Marsh v Police Department
[2018] NZHC 2366
•7 September 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-419-000030
[2018] NZHC 2366
BETWEEN TYRONE MARSH
Appellant
AND
POLICE DEPARTMENT
Respondent
Hearing: 7 September 2018 Appearances:
S Cameron for the Appellant S Gilbert for the Respondent
Judgment:
7 September 2018
ORAL JUDGMENT OF MUIR J
Counsel/Solicitors:
S Cameron, Barrister, Hamilton
S Gilbert, Crown Solicitor, Hamilton
MARSH v POLICE DEPARTMENT [2018] NZHC 2366 [7 September 2018]
Introduction
[1] Mr Marsh appeals against the decision of Judge Menzies in the Morrinsville District Court in relation to both his conviction and sentence.1 Mr Marsh accepted a sentence indication given by Judge Menzies and accordingly pleaded guilty to one charge of burglary.2 The appellant contends that Judge Menzies erred in law by failing to adhere to the sentence indication. Specifically, that Judge Menzies indicated that home or community detention may be appropriate depending on the pre-sentence report, but then ruled these sentences as not appropriate in the sentencing. Further, the appellant contends that the end sentence of 11 months’ imprisonment is manifestly excessive for the current charge.
The facts
[2] In the early morning of 26 December 2017, around 6 am, Mr Marsh was on the grounds of Matamata College, which is on Firth Street, Matamata. He climbed through bushes on the border of the school grounds into the garden of the adjoining property, which is a private home. He kicked in a rear window of the house. The victim, a Mr Bennet, went to investigate what was occurring. He saw Mr Marsh run from the property. As he did so Mr Marsh dropped his hat. Police later found Mr Marsh’s DNA on the hat. By way of explanation, Mr Marsh says he only kicked in the window in anger, and not out of any desire to gain entry to the house. The apparent source of his anger was an inability to find cigarettes at the time.
Personal characteristics and the pre-sentence report
[3] Mr Marsh is a 26-year old man of Maori descent. He lives with his parents and two brothers. He claims he receives good support from his immediate whanau. The pre-sentence report does not identify him as having any particular occupation. He has a substantial criminal history, characterised mostly by property-related offending. He has three prior convictions for burglary, the most serious of which occurred in 2017, for which he received a sentence of six months’ home detention. He also has a history of breaching post-release conditions.
1 New Zealand Police v Marsh [2018] NZDC 13188.
2 Crimes Act 1961, s 231(a), maximum penalty of 10 years’ imprisonment.
[4] The pre-sentence report notes that Mr Marsh expressed no remorse or empathy for his victim, and little insight into his past offending. The report writer assessed Mr Marsh’s home address as technically suitable for electronic monitoring, but did not comment on the suitability of the occupants. Mr Marsh has served a sentence of home detention at that location before. The report writer recommends a sentence of imprisonment, given Mr Marsh has committed the current offending not long after serving his last sentence for burglary, and while subject to post release conditions. The writer assesses Mr Marsh’s risk of reoffending as high, his ability to comply with conditions as moderate, and his risk of harm to others as low.
District Court decision
[5] Mr Marsh initially pleaded not guilty, but then requested a sentence indication on the facts above. Judge Menzies gave such indication on 17 April 2018. The Judge did not accept Mr Marsh’s explanation that he only broke the window in anger, calling it “rather odd”. He drew the inference that Mr Marsh was intending to break and enter and commit some crime on the property, given his previous several prior convictions for burglary. Judge Menzies acknowledged the defendant’s argument that this offending was of a lesser character than some domestic burglaries, and he had not actually entered the house or taken anything. He noted, however, that many of the usual concerns about burglary still arose on the facts before him: the house was damaged, the property was occupied, so there was a risk of confrontation.
