Martin v The the Queen
[2022] NZHC 145
•27 January 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-34
[2022] NZHC 145
BETWEEN ROMEO STORMY MARTIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 26 January 2022 (via VMR) Appearances:
M B Ryan for Appellant
T Simpson for Respondent
Judgment:
27 January 2022
JUDGMENT OF ISAC J
Introduction
[1] Mr Romeo Martin pleaded guilty to two charges of recklessly discharging a firearm1 and one charge of unlawfully presenting a firearm at another individual.2 He was sentenced to 23 months’ imprisonment on 30 November 2021.3
[2] Mr Martin now appeals against that sentence on the basis that it should have been substituted for one of home detention. He submits nine months’ home detention is appropriate given the time spent on EM bail prior to his guilty plea and taking into account the short-term sentence imposed and the five months he has already spent in custody.
1 Crimes Act 1961, s 198(2); maximum penalty seven years’ imprisonment.
2 Arms Act 1983, s 52(1); maximum penalty six months’ imprisonment or $10,000 fine.
3 R v Martin [2021] NZDC 23530.
MARTIN v R [2022] NZHC 145 [27 January 2022]
The offending
[3] The offending occurred as the result of a confrontation. The appellant was driving past a bar and became involved in a verbal confrontation with a group outside the bar. He got out of the vehicle and was subsequently assaulted by the group. The appellant threatened to return with a gun and shoot the individuals involved. He left the area, and drove to his address to pick up a .22 rifle before returning. Upon his return, the appellant fired two shots at two complainants, who were in a vehicle at a car park some 50m away. The vehicle was not struck and the complainants were unharmed.
[4] The two complainants left the area and picked up a third person in their vehicle. They travelled to Mr Martin’s address in convoy with another car carrying three further men. It was accepted by the District Court Judge that they were behaving in a menacing way.4
[5] Mr Martin came outside with the firearm and fired a shot towards one of the vehicles 90 to 95m away. This hit the sill below the driver’s door. He then pointed the gun at another vehicle without firing a shot. The vehicles subsequently left the premises.
District Court decision
[6] After outlining the relevant facts the Judge summarised the key elements of the offending as the obtaining, loading and firing of a dangerous weapon at a vehicle, and the pre-meditated nature of the first incident. These were factors aggravating to the offending.5 Overall, the Judge considered a starting point of four and a half years’ imprisonment was appropriate, having regard to relevant case law.6
4 At [4].
5 At [34]–[35].
6 At [38], citing Fane v R [2019] NZHC 408; Gathergood v R [2010] NZCA 350; and R v Templeton
CA 460-05, 6 July 2008.
[7] Turning to personal mitigating factors, the Judge noted that Mr Martin has been regularly before the courts since 2011, including for violent offending, the most recent of which was in 2020 for assault with intent to injure and threatening to kill.7
[8] A pre-sentence report and cultural report was provided to the Court and considered by the Judge. The Court acknowledged the appellant’s explanation for the offending, namely that he had felt threatened by the other men involved and acted to protect himself and his family. The Judge also recognised the appellant’s positive family circumstances, including his three year relationship and full time employment as a shearer. This led the Judge to conclude Mr Martin had “reconfigured [himself] as a loving father, committed, partner and shearer”. The Judge also took into account Mr Martin’s remorse, gang-history, history of substance abuse and previous trauma.
[9] The starting point was reduced by 20 per cent on account of the appellant’s guilty plea.8
[10] The Judge then turned to consider other personal mitigating factors, before concluding that “a reduction for personal background factors that have contributed to this situation is blunted somewhat by the specific nature of the offending.” He settled on a 10 per cent discount as appropriate. A further 15 per cent reduction was then provided to reflect the appellants’ rehabilitation prospects, bringing the sentence to 29 months’ imprisonment. This was reduced by a further six months to account for the time spent by Mr Martin on EM bail, resulting in the end sentence of 23 months’ imprisonment.
[11] Given his arrival at a short-term sentence, the Judge was obliged to consider whether conversion to a sentence of home detention was appropriate. He declined to grant home detention as follows: 9
Having arrived at a sentence of under 24 months’ imprisonment, I must consider whether home detention sufficiently meets the purposes of sentencing.
