P v Police HC Tauranga CRI 2008-470-16

[2008] NZHC 1076

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-470-16

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 July 2008

(Heard at Rotorua)

Appearances: N Dutch for the Appellant

C A Harold for the Respondent

Judgment:      9 July 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr N M Dutch, Barrister, Tauranga

Ms C A Harold, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

P V NEW ZEALAND POLICE HC TAU CRI 2008-470-16 9 July 2008

[1]      Mr P   appeals against a sentence imposed in the District Court on 21

April 2008 for common assault.  The victim was his partner of 14 years.

[2]      The learned District Court Judge imposed a sentence of 80 hours community work with authorisation for hours to be converted to training.   He also imposed supervision for 9 months subject to the standard conditions and a special condition.

[3]      The offence occurred at the home of Mr P   and his partner.  Mr P  ’s partner picked up Mr P  ’s cellphone and found a message indicating that Mr P   had had a relationship with another woman.  That led to an altercation.  Mr P   rushed at his partner, grabbed her by the hair with both hands, then threw her to the ground and held her down.  Mr P  ’s partner was trying to escape and was trying to kick him in an effort to escape.  He then placed his foot on her head and turned it, as the Police summary of facts says, “like he was stubbing out a cigarette”. Mr P   then picked up his partner and threw her out of the house and locked the door.  Mr P  ’s partner received bruising to her head, arms and ribs as a result of the attack.

[4]      Prior to sentencing, Mr P  ’s partner had, through the Department’s victim adviser, provided a letter.  She asked that the charges be dropped.  She noted that at the date of her letter they had been together for 15 years.   She said that they had talked to Mr P  ’s uncle, who is a minister in Rotorua and “have started to communicate with each other so much better than we ever have in the past”.  She expressed great confidence that an event of this sort would never happen again.

[5]      Mr P  , aged 41, has no previous convictions of any description.

[6]      The incident occurred in December 2007.  Following some adjournments and a status hearing Mr P   pleaded guilty.  Mr Dutch, who appeared on the appeal for Mr P  , appeared on his behalf in the District Court.   He confirmed that the sentencing took place in a busy List Court.   The learned Judge’s notes are understandably brief.   It is convenient to set out the two short paragraphs of the notes:

[1]       Mr P  , you have pleaded guilty to a single charge of assault. You  and  I both  know  that it  was  not  a pretty assault,  I have  seen  the photographs.  You are 40 years of age.  You have not been before the Courts on a charge of this kind to my knowledge, but you need to understand that this type of assault is not regarded as minor by me, or indeed by anybody in this Court.

[2]       In my view nothing less than community work is required.  You will be convicted and sentenced to 80 hours community work.  Authorisation is given to convert hours to training.  You are also sentenced to supervision for a period of nine months with a special condition that you are to undertake such courses, counselling, treatment and training as may be required by a Probation Officer including anger management and relationship counselling.

[7]      The points on appeal, in broad terms, were that the sentence of supervision could not be justified in terms of the relevant statutory provisions and, secondly, that community work coupled with supervision constituted a manifestly excessive sentence, having regard in particular to the nature of standard conditions for supervision.

[8]      There  is  no  indication  from  the  sentencing  notes  that  the  learned  Judge addressed the special statutory provisions that apply to sentences of supervision and to the combination of a sentence of community work with supervision.   I readily acknowledge that in the time available in a List Court it is not possible to record all matters that may have been taken into account, but from the information available to me it does appear that these matters may not have been addressed.   The relevant provisions are as follows:

20       Guidance on use of combinations of sentences

(1)       A court may impose a particular combination of sentences on an offender  only  if  satisfied  that  any  of  the  sentences  making  up  the combination, if imposed alone or in any less restrictive combination, would not be in accordance with—

(a) the purpose or purposes for which sentence is imposed; or

(b) the application of the principles in section  8 to the particular case.

(2)      A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that—

(a) a sentence of community work is appropriate; but

(b)the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending.

46       Guidance on use of sentence of supervision

A court may impose a sentence of supervision only if the court is satisfied that  a  sentence  of  supervision  would  reduce  the  likelihood  of  further offending by the offender through the rehabilitation and reintegration of the offender.

50       Special conditions related to programme

A court may impose any special condition or conditions related to a programme if the court is satisfied that—

(a) there is a significant risk of further offending by the offender; and

(b) standard conditions alone would not adequately reduce that risk; and

(c)the offender requires a programme to reduce the likelihood of further offending by  the  offender  through  the  rehabilitation  and reintegration of the offender.

[9]      Ms Harold, for the respondent, submitted that the Judge’s references to the offending itself indicated that he had sufficient before him to enable him to make the supervision order on a proper application of the statutory provisions.  With respect, I do not agree.   I am not able from the limited note the Judge was able to make to come to the conclusion that the statutory provisions were fully addressed.   In any event on an appeal by way of re-hearing it is necessary that I look at these matters in the slightly more reflective environment that is now possible.

[10]     In  my judgment,  assessing  all  of  the  relevant  information  which  I  have outlined above, it is not possible to come to the conclusion that a Court would need to come to, under the three statutory provisions, in order to impose a sentence of supervision in conjunction with a sentence of community work and to apply the further provisions in ss 46 and 50.  All of the information now before me, save for the serious nature of the assault that occurred, tends to be neutral in relation to supervision or even point against a need for it.

[11]     What is at the very least neutral is the fact that at the age of 41 Mr P   has no previous convictions and no indications of having come to the attention of the Police.   Additionally, there is the letter from his partner which does tend to point against any need for supervision.  In that regard I also note that the learned Judge does not refer to Mr P  ’s partner’s views.   It is not clear whether his attention was drawn to the letter, which was written five or six weeks before the sentencing.  I

am dealing with the letter as relevant to the question of supervision in the context of the statutory provisions.  I should also note that the letter is also generally relevant to sentence.  Although it is certainly not a decisive matter – as numbers of cases make clear there are important countervailing considerations – it is a matter that should be taken into account on sentencing.

[12]     For the reasons outlined it is my judgment that the statutory criteria for combining a sentence of supervision with a sentence of community work were not present and the provisions of ss 46 and 50 do not apply.  Consequently, a sentence of supervision was not justified in addition to the sentence of community work.

[13]     Having come to that conclusion it is strictly unnecessary to consider the separate submission as to whether the combination of sentences resulted overall in a manifestly excessive sentence.  Had it been necessary to consider that aspect then in my respectful opinion the sentence in this case  was manifestly excessive.   The principal reason for that conclusion is that the numbers of standard conditions of supervision are fairly restrictive and these were to apply for 9 months.   The restrictions are, of course, added to by special conditions being imposed.

[14]     In  respect  of  the  sentence  of  80  hours  community  work,  Mr  Dutch responsibly acknowledged at an early stage that he could not argue that that was a manifestly excessive sentence standing alone, and notwithstanding an earlier submission that an appropriate penalty would have been a fine.

Result

[15]     The appeal is allowed to the extent that the sentence of supervision for 9 months is cancelled.  The sentence of 80 hours community work, with authorisation

to convert hours to training, remains.

Peter Woodhouse J