Moa v Police

[2017] NZHC 223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-010 [2017] NZHC 223

BETWEEN

MICHAEL MOA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 February 2017
Counsel:	J Grainger and G Vear for Appellant A McConachy for Respondent
Judgment:	21 February 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 21 February 2017 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

MOA v POLICE [2017] NZHC 223 [21 February 2017]

[1]      Mr Moa appeals against his sentence of 12 months’ imprisonment on one count of assault with intent of injure and one count of breach of community work. Mr Moa contends that the District Court Judge erred in:

(a)      Imposing  a  sentence  of  imprisonment  when  the  least  restrictive sentence appropriate in the circumstances was one of home detention;

(b)By  giving  excessive  weight  to  the  fact  that  the  offending  was committed while subject to supervision and that the defendant had breached an evening curfew while on bail; and

(c)       By  giving  insufficient  weight  to  the  defendant’s  limited  criminal

history and prospects for rehabilitation.

Sentencing notes

[2]      The  Judge  helpfully  summarised  the  background  facts  which  are  not disputed:

[2]       You were out clubbing. You were drunk. You got into an altercation over nothing with another patron at the club where you were.  You could not let it go.  You returned to him and king-hit him.  You hit him once hard.   He went straight out.   He was unconscious for a period of time. You left him to others and left the nightclub.  He and you were very fortunate that he fell without causing serious damage to himself.   You will have heard many stories where people have been killed in exactly that way.

[3]      The starting point of 18 months adopted by the Judge, together with the discount of eight months, also not disputed.

[4]      In terms of home detention, the reasons for declining it are succinctly stated:

[7]       Mr Grainger has tried hard to convince me that home detention is the least restrictive outcome.   That your rehabilitative needs could be met by a sentence of home detention.  For many people they can be, but they require a fair degree of cooperation and willingness on your part to engage.  We have just come off a sentence of supervision that was designed to get you to do exactly the sort of thing you say you are ready to do now.  That was for a very similar violent offence. You were under no allusions when you pleaded guilty what you

needed to do.   What your jeopardy was and you were unable to comply with the conditions of your bail as you awaited sentence.

[8]       Unfortunately, that means I just cannot have any faith that you are just in the right place to be able to abide by the conditions of a home detention sentence which has a rehabilitative aspect to it at the moment.     That  means  that  imprisonment  has  to  be  the  least restrictive outcome.

[5]      The Judge sentenced Mr Moa to 12 months’ imprisonment, together with

special release conditions and an emotional harm declaration of $300.

Jurisdiction

[6]      This is an appeal, pursuant to s 250 of the Criminal Procedure Act 2011, against sentence.   It is now settled law that an appeal may be allowed if, for any reason, there is an error in the sentence and that a different sentence should be imposed. The standard of appellate review requires that an appellant show a material error was made and satisfy the appellate court that a different sentence ought to be

imposed.1    This standard of review applies as much to decisions not to commute

imprisonment to home detention as it does to any other sentence.2 An appellate court will, however, be reluctant to interfere unless the end sentence was outside the range available to the sentencing Judge and the margin of appreciation extended to sentencing Judges is usually significant.3

Issues

[7]      The issues on appeal are noted at [1], dealing with each in turn. [8]    Mr Grainger submits:

(a)      In  giving excessive weight  to  breach  of bail  and  offending while subject to supervision, the Judge minimised the significant factors in favour of home detention and including a combination of Mr Moa’s

prospects for rehabilitation, youth and remorse;

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [27] – [28].

2      Palmer v R [2016] NZCA 541 at [18].

3      Palmer v R at [19].

(b)Several   High   Court   decisions   have   commuted   a   sentence   of imprisonment to home detention on the basis that the District Court had  not  properly  weighed  relevant  factors  in  favour  of  home detention;4

(c)      A number of these cases involved punches to the head and/or similar or more serious offending;

(d)Previous history for relevant offending is not necessarily a barrier to receiving home detention;5

(e)      There are significant mitigating factors in the present case, including that Mr Moa is of comparatively young age, has a limited criminal history, was in positive employment at the time of the offending, has a supportive family and is remorseful;

(f)      A  sentence  of  home  detention  will  secure  the  protection  of  the community and that at 21 years of age at the time of the offending, youth considerations are relevant; and

(g)The advantages of home detention are recognised, including low rates of reconviction and positive support for an offender’s reintegration and rehabilitation.6

[9]      Ms McConachy, for the respondent, submits:

(a)      Home detention was not inappropriate in the circumstances and there is no presumption in favour of home detention over imprisonment. Reference is made to the decision of Palmer v R which involved a one-punch incident although, in that case, the victim died as a result. The  Court  of Appeal  in  that  case  upheld  the  sentencing  Judge’s

decision not to commute the sentence to one of home detention;

4      Dean v Police [2014] NZHC 1542; Rewa v Police [2015] NZHC 2459; Takerei v Police [2014] NZHC 3360; Luff-Pycroft v R [2012] NZCA 107.