7 At [7].
8 At [39]. This was so despite the agreement by both parties that a full 25 per cent discount should apply. The Judge concluded that 20 per cent was generous because of the long period between charge and plea.
9 At [44]–[46].
I regret to say, Mr Martin, that I conclude that the purposes of sentencing are not met by a sentence of home detention. The critical purposes I must take into account are those to hold you accountable for the harm done to the community by the offending and to deter you and others from offending in this kind of way if possible.
I must denounce your conduct and I must protect the community from you. The sentence on this occasion therefore is 23 months’ imprisonment. Given that this is a stage two offence of a short-term nature, I direct that you are to serve the full term of the sentence and that you are not to be released before the expiry of the sentence.
[12] Pursuant to s 86C of the Act, the Judge gave the appellant a second strike warning and ordered him to serve the full term of the sentence and not be released before its expiry.10
Appellant’s submission
[13] The appeal is brought solely on the Judge’s failure to commute the short-term sentence reached to one of home detention. It is submitted that this is a case where complete priority was given to the purpose of deterrence without regard to any of the countervailing purposes of sentencing. The appellant contends that, without considering all of the purposes of sentencing, the Court was unable to identify which sentence better qualified as the least restrictive sentence to impose.
[14] It is further submitted that in making his decision, the Judge failed to recognise the ability for home detention to also address the sentencing objectives of denunciation and deterrence.
[15] The appellant lists numerous factors which he considers relevant to a decision of commutation:
(a)Mr Martin is 28 years old.
(b)He is a parent of three young children.
(c)He is employed as a shearer and will be able to resume employment upon release from custody. His employment provides primary support for his partner and two young children.
10 At [46]: see Sentencing Act 2002, s 86C(4)(b); and Parole Act 2002, s 86.
(d)He is diligently working to improve his parenting skills for his older child to return to his full time care.
(e)He has the support of his partner, employer and Oranga Tamariki.
(f)He has not consumed alcohol since the date of the offending. Alcohol consumption was a key contributor to the current offending and his previous convictions.
(g)He was on EM bail for over a year, and demonstrated a high ability to comply with the similar restrictions of sentence of home detention.
(h)The pre-sentence report recommended an electronically monitored sentencing option combined with intensive supervision as the best means of supporting the defendant’s efforts at rehabilitation.
[16] The appellant submits that the principles of denunciation and general deterrence are met by the starting point of four years and six months’ imprisonment reached by the Judge. In terms of the sentencing purposes of holding Mr Martin to account for his actions and promoting in him a sense of responsibility and acknowledgment of harm, it is said this has been achieved by Mr Martin surrendering himself to Police, pleading guilty to the charges and spending five months in custody. Further, the appellant argues that given Mr Martin’s compliance with EM bail conditions, the risk to community safety in imposing home detention is minimal.
Respondent’s submissions
[17] The Crown rejects the proposition that deterrence was given complete priority in the sentencing process. Ms Simpson notes that the Judge explicitly identified a range of purposes and principles which he considered relevant on the facts, indicating these were in the front of his mind during the sentencing process.
[18] The Crown contends that given the serious nature of the offending, involving the deliberate and pre-meditated discharge of a firearm that could have posed a significant risk of harm to six individuals, a sentence of imprisonment was the appropriate outcome. The respondent also highlights the appellant’s criminal history
and previous convictions for violent offences, including assault and possession of a weapon as further evidence that the sentence was the appropriate one reached.
[19] Finally, the Crown also emphasises the narrow margin by which home detention was available as a sentencing option. Relying on observations in Palmer v R11 and R v D,12 Ms Simpson submits that the more marginal a case — such as Mr Martin’s — the harder it is for a sentencing judge to articulate reasons for preferring a sentence of imprisonment. In such cases a significant margin of appreciation on appeal is usual. Here the sentence imposed was on the cusp of the jurisdictional threshold, and appellate deference is therefore appropriate.