[6] The Judge considered it was appropriate to start with a sentence of imprisonment, noting, however, that the circumstances may justify a reduction from the 18-month starting point indicated as appropriate in the authorities.3 He further commented that it may be that the pre-sentence report might indicate electronically based options could be appropriate, but that Mr Marsh’s criminal history would be a relevant factor as well. The Judge emphasised that imprisonment was the starting point, but that he left the possibility of home detention to be determined on receipt of the report.
3 The Judge did not cite specific authority, but see, for example, Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; and Gibb v R [2017] NZCA 532 at [4] and [8].
[7] At the sentencing, the Judge adopted the approach of annexing his indication to the sentencing notes. He referenced his previous remarks in the indication and that he now had a pre-sentence report. The Judge noted that the report assessed Mr Marsh’s risk of reoffending as high, and that he had demonstrated a moderate ability to comply with community based sentences. The Judge noted that the main concern he had with imposing a community-based sentence was that Mr Marsh was sentenced to home- detention in January 2017, but then went on to offend while post-detention conditions were in place. The Judge noted that “it is difficult [to] justify imposing the same sentence again in the hope you might be deterred from further offending”. He therefore took the starting point as one of imprisonment, beginning with a figure of 12 months, which he noted was a generous figure on the authorities. He then applied an uplift of two months for Mr Marsh’s prior criminal history, then a discount of three months for the guilty plea, coming to a final period of imprisonment of 11 months.
[8] Judge Menzies concluded by considering whether home detention was appropriate. He found it was not given all the factors which he had previously identified in his sentencing notes.
Appeal
[9] Mr Marsh appeals both his conviction and sentence. The appeal as to conviction relates to the alleged error of law that Judge Menzies departed from the sentence indication. Counsel for Mr Marsh argues that if Judge Menzies was going to depart from his indication by precluding a sentence of electronically monitored detention, then he should have given Mr Marsh an opportunity to vacate his plea. In the alternative, counsel argues that the sentence of 11 months’ imprisonment was manifestly excessive and should be substituted for a sentence of electronically monitored detention. I address the two appeals separately.
Appeal against conviction
Law
[10] Section 229 of the Criminal Procedure Act 2011 (the Act) sets out a person’s right to appeal against conviction. Under s 230, this is a first appeal against the
decision of a District Court Judge. Although burglary is a category 3 offence, because Mr Marsh elected a judge-alone trial before he pleaded guilty, this appeal is properly heard in this Court.4
[11] The Court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or, in any case, a miscarriage of justice has occurred for any reason.5 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, has resulted in an unfair trial or a trial that was a nullity.6 A “trial” includes a proceeding where the appellant pleaded guilty.7
[12] A “real risk” that the outcome was affected exists where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.8 This standard means that an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe, only that there is a real possibility the verdict would be unsafe.9
[13] As indicated, the specific “error, irregularity or occurrence” that Mr Marsh argues occurred is that he ought to have been given leave to withdraw his guilty plea, because the Judge allegedly departed from his sentencing indication.
[14] Section 116(2) of the Act provides that a sentence indication is binding on the Judge who gave it, unless information becomes available to the Court after the sentence indication was given, but before sentencing, and the Judge is satisfied that the information materially affects the basis on which it was given. Section 115 requires that the Court must grant leave to a defendant to withdraw a guilty plea following a sentence indication if the Judge indicates that the circumstances described in s 116(2) apply, and that the Judge proposes to impose a sentence of a different type
4 If Mr Marsh had elected a jury trial, then pleaded guilty, the proper appellate court would be the Court of Appeal, see s 230(b)(i).
5 Sections 232(2)(b)–(c).
6 Section 232(4).
7 Section 232(5).
8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
9 At [110].
or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.10
[15] If it is determined that a defendant ought to have been given a chance to withdraw his guilty plea, and was not, a miscarriage of justice will result: there will be a real risk the outcome would have been affected; i.e. the defendant may have not pleaded guilty.11 The basis of this is that a sentence indication creates a reasonable expectation that the end sentence will not be more than is indicated, and it is on this basis that it is accepted.12
[16] Here, the issue is whether Judge Menzies departed from his sentence indication by imposing a sentence of a different type from that indicated, or of the same type but of a greater quantum. Counsel for Mr Marsh argues that the Judge indicated that an electronically monitored sentence was a possibility, but ruled out such a sentence in the sentencing.
