MacDonald v Police
[2020] NZHC 2742
•16 October 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000135
[2020] NZHC 2742
BETWEEN ANAHERA PONO MACDONALD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 October 2020 Appearances:
M Starling for the Appellant P Norman for the Respondent
Judgment:
16 October 2020
JUDGMENT OF NATION J
[1] Anahera MacDonald pleaded guilty to one charge of making a false statement and two charges of wilful damage. On 24 July 2020, she was sentenced to 13 months’ imprisonment.1 On 9 September 2020, Judge Couch declined Ms MacDonald’s application to substitute a sentence of home detention.2 On 11 September 2020, Ms MacDonald lodged an appeal against that refusal.
[2] On the hearing of the appeal, it became apparent Ms MacDonald needed to appeal against the sentence imposed on 24 July 2020.
1 Police v MacDonald [2020] NZDC 14545 [24 July decision].
2 Police v MacDonald DC Christchurch CRI-2019-042-391, 8 September 2020 (8 September decision).
MACDONALD v POLICE [2020] NZHC 2742 [16 October 2020]
Facts
[3] On 21 October 2018, Ms MacDonald made a statement to the Police that her partner, Mr Metuamate, had assaulted her earlier that day. He was arrested and remanded in custody. On 8 December 2018, Ms MacDonald made a second statement in which she said the first statement was incorrect. Mr Metuamate was released.
[4] On 12 April 2020, Ms MacDonald entered into a verbal argument with Mr Metuamate while on a city street. She threw a handful of stones at him. The stones missed Mr Metuamate but shattered a store window.
[5] On 16 April 2020, following another verbal argument, Ms MacDonald chased Mr Metuamate down the road and, again, threw rocks at him. One of the rocks smashed the rear window of a parked car.
Procedural history
[6] On 25 February 2019, Ms MacDonald was charged with making a false statement.
[7] On 1 July 2019, Judge Cameron gave a sentence indication of a starting point of 12 to 15 months’ imprisonment, with an end sentence of four months’ home detention, on the false statement charge and another charge of breaching community work. On 8 July 2019, Ms MacDonald accepted that sentence indication, pleaded guilty and the sentencing was set down for 4 October 2019. Ms MacDonald was pregnant, with her child due in September 2019, hence the delay.
[8] Ms MacDonald’s sentencing was rescheduled on multiple occasions either to allow a suitable home detention address to be found or because she was too late for court for the sentencing to proceed on the day.
[9] On 6 March 2020, Judge Couch permitted Ms MacDonald to vacate her plea of guilty to the false statement charge. She was remanded on bail to 20 March 2020. It appears the remand to 20 March 2020 was to give her the opportunity to find an address for a sentence of home detention.
[10] On 20 March 2020, Ms MacDonald appeared before Judge Couch and re- entered a guilty plea on the false statement charge. No home detention address was available at the time, so Judge Couch sentenced her to 10 months’ supervision on the charge of breaching community work, but postponed sentencing for the false statement charge. The sentencing was set down for 7 May 2020 to allow Ms MacDonald to find a suitable home detention address and obtain an updated pre-sentence report. The Judge directed that the report was to address the possibility of home detention.
[11]The 7 May 2020 date was vacated due to the COVID-19 level 4 lockdown.
[12] On 24 July 2020, Judge Couch sentenced Ms MacDonald to 13 months’ imprisonment on the false statement charge and one month concurrent for the two charges of wilful damage that had since arisen (the 24 July decision).
District Court decisions
The 24 July decision
[13] Judge Couch considered the charge of making a false declaration to be the most serious. He considered the gravity of Ms MacDonald’s conduct to be serious and premeditated. The Judge stated “very real harm was done to [Mr Metuamate] in the form of his being unjustly imprisoned for two months”.3 Further, the offending involved a significant waste of resources.
[14] The Judge said this type of conduct strikes at the heart of the justice system and requires a stern response. The Judge placed weight on the principles of denunciation and deterrence.
[15] A starting point of 16 months’ imprisonment was adopted. On the two charges of wilful damage, an uplift of one month was applied. The Judge applied a four month (25 per cent) discount in respect of guilty pleas. This brought the end sentence to 13 months’ imprisonment.
3 24 July decision, above n 1, at [4].
[16] Having noted this was a sentence of short duration, the Judge stated, “the need to strongly denounce conduct of this nature requires a sentence of imprisonment … no less restrictive sentence would achieve the purposes of the Sentencing Act 2002.”4 He also said Ms MacDonald had multiple opportunities to find a suitable place for home detention but had been unable to do so. The Judge accordingly sentenced her to 13 months’ imprisonment.