Approach to appeal
[20] This appeal is governed by s 250 of the Criminal Procedure Act 2011. In Palmer v R, the Court of Appeal confirmed the same standard of appellate review applies to decisions not to commute a sentence of imprisonment to home detention as any other sentence.13 The appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should be imposed.14 The focus is on the final sentence reached. An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.15
Discussion
Jurisdiction to impose home detention for second stage offences
[21] Mr Martin received a second strike for this offending. His first strike offence was for wounding with intent to cause grievous bodily harm in 2011, when he was 18 years old, for which he received a sentence of 20 months’ imprisonment.
[22] There is a tension between the imposition of home detention and the sentencing requirements for stage-two offences under the three strikes regime. The maximum
11 Palmer v R [2016] NZCA 541.
12 R v D (CA253/2008) [2008] NZCA 254 at [66].
13 Palmer v R, above n 11, at [18].
14 Tuakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
15 At [36].
sentence of home detention that may be imposed is 12 months.16 The rationale for this limit is that an offender serving a short-term sentence of imprisonment of two years or less must be released after serving half of their sentence.17 Thus, the maximum length of home detention corresponds with the maximum length of time a defendant sentenced to a short-term of imprisonment will spend in prison. However, where a defendant is convicted of a stage two offence, they do not become eligible for release at half of their sentence. Instead, they are required to serve the full sentence imposed.18
[23] This clearly creates issues when it comes to whether or not a short-term sentence of imprisonment can be commuted to a sentence of home detention when it involves stage two offending. The High Court have taken two separate approaches.
[24] In Tialata v Police, a defendant sentenced to one year and six months’ imprisonment for indecent assault was unsuccessful in his pursuit of home detention on appeal.19 Katz J first considered there was no error in reaching a sentence of imprisonment due to the seriousness of the offending, the risks posed by the offender and previous poor compliance with community based sentences. However, Her Honour also challenged the ability to impose home detention in the context of the broader three strikes regime, given that the length of sentence the defendant was required to serve exceeded the maximum home detention length:20
He must serve the full 18-month term of imprisonment, due to the operation of the three strikes regime. Logically, then, any period of home detention (whether it is to be served in a rehabilitative facility or elsewhere) would also have to be set at 18 months, to constitute an equivalent sentence. The maximum permissible term of home detention, however, is 12 months.
[25] A different approach was taken in Mangi v R21 and Moeller v R, in which home detention was seen as a permissible sentence.
[26] In Mangi, the defendant appealed a sentence of five months’ home detention for a second strike offence of wounding with intent to injure, on the grounds that,
16 Sentencing Act 2002, s 80A(3).
17 Parole Act 2002, s 86(1).
18 Section 86(1A); Sentencing Act 2002, s 86C(4).
19 Tialata v Police [2017] NZHC 3096.
20 At [37].
21 Mangi v R [2018] NZHC 2732.
taking into account the typical half-sentence rule in calculating home detention, a shorter home detention period should have been imposed. Powell J found that once the Court found a sentence of home detention to be appropriate in the circumstances the sentence “ceased to be a determinate sentence of imprisonment for the purposes of s 86C(4)”, namely the stage two provisions. Accordingly, he found there was no reason why a home detention sentence of one half of the prison term should not be applied.22
[27] In Moeller,23 the appellant was sentenced to 23 months’ imprisonment for a second strike offence, but was given leave to apply for home detention if a suitable address became available, pursuant to s 80K of the Act. When a suitable home detention address became available, the District Court imposed a term of home detention equivalent to the remainder of his custodial sentence length. Mr Moeller appealed on the basis that the length of that term should be half. Simon France J referred to the views expressed in both Tialata and Mangi. He recognised that “home detention as a substitution for a second strike sentence of imprisonment is often not a good fit”:24
The two schemes – home detention and short-term sentences – work together in part because the maximum lengths match. A 24-month sentence of imprisonment is a 12 month sentence in actual time. That is also the maximum length of a home detention sentence. Broad equivalence can be achieved.
The second strike rule distorts that. The time he has left to serve only arises because he has an unusually lengthy period of remand credit (being 14 and a half months). But imagine he had none and the same thing had happened – a 23-month sentence of imprisonment, six weeks to find a suitable address and then a substituted home detention sentence. The s 80K(6) figure would be around 21 months which is of course nine months longer than the available maximum home detention sentence.Equivalence is not in these circumstances possible.
