Patterson v Department of Corrections

[2023] NZHC 3377

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-606

[2023] NZHC 3377

BETWEEN

KAMARO LEE PATTERSON

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	24 November 2023
Appearances:	R Slade and S Noakes for the Appellant C Purdon for the Respondent
Judgment:	27 November 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 27 November 2023 at 11:00 am.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr R Slade, Ms S Noakes and Ms C Bond, Public Defence Service, Auckland Mr C Purdon, Meredith Connell, Office of the Crown Solicitor, Auckland

PATTERSON v DEPARTMENT OF CORRECTIONS [2023] NZHC 3377 [27 November 2023]

[1]    Mr Patterson appeals his sentence of six weeks’ imprisonment imposed by Judge K J Glubb in the Auckland District Court on 13 November 2023,1 after pleading guilty to one charge of breaching community work.2

[2]    Mr Patterson appeals on the basis that the Judge failed to adequately consider alternative sentences in determining the least restrictive sentence appropriate; erred in declining to grant an adjournment for him to consider his position on electronic monitoring; and that the sentence imposed was disproportionately severe given the Judge’s failure to take account of his personal circumstances.

The offending

[3]    On 17 August 2021, Mr Patterson was sentenced to 40 hours of community work for one charge of male assaults female.

[4]    On 23 September 2022, Mr Patterson was sentenced to a further 40 hours of community work for shoplifting.

[5]    On 4 November 2022, Mr Patterson failed, without reasonable excuse, to report to a Probation Officer as directed. As of that date, Mr Patterson had only completed 12 hours of community work, with 68 hours outstanding.

District Court’s sentencing decision

[6]    The Judge identified the aggravating factors of the offending as being a degree of planning or premeditation, and a total failure to engage in any meaningful way with the community-based sentence imposed.

[7]    As  for  Mr  Patterson’s  personal   circumstances,   the   Judge   said   that  Mr Patterson’s previous conviction history was “a little troubling”. He noted that for past breaches of community work Mr Patterson had been given community detention. There were also orders to come up if called upon back in 2014 and 2015. The Judge said none of that seemed to be working.

1      Department of Corrections v Patterson [2023] NZDC 25353.

2      Sentencing Act 2002, s 71(1)(a). Maximum penalty three months’ imprisonment or fine not exceeding $1000.

[8]    The Judge also considered that there were no mitigating features at all, noting Mr Patterson is aged 28. He said that Mr Patterson faced another charge of common assault, but he was not aware of that.

[9]    The Judge summarised Mr Patterson’s explanation for his non-compliance with community work: that he was in a stressful situation as his mother had been admitted to hospital due to a terminal illness. The Judge indicated that Mr Patterson remained silent when asked whether he had tried to contact the community work team. The pre-sentence report writer indicated he displayed an interest in re-engaging with community work, but Mr Patterson had not contacted them. The Judge noted that factors leading to the offending were said to be attitudes and an inability to problem solve, and that Mr Patterson was assessed as having a medium risk of re-offending and harm.

[10]   The Judge noted that Mr Patterson has previously been subject to home detention and community work, but his level of compliance has been unsatisfactory.

[11]   The pre-sentence report writer canvassed the option of an electronically monitored sentence. However, the Judge noted Mr Patterson did not consent to an electronically monitored sentence stating he would be unable to comply if it were imposed. Mr Patterson’s explanation was that although he was not working full-time he wanted to consider an offer of full-time employment which he would not be able to do if subject to an EM sentence. The Judge noted that the report-writer recommended intensive supervision.

[12]   The Judge noted counsel’s submission that all Mr Patterson could do was apologise, and did not accept a submission that Mr Patterson had not had the opportunity for a rehabilitative sentence. The Judge indicated that none of the previous sentences had done anything for Mr Patterson. The rehabilitative options offered to him were to no avail.

[13]   The Judge referred to R v Morgan,3 where the Court of Appeal said that the appellant’s failure to make any real effort to comply with a community-based sentence

3      R v Morgan [2008] NZCA 232 at [15].

meant that a community-based sentence was unsupportable and imprisonment became inevitable.

[14]   Adopting a starting point of two months’ imprisonment, the Judge gave a discount of 25 per cent for Mr Patterson’s guilty plea.

[15]   In determining whether to convert Mr Patterson’s sentence to a community- based sentence, the Judge said he needed to hold Mr Patterson to account, but equally needed to sheet home to Mr Patterson the importance of compliance with community- based sentences.

[16]   The Judge said he was simply not satisfied that anything other than a sentence of imprisonment was appropriate in the circumstances given Mr Patterson’s refusal to participate in an electronically monitored option. The Judge was satisfied a sentence of imprisonment was required and the purpose for which the sentence was being imposed could not be achieved by a less restrictive sentence. The outstanding community work was cancelled.

[17]   When Mr Patterson asked if he could get the bracelet, and said the address had been checked, and he had a daughter and a sick mum, the Judge said it was too late.

Approach on appeal

[18]   To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The error can be intrinsic in the decision or shown as a result of additional material submitted on appeal.5 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.6 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.7

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

5      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

Discussion

Did the Judge err in declining to grant an adjournment?

[19]It is convenient to deal with the adjournment ground first.