[17] Whether a Judge has departed from a sentence indication is a question of fact. The cases appear to turn on what expectation was created by the words used. For example, in Biskowiak v Police, Mr Biskowiak appealed on the basis the Judge had indicated a sentence of home detention, but had sentenced him to imprisonment.13 In the indication, the District Court Judge said:14
He could not expect anything less than home detention, but whether or not he would be eligible for home detention would depend upon what would come out of a pre-sentence report, as to whether or not there is firstly a suitable address at which he could serve home detention and secondly, whether or not he would be suitable for home detention, having regard to what can only be described as his rather horrendous history.
[18] The pre-sentence report recommended home detention. At the sentencing, the Judge considered Mr Biskowiak’s extensive criminal history, and that he had recently been before the Court for similar offending, which occurred in breach of release
10 Section 115(2)(a).
11 R v Gemmell [2000] 1 NZLR 695 (CA) at [11]–[12].
12 Taylor v R [2013] NZCA 55 at [18].
13 Biskowiak v Police [2015] NZHC 486 at [24]–[26].
14 At [6].
conditions. The Judge considered that Mr Biskowiak was “not getting the message”,15 and considered the purposes of denunciation and deterrence required a custodial sentence, so sentenced him to 22 months’ imprisonment. On appeal, Clifford J held that, assessed objectively, the words used by the Judge carried a very strong indication that, subject to the outcome of the pre-sentence reports, home detention would be available. He therefore allowed the appeal, and remitted the case back to the District Court.16 I note, by comparison with this case, that the presentence report was in that case favourable to the grant of home detention.
[19] To the contrary, in Boyce v R, the sentencing Judge indicated that home detention may be available if there was a positive pre-sentence report, which would justify a custodial sentence of two years or less.17 A favourable pre-sentence report was not forthcoming, and the Judge sentenced the offenders to imprisonment. The Court of Appeal held:18
The sentence indication was that, in the event of a favourable pre-sentence report, the end sentence would be in the region of two years' imprisonment thereby enabling counsel to argue for a sentence of home detention or community detention. Provided the Judge's assessment that the pre-sentence reports were not favourable is correct, it cannot be said the Judge departed from that sentence indication by imposing a sentence of two years, four months' imprisonment. Imprisonment was always a possibility in terms of the indication given. The sentence would only have been at two years or less if the appellants received favourable pre-sentence reports.
Discussion
[20] It is clear on the authorities that the particular form of words used in the sentencing indication are important. The words in the sentencing indication that created the expectation Mr Marsh alleges are the following:
[5] … It may be that the pre-sentence report that would be sought in the event of a guilty plea might indicate electronically based options such as home detention or community detention may be appropriate. I am conscious in that context that this offending, if that is indeed what it turns out to be, follows on a sentence of home detention imposed in January last year. … So that would be a relevant factor as well.
15 Biskowiak v Police [2015] NZHC 486 at [11].
16 At [37].
17 Boyce v R [2014] NZCA 295.
18 At [37].
[6] The sentencing indication I am providing is that I would take a starting point of imprisonment. Whether the end result is an electronically-based one such as home detention or community detention as argued by Ms Cameron I would leave open to be determined with the assistance of a pre-sentence report and I do not propose to take the indication any further.
[21] In his sentencing notes, the Judge came to a final sentence of 11 months’ imprisonment, then considered whether home detention was appropriate in the following terms:
The question then is whether that should be commuted to home detention. For the reasons that I have outlined above, I do not intend to do that. You were sentenced to home detention for burglary last year, you have re-offended, I do not accept that it is appropriate to sentence you to the same sentence again.
