Luxton v Police
[2020] NZHC 617
•23 March 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-12
[2020] NZHC 617
BETWEEN SCOTT MICHAEL LUXTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 March 2020 Counsel:
Z S Meehan and E J M Smith for appellant D P Neild and N Azam for respondent
Judgment:
23 March 2020
RESERVED JUDGMENT OF DOBSON J
[1] This is an appeal against a sentence of six months’ imprisonment imposed by Judge Phillips in the District Court at Wellington on 26 February 2020.1 The appellant (Mr Luxton) had pleaded guilty to charges of assault and threatening behaviour, as well as an earlier charge of intentional damage.
[2] The appeal is brought on the grounds that the sentence was manifestly excessive and that instead the sentence ought to have been one of intensive supervision, potentially coupled with a sentence of community work.
The circumstances of the offending
[3] On 2 August 2019, Mr Luxton carried a brick to the outside of a café in Courtenay Place, Wellington. He had previously spent an hour on a work trial in the
1 Police v Luxton [2020] NZDC 3457.
LUXTON v POLICE [2020] NZHC 617 [23 March 2020]
kitchen of the café and was disgruntled when not offered a job nor any payment for the time spent there. Having put the brick down on the footpath to stretch, Mr Luxton then picked it up again and hurled it through the large window fronting the café, breaking the window.
[4] Mr Luxton first appeared on that charge of intentional damage on 4 October 2019 and was remanded on bail.
[5] Whilst on bail, on 11 December 2019 Mr Luxton had an altercation with a representative of 2degrees at that company’s store in Manners Street, Wellington. Affected by alcohol, Mr Luxton entered the store and demanded a refund for his mobile phone that was no longer working. When that demand was denied, Mr Luxton became angry with the company representative (the victim), who retreated to a room at the back of the store to call the Police. Mr Luxton followed the victim, blocked his movement towards the back of the store and disobeyed requests that he leave the store. The victim escorted Mr Luxton to the entrance of the shop, but in the course of doing that Mr Luxton punched him in the back of the head, causing the victim to stumble out of the store. Mr Luxton attempted to fight with the victim on the street and when the victim got back into the store intending to lock Mr Luxton out, he managed to re-enter the store as well. The victim elected to lock both Mr Luxton and himself inside the store until the Police arrived, but during the wait Mr Luxton punched the victim a number of times to the head and a struggle ensued.
[6] Mr Luxton was restrained on the floor of the shop and the Police arrived and arrested him. The victim suffered soreness to his head and hand and grazes on his arm. In the course of the altercation, Mr Luxton made a number of threatening comments to return to the store and shoot him, stating that “this was war” and “this is not over”. That conduct resulted in the charges of assault and speaking threateningly.
The sentencing analysis
[7] The Judge treated the assault as the lead offence and, implicitly treating it together with the charge of speaking threateningly, considered a starting point in the vicinity of nine months’ imprisonment. That was uplifted by three months to reflect the intentional damage charge. From the combined starting point of 12 months’
imprisonment, the Judge allowed credits for what he saw as Mr Luxton’s major health and mental health difficulties, applying the recent Court of Appeal decision in Zhang v R.2 The Judge combined that with a credit for guilty pleas, resulting in the end sentence of six months’ imprisonment.
[8] The pre-sentence report had recommended a sentence of intensive supervision and Ms Smith, as counsel for Mr Luxton, had urged that course on the Judge. The Judge rejected that prospect, citing the need for denunciation and deterrence, and a need for the community to be protected from Mr Luxton. The Judge noted that electronic monitoring would not be available, but stated that Mr Luxton was not a suitable candidate for such a sentence in any event.
Mr Luxton’s circumstances
[9] Mr Luxton was 29 at the time of his sentencing. He was recognised as having relatively serious mental health difficulties. Although it was not available to the sentencing Judge, Ms Smith provided a copy of a report completed by forensic psychiatrist, Dr Justin Barry-Walsh, in March 2015. The Crown objected to production of the report, on the ground that it was not new. Further, because of its age it was submitted that it could not be substantially helpful in reconsidering the appropriate approach to sentencing for the current offences.
