McLean v Police
[2018] NZHC 102
•13 February 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2017-441-45 [2018] NZHC 102
BRIAN JOHN PERCY MCLEAN
v
NEW ZEALAND POLICE
Hearing: 7 February 2018 Appearances:
W Hawkins for Appellant
CC Gullidge for RespondentJudgment:
13 February 2018
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr McLean pleaded guilty to one charge of assault with intent to injure.1 On
15 November 2017 in the Napier District Court, Judge Rea sentenced Mr McLean to
12 months’ imprisonment with six months of release conditions.2
[2] Mr McLean appeals his sentence on the basis that the sentence of imprisonment was manifestly excessive. Mr Hawkins for the appellant submits that Judge Rea failed to give measured consideration to imposing a sentence of home detention because:
(a) the Judge wrongly focused on the sentencing principles of denunciation
1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 New Zealand Police v McLean [2017] NZDC 25984.
MCLEAN v NEW ZEALAND POLICE [2018] NZHC 102 [13 February 2018]
and deterrence to the exclusion of other sentencing principles, in particular the rehabilitation of the appellant; and
(b)the sentencing Judge considered that home detention could not serve to denounce and deter the appellant.
[3] The Crown opposes the appeal and Mr Gullidge argues that it was open to the sentencing Judge to focus on the principles of denunciation and deterrence as opposed to rehabilitation given that the appellant is aged in his mid-forties and has over 100 previous convictions, including several convictions for violence. It is further argued that the end sentence of 12 months’ imprisonment was the least restrictive sentence available that would sufficiently denounce and deter the appellant given the gratuitous violence involved in the offending and his lengthy conviction history. Issues that arise in this appeal are whether the Judge erred in focusing solely on deterrence and whether a sentence of home detention adequately serves the principles of denunciation and deterrence.
Factual background
[4] The charge of assault with intent to injure arose from an incident on
15 September 2017. Mr McLean entered the Maraenui TAB at about 8.30pm and approached an associate in the gaming room. He was agitated at the time and, shortly after speaking quickly to his associate, he left the gaming room, appearing angry.
[5] As Mr McLean began to leave the TAB, he looked around and saw the victim looking at him. He yelled out to the victim, asking, in crude language, what he was looking at. He then approached the victim, who was sitting down at a bar leaner, drinking a beer at the time. Without warning, Mr McLean hit the victim in the side of the head in the region of his temple, once, with a round house punch. This immediately knocked the victim unconscious and he fell to the ground, hitting his head on the bar leaner rail as he did so. Mr McLean then left the TAB, challenging people who wanted to intercept him.
[6] The victim remained unconscious for a number of minutes and was taken by ambulance to the hospital where he was treated for concussion and a cut gum due to a
tooth piercing his cheek. The victim impact statement indicated that the victim suffered some residual physical effects such as tiredness and slurred speech and some psychological effects.
[7] Mr McLean is 46 years of age. He had over 100 previous convictions from
1986-2011, including the following convictions for violence:
(a) assaulting Police (2011);
(b) common assault (2002, 2001 & 1992);
(c) fighting in a public place (1998 & 1995);
(d) male assaults female (1993); and
(e) robbery by assault (1989).
District Court decision
[8] In sentencing Mr McLean, Judge Rea commented that Mr McLean had “a disgraceful record over the years” and that his situation was serious.3 He also noted that Mr McLean was extraordinarily lucky not to be facing a murder or a manslaughter charge.4 Both of those comments are entirely justified.
[9] The Judge adopted a starting point of 16 months’ imprisonment, reducing this by four months (equivalent to 25 per cent) to recognise Mr McLean’s guilty plea.
Mr Hawkins accepted that no issue could be taken with the 16 months starting point. Home detention was not considered by the Judge to be an option in the present case.
Approach to appeal
[10] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence
3 At [4].
4 At [5].
must be allowed if the Court is satisfied that, for any reason, there is an intrinsic error in the sentence imposed and a different sentence should be imposed.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6
Mr McLean’s position
[11] Mr Hawkins, on behalf of Mr McLean, argues the sentence was manifestly excessive and the Judge erred. He submits a sentence of 6 months’ home detention was more appropriate in this case.
