Majury v Police
[2019] NZHC 3427
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-374
[2019] NZHC 3427
BETWEEN CHRISTOPHER MAJURY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 December 2019 Appearances:
S Kimberley for the Appellant
B Charmley for the New Zealand Police
Judgment:
19 December 2019
JUDGMENT OF POWELL J
This judgment was delivered by me on 19 December 2019 at 3.30 pm Registrar/Deputy Registrar
Date:
MAJURY v NEW ZEALAND POLICE [2019] NZHC 3427 [19 December 2019]
[1] On 22 July 2019, the appellant, Christopher Majury, was sentenced to 22 months’ imprisonment in the District Court1 in relation to two charges of breach of a protection order2 and two charges of breach of conditions of intensive supervision.3
[2] Mr Majury now appeals that sentence on the basis that there was an error in the sentence imposed on conviction, and a different sentence should be imposed, as:
(a)the sentence was manifestly excessive because:
(i)the starting point was too high, and
(ii)leave to apply for home detention was denied; and
(b)the sentencing Judge erred in imposing a special release condition that Mr Majury submit to GPS monitoring.
[3] It is well established that an appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.4 In any other case, the appeal must be dismissed.5 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.6 That is to be determined by reference to the final sentence, not the route adopted to reach it.7 How the sentence was structured is not material.8
Background facts
[4]Mr Majury is related to the victim.
1 Police v Majury [2019] NZDC 14362.
2 Domestic Violence Act 1995, ss 19(2)(b), 49(1)(b) and 49(3). Maximum penalty of three years’ imprisonment.
3 Sentencing Act 2002, s 70A. Maximum penalty of six months’ imprisonment or fine of $1,500.
4 Criminal Procedure Act 2011, s 250(2).
5 Section 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
7 Ripia v R [2011] NZCA 101 at [15].
8 Mita v R [2012] NZCA 137.
[5] On 12 January 2016, a temporary protection order was issued for the victim, against Mr Majury. A final protection order was made on 13 April 2016.
[6] On 9 September 2016, he was convicted of two charges of criminal harassment against the victim from the period 28 May 2015 to 7 January 2016. He was sentenced to 15 months’ imprisonment.
[7] On 11 December 2018, Mr Majury was found guilty of breach of a protection order by messaging the victim shortly after being released from prison (on 6 October 2016). He was sentenced to 18 months’ intensive supervision, together with judicial monitoring undertaken by Judge Earwaker.
[8] At the time of the current offending, Mr Majury was subject to both the protection order and the sentence of intensive supervision.
[9] On 15 February 2019, Mr Majury breached the protection order. Specifically, while he was driving Mr Majury noticed, ostensibly by chance, the victim inside her car by the side of the road. He conducted a U-turn, and then drove slowly past her. The victim tried to hide her vehicle behind a tree. Mr Majury put his head out of his car window and looked directly at the victim. After she drove off, Mr Majury conduct another U-turn and followed her from behind for a short distance. Later that day, Mr Majury drove slowly past the victim’s home address.
[10] The next day, on 16 February 2019, Mr Majury again breached the protection order. He sent four messages to the victim via social media. One of the messages stated that he wanted to see the victim to buy her food and added that “that tree wasn’t big enough for you to hide behind”.
[11] Furthermore, Mr Majury breached his sentence of intensive supervision on two occasions. First, between 3 and 17 January 2019, Mr Majury failed to report to a probation officer as required. Secondly, on 18 February 2019, Mr Majury moved to a different residential address without prior written consent from the probation officer.
District Court decision
[12] On 22 July 2019, Mr Majury appeared before the District Court for sentencing. After first detailing preliminary matters,9 Judge Earwaker sentenced Mr Majury using the following methodology:
(a)with reference to the decisions in Crean v Police10 and Smart v Police11 His Honour calculated a starting point of 18 months’ imprisonment for the two breaches of the protection order (the lead charges);12
(b)imposed an uplift of two months for offending while subject to a sentence of intensive supervision;13
(c)imposed an uplift of three months for Mr Majury’s previous convictions;14
(d)imposed a cumulative sentence of six months imprisonment in substitution for the sentence of 18 months’ intensive supervision imposed for the 8 October 2016 breach of the protection order;15and
(e)applied a discount of seven months (around 24 per cent) for an early guilty plea.16
[13] This resulted in the end sentence of 22 months imprisonment. In addition Judge Earwaker went on to:
(a)impose a concurrent sentence of two months’ imprisonment for the two breaches of intensive supervision;17
9 Police v Majury [2019] NZDC 14362 at [1]–[2] (Introduction), [3]–[14] (Factual background), [15]–[16] (Purposes and principles of sentencing) and [17]–[18] (Relevant factors).
