M v Police HC Auckland CRI 2007-404-99
[2007] NZHC 1820
•11 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000099
M
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 June 2007
Appearances: J Verry for Appellant
G Anderson for Crown
Judgment: 11 June 2007
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Auckland
J Verry, Auckland
M V NEW ZEALAND POLICE HC AK CRI 2007-404-000099 11 June 2007
[1] On 16 March 2007 the appellant was sentenced in the District Court at Waitakere to supervision for six months with special conditions on a charge of wilful damage. The incident leading to the conviction and sentence occurred at the home of the appellant’s partner. The partner and one of their children have protection orders against the appellant but the appellant was living back at the home. He was helping to care for the children because the partner had been hospitalised for a short period, although at the time of the offending she was back at home.
[2] On 30 November 2006 after having had some beer to drink after work the appellant returned to his partner’s home. He was refused entry. He forced his way into the home by kicking in the front door. The door lock was smashed and the door itself shattered around the lock. The partner called the police. The appellant was spoken to by the police. He was abusive and according to the summary of facts appeared intoxicated. The appellant was charged with wilful damage and breach of a supervision order. He pleaded guilty to the wilful damage charge at an early stage and not guilty to the breach of a protection order. The appellant’s partner did not attend Court for the fixture of the breach of the protection order charge. That charge was dismissed for want of prosecution. The Judge then proceeded to sentence the appellant on the wilful damage charge. The appellant had by this time repaired the damage to the door.
[3] Judge Recordon imposed the sentence of supervision. His notes record:
Convictions, supervision, six months to undertake special conditions. CADS course or its equivalent, minimum assessment information workshop and eight group sessions.
[4] Counsel for the appellant submits the Judge failed to give reasons for the imposition of the sentence in breach of s 31 of the Sentencing Act and in any event the order of six months’ supervision is manifestly excessive or was not required. Mrs Verry submits the appropriate sentence in this case is a fine or perhaps community work.
[5] Counsel for the police accepts that as no reasons were given this Court should approach the matter de novo but submits that the sentence of six months’ supervision was open to the Judge and equally would be open to this Court. Ms Anderson submitted that a fine was not the appropriate response in the circumstances of this case and the offender.
[6] Section 31 of the Sentencing Act requires a sentencing Judge to give reasons. In appropriate cases and recognising the burden on busy District Court Judge with large lists a summary or shortform of reasons will be sufficient. Section 31(2) of the Sentencing Act recognises that. However, in this case, there were no reasons at all, be they summary or shortform. The sentence was imposed in breach of s 31. I accept on that basis I must approach the matter de novo as counsel invited me to.
[7] In considering the appropriate penalty the Court is required to consider the purposes and principles of the Sentencing Act. In this case the relevant purposes referred to by Mrs Verry are:
• to hold the appellant accountable for the harm done by his offending;
• to promote a sense of responsibility for and acknowledgement of harm;
• to provide for the reparation; and
• to denounce his conduct.
[8] The principles that she says are relevant are:
• the gravity of the offending;
• the seriousness of the offence; and
• the effect of the offending on the victim; and
[9] Also particularly relevant in this case is the rehabilitation and reintegration of the appellant.
[10] There are also aggravating factors relating to the offence in this case, namely that the damage was caused to the door in the course of the appellant forcing his way into his partner’s home against her wishes after drinking and being denied access because of that.
[11] The personal aggravating factors are the appellant’s prior record of offending.
[12] By way of mitigation it is accepted the appellant pleaded guilty at an early stage, is apparently remorseful and has given practical effect to that by repairing the damage to the door.
[13] In considering the appropriate sentencing response the Court must in this case, first consider a fine. If the Court is to impose a fine it must consider whether a fine will achieve the purposes and principles of the Act and also the appellant’s ability to pay. In this case ability to pay does not appear to be in issue. At the first stage the Court is directed to impose a fine unless satisfied that the purpose or purposes for which the sentence has been imposed cannot be achieved by a fine or that a fine would be inadequate or that the application of any of the general principles would make a fine inappropriate.