[12] First, he submits that the Judge focused on one principle of sentencing and did not consider an end sentence of home detention. This was done by placing primary emphasis on denouncing and deterring the conduct in question. This is encapsulated in the sentencing notes at [8] as follows:
There is no point in putting this off for a home detention report. This sort of conduct needs to be denounced and deterred and the Courts have a responsibility to the public to do so. Home detention simply would not be an option.
[13] Mr Gullidge for the Crown acknowledges that the Judge was in error in saying there was no point in putting the matter off for a home detention report as the pre- sentence report had addressed the issue of home detention. The appellant argues that the error is that this assessment focuses only on one sentencing principle to the exclusion of other principles or purposes such as the need to rehabilitate7 and to impose the least restrictive outcome.8 It was also argued that this reasoning demonstrated that the Judge did not consider that home detention could serve to denounce and deter the appellant which is an error.9
[14] The appellant must show that the error has led to a sentence that is manifestly excessive. The appellant submits that in this instance the error of focusing on
5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
6 Ripia v R [2011] NZCA 101 at [15].
7 Sentencing Act 2002, s 7(1)(h).
8 Sentencing Act 2002, s 8(g).
9 Manikpersadh v R [2011] NZCA 452 at [24].
deterrence appears to have eclipsed all other sentencing considerations, including the personal circumstances of the appellant.
[15] The pre-sentence report of 10 November 2017 was largely favourable to the appellant in promoting a community based sentence, placing some emphasis on the rehabilitative needs of the appellant. It noted that Mr McLean was remorseful and willing to participate in restorative justice. These matters do not appear to have been given any weight by the sentencing Judge.
[16] Mr McLean also had employment unloading commercial fishing vessels at various ports throughout the North Island. A reference from the appellant’s employer was provided to the District Court for sentencing. No weight appears to have been given to this factor.
[17] I acknowledge that the issue of employment was not straightforward with the appellant having been off work with a back problem at the time of the sentencing and some of the work requiring the appellant to be away from Hawkes Bay overnight.
[18] The appellant submits that when considering the above personal circumstances and the need to impose the least restrictive outcome and the need to promote rehabilitation, a sentence less than a term of imprisonment should have been properly considered. The pre-sentence report confirmed that Mr McLean, if sentenced to supervision, would have special conditions to attend counselling and attend an assessment with a Departmental Psychologist. These conditions could have been imposed as part of a sentence of home detention or forming part of post detention conditions. It was submitted that this approach is not only consonant with well- established sentencing principles and policy, but is also in the interests of Mr McLean and the community. A sentence of home detention would also serve to denounce and deter the appellant’s offending and deter others in the community also. Counsel submits that when measured consideration is given to all the relevant principles and purposes of sentencing, a different sentence would have been imposed, namely home detention.
[19] It is submitted that the end sentence of 12 months’ imprisonment without measured consideration of home detention was manifestly excessive. It is therefore submitted that the appeal should be allowed and the Court impose a sentence of home detention of approximately three months, allowing for the fact that Mr McLean has been in custody since November 2017.
Crown’s position
[20] The respondent submits that the end sentence was not substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending, the culpability of the appellant, and his personal circumstances.
First ground – inappropriate focus on denunciation and deterrence
[21] The Crown accepts that the sentencing Judge only referred to the principles of denunciation and deterrence and that it was open to the Judge to consider other sentencing principles.
[22] Given the nature of the offending, the following sentencing principles under s
7 of the Sentencing Act 2002 were relevant:
(a) holding the offender accountable for harm done to the victim and the community by the offending;
(b)promoting in the offender a sense of responsibility for, and an acknowledgement of, that harm; and
(c) protecting the community from the offender.
[23] In sentencing Mr McLean, the Crown submits that little weight could be attributed to the principle of rehabilitation. The appellant had over 100 previous convictions from 1986 – 2011, including several convictions for violence. While it is accepted that the appellant had no previous convictions more recent than 2011, the sheer quantity of convictions over such a long period suggests the appellant lacks good prospects for rehabilitation.
