Luff-Pycroft v R
[2012] NZCA 107
•26 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA19/2012 [2012] NZCA 107 |
| BETWEEN SHAUN THOMAS LAWRENCE LUFF-PYCROFT |
| AND THE QUEEN |
| Hearing: 14 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: P M Keegan for Appellant |
| Judgment: 26 March 2012 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of imprisonment imposed in the District Court is quashed. In its place, we impose a sentence of six months’ home detention, subject to the conditions set out at [21] of the Reasons of the Court.
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REASONS OF THE COURT
(Given by O’Regan P)
Introduction
Mr Luff-Pycroft, the appellant, pleaded guilty to one count of injuring with intent to injure, and two counts of assault with intent to injure. The victim in relation to all counts was his girlfriend. Judge Roberts sentenced him to 18 months’ imprisonment.[1]
[1] R v Luff-Pycroft DC New Plymouth CRI-2011-043-317, 9 December 2011.
Mr Luff-Pycroft now appeals against his sentence. The sole point of appeal is that Mr Luff-Pycroft says he should have been sentenced to a period of home detention rather than imprisonment.
Background facts
The offending involved three episodes of violence by Mr Luff-Pycroft towards the victim between October 2010 and January 2011.
The first episode, which resulted in one of the two convictions for assault with intent to injure, occurred in October 2010. Mr Luff-Pycroft became angry with the victim and attacked her by choking her, leaving marks on her neck. Mr Luff-Pycroft then fetched two knives from the kitchen and threatened to kill her, before holding the knives to his own throat and saying that he would kill himself.
The second episode occurred in December 2010, and resulted in the second of the two convictions for assault with intent to injure. Mr Luff-Pycroft returned home from work and became angry with the victim, pushing her to the ground. He kicked her about the body before producing a knife that he held against her side while threatening to kill her.
The final episode occurred in January 2011 and led to the conviction for injuring with intent to injure. Mr Luff-Pycroft and the victim went nightclubbing together in New Plymouth. During the course of the night their relationship deteriorated after Mr Luff-Pycroft sent a series of aggressive text messages to the victim’s cell phone. As a result Mr Luff-Pycroft returned home early. Some hours later the victim returned to their residence and went to bed. Mr Luff-Pycroft was already in the bed.
Without warning, Mr Luff-Pycroft attacked the victim. He placed his hands around her neck and began to strangle her. While Mr Luff-Pycroft strangled the victim, he also bit her several times on the face, left arm, right thigh and left side torso. The victim screamed repeatedly. Mr Luff-Pycroft placed his hand over the victim’s mouth to stifle her screams. The force of his hand bruised her face, leaving it swollen and painful. The force was so great that it fractured the victim’s tooth enamel on three of her front teeth. The victim believed that she would die, and the attack did not stop until others entered the address and intervened.
The sentencing decision
Judge Roberts took the injuring with intent to injure charge as the lead offence, and considered that it fell within band two of R v Harris.[2] The Judge arrived at a starting point of two years’ imprisonment, bearing in mind the aggravating factors of abuse of trust, the victim’s vulnerability, the attack to the head area, the use of weapons to make threats and the impact on the victim. An uplift of four months was then applied to accommodate the two charges of assault with intent to injure, and the continuing nature of the violence.
[2] R v Harris [2008] NZCA 528.
In mitigation, Judge Roberts gave credit for the guilty plea, and Mr Luff-Pycroft’s application to counselling and engagement in the restorative justice process. A total discount of 10 months’ imprisonment was applied for the mitigating factors, resulting in an end sentence of 18 months’ imprisonment.
Judge Roberts declined to allow the sentence to be served as home detention. The Judge took into account the seriousness of the offending, involving numerous instances of violence extending over a period of almost four months, the importance of sending a consistent message against domestic violence and the importance of deterrence to Mr Luff-Pycroft and others. The Judge concluded that a sentence other than imprisonment would be insufficient to give effect to the sentencing principles of accountability, denunciation and deterrence.
Issue on appeal
The sole issue on appeal is whether Mr Luff-Pycroft should have been sentenced to home detention. No issue is taken with the sentencing starting point or the level of deductions made.