[22] Mr Marsh’s essential point is that the Judge seemingly based his conclusion that home detention was not appropriate on the history of breaching release conditions and previous offending. This was information, says Ms Cameron, that the Judge had at the sentencing indication; therefore, the Judge should have said home detention was not a possibility at that early stage.
[23] I do not consider that the Judge relied exclusively on Mr Marsh’s past history in precluding home detention. Nor do I consider that the Judge’s words in the indication created the reasonable expectation that home detention would be granted, as Ms Cameron submits. The Judge expressly declined to consider whether home detention was appropriate. He made very clear that imprisonment was the starting point, and that he would consider home detention only when he had a pre-sentence report. He also flagged that Mr Marsh’s history would be a relevant consideration.
[24] In his sentencing notes, the Judge started by considering the pre-sentencing report, noting that it referred to Mr Marsh having a propensity for dishonesty and a history of offending while subject to post detention conditions. To that extent I accept that the pre-sentence report repeated information his Honour already had. However, his Honour went on to note that the report recommended (twice) that a custodial sentence be imposed. Significantly, in my view, the report further identified that the appellant had “a sense of entitlement”, that he had a very “unstructured lifestyle”, that he was unemployed, that he had “no empathy for the victim”, “no remorse” and was
“more interested the effect his offending has had on himself”. This was all new information which the Judge did not have at the time of his sentencing indication.
[25] Moving on from the sentencing report, the Judge then considered the defendant’s “immediate past history”, including a sentence of home detention for burglary in 2017 by which, he said, the defendant had clearly not been deterred from similar like-offending.
[26] In my view when, in the context of assessing whether home detention was appropriate or not, the Judge said “for the reasons I have outlined above, I do not intend to do that” he was referring to all the considerations appearing previously in his sentencing notes, including the adverse pre-sentence report containing the new information I have identified.
[27] I do not, on a fair reading of the Judge’s sentence indication, consider that the defendant could have had a reasonable expectation that home detention was a likely sentence in the face of an adverse report. The indication expressly deferred to the assistance the Judge anticipated receiving from such report which, as I have indicated, ultimately recommended a custodial sentence. The indication expressly acknowledged that the fact that the defendant had previously been sentenced to home detention for burglary would also be a relevant consideration. It concluded with the statement that home detention would simply be left “open” to be determined with assistance from the pre-sentence report and that the indication would be taken no further than that.
[28] Moreover, the final sentence (11 months’ imprisonment) was appreciably less than the indicated starting point (18 months) even allowing for a guilty plea discount.
[29] I do not therefore consider that there has been a miscarriage of justice in relation to the conviction.
Appeal against sentence
[30] The second part of the appeal is an appeal against the sentence imposed. Ms Cameron argues that the sentence was manifestly excessive for a burglary of this type.
This raises separate considerations from those earlier considered. Here, I consider the appropriateness of the final sentence itself.
Judge Menzies’ sentence
[31] Judge Menzies considered that, on the authorities, a starting point in the order of 18 months was generally appropriate for a domestic burglary.19 He noted that the aggravating factors were that damage was caused, the property was occupied and that there was a risk of confrontation. However, although expressing the view that the facts differed little from more serious burglaries involving more extensive intrusion on to property, he nevertheless adopted a significantly lower starting point of 12 months’ imprisonment. He noted this was a quite “significant markdown” from most sentences of this type. The Judge then applied an uplift of two months for Mr Marsh’s prior history, then a discount of three months for the guilty plea (representing approximately 21 per cent), to arrive at a final figure of 11 months’ imprisonment. The Judge then considered whether to substitute this for a sentence of home detention, and declined to do so.
Law
[32] Under the Criminal Procedure Act, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.20 In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.21 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.22 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.23 The focus is on the end result rather than the process by which the sentence was reached.24 In exceptional cases, it may nonetheless be necessary to correct a sentence
19 The Judge did not cite specific authority, but see, for example, Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; and Gibb v R [2017] NZCA 532 at [4] and [8].
