Livett v Department of Corrections

[2020] NZHC 1985

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2020-412-000024

[2020] NZHC 1985

BETWEEN

KAYNE LIVETT

Appellant

AND

THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	06 August 2020
Appearances:	B P Stephenson for the Appellant (via AVL) C J Bernhardt for the Respondent (via AVL)
Judgment:	6 August 2020

ORAL JUDGMENT OF VAN BOHEMEN J

Solicitors/Counsel:

Public Defence Service, Dunedin

Crown Solicitors Office, Dunedin (RPB Law)

LIVETT v THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1985 [6 August 2020]

Introduction

[1]    Kayne Livett pleaded guilty to one charge of breach of release conditions in the District Court.1 On 8 May 2020, he was sentenced to seven months’ imprisonment.

[2]Mr Livett now appeals the sentence on the basis that it is manifestly excessive.

[3]    Mr Livett filed his notice of appeal on 6 July 2020, outside the required statutory timeframe. Accordingly, he also seeks leave from this Court to file the notice of appeal out of time pursuant to s 248(4) of the Criminal Procedure Act 2011.

Factual background

[4]    On 8 April 2020, Mr Livett was sentenced in the District Court to one year and seven months’ imprisonment on charges of strangulation, assault on a person in a family relationship (namely, his partner) and dangerous driving. Judge M B T Turner ordered that Mr Livett be subject to standard and special release conditions for six months after the sentence expiry date.

[5]    On 5 May 2020, the District Court imposed further special  conditions  on  Mr Livett’s release, namely, that he not contact the victim, either directly or indirectly, without the prior consent of a probation officer. The Court considered the condition was required to reduce the risk of Mr Livett re-offending as well as to assist with his rehabilitation.

[6]    Mr Livett was released at 9.00 am the following day, 6 May 2020. Within three hours of his release from prison, Mr Livett was not to be at the address approved by Probation. Instead, he was with the victim. He was arrested and remanded in custody.

[7]    On 8 May 2020, Mr Livett pleaded guilty to breaching a special condition of release from imprisonment by contacting a person (namely, the victim) that he was prohibited from contacting without prior written approval of a probation officer.

1      Sentencing Act 2002, s 96(1). Maximum penalty of one year’s imprisonment or a $2,000 fine.

District Court decision

[8]    Later on 8 May 2020, Judge Turner sentenced Mr Livett for his breach of release conditions.2 Judge Turner described Mr Livett’s offending as deliberate, blatant and involving a complete disregard for his obligations.3 The Judge adopted a starting point of six months’ imprisonment, which the Judge observed as being “generous”.4 The Judge then uplifted that by three months for his relevant convictions for breaching release conditions.5 Despite holding that the evidence against Mr Livett was “simply unchallengeable”, the Judge allowed two months’ credit to Mr Livett for his guilty plea.6 Accordingly, Mr Livett was sentenced to an end sentence of seven months’ imprisonment.7

[9]    The Judge declined leave to apply for a substituted sentence because such a sentence would not meet the purposes of sentencing, in particular, personal deterrence.8 The Judge further noted that Mr Livett was to be subject to standard and special release conditions for six months after the sentence expiry date.9

Leave to appeal out of time

[10]   Section 248(2) of the Criminal Procedure Act 2011 requires that a notice of appeal must be filed within 20 working days of sentence being passed. The sentence appealed against is dated 8 May 2020; the notice of appeal is dated 6 July 2020, nearly two months from the date of the sentencing. The appeal is therefore made out of time, and leave is required from the first appeal court under s 248(4).

[11]   The Court of Appeal has noted that the “touchstone” for a successful application is that it must be in the interests of justice to grant an extension.10

2      Department of Corrections v Livett [2020] NZDC 7988.

3 At [6].

4 At [7].

5 At [8].

6      At [9]–[10].

7      At [10]–[11].

8 At [12].

9 At [13].

10     R v Lee [2006] 3 NZLR 42 (CA) at [99] and [106]; and R v Knight [1998] 1 NZLR 583 (CA).

[12]   The Department takes no issue with leave being granted for the appeal being filed out of time.

[13]   Overall, the delay was not significant and arose as a result of matters not necessarily of the appellant’s own making or fault; namely a misunderstanding between the Legal Aid Office and Mr Livett’s counsel, Mr Stephenson. There is also no prejudice to the Department in granting leave.

[14]   Accordingly, I consider that it is in the interests of justice for the Court to grant leave to Mr Livett to appeal out of time.

Appeal against sentence

[15]   Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal against sentence if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed. In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.11 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.12 The focus is on the end result rather than the process by which the sentence was reached.13

[16]   Mr Stephenson submits that the end sentence of seven months’ imprisonment is manifestly excessive.