10 Crean v Police [2015] NZHC 3203.
11 Smart v Police [2016] NZHC 3092.
12 Police v Majury [2019] NZDC 14362 at [19].
13 At [19].
14 At [19].
15 At [20].
16 At [20].
17 At [23].
(b)impose special release conditions for a six-month period after release from prison, including GPS monitoring;18 and
(c)decline leave for Mr Majury to apply for home detention “given the persistent nature of [Mr Majury’s] offending and [his] refusal to accept responsibility”.19
Issue One - Was the starting point too high?
[14] Ms Charmley submitted, on behalf of the Crown, that the 18 month starting point imposed by Judge Earwaker was within the available range with reference to Green v Police,20 albeit submitting that there was a lack of case law involving similar offending. In particular Ms Charmley submitted that the comparator cases identified on behalf of Mr Majury could be distinguished on the basis that the present offending did not arise in a domestic setting.
[15] In the alternative Ms Charmley noted that although Mr Majury does not challenge the remainder of Judge Earwaker’s methodology to get to an end sentence of 22 months’ imprisonment, the proper focus for the Court is whether the end sentence imposed was excessive rather than considering the starting point in isolation. In particular, the Crown submits that the uplift imposed by Judge Earwaker could properly have been higher, with the result that the end sentence was not manifestly excessive.
Discussion – starting point
[16] I note at the outset that the cases referred to by Judge Earwaker in the sentencing notes were not relied on by either counsel in their respective submissions. As Judge Earwaker noted in his sentencing notes, both cases did however summarise the relevant applicable principles. As Brewer J noted in Crean:21
18 At [21]–[22].
19 At [20]. Counsel had only sought leave to apply for home detention as there was no suitable address as at the date of sentencing.
20 Green v Police HC Auckland CRI-2012-404-192, 3 December 2012.
21 Crean v New Zealand Police [2015] NZHC 3203 at [16].
First, there is no tariff authority for the offence. Sentencing has to follow first principles.
Second, the breaching of Court orders, including protection orders, is one of the types of offending where prior convictions are integral to the assessment of the gravity of the index offending. This is because a history of previous breaches is directly relevant to the assessment of the gravity of the most recent offending and to the culpability of the offender. But care must be taken to ensure there is no double counting of previous convictions when aggravating personal circumstances are assessed at the second stage of the sentencing exercise.
Third, the maximum sentence for breaching a protection order, as I have already noted, was increased by Parliament on 25 September 2013 from two years’ imprisonment to three years’ imprisonment. Sentences imposed before then are, therefore, of limited assistance in providing guidance as to an appropriate start point. It follows that I give little weight to the decision in Coory v Police, an authority on which Mr Hamblett relied in his written submissions.
(Footnotes omitted.)
[17] Likewise, Gendall J noted in Smart “breaches of protection orders vary enormously, both in culpability and in the degree of threat physical or psychological harm to the protected person”.22
[18] It is clear that the present case stands to be considered against these principles, notwithstanding, as Ms Charmley notes, aspects of Mr Majury’s offending do not fall neatly within a conventional domestic violence framework. That statutory framework must however be applied given a protection order has been made and there are clear familial ties between Mr Majury and the victim.
[19] Against that background I have considered the cases referred to by counsel, together with Crean and Smart. Three points in particular emerge:
(a)First, the decision in Green relied on by Ms Charmley provides no assistance because although factually somewhat similar it involved two charges of criminal harassment pursuant to s 8 of the Harassment Act 1997 This is a totally different statutory framework to that under
22 At [15] citing Anderson v R [2016] NZCA at [26], citing Woods v Police [2015] NZHC 305 at [37] and Mam v Department of Corrections HC Christchurch CRI-2011-409-111, 1 December 2011 at [4].
the Domestic Violence Act 1995,23 with the offences carrying a maximum penalty of two years’ imprisonment upon conviction rather than the three years maximum for the breach of the protection orders.