[24] In Manikpersadh v R, a sentence of four months’ imprisonment was commuted to four months’ home detention on appeal.10 In that case, the appellant was aged
19 years when the offending occurred, he had no previous convictions, he pleaded guilty immediately and was clearly remorseful, he paid $9000 by way of full reparation, and he had a supportive family who recognised his alcohol problem. The Court of Appeal found the appellant’s personal circumstances and his rehabilitation and reintegration into society all pointed strongly toward a sentence of home detention.
[25] In Moa v Police, a sentence of 12 months’ imprisonment was commuted to six months’ home detention with a further reduction of three months for time served.11
The appellant was aged 21 years and had a limited criminal history. Moa cited several other decisions that involved similar offending for which sentences of imprisonment had been commuted to home detention. These cases all involved youthful offenders (the eldest being 25 years) with limited or non-existent conviction histories.
[26] While the appellant did plead guilty at an early stage and the pre-sentence report noted he seemed genuinely remorseful, Mr McLean lacks the youth and the limited or unblemished record of appellants in Manikpersadh and Moa and the cases cited therein.
[27] The end sentence of 12 months’ imprisonment was the least restrictive sentence available that would sufficiently denounce and deter the appellant given the gratuitous violence involved in the offending and his lengthy conviction history.
[28] While the Crown accepts the sentencing Judge did not explicitly refer to the principle of rehabilitation, it is submitted that it was open to the sentencing Judge to attach minimal, if any, weight to this principle given the limited prospects for rehabilitation shown by the appellant’s lengthy criminal history. The Judge did, however, consider home detention as an option and was emphatic in his rejection of
it.
10 Manikpersadh, above n 9.
11 Moa v Police [2017] NZHC 223.
Second ground – home detention could not denounce and deter the appellant
[29] The Crown accepts as a general principle that a sentence of home detention can satisfy the principles of deterrence and denunciation.
[30] Given the appellant had previously received sentences of imprisonment for offending and non-custodial sentences for violent offending, the Crown submits that a sentence of home detention would not have sufficiently deterred the appellant nor denounced his conduct.
Relevant Law
Sentencing purposes and principles
[31] Sections 7 of the Sentencing Act 2002 sets out the purposes of sentencing:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the offence; or
(d) to provide reparation for harm done by the offending; or
(e) to denounce the conduct in which the offender was involved;
or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender’s rehabilitation and reintegration; or
(i) a combination of 2 or more of the purposes in paragraphs (a)
to (h).
(2) To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
[32] In this case, the sentencing Judge appears to have focussed solely on the purposes of denouncing the conduct (s 7(1)(e)) and deterring the conduct (s 7(1)(f)). The Judge appears to have afforded no weight to the defendant’s expressed remorse for the crime, despite s 7(1)(b) speaking of promoting in the offender a sense of responsibility for the crime. As s 7(2) notes, no purpose is to be given greater weight than any other purposes referred to.
[33] Section 8 of the Sentencing Act sets out the principles of sentencing:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i) must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other
means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[34] The sentencing Judge has not referred at all to a number of these principles of sentencing. While the defendant does have over 100 previous convictions, some of which were for violent offending, the most recent of these was in 2011. The striking feature of this is that, after a sustained period of regular and prolific offending the appellant appears to have made a significant and, up until this incident, successful attempt to turn his life around. While the appellant cannot claim the benefit of youth and absence of a prior record such as the defendant in Manikpersadh, he can claim credit for his sustained efforts at rehabilitating himself since 2011. This would indicate that rehabilitation is realistic in this case and is a factor which should have been given careful consideration.
[35] The pre-sentencing report recommended a community based sentence which would allow for the rehabilitative needs of Mr McLean. These were the sort of considerations that the sentencing Judge needed to take into account.
[36] Under s 15A of the Sentencing Act 2002, the Court has a discretion to impose a sentence of home detention. That section provides:
15A Sentence of home detention
(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short- term sentence of imprisonment.