20 Criminal Procedure Act 2011, s 250(2).
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
22 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].
23 Tutakangahau v R, at [36].
24 At [36].
that is within range (for example, where there has been an arithmetical error).25 In any other case, the Court must dismiss the appeal.26
Discussion
[33] Counsel for Mr Marsh argues that a sentence of 11 months’ imprisonment is manifestly excessive for a burglary involving entering an enclosed yard unlawfully, breaking a window and startling an occupant, but with no actual entry into the house and nothing taken. Further, counsel says that the Judge “adopted the most adverse inference available, that Mr Marsh was breaking and entering to commit a crime rather than the explanation he had given”. Counsel argues that Mr Marsh should have instead been sentenced to an electronically monitored sentence.
[34] The respondent argues that the sentence was within the appropriate range. Further, in response to the appellant’s point that the Judge adopted “the most adverse inference available”, the respondent points out that Mr Marsh pleaded guilty to burglary, an essential element of which is an “intent to commit an imprisonable offence in the building”.27 The respondent’s submission is well made; Mr Marsh cannot maintain his justification that he did not have an intent to enter the building when he has pleaded guilty to exactly that. This was an available inference for the Judge to draw and he was not in error in this respect.
[35] I have reviewed the authorities to determine whether the starting point Judge Menzies adopted was appropriate. The Court of Appeal in Arahanga v R held that dwelling-house burglaries at the relatively minor end of the scale tend to attract starting points of between 18 and 30 months’ imprisonment, due to the heightened risk of confrontation with occupants.28 The respondent has also referred me to the case of Te Amo v New Zealand Police.29 That case involved two people who went to a house and smashed a window at the back of the property to gain entry to look for alcohol. The victim was in the house and confronted the offenders. They were charged with attempted burglary, and the Judge took a starting point of nine months. While the facts
25 At [36].
26 Criminal Procedure Act 2011, s 250(3).
27 Crimes Act 1961, s 231(1)(a).
28 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
29 Te Amo v New Zealand Police HC Rotorua CRI-2009-463-104, 14 December 2009.
of that case are similar to the present facts, the lower starting point was appropriate in view of the lesser charge. Having regard to these authorities, I consider that the starting point of 12 months’ imprisonment was appropriate. I also consider that the adjustments Judge Menzies made for Mr Marsh’s past criminal history and guilty plea were also appropriate.
[36] Counsel for Mr Marsh also argues that the pre-sentence report failed to acknowledge, firstly, the giving of the sentence indication, and, secondly, that the proposed address was generally a stable one for Mr Marsh, where he had been subject to conditions before, including home detention.
[37] As to the first point, it is difficult to see what relevance the sentence indication had to the report writer, given that the sentence indication was itself expressed to be subject to the report.
[38] As to the second, the report does acknowledge the address as suitable, and further acknowledges that Mr Marsh has been subject to home detention there in the past. However, a custodial sentence was nevertheless recommended for the reasons previously identified.
[39] I turn then to the substantive point in this appeal—whether home detention should have been substituted for imprisonment, and whether as a consequence the sentence was manifestly excessive. Counsel for Mr Marsh submits that he was entitled to the least restrictive outcome that was appropriate in the circumstances.30 However, the Judge considered that a sentence of home detention would be insufficient to deter Mr Marsh from offending further having regard to the persistent nature of his dishonesty and in particular his apparent unresponsiveness to a previous sentence of home detention. What is required, therefore, is that I evaluate and balance these and other factors in the Sentencing Act to determine whether the Judge erred in declining home detention.31 I may intervene either if I consider the custodial sentence
30 Sentencing Act 2002, s 8(g).
31 Sentencing Act 2002, ss 7 and 8. See also my decision in Fonoti v Police [2015] NZHC 200 at [38]–[39].
manifestly excessive or that it was, having regard to all relevant principles and purposes, one that was itself wrong in principle.