5      Takerei v Police, above n 4; Dean v Police, above n 4.

6      Citing R v Hill [2008] NZCA 41 at [33].

(b)Judge  Thomas  considered  relevant  factors  and  concluded  that  a sentence other than imprisonment would not meet the relevant purposes of sentencing;

(c)      It was appropriate for the Judge to take into account the Mr Moa’s prior conduct, being his previous conviction for violence and assault, the breach of his community work and breaches of bail while awaiting sentence.  In addition, Mr Moa’s failure to comply with the conditions of a community-based sentence is a relevant consideration; and

(d)All of these factors are said to demonstrate the inappropriateness of him being detained at home.

Assessment

[10]    It is difficult to reconcile the Judge’s decision to impose a sentence of imprisonment with the case law cited by Mr Grainger in which sentences of imprisonment were commuted to home detention.   Those cases bear striking similarities to the present case, involving a dangerous punch or “king hit” to the head (bar Luff-Pycroft which involved strangulation) and serious consequences for the

victim. There were also, in some of those cases,7  examples of prior convictions for

similar  offending  and  non  compliance  which  bear  on  the  assessment  of  the usefulness of home detention as a rehabilitative mechanism and also as a mechanism for protecting the public. The mitigating factors cited in those cases, including youth and prospects of rehabilitation are also equally major factors in this case. Furthermore, as Ms McConnochie properly agreed, the facts in Palmer are distinguishable. The death of the victim in Palmer always made the prospect of reversal on appeal difficult.  I also agree with Mr Grainger that significant emphasis appears to have been given to Mr Moa’s risk factors with only sparse emphasis given to the factors justifying home detention. But, assuming the Judge’s assessment of Mr Moa’s prospects of rehabilitation and risks factors to be correct, the decision to impose a sentence of imprisonment was available to the Judge given the nature of the offending.

[11]     I am however in disagreement with the Judge’s assessment of the nature of the risk presented by Mr Moa to the public and his prospects for rehabilitation. These factors needed to be analysed more precisely in my view.  The offending in this case occurred in a social context involving alcohol rather than a domestic one. The underlying risk therefore presented by Mr Moa is not obviously transferable to the domestic or familial environment especially where he has strong family support and no history whatsoever of violence in the home.   The mitigating effect of electronically monitored home detention within the family home in terms of repeat offending is a further factor which offsets to a material degree the Judge’s clear concern about Mr Moa’s prior history of offending while subject to Court order.

[12]     Coming then to my evaluation; there is no suggestion by the Crown that home detention would not adequately give vent to the principles of deterrence and denunciation in this case. Conversely, the benefits of home detention in terms of rehabilitation of young men, given a supportive familial environment are well known.8     For  the  reasons  already  expressed,  I  also  consider  that  electronic monitoring in the context of a supportive family environment will sufficiently mitigate the ongoing risks presented by Mr Moa in terms of breaching sentence and in  terms  of  further  offending.  Conditions  prohibiting  consumption  of  alcohol,

identified in the presentencing report as a key factor in the offending, should also assist in mitigating the risks presented by him.

[13]     I am fortified in reaching this view by the pre-sentencing report which, in fact, recommended community detention and intensive supervision. While that sentence would not serve the principles deterrence and denunciation in this case, the recommendation is indicative of the level of risk presented by Mr Moa.

[14]     In those circumstances, I disagree with the Judge’s assessment of the risks presented by Mr Moa and the futility of home detention, particularly given the support he has of his family. For the reasons noted at [11]-[12] I therefore commute

the sentence of 12 months’ imprisonment to 6 months’ home detention, with a further reduction to 3 months for time served. There shall also be the conditions as agreed between counsel and attached as Appendix A.

APPENDIX A

1         The standard conditions of home detention as set out in s 80C(2) Sentencing

Act 2002 apply.

2         The home detention address is [suppressed].

3In addition it is agreed that the following special conditions should apply pursuant to s 80D Sentencing Act 2002:

a.        not to possess or consume alcohol or other non-prescription drugs;

b.not to go to the Auckland Central Business District, as defined by the Auckland City Council alcohol ban area, except with the permission of a Probation Officer;

c.        to attend and complete an appropriate drug and alcohol assessment and/or programme to the satisfaction of the Probation Officer and programme provider.   Details of the appropriate program to be determined by the Probation Officer;

d.if  meets  criteria,  to  undertake  a  pre-programme  interview  and complete any Departmental program, subject to availability, to the satisfaction of the Probation Officer and programme facilitators; and

e.        to attend any assessment, counselling, treatment or programme as directed by a Probation Officer.

4Commencement of the home detention sentence should be deferred until 12 pm Friday, 24 February 2017 to give Mr Moa time to travel to his home detention address from Hawke’s Bay Regional Prison.

5The standard post detention conditions as set out in 80O Sentencing Act 2002 apply.

6The conditions as specified above in paragraph 3 should also apply as special post-detention conditions pursuant to 80P Sentencing Act 2002.