Law’s favour, this produces a notional end sentence of 23 months’ imprisonment. That is a short-term sentence.19 The question of home detention therefore arises.

Should leave be reserved to apply for home detention?

[28]   There is as yet no report as to whether Mr Law has a suitable residence for home detention. Therefore, today I must sentence him to 23 months’ imprisonment. The question, pursuant to s 80I of the Act, is whether I would have instead imposed a period of home detention had a suitable residence been available.

[29]   There is no presumption in favour of home detention being imposed. Where available as a short-term sentence of imprisonment would otherwise result, a sentencing court must determine whether home detention is appropriate, having regard to the principles and purposes of sentencing.20 In Hill, the Court of Appeal noted that home detention is most appropriate in cases where emphasis needs to be placed on the rehabilitative and reintegrative purposes of sentencing, observing that:21

Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[30]   As I have noted above, Mr Law has demonstrated, especially since being confronted with the realities of imprisonment during his time on remand, insight into

19     Sentencing Act 2002, s 15A.

20     R v Vhavha [2009] NZCA 588 at [31].

21     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

the reasons for his offending, recognition of his culpability, and a genuine desire to change. For these reasons, I consider a sentence promoting rehabilitation and reintegration is appropriate in this case, and that achieving those objectives will be undermined by the imposition of a custodial sentence. Subject to the further consideration below, I am satisfied a sentence of home detention is appropriate.

[31]   The remaining question then, in terms of the guidance in Hill and the facts of this case, is whether there is a realistic possibility that Mr Law will change. This is not his first offending. It is clearly deliberate rather than impulsive offending and I am very concerned that much of it was committed while on bail.

[32]   Mr Law’s proven history of non-compliance with community-based sentences and failure to answer bail raise concerns as to his likelihood of compliance with home detention and call into question the rehabilitative benefits that sentence can offer.

[33]   In particular, I note Mr Law would almost certainly seek home detention to his home address, where he would be able to help his partner and children but also be subject to the same financial stress that led to the present offending. While he can of course seek leave to obtain employment, nothing before the Court suggests any definite offer or plan has been made in this respect. Mr Law’s being able to obtain gainful employment to support his family, and begin to make some reparations to the victims, is an essential aspect of the rehabilitative benefits home detention would offer. Until then, Mr Law and his family will be dependent on social welfare, with the stress that brings.

[34]   Yet, I am persuaded that Mr Law’s time on remand has greatly affected him, and that this will hopefully have motivated him to live up to the expectations he expressed for himself in his Corrections interview and letter of remorse. Additionally, none of the previous community sentences or bail conditions with which Mr Law failed to comply were electronically monitored. The electronically monitored nature of home detention provides an additional incentive for, and assurance of, Mr Law’s compliance.

[35]   Accordingly, I am of the view that, if a suitable residence had been available, I would have sentenced Mr Law to a period of home detention.

Result and Orders

[36]   For all of the above reasons, the appeal against sentence is allowed. The sentences imposed by Judge Gibson in the District Court at Auckland are quashed; and the following sentences, all of which are to be served concurrently, substituted:

(a)in respect of each charge of burglary, 23 months’ imprisonment;

(b)in respect of the charge of theft of a trailer, 23 months’ imprisonment;

(c)in respect of the charge of stealing $499 in cash, ten weeks’ imprisonment;

(d)in respect of the charge of theft of $55 in cash, three weeks’ imprisonment;

(e)in respect of the charge  of  failure  to  answer  District  Court  bail,  14 weeks’ imprisonment; and

(f)in respect of the charge of breaching community work, three weeks’ imprisonment.

[37]   Pursuant to s 80I(2) of the Act, I make an order granting Mr Law leave to apply to the District Court as the court of first instance for cancellation of the above sentences of imprisonment and substitution of a sentence of home detention if a suitable residence is identified.

[38]I am obliged to both counsel for their very helpful submissions.

Hinton J