[40] I consider this a finely balanced decision. On the one hand, Mr Marsh’s previous history of burglary is impossible to ignore. The pre-sentencing report notes that he expresses no remorse for his offending, or empathy for his victim. When I consider the purpose of promoting a sense of responsibility for the harm he has caused,32 it is clear that a previous sentence of home detention has proved ineffectual in this regard. Similar observations apply to the purposes of deterring like-offending by Mr Marsh in the future, which was clearly at the forefront of Judge Menzies’s mind in the sentencing.
[41]On the other hand:
(a)Although all burglary, particularly of residential premises where an occupant may be present, represents serious offending, this was undoubtedly at the least serious end of the range.33
(b)Given the relatively short length of the custodial sentence and the availability of a suitable home address, the principle of imposing the least restrictive outcome appropriate was one necessarily given significant weight.
(c)The pre-sentence report notes that, while Mr Marsh’s risk of reoffending is high, the risk of harm to others (at least in the sense of physical harm) is low—Mr Marsh does not have any convictions for crimes of violence. As such the purpose of protecting the community was engaged at a significantly lower level than might otherwise have been the case.
32 Section 7(1)(b).
33 Indeed possibly better categorised as an “attempt”.
(d)Insofar as protection of the community from property offending is concerned, it is as much ensured by a sentence of home detention as it is by a custodial one.
(e)The evidence of the deterrent value of short terms of imprisonment is at best limited, particularly in relation to recidivist offenders.34 Certainly a previous short term custodial sentence imposed in 2015 does not appear to have deterred Mr Marsh from further property offending.
(f)It is difficult to see how the purpose of assisting with Mr Marsh’s rehabilitation is served by a custodial sentence, whatever Mr Marsh’s actual inclination to undertake rehabilitation may be.35
[42] Ultimately, I consider the Judge placed undue weight on the likelihood that a custodial sentence would deter future offending to the exclusion of the other factors which favoured home detention, and which he was obliged to consider. In particular, protection of the community from the property offending for which Mr Marsh has been repeatedly convicted would be equally achieved by an electronically monitored sentence, and in my view better balanced the low order severity of the offending against the statutory mandate to impose the least restrictive sentence in the circumstances. It needs also to be emphasised that a sentence of home detention itself carries with it a considerable measure of denunciation.36 Nor do I overlook the fact that Mr Marsh has already served 10 weeks of a custodial sentence.
Adjusting the sentence assuming imposition of home detention
[43] The normal approach when imposing a sentence of home detention is to impose a sentence of half of the length of that which would otherwise be imposed. So, the sentence of home detention I would have imposed would have been 24 weeks. Counsel for Mr Marsh submits that the Court should take into account the 10 weeks of imprisonment Mr Marsh has already served since his sentencing in the District
34 For a recent discussion of the issue refer R v Wellington [2018] NZHC 2196 at [8].
35 Section 7(1)(h).
36 R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].
Court. I consider that the proper approach, based on Court of Appeal authority,37 is to deduct the full time served since the date of sentence from what would have been imposed by way of a sentence of home detention.38
[44] Therefore, I impose a sentence of 14 weeks’ home detention from today’s date, to be served at the proposed address and on both standard conditions and the special conditions recommended in the pre-sentence report.
Result
[45]I dismiss the appeal so far as it relates to the appeal against conviction.
[46] I allow the appeal against sentence and quash the sentence of 11 months’ imprisonment. I substitute a sentence of 14 weeks home detention commencing 7 September 2018.
Muir J
37 Shepherd v R [2018] NZCA 232 at [12]; and Mitchell v R [2017] NZCA at [27].
38 Sentencing Act 2002, s 80C. An alternative approach producing the same result would be to say that Mr Marsh had served 10 weeks of a 48-week custodial sentence from which he would have been released at 24 weeks. That is, he has served 41.6% of the time he would, apart from the appeal, have remained in custody. Applying the same discount to a home detention sentence of 24 weeks reduces it to 14 weeks.
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