The 8 September decision
[17] Ms MacDonald subsequently applied to have her sentence commuted to home detention. On 8 September 2020, Judge Couch issued the following direction:5
Application declined. When sentencing Ms MacDonald I said that no sentence less than imprisonment was appropriate. That was the reason I did not grant leave to apply for substitution of sentence. Please send a copy of my notes on sentencing to Mr Starling & note last sentence of paragraph [7].
[18] Ms MacDonald’s counsel, Mr Starling, filed written submissions in support of the appeal against the 8 September decision.
[19] Ms Norman, for the Police, submitted Ms MacDonald should properly be appealing the 24 July decision rather than the 8 September decision. Under s 80I Sentencing Act 2002, leave to apply for cancellation of a short sentence of imprisonment and substitution of a sentence of home detention may only be granted if, at the time of sentencing, the court would have sentenced the offender to home detention if a suitable address had been available. An offender cannot apply for leave after the sentence has been imposed.6 Ms Norman submitted Ms MacDonald therefore needed to appeal the 24 July decision not to grant leave at sentencing.
[20] At the commencement of the appeal hearing, Ms MacDonald’s counsel asked the Court to deal with the appeal on the basis it was an appeal against the 24 July sentence. Ms Norman, for the Police, agreed to the appeal proceeding on that basis.
4 At [7].
5 8 September decision, above n 2.
6 Dalton v Police [2014] NZHC 1335.
[21] I granted leave extending the time for the bringing of such an appeal and deal with it accordingly.
Principles on appeal
[22] Home detention is an alternative to a short-term sentence of imprisonment.7 The court should impose home detention if it would be the least restrictive sentence available that would satisfy the purposes for which the sentence is being imposed.8 On an appeal against the refusal to grant home detention, the appeal court must focus on the identification of an error in the court below, having regard to the discretionary nature of the decision.9 On an appeal against the length of a prison sentence, it is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
[23] Mr Starling, for Ms MacDonald, submitted that in refusing to grant home detention Judge Couch failed to consider Ms MacDonald’s views, cultural factors in the pre-sentence report and personal factors relating to Ms MacDonald. Mr Starling noted the sentence imposed by Judge Couch was significantly higher than the sentence indication given by Judge Cameron. He argued that 13 months’ imprisonment was manifestly excessive.
[24] Mr Starling initially submitted the High Court should substitute the sentence of imprisonment with one of home detention, consistent with Judge Cameron’s sentence indication and “the time given to her prior to sentencing on 24 July 2020 to find an address”. In oral submissions before me he said, although a member of her whanau had in September come forward offering an address that might be suitable for home detention, Corrections had not made any assessment as to the suitability of the address for home detention. He acknowledged he ought to have lodged an appeal
7 Sentencing Act 2002, s 15A(1)(b).
8 Section 15A(1)(a).
9 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].
10 Ripia v R [2011] NZCA 101 at [15].
against the sentence earlier imposed and accepted responsibility for the delay that occurred
[25] Given the Crown’s response to the appeal, Mr Starling argued there was an error in the length of the sentence. He submitted the sentence was too long, given the sentence indication had originally been for a sentence of four months’ home detention and because of matters personal to the defendant, as accepted by counsel for the Police. Mr Starling urged the Court to reduce Ms MacDonald’s term of imprisonment to a level consistent with the sentence indication, taking into account the supervision sentence already given.
[26] In her written submissions and again before me, Ms Norman confirmed that, if the appeal was against the 24 July decision, then the Crown accepted there was an error. If a sentence of imprisonment was to be imposed, it should be for a period less than 13 months. Her reasons for that submission are reflected in the analysis below.
[27] As submitted by Ms Norman, it is clear from the background to this matter that, at the time the Court gave its sentence indication, it was anticipated Ms MacDonald would be sentenced to home detention. Even after it became apparent that a suitable address might not be available, it was still anticipated she could be sentenced to home detention if such an address did become available. As it happened, there was no suitable address at the time of sentencing. It would however have been consistent with the earlier indication for the Judge, on sentencing, to grant her leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable address did become available.
[28] Various pre-sentence reports have been prepared for Ms MacDonald, each outlining her troubled upbringing and turbulent lifestyle. Ms MacDonald is 24 years old. She was put into care at six years of age, left school at 16, and is the mother of four children. It appears at least three of those children have been removed from her care. The reports record that Ms MacDonald has struggled with substance abuse and a propensity for violence, as well as an “unstructured and chaotic lifestyle”. However, the reports of 2 December 2019, 25 February 2020 and 21 July 2020 all assess her risk of reoffending as low.
