Patuwai v Police

[2024] NZHC 3280

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-015 CRI-2024-416-016

[2024] NZHC 3280

BETWEEN

ANTHONY NEIL PATUWAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 October 2024

Appearances:

M J Lynch for Appellant

R W Donnelly for Respondent

Judgment:

6 November 2024

JUDGMENT OF GRICE J

(Appeal against sentence)

Introduction

[1]    Mr Anthony  Patuwai  was  sentenced  in  the  Gisborne  District  Court  on 13 August 2024 to 20 months’ imprisonment, after pleading guilty to the following charges:

(a)obstructing police;1

(b)theft (over $1,000);2

1      Summary Offences Act 1981, s 23(a) — maximum penalty three months’ imprisonment, $2,000 fine.

2      Crimes Act 1961, ss 219 and 223(b) — maximum penalty seven years’ imprisonment.

PATUWAI v POLICE [2024] NZHC 3280 [6 November 2024]

(c)theft (under $500) (x2);3

(d)driving while disqualified (third and subsequent) (x3);4

[2]    He now appeals against his sentence, on the ground that the Judge erred in declining to grant leave to apply for home detention, and therefore the sentence was manifestly excessive.

Summary of offending

[3]    The first tranche of offences relates to driving while disqualified. At the time of the offending Mr Patuwai was a disqualified driver, having been disqualified from driving any motor vehicle for an indefinite period. The offences occurred in Gisborne on 25 August 2022, 31 January 2023 and 2 April 2023 respectively, and arose following the appellant being stopped for various reasons by police. Mr Patuwai had 12 prior convictions for driving while disqualified prior to the three offences which are the subject of his current appeal.

[4]The second tranche of offending relates to three incidents of shoplifting.

[5]    The first charge of theft  (under  $500)  arose  on  23  March  2023,  when  Mr Patuwai took a DeWalt Hammer Drill Driver Kit 18 Volt SKU, valued at $289.00, from the power tools aisle of a shop without paying for it. He ran away when a staff member approached him in the carpark.

[6]    The charge of theft (over $1000) related to Mr Patuwai detaching and taking a Hikmicro Thermal Thunder 2.0 TQ50 scope, valued at $6,799.00, from the firearms display in the “gun room” of a shop on 26 January 2024. He had concealed the scope in his trousers.

3      Crimes Act, ss 219 and 223(d) — maximum penalty three months’ imprisonment.

4      Land Transport Act 1998, ss 32(1)(a) and 32(4) — maximum penalty two years’ imprisonment,

$6,000 fine.

[7]    The second charge of theft (under $500) related to groceries valued at a total of $173.66 taken from the Pak N Save in Gisborne on 22 June 2024. Mr Patuwai put the items in his bags and made no attempt to pay for them.

[8]    The final offence of obstruction of a police officer arose out of an incident on 20 March 2024, when Mr Patuwai, after being warned not to, continued to take items out of his partner’s car which was being towed by police. Following two further warnings, Mr Patuwai was arrested.

Sentencing decision

[9]    At the time of sentencing, Mr Patuwai had pleaded guilty to all charges and accepted the summary of facts for the purposes of sentencing.5 The Judge had earlier adjourned the sentencing to allow him an opportunity to obtain his driver’s licence and make contact with the probation service to obtain a suitability report for an electronically monitored address.6

[10]   For the driving offences, Judge  Bolstad identified the  charge  that arose  on  2 April 2023 as the lead offence, for which she adopted a starting point of 14 months’ imprisonment.7 She then applied an uplift of six months for the other two driving while disqualified charges, leading to an overall starting point of 20 months’ imprisonment with respect to that offending.8

[11]   The Judge then applied an uplift of six months in respect of the theft charges.9 A further uplift of one month was applied for the charge of obstruction, amounting to an overall starting point of 27 months imprisonment.10

[12]   Mr Patuwai was given a credit of 25 per cent for his guilty pleas.11 The Judge noted that while a not guilty plea was initially entered to the charge of obstruction, guilty pleas were entered at a relatively early opportunity in respect of all the other

5      Patuwai v New Zealand Police [2024] NZDC 19206 [sentencing notes] at [4].

6 At [1].

7 At [15].

8 At [16].

9 At [17].

10 At [18].

11 At [19].

charges.12 A five per cent discount was also applied to reflect Mr Patuwai’s personal circumstances,13 including that he has a number of children who would be affected by his imprisonment.14 This brought the sentence to 19 months’ imprisonment. Finally, the Judge applied an uplift of one month to reflect Mr Patuwai’s seven previous convictions for theft, and his offending while on bail.15 The end sentence was therefore one of 20 months’ imprisonment.

[13]   The Judge noted that the Provision of Advice to Courts (PAC) report confirmed there was no electronically-monitored address available for the purposes of a sentence of home detention, for the reason that Mr Patuwai had not been in contact with the probation service.16 However, the Judge was advised by Mr Patuwai’s counsel that he had that day provided an address.17

[14]   The Judge declined to grant leave to apply for home detention, noting that she needed to take into account the prospects of rehabilitation, and that while Mr Patuwai had been given “opportunity after opportunity” to assist himself during the proceedings, he had failed to do so.18 She also observed that Mr Patuwai was subject to a sentence of intensive supervision at the time of some of the present offending. The Judge expressed that she was “somewhat disappointed … that the only option that [was] left” in the circumstances was a term of imprisonment.19

Approach on appeal

[15]   Mr Patuwai’s appeal is brought under s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.20 This will generally turn on whether the final outcome is manifestly excessive, rather than the sentencing

12 At [11].

13 At [19].

14 At [11].

15 At [20].

16     At [2] and [7].

17 At [8].

18 At [21].

19 At [14].

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

process undertaken.21 An appellate court is unlikely to intervene if “the sentence is within the range that can properly be justified by accepted sentencing principles”.22

[16]   An order declining leave to apply for home detention is treated as a sentence for the purposes of appeals under the Criminal Procedure Act.23 The Court of Appeal confirmed in Palmer v R that the same standard of review on appeal applies to decisions not to commute imprisonment to home detention as it does to any other sentence.24 The Court went on to note that the decision often calls for a difficult exercise of judgment by the sentencing judge, and therefore “the margin of appreciation extended to sentencing judges is usually significant”.25

Did the Judge err in declining to grant leave to apply for home detention?