(b)Secondly, although the remainder of the cases involve quite dissimilar factual scenarios, I am satisfied that overall the offending in all of these cases is substantially more serious than in the present case.
(c)It is also apparent that the starting point adopted in one of the cases referred to by Ms Kimberley included an uplift for previous breaches of protection orders.24 In this case the starting point identified by Judge Earwaker did not on the face of it include uplift for those earlier breaches as this was calculated separately in the uplift given for previous convictions, which clearly included the previous convictions for breach of the protection order against the victim in this case.25
[20] Taking these matters together, and assessing Mr Majury’s overall culpability in order to determine the appropriate sentence for the totality of the offending, I am satisfied that the starting point adopted, coupled with the uplift for previous convictions (which logically reflected Mr Majury’s history of breaching protection orders and harassment against the current victim) was too high and has led to a total sentence that is manifestly excessive.
[21] Instead I consider a starting point of 10 months is appropriate for the offending itself which, together with the uplifts for breach of the intensive supervision sentence and for previous convictions, result in a notional end sentence on the lead charges of 15 months’ imprisonment. To this is added the cumulative sentence of six months’ imprisonment in substitution for the intensive supervision sentence less a 24 per cent discount for the guilty plea,26 giving an end sentence of 16 months’ imprisonment for Mr Majury.
23 Now replaced, since 1 July 2019, by the Family Violence Act 2018.
24 Narayan v Police [2014] NZHC 1241.
25 See Edwards v Police [2017] NZHC 2834.
26 As Ms Kimberley accepted the 24 per cent represents a pro rata of the guilty plea given by Judge Earwaker based on the starting point actually adopted.
Issue Two - leave to apply for home detention
[22] Ms Kimberley submitted for Mr Majury, that Judge Earwaker erred in declining to grant Mr Majury leave to apply for home detention under s 80I of the Sentencing Act 2002.
[23] Ms Kimberley accepted that there is no presumption in favour of granting home detention.27 She nonetheless submitted that imprisonment should be a last resort and that Mr Majury has previously been sentenced to community work and appears to have complied with the terms of that sentence. She further submitted that the sentencing Judge gave excessive weight to the purpose of deterrence and denunciation without regard to the purpose of rehabilitation and reintegration. Ms Kimberley stated that access to rehabilitative programmes or counselling is limited while a person is in custody and submitted the negative effects of short sentences of imprisonment were detailed by this Court in Richmond v Police.28
Discussion – leave to apply for home detention
[24] In this case the current offending occurred while Mr Majury was on a sentence of intensive supervision, and this coupled with his previous convictions, means that deterrence and denunciation are particularly relevant in this case. Nevertheless, as the Court of Appeal commented in Fairbrother v R, a court is still required to undertake:29
… a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[25]As the Court of Appeal noted in Palmer v R:30
This change of approach is unlikely to make a difference in the result, because it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention and any material error would normally have justified intervention under the former approach. As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or
27 Richmond v Police [2019] NZHC 2001 at [73]; Manikpersadh v R [2011] NZCA 452; and R v Vhavha [2009] NZCA 588.
28 Richmond v Police [2019] NZHC 2001 at [75] and [76].
29 Fairbrother v R [2013] NZCA 240 at [30].
30 Palmer v R [2016] NZCA 541 at [19].
against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
(Footnotes omitted.)
[26] Under s 15A of the Sentencing Act 2002, a sentence of home detention may be imposed only if the court is satisfied that the sentencing purpose cannot be achieved by any less restrictive sentence or combination of sentences, and the court would otherwise have imposed a short-term sentence of imprisonment. This accords with the general principle of sentencing in s 8(g), which requires the court to impose the least restrictive outcome that is appropriate in the circumstances.