[28] Simon France J noted that the statute afforded flexibility to the sentencing Judge to impose a length of home detention as they think fit, within the limit of a 12 month maximum, and while there was no mandatory rule that the term of home detention should be one half of the sentence of imprisonment, it provided a reasonable reference point.25 He concluded:26
22 At [44].
23 Moeller v R [2020] NZHC 1290.
24 At [10]–[11].
25 At [12].
26 At [13].
In the present case I accept the sentencing Court did not identify any features that would support Mr Moeller serving longer than a non-second-strike offender would for the same offending. I would therefore halve the time remaining.
[29] Ultimately, despite acknowledging the two regimes were not necessarily a good fit, he did not find any jurisdictional barrier existed in relation to the Court’s ability to substitute a sentence of imprisonment with one of home detention for second strike offenders.
[30] I accept the approach in Mangi and consider it open to the Court to impose a sentence of home detention for second-strike offences when deemed appropriate in the circumstances. In reaching this conclusion, I note that there are other cases in which home detention has been imposed for second stage offences, without discussion of potential jurisdictional limitations.27
The availability of home detention
[31] The real issue in this case is whether there was a material error in the decision to decline Mr Martin home detention.
[32] The choice to commute a short-term sentence of imprisonment to a sentence of home detention is at the discretion of the Judge.28 There is no presumption for or against commutation of a sentence to home detention. Rather, it is an evaluative exercise that involves an assessment as to whether the purposes and principles of sentencing can be met by a sentence of home detention.29 The Court must impose the least restrictive outcome that is appropriate in the circumstances.30
[33] The difficult balance that must be struck between different purposes and principles of sentencing when considering whether to commute a short-term of imprisonment into home detention was helpfully summarised by the Court of Appeal in Fairbrother v R:31
27 R v Tepania [2021] NZHC 2015; and R v Patel [2018] NZHC 2946.
28 Manikpesadh v R [2011] NZCA 452 at [12].
29 R v Vhavha [2009] NZCA 588 at [29]. This was in dissent but this point was later adopted in
Osman v R [2010] NZCA 199 at [20]; and Palmer v R, above n 11, at [19].
30 Sentencing Act 2002, s 8(g).
31 Fairbrother v R [2013] NZCA 340 at [29]–[31].
Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make 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.
Sometimes, as this Court said in R v D (CA 253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other” …
[34] The difficulty for sentencing judges when articulating reasons for preferring one approach to the other — home detention or imprisonment —was also recognised by the Court of Appeal in Palmer. There the Court said that the margin of appreciation extended to sentencing Judges is usually significant, particularly where the principles and purposes of sentencing point in different directions.32
[35] The sentencing remarks of the Judge in this case indicate careful consideration of the relevant purposes and principles of sentencing in establishing a starting point and appropriate discounts for Mr Martin’s sentence. However, the Judge did not expressly engage with these principles when he considered the question of home detention.
[36] This case, to my mind, is not so close to the “dividing line” that a greater margin of appreciation should be afforded. A consideration of the relevant purposes reveals that they do not pull in different directions for Mr Martin. Instead, home detention adequately addresses both the need for denunciation and deterrence, as well as other important purposes of the Act such as the need to assist in the appellant’s rehabilitation and reintegration. As such, home detention is the least restrictive sentence appropriate in the circumstances and should have been imposed.33
32 Palmer v R, above n 11, at [19].
33 Sentencing Act, s 8(g).
[37] Accordingly, I consider the conclusion that home detention was not sufficient to adequately respond to the seriousness of the offending was an error.
[38] The Court of Appeal has recognised that home detention is a significant sentence in its own right that carries the principles of denunciation and deterrence in considerable weight.34 It has been emphasised that a non-custodial sentence should not be considered a lenient sentence.35 While presenting and recklessly discharging a firearm are clearly serious offences that pose significant public safety risks and would ordinarily result in a sentence of imprisonment, there are two factors that lead me to conclude the Judge’s assessment failed to reflect the appropriateness of home detention as an adequate response to the offending.