[10] I agree with Ms Smith that, despite its age and in the absence of a more recent report, Dr Barry-Walsh’s report does provide potentially useful context and I have had regard to it. The report noted the history of Mr Luxton’s difficulties since early childhood, including a diagnosis of ADHD and what had been described as oppositional and defiant behaviour, problems with aggression and a pre-occupation with weapons. He had been diagnosed with a psychotic illness in October 2014 and when discharged from an earlier prison sentence had failed to take medication, resulting in his being reincarcerated in a floridly psychotic condition. Dr Barry-Walsh opined that Mr Luxton was mentally disordered and that he required further assessment and on-going treatment.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[11] Following sentencing in 2015, Mr Luxton was placed under a compulsory treatment order and that remained in place at the time of the present sentencing. The pre-sentence report-writer made enquiries of the community mental health nurse with whom Mr Luxton maintained contact. It was that nurse’s opinion that a further report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) was unnecessary. The pre-sentence report-writer recorded the nurse’s opinion that Mr Luxton’s issues were more with substance abuse than mental health needs.
[12] Mr Luxton had been accepted into a residential rehabilitation course in 2019, but was excluded from the course due to inappropriate behaviour and threats made during group sessions. The report recorded that Mr Luxton remained motivated to attend such a residential programme, expressing a desire for “intensive psychiatric assistance” and acknowledging concerns for his on-going health should he continue to abuse substances.
[13] The pre-sentence report-writer deemed Mr Luxton to pose a high to very high risk of harm to others. The report-writer identified significant substance abuse and a propensity for violence, exacerbated by unregulated mental health, to be key factors in his offending. Mr Luxton expressed wishes to commit violence against others. The recommendation for the sentence of intensive supervision was made with a view to placing Mr Luxton into residential treatment for his alcohol and drug issues. Although community work was contemplated as a prospect, the report-writer expressed concern that this would continue to expose Mr Luxton to anti-social associates. A sentence involving electronic monitoring was not an option because of the lack of any stable address.
[14] Mr Luxton has a relatively lengthy list of previous convictions between Youth Court appearances in 2005, and District Court convictions between 2009 and 2015. They comprise violence, threatening and dishonesty charges that have resulted in four short sentences of imprisonment prior to his committal under s 34 of CPMIP to a secure facility in April 2015.
[15] Ms Smith submitted the Judge had made three errors in the sentencing analysis. First, that he had failed to give adequate weight to Mr Luxton’s mental health and
substance abuse issues. Secondly, that he had placed too much weight on the purposes of denunciation and deterrence when more weight should have been given to rehabilitative considerations, leading to the third error of not imposing the least restrictive outcome that was appropriate in the circumstances.
[16] Ms Smith invited analogy with the appeal in Gilbert v Police.3 Having found that imprisonment was not the least restrictive outcome in terms of s 8(g) of the Sentencing Act 2002, Woolford J substituted a sentence of nine months’ imprisonment for assault with one of intensive supervision.4 In that case, the Judge on appeal had regard to the relatively low level of violence, with the victim not requiring any medical attention, a measure of remorse by Mr Gilbert and the lapse of some years since his previous conviction for assault. The offending had been influenced by alcohol but Mr Gilbert had committed to abstinence and had agreed to undertake anger management counselling. He had recently obtained employment which was seen as something of a milestone.
