McAlister v Police

[2017] NZHC 2881

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2017-485-50 [2017] NZHC 2881

BETWEEN

DANIEL MCALISTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 November 2017
Counsel:	S Thistoll and Z Meehan for Appellant J M OʼSullivan and H Savage for Respondent
Judgment:	22 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr McAlister was sentenced to 20 months’ imprisonment for a series of car related offences.1   He appeals the refusal to substitute a sentence of home detention.

Offending and sentence

[2]      Mr McAlister committed a series of offences between May and September this year.  In May, he unlawfully entered a vehicle and caused damage inside to the key ignition area.   In June, he stole a mag wheel off a car so he could use it on his girlfriend’s car which had a flat tyre.  In August, a car was taken from outside Hutt Hospital; it was found in the same suburb three days later.   DNA from the many

cigarette butts left inside proved Mr McAlister had been in the car.

1      New Zealand Police v McAlister [2017] NZDC 22770.

MCALISTER v POLICE [2017] NZHC 2881 [22 November 2017]

[3]      Finally, on 1 September a car was taken from a car park.   Police observed

Mr McAlister driving it.  He refused to pull over and a chase ensued.  Mr McAlister drove at up to 100 kph in a 50 kph area, drove on the wrong side of the road and forced other motorists to take evasive action. It was discovered subsequently that prior to the chase the car had been in a collision.  This was caused by Mr McAlister deliberately putting the car into a drift slide but losing control.

[4]      Mr McAlister  pleaded  guilty  to  all  offending.     The  end  sentence  was

20 months’ imprisonment, 18 months’ disqualification from driving and six months of post sentence release conditions.

Past offending and general circumstances

[5]      Mr McAlister is 22 years of age.  He was first sentenced to jail when 18 years of age in relation to a raft of offences commit over a two month period.  The main offending appears to have been theft and then use of a credit card, but there were also two charges of assaulting police and a disqualified driving offence. The sentence was five months’ imprisonment.

[6]     Four months later, obviously having been released, there was a further appearance for breach of release conditions and shop lifting, none of which resulted in a sanction.  There was then a year before another appearance for theft from a car which resulted in community work.

[7]      In January 2016, so nearly two years after his first jail sentences, Mr McAlister was sentenced to two months’ imprisonment for theft from a car.  Then in July 2016, an eight month sentence was imposed for similar offending as well as taking cars, and receiving.  A similar sentence for the same thing was imposed in February 2017, and then the current offending occurred shortly after his release.

[8]      It follows that all the current offending was committed while subject to release conditions, and the offending after June 2017 was also committed while on bail. Concerning that bail, Mr McAlister had indicated a wish to take part in a Limited Service Volunteer Course.  That is a programme run by the New Zealand Defence

Force on behalf of Work and Income.  Its aim is to build confidence and increase job prospects.

[9]      Concerning this proposal the pre-sentence report notes:

Mr McAlister has expressed a willingness to comply and desire to make positive changes within his life in order to remain offence free. Mr McAlister was accepted onto the Limited Service Volunteer Course (LSV), this would enable him to gain necessary and essential skills to assist him to obtain employment upon completion.   However this was postponed pending his Court outcome as there was no perceived value in allowing him to take part in the Course if a sentence of imprisonment was a strong possibility.

[10]     I observe that this is a real shame, and the reasoning is flawed.  It is important that decision makers recognise the self-fulfilling nature of such decisions.  Deprived of the opportunity to actually demonstrate the commitment to change, offenders are placed in a much worse position.  Their commitment can appear superficial as it has been assessed here.  The options open to a court are diminished correspondingly, and often prison will occur, and the cycle perpetuates.

[11]     As it happens Mr McAlister did then reoffend, committing the later offences for which he was sentenced.  The sentencing Judge, who happened to have been the bail Judge, understandably took a dim view.  Home detention was rejected despite it being the pre-sentence report recommendation because it was considered, given the past offending and the current offending on bail, that the constraints of electronically monitored home detention would be insufficient to dissuade Mr McAlister from reoffending.

[12]     A  notable  feature  of  this  case  is  that  there  is  little  insight  into  why

Mr McAlister continues to offend in this way.  He himself says he does not want to but cannot help himself.  There does not seem to have been any expert assessment of him.  A previous request to see a psychologist had not been processed – “due to

Mr McAlister having active charges a referral could not be made.”

[13]     There seems a reasonably constant pattern of Mr McAlister expressing what is assessed as a genuine desire for change, but not matching that with his actions.  It is not clear what assistance he has had, but I acknowledge that post release conditions

will have been directed at that.   No doubt the bulk of responsibility for missed opportunities lies with Mr McAlister.

[14]     Another interesting aspect of the case is that Mr McAlister has never been subject to an electronically monitored sentence.  I am advised this is because he has never been able to proffer a suitable address.  The pattern of short sentences imposed here on a young man tends to support that proposition.   However, there is now a suitable address.  The occupant is a mature woman whom Mr McAlister seems to respect.  It is a situation that proffers some hope that the opportunity for change may be taken.

[15]     The pre-sentence report recommended the following single special condition:

1.Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.

[16]     It is an unambitious list as these types of conditions go, but no doubt reflects the reality that presently there is limited understanding of what is going here and why. I am concerned at the obvious pattern emerging with Mr McAlister.  The progression of sentences of greater length is clear and he has an alarming number of short prison sentences for a person of his age.  There are 16 sentences of five months’ or less that have been imposed in circumstances where that is the longest sentence. There are then several more of this length but they are attached to a longer sentence of eight months’ imprisonment.

[17]     None of this is to criticise past sentencing decisions but to recognise that at

22 years of age a crossroads appears to have been reached.  The availability of an electronically monitored sentence, followed by a year of post detention conditions presents an opportunity I consider should be taken.

Decision

[18]     The appeal is allowed.  The sentence imposed by the sentencing Judge was in error and home detention is appropriate in this case.2  All sentences of imprisonment are quashed and in their place I impose the following:

(a)       nine months’ home detention – unlawful taking of a motor vehicle

(CRN … 4004);

(b)      four  months’ home  detention  –  unlawfully  interfering  with  a  car

(CRN … 4186 and … 2627);

(c)      one  month  home  detention  –  driving  in  a  dangerous  manner (CRN … 4003), theft from a car (CRN … 2626), and failing to stop (CRN … 4001).

[19]     All terms are concurrent.

[20] The special condition at [15] above is imposed. There will be the standard post release conditions, and the same special condition will apply post release. All post detention conditions are for 12 months.

[21]     The non-imprisonment sentences are unchanged.

[22]     This judgment will take effect once the electronic monitoring is organised and the sentence of home detention can commence.  Until then the existing warrant of

imprisonment authorises continued detention.

Simon France J

2      Criminal Procedure Act 2011, s 250(2).