McFarlane v Police
[2020] NZHC 1866
•29 July 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000012
[2020] NZHC 1866
BETWEEN ALISTAIR JOHN MCFARLANE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 July 2020 Appearances:
A de Jager for the Appellant
C J Bernhardt for the Respondent
Judgment:
29 July 2020
JUDGMENT OF NATION J
Introduction
[1] The appellant, Mr McFarlane, pled guilty to charges of driving while disqualified, burglary, possession of methamphetamine and possession of ammunition. He was sentenced to 18 months’ imprisonment, ordered to pay reparation and disqualified from driving.1 He appeals his sentence on the ground it was manifestly excessive and home detention, rather than imprisonment, ought to have been imposed.
Facts
[2] On 15 October 2018, Mr McFarlane was disqualified from driving. On 26 June 2019, Mr McFarlane was observed driving a vehicle and performing a U-turn on Burns Street, Dunedin to avoid a Police checkpoint. He turned left on to South Road and left
1 Police v McFarlane [2020] NZDC 6136.
MCFARLANE v POLICE [2020] NZHC 1866 [29 July 2020]
again on to Baker Street where he parked the vehicle. Police located Mr McFarlane once he had exited the vehicle. Mr McFarlane denied driving the vehicle. He stated he did not know how it got there and he was just walking to the shop.
[3] At about 1.30 am on 5 October 2019, Mr McFarlane was intoxicated when he arrived at the Green Island Veterinary Clinic. Having looked around the property, Mr McFarlane smashed a window and entered the building. He rummaged through draws and looked through the back rooms of the clinic, including the drug room. At about
1.00 pm, Mr McFarlane handed himself in to the Police, stating he had consumed a large amount of alcohol and could not remember anything. He was on bail for the driving charge when this offending occurred.
[4] On 3 January 2020, Police attended Mr McFarlane’s address in relation to another matter. Police detected a strong smell of cannabis and invoked a search of the house. Police located ammunition on the sofa next to Mr McFarlane and in a vehicle on the property. Mr McFarlane does not hold a firearms license. Police located two bags of methamphetamine weighing a total of 8 g under the sofa Mr McFarlane was sitting on. Mr McFarlane admitted the drug was methamphetamine and claimed ownership, saying one was for him and one for a friend.
District Court decision
[5] Judge Crosbie considered the lead offending to be the charge of burglary and adopted a starting point of 12 months’ imprisonment. On the charge of driving while disqualified, an uplift of six months was applied; an uplift of three months was applied on the charge of possession of ammunition; and an uplift of two months for the methamphetamine offending. This brought the starting point to 23 months’ imprisonment.
[6] The Judge then applied an uplift of three months’ imprisonment to reflect that some of the offending occurred while on bail. A further uplift of two months’ imprisonment was applied to reflect Mr McFarlane’s criminal history.
[7] In respect of mitigating factors, the Judge applied a discount of three months (10 per cent) for addiction and personal mitigating factors. A discount of five months (20 per cent) for guilty pleas was applied. This brought the overall sentence to 20 months’ imprisonment.
[8] Having regard to the principal of totality, the Judge arrived at an end sentence of 18 months’ imprisonment.
[9] In relation to home detention, the Judge considered Mr McFarlane’s rehabilitative needs were outweighed by the need for deterrence. His Honour considered a sentence of home detention would be inadequate.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 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.4
[11] Home detention is an alternative to a short-term sentence of imprisonment.5 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.6
[12] An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.7 The Court of Appeal in Manikpersadh v R said:8
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Sentencing Act 2002, s 15A(1)(b).
6 Section 15A(1)(a).
7 Doolan v R [2011] NZCA 542 at [39].
8 Manikpersadh v R [2011] NZCA 452.
[11] This Court identified the appropriate approach in James v R in this way:
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”
[13]In Fairbrother v R, the Court of Appeal stated:9
[30] … 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.
[31] Sometimes, as this Court said in R v D (CA253/2008), 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”…
Submissions
Appellant’s submissions
[14] On behalf of Mr McFarlane, Mr de Jager submitted the District Court Judge erred when conducting the assessment of whether to commute the sentence of imprisonment to one of home detention.
[15] Counsel submitted there was an identifiable error in the Judge’s reasoning. The Judge had referred to Mr McFarlane’s offending history since 2008, a sentence of imprisonment of two years and eight months, and further offending since then. The Judge then said:
9 Fairbrother v R [2013] NZCA 340.
Since that period of incarceration you have had all of the non-custodial sentences possible, including: community work; community detention and intensive supervision as recently as 2017. Intensive supervision was imposed again alongside community work in 2018 and a breach of community work in 2019.