(2) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[37] In Fairbrother v R, the Court of Appeal stated:12
[29] 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.
[30] 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.
[38] This approach followed another Court of Appeal decision of Manikpersadh v
R where the Court held:13
We are satisfied the Judge in the District Court was in error when he focussed solely on deterrence when considering whether he could impose a sentence of home detention instead of imprisonment. We are also satisfied the Judge in the High Court was in error when she failed to recognise that the District Court’s narrow focus was an error that needed correction on appeal.
[39] Section 16 of the Sentencing Act 2002 mandates that the Court must not impose a term of imprisonment unless it is satisfied that the principles and purposes of sentencing cannot be achieved by a sentence other than imprisonment. It is submitted that this is a high threshold and that a sentence of imprisonment is often referred to as the sentence of “last resort”.14
[40] The Judge declined to impose home detention in this case, stating that it was not an option. The Judge commented that such conduct as Mr McLean’s needed to be
denounced and deterred and the Courts have a responsibility to do so.
12 Faribrother v R [2013] NZCA 340 at [29]–[30].
13 Manikpersadh v R, above n 9, at [8].
14 R v Rawiri [2011] NZCA 244 at [18].
[41] However, I do not believe the Judge could be satisfied that the purposes of denunciation, deterrence and rehabilitation could only be achieved by a sentence of imprisonment.15 The Judge failed to consider rehabilitation and whether the purposes of sentencing could still be met by a sentence other than imprisonment. In Fairbrother v R, the Court of Appeal confirmed that the failure to take into account all the purposes of sentencing when considering home detention is an error of law.16 In that case, in comparing the sentences of home detention and imprisonment, and the task of the sentencing judge, the court said:17
… 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.
[42] Undertaking such a principled analysis in the present case would involve considering whether a sentence of home detention and community supervision would allow Mr McLean to continue the rehabilitative efforts that he had embarked upon.
[43] The offence Mr McLean has committed is serious. However, a sentence of home detention can still denounce this conduct, promote a sense of responsibility for the harm he has caused, and protect the community while also assisting in his ongoing rehabilitation to address the underlying causes of his offending.
[44] In my view, the Judge was in error in seeming to focus exclusively on the principle of deterrence and denunciation, in not acknowledging that a sentence of home detention can have that effect and in not having regard to the sustained rehabilitative efforts Mr McLean had made, his remorse and the prospect of his future rehabilitation. As the Court said in R vRawiri:18
… Judges will generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation, unless other sentencing principles or purposes operate to rule out that option.
15 Sentencing Act 2002, s 7(1).
16 Fairbrother v R [2013] NZCA 340 at [29]–[30].
17 At [30].
18 R v Rawiri, above n 14, at [22].
[45] The sentence of 12 months’ imprisonment should therefore be substituted with a sentence of home detention. This would normally mean a sentence of six months’ home detention. However, this needs to be reduced further to take into account the time Mr McLean has spent in custody.
[46] The objective of rehabilitation also requires the imposition of some special conditions. These are that Mr McLean:
(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.
(2)Attend and complete an appropriate substance use programme and/or counselling to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
Conclusion
[47] I therefore allow the appeal on the ground that the Judge erred in only taking into account the purposes of deterrence and denunciation, and in failing to properly consider home detention as an option or take into account the relevant considerations under s 15A of the Sentencing Act in declining home detention.
[48] The sentence of 12 months’ imprisonment should be quashed and substituted with a sentence of four and a half months’ home detention, which takes into account time already spent in custody.
[49] Mr McLean should serve this sentence at the address in Napier, which has already been approved by Corrections as suitable.
[50] The sentence of home detention is subject to the special conditions set out in para [46] of this decision.
[51] The varied sentence will commence on 13 February 2018 in order to give the
Napier Probation Service the necessary time to implement the necessary logistical arrangements.
Churchman J
Solicitors:
Public Defence Service, Hawke’s Bay for Appellant
Crown Solicitor, Napier for Respondent
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