[14] In this case, in my judgment, the particularly relevant factors in this case are the need to promote responsibility in this appellant for his actions, to denounce this type of conduct, namely wilful damage in a domestic setting, and to deter the appellant and others from such behaviour. In R v Constable (unreported, CA551/99,
24 May 2000) the Court of Appeal considered a case of wilful damage by the complainant’s estranged husband. The Court made the point that there are considerations of general deterrence in respect of domestic offences, whether of personal violence or calculated to cause loss and anguish through damage to property. I accept immediately that that case was of a much more serious kind than the present. But as a matter of principle, deterrence is a relevant factor for the Court.
[15] In this case, as I have said, there are relevant circumstances both to the offence and the offender that, when considered together, make the imposition of a fine inappropriate in my judgment. First, the wilful damage was an act of violence
and aggression at a time that followed drinking by the appellant when he had been denied entry to the home because of that drinking. The damage was to the front door of the complainant’s home. The damage was inflicted for the purpose of gaining entry against her will.
[16] Also the appellant has a bad record. Counsel has suggested that the record is perhaps not as bad as some. Well that may well be right but it is bad enough. The appellant has a number of convictions for violence. He has three convictions for common assault, two of which I accept are somewhat dated but he has a further recent conviction for male assaults female. I do not consider the fact that that was against a different woman as a particularly mitigating factor. He has a conviction from June 2004 for fighting in a public place. In addition he has two convictions for excess breach alcohol offending in late 2001 and 2004, both with relatively high readings which is supportive of a finding the appellant has an issue with alcohol.
[17] In summary the appellant has a history of violent offending and offending involving alcohol.
[18] Mrs Verry suggested that perhaps if the Court was not minded to impose a fine then a sentence of community work might be appropriate. I note that community work seems to have been tried and failed in the past because the appellant has a conviction for breaching community work.
[19] Further, in this case there is no need to impose a sentence of community work to require the offender to make compensation to the community. I acknowledge the appellant has carried out a repair to the damaged door.
[20] Nor am I able to accept Mrs Verry’s submission that perhaps a penalty requiring some sort of emotional reparation might be appropriate. I do not consider that to be appropriate given the domestic situation of the appellant and his partner.
[21] I then turn to consider whether supervision is an appropriate response. Supervision may only be imposed if the Court is satisfied that it would reduce the likelihood of further offending by the offender through his rehabilitation and
reintegration. The appellant’s offending in the present is violent offending that has occurred at a time when he has been affected by alcohol. If he is to be rehabilitated and if he is not to reoffend in this way then, given his past history, in my view he must address his use of alcohol and understand its effect on his actions.
[22] Mrs Verry submitted that there really was insufficient evidence of a problem with alcohol and that the appellant denied that he had such a problem. The two previous convictions for excessive breath alcohol driving would suggest that the appellant does have an issue with alcohol. The circumstances of the present offending suggest that he has a problem with alcohol. The incident was caused or at the very least contributed to by alcohol. In addition I note that the complainant, his partner, in a memorandum to the Judge, noted that the appellant needed to attend and complete personal and alcohol counselling to help him. I accept Mrs Verry’s point that it is not appropriate for a victim to suggest an ultimate sentence but nevertheless a person such as the appellant’s partner is certainly in a position to know whether or not the appellant has an issue with alcohol and I take her comment as no more than a recognition that this appellant does have an issue with alcohol. As I say it does not stand alone. There is his previous record and this particular incident and its surrounding circumstances.
[23] Section 50 of the Act provides the Court may only impose special conditions if satisfied there is a significant risk of further offending and the standard conditions would not adequately reduce the risk so that the offender requires a programme to reduce the likelihood of further offending. I am of the view that at the heart of this offending is the fact that the offending was following the consumption of alcohol by the appellant. That led to him being denied access to the home and in response it led to the charge of wilful damage. His previous list confirms a risk of re-offending.
[24] The appellant’s actions were a serious and violent response which I can find no reason for other than the effect of alcohol on the appellant at the time. In those circumstances I am satisfied that it is appropriate, for the offender’s rehabilitation, for a sentence directed at his alcohol use to reduce the likelihood of his further offending so as to give him an appreciation of the reason for his offending.
Result
[25] The sentence imposed in the District Court must formally be set aside on the basis that no reasons were provided. However, I impose a sentence of six months’ supervision with a special condition that the appellant is to attend a community
alcohol and drug service course as directed by his probation officer.
Venning J
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