[29] Ms MacDonald’s five year relationship with Mr Metuamate resulted in 46 family harm events, according to the pre-sentence report dated July this year. Ms MacDonald was the victim, perpetrator and mutual participant in various of those events. In December 2019, Ms MacDonald told the report writer that Mr Metuamate had been violent towards her many times, but that she had fabricated the assault for which he was arrested due to anger at his infidelity. However, she told a later report writer that the assault did occur and she withdrew the allegation under duress after Mr Metuamate threatened her.
[30] The sentence indication of four months’ home detention was given in respect of the charge of making a false statement to the Police and of breaching community work. At the time she was sentenced for making a false statement, Ms MacDonald no longer had to be sentenced for breaching community work. A sentence of supervision had been imposed for that offence.
[31] On 24 July 2020, Ms MacDonald however had to be sentenced for the two further offences of wilful damage committed in the interim. In both instances, the summary of facts indicated Ms MacDonald had thrown a rock at her partner, had missed and had damaged in one instance a store window and, in another, the rear window of a car. It would seem her actions in damaging the windows were reckless rather than wilful.
[32] Those offences were not of such seriousness to require a sentence of imprisonment. The Judge dealt with that offending through an uplift of only one month on the starting point he had arrived at for the false statement offence. Had home detention been available, that offending could thus have been recognised appropriately through a short addition to what would have been an appropriate home detention sentence of four months, consistent with the earlier indication.
[33] There is merit in Mr Starling’s submission that the sentence of 13 months’ imprisonment was manifestly excessive. The maximum penalty for the charge of making a false statement is three years’ imprisonment.11 I have found only two High Court cases where a person was sentenced for making a false statement about domestic
11 Crimes Act 1961, s 111.
abuse; in the first, McLeavey v Police, the Court upheld an order to come up for sentence if called upon;12 in the second, Almarzouqi v Police, the Court upheld a conviction and discharge.13
[34] Judge Cameron indicated a starting point of 12 to 15 months’ imprisonment for Ms MacDonald’s charges of making a false statement and breaching community work. Judge Couch, having already imposed supervision for the breaching charge, adopted a starting point of 16 months’ imprisonment for the false statement charge alone. He uplifted that by one month for the charges of wilful damage. The Judge appropriately recognised the seriousness of the false statement offending and that Ms MacDonald’s false statement caused her partner significant harm in that, as a result, he was held in custody for two months. It is however relevant that Ms MacDonald was in a relationship where, at times, there was domestic violence and she was the victim. I consider an appropriate starting point sentence on the false statement charge would have been 12 months’ imprisonment, on which there could properly have been an uplift of one month for the wilful damage offending.
[35] Ms MacDonald should then have been entitled to discounts for her youth, background and guilty plea. Ms Norman seemed to accept this in her submissions, stating that no consideration was made as to Ms MacDonald’s personal circumstances, and emphasising the importance of rehabilitation for young offenders.14 A five month discount would have been appropriate to take these factors into account. That equates to a full 25 per cent guilty plea discount and another 13 per cent for Ms MacDonald’s background and youth.
[36] The end sentence I have reached is eight months’ imprisonment, which broadly equates to the same sentence indicated by Judge Cameron of four months’ home detention. I consider 13 months’ imprisonment was manifestly excessive and the Judge erred in not granting leave to apply for home detention. I do not however consider it appropriate to reserve leave to Ms MacDonald to apply for home detention now. With a shortened prison sentence, she will soon have to be released on parole.
12 McLeavey v Police HC Wellington AP107/01, 6 June 2001.
13 Almarzouqi v Police [2020] NZHC 734.
14 Citing Woodstock v R [2020] NZCA 472 at [31].
[37] I accordingly allow Ms MacDonald’s appeal. The sentence of 13 months’ imprisonment is quashed. On the charge of making a false statement to the Police, she is sentenced to eight months’ imprisonment. On the two charges of wilful damage, she is sentenced to one month imprisonment, concurrent with each other and with the eight months sentence on the false statement charge.
[38] As on the original sentence, Ms MacDonald is to be subject to standard release conditions until six months after the sentence expiry date and the following special release conditions until six months after sentence expiry date:
(a) to attend and complete an appropriate alcohol and drug intervention to the satisfaction of the probation officer;
(b) to attend an assessment for a departmental programme and attend any programme/counselling as directed; and
(c) to attend and complete any other treatment/counselling as may be directed by and to the satisfaction of the probation officer.
Solicitors:
M Starling, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.
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