[16] Mr de Jager submitted the Judge had failed to note that Mr McFarlane had not previously been sentenced to home detention.
[17] It is submitted the District Court Judge placed too great a weight on Mr McFarlane’s criminal history and the fact he had served a term of imprisonment, and focussed too strongly on the principles of denunciation and deterrence.
[18] In support of Mr McFarlane’s sentence being commuted to home detention, Mr de Jager noted:
(a) Mr McFarlane plead guilty to all the charges at the earliest opportunity, save for the driving whilst disqualified charge;
(b) the burglary charge was Mr McFarlane’s first offence of its kind and he did not steal any property from the premises;
(c) Mr McFarlane has expressed remorse and a willingness to participate in restorative justice;
(d) the pre-sentence report has assessed Mr McFarlane as at medium likelihood of reoffending, was in full-time employment and was motivated to address his substance abuse;
(e) the offending was not premeditated; and
(f) Mr McFarlane has an appropriate home detention address.
[19] Mr de Jager took no issue with the notional end point reached but suggested commuting the sentence to one of home detention is appropriate on the basis it is the least restrictive sentence.
[20] Mr de Jager submitted the Judge erred in calculating the cumulative sentences. In his submission, the total months imprisonment equates to 20 months’, rather than 18 months’ imprisonment.
[21] Given Mr McFarlane has served three months’ in custody, Mr de Jager submitted an effective sentence to be commuted would be 17 months’ imprisonment and the sentence of home detention that should be imposed would be eight months and two weeks.
Respondent’s submissions
[22] On behalf of the Crown, Mr Bernhardt submitted the District Court Judge’s decision to not impose home detention was not an identifiable error and was not manifestly excessive.
[23] Mr Bernhardt stated the sentencing remarks disclosed several minor errors, however, it is submitted they are incorrect wording rather than errors of substance. Firstly, the starting point and uplifts applied by the Judge add up to 20 months’ imprisonment, rather than 18 months. Mr Bernhardt submitted the Judge had clearly articulated an intention to apply an end sentence of 18 months’ imprisonment. Furthermore, if the calculation had been relevant, it would be in Mr McFarlane’s favour.
[24] Secondly, when the Judge stated, “all of the non-custodial sentences possible, including: community work; community detention and intensive supervision”. Mr Bernhardt submitted the Judge intended to or should have said “all of the community- based sentences available”. Mr Bernhardt did not accept Mr de Jager’s submission that the comment implied the Judge had misunderstood Mr McFarlane’s criminal history. In Mr Bernhardt’s submission, had the Judge also mentioned home detention at that point, it would have been unquestionable that the Judge misunderstood Mr McFarlane’s sentence history.
[25]Mr Bernhardt referred the Court to the comments of Heath J in Awarau v Police
where it was considered the sentencing judge, in referring to home detention as a
“community-based” sentence, did not do so in a technical sense.10 Home detention was considered a “hybrid sentence”.
[26] Mr Bernhardt submitted a sentence of imprisonment rather than one of home detention was appropriate in the circumstances of this case. The burglary charge carries a maximum sentence of 10 years’ imprisonment. Mr McFarlane has a significant history for dishonesty offending. The driving while disqualified conviction was Mr McFarlane’s tenth conviction of this nature. Mr McFarlane has 10 previous convictions for breaching sentences or parole conditions, the most recent being in 2019.
[27] Counsel submitted a sentence of imprisonment has a higher denouncing and deterring effect than a sentence of home detention and this was appropriate in the circumstances of Mr McFarlane’s offending and criminal history.
Analysis
[28] In considering this appeal, I focus on whether the District Court Judge, in exercising his sentencing discretion, applied an incorrect principle of law or gave insufficient or excessive weight to a relevant factor. As previously noted, determining whether to commute a sentence of imprisonment to one of home detention is a strictly evaluative exercise.
[29] I accept that it appears the Judge made a calculation error when setting out the manner in which the sentence was to be imposed.11 However, his Honour clearly stated the end sentence was to be one of 18 months’ imprisonment, reflecting the totality of the offending. Having set out the sentence for each of the charges to be served cumulatively, the Judge stated it brought the sentence “to 18 months”.12 In my view, it is clear the Judge intended the end sentence to be 18 months’ imprisonment. While his Honour could have clarified his methodology, I do not consider this constitutes a material error.