[27] Home detention has been recognised as a sentence carrying a considerable measure of denunciation and deterrence, sufficient to supplant a short-term sentence of imprisonment.31 However, even in cases where home detention is available, the sentencing purposes of denunciation and deterrence can sometimes be met by nothing less than a sentence of imprisonment.32 Indeed, when determining whether a sentence of home detention is appropriate, the offender’s personal characteristics, demonstrated efforts towards rehabilitation and the likelihood of rehabilitative success are important considerations.33 Ultimately, the Court is required to undertake an evaluative exercise.
[28] Against that background, in my view, the sentencing Judge did not err in declining to grant leave to apply for home detention. Judge Earwaker expressly considered the request for leave to apply for home detention,34 but concluded that a sentence of imprisonment was appropriate “given the persistent nature of [the] offending and [Mr Majury’s] refusal to accept responsibility”.35 This was not
31 R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].
32 See, for example, R v Taiepa [2009] NZCA 120 (receiving a stolen vehicle where the circumstances of the offending and the history and attitude of the offender afforded no realistic alternative).
33 R v Ford [2008] NZCA 64; R v Hill [2008] 2 NZLR 381 (CA); and R v Hall [2008] NZCA 207.
34 At [20].35 Police v Majury [2019] NZDC 14362 at [20].
therefore a case where the Judge failed to consider or give adequate reasons for his decision not to allow leave to apply for home detention.
[29] As the Crown submits, Mr Majury’s repeated, persistent and targeted history of harassment and offending against the victim over the past four years is particularly concerning. Taken together with his other prior convictions of a similar nature against other victims, his apparent lack of remorse or responsibility for his offending, his proven inability to comply with court-imposed sanctions and his failure to engage in rehabilitation opportunities previously available to him mean that a sentence of imprisonment is appropriate. Despite Ms Kimberley’s submissions that insufficient weight was given to the purpose of rehabilitation, Judge Earwaker, who had been directly involved in the judicial monitoring of Mr Majury prior to the current offending, explicitly noted that Mr Majury had “not engaged in any treatment despite [earlier] recommendations and previous sentences”.36
[30]This ground of appeal therefore fails.
Issue Three – was a GPS monitoring condition appropriate?
[31] Ms Kimberley initially challenged the reasonableness of the GPS monitoring condition imposed by Judge Earwaker, but following discussion at the hearing, a threshold issue was also identified as to whether a sufficient foundation existed in terms of the statutory framework. In particular, s 93(3A) of the Sentencing Act 2002 provides that “the court must not impose an electronic monitoring condition unless it has had regard to the opinion of the chief executive of the Department of Corrections in a pre-sentence report provided under s 26”.
[32]Section 26(2)(i) of the Sentencing Act then provides:
(i)in the case of a proposed sentence of intensive supervision or possible release conditions for a proposed sentence of imprisonment for 24 months or less, the opinion of the chief executive of the Department of Corrections as to whether—
i.a condition that prohibits the offender from entering or remaining in specified places or areas at specified times or at all times (a whereabouts condition in this paragraph) would
36 At [14].
facilitate or promote the objective of reducing the risk of the offender reoffending while subject to the sentence or release conditions; and
ii.a whereabouts condition would facilitate or promote the objective of rehabilitating and reintegrating the offender; and
iii.a further condition requiring the offender to submit to electronic monitoring of his or her compliance with a whereabouts condition is warranted, having regard to the likelihood of non-compliance with the whereabouts condition.
(Emphasis in original.)
[33] There is no dispute that the report writer of a pre-sentence (or PAC report) is operating under the delegated authority of the Chief Executive of the Department of Corrections, however the question arises as to whether in this case:
(a)the recommendation in Mr Majury’s PAC report adequately addressed the matters set out in s 26(2)(i) of the Sentencing Act; and
(b)whether, in imposing the electronic monitoring condition, Judge Earwaker had regards to the opinion in the pre-sentence report provided under s 26, as required by s 93(3A) of the Sentencing Act.