[17] In responding to the appeal, Mr Azam submitted that the extent of discount allowed for Mr Luxton’s mental health and rehabilitative needs was consistent with guidelines. He cited the Court of Appeal decision in E (CA689/2010) v R which observed discounts for mental illness as a contributing factor to offending might fall in a range between 12 and 30 per cent.5 In the present case, the Judge was not explicit in the calculation of the respective discounts. Working back from the end sentence of six months, Mr Azam analysed that the first discount for mental health considerations must have accounted for four of the six months credit, given that the subsequent credit for the maximum 25 per cent discount for guilty pleas would have allowed only two months from that point.6 An initial four month discount from 12 months would make a 33 per cent credit, above the range contemplated by the Court of Appeal in E (CA689/2010) v R.
[18] Mr Azam submitted that Mr Luxton’s history of non-compliance with non- custodial sentences readily justified the Judge’s rejection of intensive supervision as
3 Gilbert v Police [2013] NZHC 1562.
4 At [7].
5 E (CA689/2010) v R [2011] NZCA 13 at [71].
6 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
appropriate. Although up to 10 years ago, he has three previous convictions for breach of intensive supervision, two for breach of community work and two for breaching Court release conditions. More recently, Mr Luxton’s behaviour appears to have caused his exclusion from a residential rehabilitation programme in 2019. Mr Azam referred to s 17 of the Sentencing Act, which contemplates the Court imposing a sentence of imprisonment where it is satisfied on reasonable grounds that the offender is unlikely to comply with another sentence.
[19] Mr Azam submitted that the decision in Gilbert is clearly distinguishable on the basis that the appellant in that case, unlike Mr Luxton, had expressed a measure of remorse, had managed to cease his substance abuse and had just entered employment.7
Analysis
[20] The assault was substantially more than a single punch, involving a moderate level of violence. Despite the absence of more serious injuries, it was of a type that could leave a long-lasting adverse impression on the victim. A starting point of six months’ imprisonment for the assault charge was clearly within range and I did not take Ms Smith to contest that aspect of the sentencing analysis. Similarly, an uplift of two to three months for the threatening offence committed at the same time, plus a further uplift of three months for the intentional damage, were reasonably open, given the circumstances of the offending.
[21] I accept that Mr Luxton’s mental health difficulties were a contributing factor in the offending that is appropriately treated as reducing his culpability. However, I also agree with Mr Azam’s analysis that this mitigating factor resulted in the Judge giving a credit of more than 30 per cent, being at the upper band of what can realistically be recognised in such circumstances. I am not persuaded the Judge erred in that aspect of his sentencing.
[22] Ms Smith’s submission that Mr Luxton needs supervised care and support that he will not get in prison was persuasive. However, the absence of a stable address at which he would live in the community whilst subject to intensive supervision
7 Gilbert v Police, above n 3, at [7].
understandably raised concerns for the sentencing Judge, given Mr Luxton’s history of non-compliance with community-based sentences in the past. Despite the view of the pre-sentence report-writer that a sentence of intensive supervision, with appropriate conditions, was appropriate, the Judge cannot be faulted for rejecting that as a reasonable alternative to a short term of imprisonment. The Judge was justified in treating substance abuse as a cause of the current offending, so that an enforced break from alcohol and hopefully non-prescription drugs that would occur in prison ought to have rehabilitative impact.
[23] The conditions recommended by the pre-sentence report-writer as applying to a sentence of intensive supervision were ordered by the Judge to apply after Mr Luxton’s release from prison. They are equally applicable in those circumstances, and ought to afford opportunities for rehabilitation in substantially the same way.
[24] Although the Judge did emphasise the importance of deterrence and denunciation, I do not see those considerations as being decisive in the decision to impose a sentence of imprisonment.
[25] Given the justifiable concerns about Mr Luxton’s ability to comply with the terms of a sentence of intensive supervision without a break from the anti-social environment that is likely to have contributed to the offending, the decision to impose imprisonment rather than a non-custodial sentence is readily justified. I am not satisfied that the Judge erred in treating it as the least restrictive sentence.
[26]Accordingly, the appeal is dismissed.
Dobson J
Solicitors:
Public Defence Service, Wellington for appellant Crown Solicitor, Wellington for respondent
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