10 Awarau v Police [2017] NZHC 1603 at [21].
11 Police v McFarlane, above n 1, at [23].
12 At [23(c)].
[30] In assessing the series of sentences Mr McFarlane had served, the Judge noted Mr McFarlane had “all of the non-custodial sentences possible, including: community work; community detention and intensive supervision as recently as 2017.”13 Home detention can be considered as a type of custodial sentence. The Judge’s comment was also made in the context of Corrections having recommended in the pre-sentence report a sentence of intensive supervision, reparation and community detention. In the District Court, that was the sentence which Mr McFarlane’s counsel had also asked for. His Honour canvassed Mr McFarlane’s history in detail. Given this careful canvassing, I consider his Honour would have been aware of the fact Mr McFarlane had not served a sentence of home-detention.
[31] Even if the Judge had failed to note Mr McFarlane had not previously been sentenced to home detention, given the reasoning in his sentencing decision, that would not have been a material error. The Judge was mindful of the possibility of home detention. He referred to an updated pre-sentence report that had said an address for home detention was technically available. He said a sentence of home detention or any less would be an inadequate deterrent sentence for Mr McFarlane.
[32] Mr McFarlane had been convicted of six charges of driving while disqualified. He has 12 convictions associated with breaches of community work, breach of parole conditions, breach of community detention, and escapes from custody. He has consistently failed to comply with community-based sentences. In light of this, I do not consider the Judge placed excessive weight on the criminal history. Nor do I consider his Honour misunderstood Mr McFarlane’s criminal history. His Honour simply weighed this history within the factual matrix of the case.
[33] The assessment of whether home detention is appropriate is a nuanced evaluation that must be based on the individual circumstances of the offender. I consider the Judge based his decision on Mr McFarlane’s personal circumstances and the offending. The Judge was mindful of Mr McFarlane’s struggle with substance abuse and the trauma he suffered following the death of his baby and father, both occurring within a month of each other.
13 At [12].
[34] The Judge considered the sentencing purposes of holding Mr McFarlane accountable and promoting a sense of responsibility to be important.14 The Judge was mindful of Mr McFarlane’s age (29), which is relevant to both the prospects of rehabilitation and the need for deterrence.
[35] The Judge clearly articulated he was aware there was a need for Mr McFarlane to receive rehabilitative treatment. However, considering the repeated offending that showed no sign of abating, the need to deter Mr McFarlane from continued offending outweighed the rehabilitative considerations.
[36] Mr McFarlane had written a letter to the Court. In that letter, he explained how his use of methamphetamine had caused considerable grief to his partner, siblings and father. He said he was honestly ready to change. The short term of imprisonment imposed should ensure there is a complete break from illicit drug use. On his release, he will be subject to release conditions that should ensure he has continuing support and supervision from Corrections to assist in his rehabilitation. He will have the opportunity to prove he can change in the way he says he wants to.
[37] I do not consider the Judge erred in determining that a short-term of imprisonment was the least restrictive sentence in this case. Nevertheless, it appears there have been slips in the Judge’s sentencing remarks which should be corrected to avoid an unintended injustice.
[38] The Judge clearly intended and expressly stated that, having regard to totality, the end sentence was to be 18 months’ imprisonment. Having said that, the sentences imposed on a cumulative basis were:
(a) for burglary – 12 months’ imprisonment;
(b) driving while disqualified – six months’ imprisonment;
(c) possession of explosives (ammunition) – two months’ imprisonment, which the Judge said was “cumulative bringing me to 18 months”.
14 At [12] and [13].
[39] In fact, cumulatively, that brought the total period of imprisonment to 20 months, which was not what the Judge intended.
[40] In his summary of sentences, the Judge also said Mr McFarlane “will be disqualified for a period of 18 months commencing from today” but then also he “will be disqualified for a period of 12 months commencing from [his] date of release”.15
[41] The Judge clearly did not intend to impose two sentences of disqualification. I infer he intended Mr McFarlane to be subject to effective disqualification for a period of approximately 12 months from his release from the sentence of imprisonment that was being imposed. For that reason, the Judge was sentencing Mr McFarlane to disqualification for a period of 18 months from the date of his sentencing to avoid any uncertainty as to when the disqualification would begin.
[42] To correct these errors, I allow the appeal but only to the extent that the sentence of two months’ imprisonment on the charge of possession of explosives is to be concurrent with other sentences. The sentence of disqualification for a period of 12 months beginning from the date of Mr McFarlane’s release is quashed. He remains subject to disqualification for a period of 18 months from the date he was sentenced, that is 7 April 2020.
[43]In all other respects, the sentence imposed in the District Court is confirmed.
Solicitors:
Public Defence Service, Dunedin Crown Solicitor’s Office, Dunedin.
15 At [23].
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