Appellant’s case
Counsel for Mr Luff-Pycroft, Mr Keegan, argued that the Judge had based his decision not to allow the sentence to be served as home detention exclusively on the factors mentioned at [10] above, but had not given weight to the very significant mitigating factors that support the case for home detention. He accepted that the Judge had acknowledged these factors earlier in his sentencing notes and given credit for them in determining the end sentence, but said that it did not appear that the Judge had taken them into account in relation to his decision to refuse home detention.
The mitigating factors to which Mr Keegan was referring are those referred to at [9] above. Mr Keegan emphasised that Mr Luff-Pycroft was relatively young (21 years old at the time of offending) and had only a minor record of previous offending. He had pleaded guilty and this had illustrated his acceptance of responsibility for what he did. He had also made meaningful efforts to rehabilitate himself and to restore his relationship with the victim of the offending. In particular, Mr Luff-Pycroft had completed relationship counselling with the victim, an anger management course and had undertaken a restorative justice exercise. The report of the restorative justice counsellor was that Mr Luff-Pycroft “has worked extremely hard to eliminate violence from his life”. It also recorded that the victim did not wish Mr Luff-Pycroft to go to jail. The pre-sentence report writer assessed Mr Luff-Pycroft’s risk of re-offending as low, but said that this risk assessment could change if Mr Luff-Pycroft abused alcohol.
Mr Keegan also emphasised the genuine remorse shown by the appellant. He said that Mr Luff-Pycroft had good prospects of re-employment by his previous employer if he were to be released on home detention.
Mr Keegan said that Mr Luff-Pycroft had acknowledged his difficulties with alcohol and had abstained from alcohol while on remand. He had complied with all bail conditions.
While not minimising the offending, Mr Keegan emphasised that the offending had involved three discrete incidents over a four month period, not repetitive and continued violence over that period. He accepted that the offending amounted to serious domestic violence, but said that the physical injuries had not been serious and the psychological impact had been reduced by the relationship counselling and rehabilitation efforts undertaken by Mr Luff-Pycroft. He said that it was important that, when an offender accepted responsibility and made genuine and effective efforts to improve and rehabilitate himself, those efforts should not be undervalued by the justice system.
Ms Charmley accepted that the rehabilitative efforts undertaken by the appellant were significant. However, she said the Judge had appropriately recognised these in the sentencing exercise and no error had been demonstrated.
Our evaluation
We agree with the Judge that the incidents involved domestic violence of a serious nature. But we consider that the efforts at rehabilitation undertaken by the appellant and his reconciliation with his partner, the victim, provided a proper basis for optimism that rehabilitation was a real prospect in relation to the appellant. In our view this was a case where those prospects justified a rehabilitative response from the Court, allowing the appellant to continue with his efforts to redeem himself and with the restoration of the relationship.
Although there were three separate incidents of violence for which the appellant was sentenced, he otherwise had a virtually clean record and as the pre-sentence report noted, his risk of reoffending was low, subject to the proviso about alcohol. In our view the appropriate sentencing response in this case was to recognise those rehabilitative efforts and provide a real chance for them to succeed.
The evidence before the Court was that a home detention address at the appellant’s sister’s residence was acceptable in all but one respect, namely the fact that the sister’s partner had previously offended. However, we are satisfied that the relatively minor nature of that offence does not override the other factors indicating the suitability of the address and that it is appropriate that a home detention sentence be served at that address.
There was agreement among counsel that if the appeal were allowed, the appropriate term for a sentence of home detention would now be six months given that Mr Luff-Pycroft has already served over three months of the sentence imposed on him. There was also agreement as to the appropriate conditions, which are as follows:
(a)To travel directly to the address referred to in the home detention suitability report after release from prison and await the arrival of the probation officer and a representative of the monitoring company.
(b)To live at that address for the duration of the home detention period.
(c)If required by his probation officer, to attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider.
(d)If required by his probation officer, to attend and complete an appropriate domestic violence programme to the satisfaction of the probation officer and programme provider.
(e)If required by his probation officer, to attend and complete such counselling/programme/treatment to address identified offending behaviour to the satisfaction of the probation officer and programme provider.
Conditions (c), (d) and (e) reflect the fact that the appellant’s rehabilitative efforts prior to sentencing may have already satisfied the needs that would be addressed by those conditions.
Result
We allow the appeal. We quash the sentence imposed in the District Court and replace it with a sentence of six months’ home detention, subject to the conditions set out at [21] above.
Solicitors:
Crown Law Office, Wellington for Respondent
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