The position of the Crown
[34] In her supplementary submissions Ms Charmley submitted that the PAC report was adequate to meet the purposes of s 26(2)(i) of the Sentencing Act and sufficient regard was paid to that opinion by Judge Earwaker. In particular Ms Charmley submitted:
The report recommends electronic monitoring “in order to monitor [the appellant’s] compliance with any conditions(s) relating to your whereabouts” (recommended condition 1). The report writer also notes the appellant’s high risk of reoffending and his “continual re victimisation (sic) of the current victim”, and opines that “imprisonment is considered appropriate with Release Conditions to enable Mr Majury to address his offending related needs”. In the respondent’s submission, it is clear the chief executive’s delegate considered that the GPS condition – coupled with other conditions including conditions not to associate with the victim or enter East Auckland – is necessary for the reasons set out at s 26(2)(i) of the Sentencing Act. This is especially so in the context of the sentencing of an offender who was being sentenced for his failure to comply with a sentence of intensive supervision.
(Footnote omitted.)
[35] Ms Charmley went on to observe Judge Earwaker had specifically adopted the GPS monitoring condition and, in particular, concluded that this was necessary given the lack of engagement by Mr Majury with the community probation service in the past and his lack of remorse and failure to engage with rehabilitative treatment.
Discussion – GPS monitoring
[36] Section 26(2)(i)(iii) of the Sentencing Act makes it clear that more is required from the probation officer than simply proposing an electronic monitoring condition. Specifically, the probation officer must provide an opinion as to whether an electronic monitoring condition is warranted “having regard to the likelihood of non-compliance with the whereabouts condition”.
[37] In this case, as indeed Ms Charmley noted in the submissions set out above, apart from the recommended condition there is otherwise no specific reasoning provided as to why the condition is necessary. The best that can be said, as Ms Charmley effectively does, is that the need for such a condition is implicit from the PAC report overall. That is not sufficient for the purposes of s 26(2)(i)(iii), as reasoning is explicitly required by the wording of the section and in this case the probation officer has clearly not provided any form of opinion on “the likelihood of non-compliance with the whereabouts condition”.
[38] As a result, even though it is clear that Judge Earwaker had had regard to the recommendation contained in the PAC report, the threshold condition was not satisfied and, pursuant to s 93(3A) the GPS monitoring condition could not be imposed.
[39] Even if I am wrong in that assessment I nevertheless conclude that in this case a GPS monitoring condition was not warranted.
[40] In Patterson v R, the Court of Appeal affirmed that there must be a rational nexus between the special release conditions and the purposes prescribed in s 93(3).37 The conditions must also be reasonably necessary and proportional to the risk posed
37 Patterson v R [2017] NZCA 66.
by the offender.38 Furthermore, as an element of the sentence, any release condition must be consistent with the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act: they must be directed towards the precise nature of the offender’s criminality, be the least restrictive outcome appropriate and be tailored to the offender so that the sentence is not disproportionately severe.39
[41] Mr Majury has displayed what the sentencing Judge described as an “obsessive nature”40 and has demonstrated an unwillingness (or inability) to comply with court- ordered conditions. However, the GPS monitoring only reveals Mr Majury’s location, not that of the victim. I consider there is force to Ms Kimberley’s submission that, in the present circumstances, Mr Majury did not intentionally seek out an initial encounter with the victim; he ran into her by chance. Moreover, the bulk of Mr Majury’s breaches were by way of electronic communication, which GPS monitoring cannot effectively prevent. Although knowing an offender’s location alone does reduce the risk of reoffending to some extent, and also enables any breach of the whereabouts condition to be identified, in the present circumstances, it is difficult to see how a further condition requiring Mr Majury to submit to GPS monitoring will reduce his specific risk of reoffending.41 Taken together I am not satisfied the GPS monitoring condition meets the requirements of s 93(3) in this case. Nor am I satisfied the GPS monitoring condition is a justified limitation on Mr Majury’s personal freedoms as required under s 5 of the New Zealand Bill of Rights Act 1990.
Decision
[42]The appeal is allowed in part:
(a)a sentence of 16 months’ imprisonment is substituted for the original sentence of 22 months’ imprisonment; and
(b)the special release condition of GPS monitoring is set aside.
38 At [6] and [18].
39 R v Janssen [2007] NZCA 450 at [14]–[17].
40 Police v Majury [2019] NZDC 14362 at [18].
41 Sentencing Act 2002, s 93(3)(a). The section is concerned with reducing the risk of reoffending “by the offender”.
[43] The remainder of the sentence, including special release conditions is otherwise confirmed.
Powell J
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