[39] First, while the first incident involved Mr Martin quite wrongly taking matters into his own hands following the assault, the subsequent events suggest a lower level of culpability given it was the group of victims who sought out Mr Martin and, as the Judge found, behaved threateningly towards him. And, while Mr Martin is lucky to not have caused serious injury as a result of the offending, the harm done to the complainants was not long lasting. I also accept that the harm done to the community has in large part been addressed by the appellant’s surrender to Police, his remand in custody, and subsequent compliance while on EM bail in the community for a lengthy period.
[40] Second, and critically in my view, Mr Martin has made genuine and significant progress in his rehabilitation while on EM bail. He has complied successfully with his EM bail conditions. I am advised that he has abstained from alcohol since the offending. He has left the area in which the offending occurred and has indicated he has no intention of returning. He has the strong support of his employers and full-time work available should he be released from custody. Oranga Tamariki appears to see encouraging signs about Mr Martin’s parenting, and I accept as genuine his strong desire to be a good father to his children, whom he supports, having himself been a ward in State care. He has also been engaging positively with Rangitāne o Tamaki nui a Rua Incorporated in relation to parenting skills. A letter of support indicates that he
34 R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].
35 R v Minto [1982] 1 NZLR606 (CA) at 608; and R v Edbrooke [2000] 3 NZLR 360 (CA) at [14].
has made significant progress with the assistance of iwi over a three year period. These signs are therefore not a recent response to his predicament but an indication of a deeper desire for a better future for both himself and his family.
[41] I also note that a sentence of community detention accompanied by intensive supervision was recommended in Mr Martin’s pre-sentence report. The report classified the appellant as being at medium risk of re-offending with a firearm, a high risk of offending generally and a high risk of harm. However, it concluded:
Based on the remorse that Mr Martin has displayed, his family circumstances and his full-time employment, a recommendation of Community Detention is therefore recommended to serve as a punitive element to hold Mr Martin to account for his actions. The recommended curfew hours will allow Mr Martin to remain employed, as this is deemed a protective factor and allows Mr Martin to have income to support his children.
It is also recommended that the Court considers imposing a sentence of Intensive Supervision. This will provide Mr Martin with oversight from a Probation Officer to assist him with his offending related needs and access appropriate rehabilitative interventions required. It is recommended that a special condition for Mr Martin to abstain from the consumption/and or(sic) possession of alcohol and illicit drugs as well as a special condition for Mr Martin to attend a non-violence programme.
[42] By all accounts, and as recognised by the sentencing Judge, the appellant has spent the last year reforming himself while on bail for these charges. Those matters in my view go directly to the question of the appropriate balance between the competing purposes and principles of sentencing. Had any one of them been absent, the balance could well have been different. But collectively they lead me to conclude that this is not a case that is on the cusp, as suggested by the respondent.36 Unfortunately, the sentencing remarks of the Judge do not reveal the extent to which weight was accorded to these matters when considering the critical question of home detention.
[43] Taking into account the five months spent in custody, a substituted sentence of nine months’ home detention is appropriate in the circumstances.
36 I do not consider that cases close to the margin contemplated in Palmer v R and R v D are only those where the end sentence is close to the two year jurisdictional threshold for home detention, as the respondent seemed to suggest, but rather those cases where the outcome of the choice of sentence is very finely balanced. That could arise for sentences far removed from the upper limit of the sentence.
Result
[44] The appeal is allowed. Mr Martin is to be released from Manawatu prison on 28 January 2022.
[45] Mr Martin is to serve nine months home detention at the previously approved EM bail address, on the following conditions:
(a)Mr Martin must travel to the address directly from prison with no stops unless authorised by Probation;
(b)Mr Martin must not leave the address without an approved absence. This may include an approved absence for the purposes of undertaking employment;
(c)Mr Martin must comply with the requirements of electronic monitoring,
(d)Mr Martin must abstain from the consumption and or possession of alcohol and illicit drugs unless prescribed by a medical practitioner;
(e)Mr Martin must attend an assessment for a non-violence programme and to complete any treatment/counselling and/or programme as recommended by the assessment and to the satisfaction of the probation officer and treatment provider;
(f)Mr Martin must attend an assessment for any other programmes, training and/or counselling as directed by a Probation Officer and attend and complete any counselling, treatment, or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.
Isac J
Solicitors:
M B Ryan, Palmerston North for Appellant Crown Law Office, Wellington for Respondent
14
0