Ground of appeal 1: Excessive starting point

[17]   In his written submissions, Mr Stephenson, argued that a starting point of three months would have been appropriate given the nature of the offending. However, having  read  the  decision  in  Allen  v  Department  of   Corrections,14   to   which Mr Bernhardt, counsel for the Department of Corrections referred in his written submissions, Mr Stephenson conceded that a starting point of six months was probably appropriate.

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

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

13     Tutakangahau v R, above n 11, at [36].

14     Allen v Department of Corrections [2017] NZHC 2902.

[18]   Like the present case, Allen was an appeal against a sentence imposed on one charge of breaching a non-association release condition. The breach involved the appellant contacting his partner, the victim of his previous violent offending, at the first opportunity upon his release. In the District Court, a starting point of 12 months’ imprisonment was imposed, with an end sentence of 10 and a half months. On appeal, Davison J agreed that the starting point was excessive and said the offending here was not the most serious type of offending calling for the imposition of the maximum penalty. He substituted a starting point of six months.

[19]   There are obvious similarities between Allen and the present case. In both cases, the appellants breached a non-association condition at the first available opportunity; both breaches were “deliberate, blatant and involve[d] a complete disregard for [their] obligations”.15 Having regard to the outcome in Allen, the blatant and immediate nature of the breach and the maximum penalty available of 12 months’ imprisonment, I do not accept that a starting point of six months was too high.

Ground of appeal 2: Disproportionate uplift

[20]   The Court of Appeal has said there needs to be some proportionality between the starting point and any uplift (or discount).16 Judge Turner in the District Court gave an uplift of three months to the starting point to reflect Mr Livett’s previous breaches of release conditions.

[21]   Mr Stephenson submits that the three-month uplift, representing a 50 per cent uplift to the six-month starting point, was disproportionate. He accepts that some uplift was justified, but he says a one-month uplift would have been appropriate on a starting point of three months’ imprisonment.

[22]   Mr Bernhardt submits that an uplift of three months was available to the sentencing Judge. Mr Livett has six previous convictions for breaching release conditions and four convictions for breaching other sentences. The most recent breach

15     Department of Corrections v Livett, above n 2, at [6].

16     See Moses v R [2020] NZCA 296 at [9]; Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and

Hodgkinson v R [2012] NZCA 478 at [21].

of a release condition was in May 2019, for which Mr Livett was sentenced to 14 days’ imprisonment.

[23]   The Court of Appeal in Moses v R clarified that “[t]o say that uplifts … must bear an appropriate proportion to the adjusted starting point is not to insist that they be calculated as a percentage.”17 The Court referred to its earlier comments in Blackmore v R rejecting the approach of assessing proportionality by comparing uplifts as a percentage of the starting point.18 There, the Court of Appeal noted:19

… the appropriate level of uplift is not determined by percentages but rather by a careful assessment of the need for deterrence and other sentencing principles in arriving at the appropriate sentence for the offending in the relevant case.

[24]   For these reasons, I do not accept Mr Stephenson’s approach of assessing the proportionality of the uplift simply as a percentage of the starting point. Instead, as instructed by the Court of Appeal, the Court should carefully assess proportionality of any uplift by reference to the need for deterrence and other sentencing principles.

[25]   Mr Bernhardt refers to the case of Jenkins v Department of Corrections.20 That case involved an offender who had been released from prison and obtained permission to attend a rehabilitative programme but instead spent two days visiting associates. He was arrested, convicted and sentenced for breach of release conditions, namely by absconding. There, the Judge noted that Mr Jenkins had a long history of breaching court orders and sentences imposed by the Court — he accordingly uplifted the starting point of five months by two months. In doing so, the Judge noted that the “present offending [was] made more serious by the fact that [Mr Jenkins had] failed to learn the lesson from earlier sentences imposed on him”.21

[26]   Similarly, in the present case, Mr Livett has failed to learn from his earlier sentences for breach of release conditions and other court orders. Further, the Judge considered the non-association release condition necessary to reduce the risk of

17     Moses v R, above n 16, at [10].

18     Blackmore v R [2014] NZCA 109.

19 Above n 18, at [13].

20     Jenkins v Department of Corrections [2014] NZHC 2895.

21 At [9].

Mr  Livett  re-offending  and  to  protect  public,  in  particular,  the  victim.     In the circumstances, I am not satisfied that the uplift was disproportionate.

Result

[27]   The application for leave to appeal out of time is granted. However, the appeal itself is dismissed.

G J van Bohemen J