[20]   Although the appellant’s written submissions referred to counsel seeking an adjournment for Mr Patterson to consider his position as articulated in the pre-sentence report, the appeal proceeded on the basis that this related to Mr Patterson’s attempt to interject as recorded in the Judge’s sentencing notes. Mr Slade, for Mr Patterson, submitted that Mr Patterson’s interjections during the Judge’s sentencing showed that Mr Patterson was minded to consent to electronic monitoring should intensive supervision not be available, and that an adjournment would have been appropriate.

[21]   Section 25 of the Sentencing Act 2002 provides that the Court may adjourn proceedings before an offender has been sentenced for a range of purposes, including to enable inquiries to be made or to determine the most suitable method of dealing with the case.8 As the Supreme Court explained in Berkland v R, the adjournment power brings a double advantage, offering an offender a real incentive to complete any rehabilitative programme while also enabling the sentencing judge to make an informed assessment of the offender’s prospects of rehabilitation and reintegration before deciding whether to opt for a community based sentence.9

[22]   I do not consider the Judge erred in declining to grant an adjournment in this case, for two main reasons. First, Mr Patterson did not consent to an EM-based sentence when interviewed for the pre-sentence report – on the basis that he wished to consider an offer of full-time  employment  which  an  EM  sentence  may  hinder. Mr Slade did not pursue the suggestion that Mr Patterson’s counsel had sought an adjournment of the sentencing in advance or even during submissions. Only after the Judge had imposed the sentence of six weeks’ imprisonment did Mr Patterson himself request a bracelet and say that his address had been checked. While that indicated that Mr Patterson wished to change his mind about consenting to an EM-based sentence, the Judge was entitled to consider that it was too late. Otherwise, while not suggesting

8      Sentencing Act 2002, s 25(1)(a).

9      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [132].

that Mr Patterson refused to consent to an EM-based sentence in order to delay his sentencing, there is a risk that, by declining to engage with the possibility of electronic monitoring before sentencing, s 25 adjournments could be misused.

[23]   Secondly, in any event, here the Judge had considered Mr Patterson’s history of community-based sentences – of home detention and community work – and concluded that his level of compliance had been unsatisfactory. The Judge said that rehabilitative sentences had not done anything for Mr Patterson. Even on appeal, there was no further information about EM bail suitability.

Did the Judge fail to consider alternative sentences of imprisonment?

[24]   The unavailability of an EM-based sentence does not inevitably lead to the conclusion that imprisonment is the only viable option. However, that was not the Judge’s approach. Mr Slade did not pursue a sentence of intensive supervision or lesser sentence. That was appropriate given the Judge’s observation that rehabilitative options, including home detention, had been offered to Mr Patterson to no avail.     A fine was clearly not the appropriate sentence.10 Therefore, in the absence of an EM-based sentence, imprisonment was the inevitable least restrictive sentence. Carrington v Police does not assist Mr Patterson.11 In that case, Lang J substituted a sentence of intensive supervision for one of imprisonment despite the appellant’s failure to complete previous sentences of community work. However, in that case a sentence focused on rehabilitation was the least restrictive outcome appropriate. The appellant was young and had minimal previous convictions and an unmet rehabilitative need.12 Here, as indicated, the Judge addressed the failure of previous rehabilitative sentences.

Was the sentence manifestly excessive?

[25]   The remaining question is whether the sentence of six weeks’ imprisonment was nevertheless manifestly excessive. Mr Slade submitted the starting point of two months’ imprisonment was too high and a discount for personal circumstances was

10     Sentencing Act 2002, s 13.

11     Carrington v Police [2016] NZHC 2351.

12     At [12]-[13].

justified given the circumstances of Mr Patterson’s life, as outlined in the pre-sentence report. This referred to his mother’s admission to hospital with a terminal illness, his brother-in-law’s suicide which impacted his psychological wellbeing negatively and his relationship with his 11 year old daughter. The first two factors were advanced by Mr Patterson to the report writer when seeking to explain the offending. They may be relevant to assessing its seriousness and Mr Patterson’s culpability. His mother’s illness and his relationship with his 11 year old daughter may be relevant to a discount for his personal circumstances, although double counting should be avoided.

[26]   Mr Purdon, for the respondent, acknowledged that the end sentence was stern but submitted it was within range. I agree. No comparable cases were cited. Adopting the two-stage approach set out by the Court of Appeal in Moses v R,13 I consider the starting point of two months’ imprisonment (two-thirds of the maximum) was high given the nature of the offending – even if the Judge was sceptical as to Mr Patterson’s explanation given the lack of engagement with the Department of Corrections’ community work team, which was not contested. The top of the range for this moderate offending – involving poor (but some) attendance at community work – was more likely six weeks’ imprisonment (50 per cent of the maximum). It was not the most serious breach, and was not accompanied by an application to cancel the community work sentence. However, as Mr Slade responsibly accepted, a two week uplift for Mr Patterson’s relevant previous convictions was appropriate, which would offset the discount for his guilty plea. In the absence of evidence as to his mother’s short-term prognosis and the effect of a short sentence of imprisonment on the connection with his daughter who he meets at the weekend, the Judge was not required to give a further discount on the basis that a six week sentence was disproportionately severe.

[27]I conclude that the Judge’s end sentence was not manifestly excessive.

13     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

Result

[28]The appeal is dismissed.

Gault J