[17]   Mr Patuwai accepts that the end sentence of 20 months was within range for offending off this nature. The sole issue on appeal is the Judge’s refusal to grant leave to apply for home detention. The Crown says that imprisonment was the only option available to the Judge in the circumstances.

Legal principles in relation to home detention

[18]   As Mr Patuwai received a short-term sentence of imprisonment (one of less than two years), he was eligible for home detention.26 The court may impose a sentence of home detention in those circumstances only if it is satisfied that the purpose or purposes for which the sentence is imposed cannot be achieved by any less restrictive sentence or combination of sentences.27

[19]   Before imposing a sentence of home detention, the court is required to consider a pre-sentence report prepared by a probation officer, setting out the suitability of the proposed home detention residence and providing confirmation that the offender consents to any relevant conditions.28 The court must be satisfied that the proposed

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

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

23     Sentencing Act, s 80J.

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

25 At [19].

26     Sentencing Act 2002, ss 4 and 15A(1)(b).

27     Section 15A(1)(a).

28     Sections 80A(2A) and 26A(2).

home detention residence is suitable, that any relevant occupants of the residence understand and consent to the conditions of home detention, and that the offender has been made aware of and understands the conditions that will apply during home detention and agrees to comply with them.29

[20]   Section 80I of the Sentencing Act 2002 sets out the circumstances in which a court must grant leave to an offender to apply for home detention:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[21]   In regard to when a sentence of imprisonment is appropriate, s 16 of the Sentencing Act provides that the court must have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the safety of the community. In particular, a court must not impose a sentence of imprisonment unless it is satisfied that:30

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[22]   However, s 17 states that nothing in that Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on

29     Section 80A(2)(a).

30     Section 16(2).

reasonable grounds that the offender is unlikely to comply with any other available sentence.

[23]   The Court of Appeal noted in Fairbrother v R that sentences of imprisonment have been set aside and substituted with sentences of home detention in the case of two types of error of law:31

… 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 sentencing.

[24]   The Court went on to note that it would equally be an error of law to always commute a short-term period of imprisonment to a sentence of home detention.32 It said:

[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”.33 Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[25]   Furthermore, the Court of Appeal in Doolan v R made the following observations about the decision of whether a sentence of imprisonment or home detention is appropriate:34

[38]   … In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

31     Fairbrother v R [2013] NZCA 340 at [29] (footnotes omitted).

32 At [30].

33     R v D (CA253/2008) [2008] NZCA 254 at [66].

34     Doolan v R [2011] NZCA 542 (footnotes omitted).

[39]   In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.

Analysis

[26]   Mr Lynch, for the appellant, submits that the Judge failed to carry out a proper assessment of the relevant purposes and principles of sentencing in declining leave to apply for home detention. He acknowledges that Mr Patuwai has previous convictions for non-compliance, but suggests that this is not sufficient to render him unsuitable for an electronically monitored sentence. Mr Lynch further notes that the probation officer who prepared Mr Patuwai’s PAC report appears supportive of such a sentence. He suggests that in noting that Mr Patuwai had several “opportunities”, the Judge was referring to the adjournment she had granted to enable him to obtain his licence, which he failed to do. However, Mr Lynch notes that only one of Mr Patuwai’s offences of driving while disqualified occurred while he was subject to his 15-month sentence of intensive supervision, which expired at the end of December 2022, and he was otherwise  compliant  with  that  sentence.  Nevertheless,  Mr  Lynch  accepts  that Mr Patuwai’s rehabilitative prospects are limited in relation to obtaining his driver’s licence, but submits that he otherwise has good prospects of rehabilitation provided he has “official oversight”.

[27]   In addition, Mr Lynch says that Mr Patuwai’s personal circumstances weigh heavily in favour of home detention, noting that he and his long-term partner have five children together now aged between two and 13 years old. Mr Lynch submits that a sentence of imprisonment would have a significant impact on Mr Patuwai’s whānau unit, and the Judge placed insufficient weight on this factor. Moreover, Mr Lynch contends that home detention would be a sufficient means of deterrence and denunciation in respect of Mr Patuwai’s offending.35

[28]   In the original PAC report dated 3 August 2023, the report writer made the following general observations about Mr Patuwai:

35     Mr Lynch cites R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R, above n 31 at [29]; and

Korewha v R [2018] NZHC 1896 at [25].

I assess Mr Patuwai's risk of harm as medium and his risk of re-offending as high given the further charges he received. His offending related factors are poor attitude to rules and to processes and poor decision making. Department records shows Mr Patuwai has had community-based sentences before, however, his ability to comply will be an issue, given the difficulty of making contact and ongoing non-compliance of reporting to Community Corrections in the past.

[29]   Mr Patuwai’s current family home was assessed as unsuitable for electronic monitoring at that time. Overall, the original report recommended a sentence of intensive supervision, with special conditions to attend an alcohol and drug assessment, and to undertake the Howard League driving programme.

[30]   On 28 November 2023, an additional memorandum was issued by the probation officer, noting that Mr Patuwai had attended an initial alcohol and drug assessment, but had not returned to provide further information as requested. It was noted that he would be discharged if he continued not to engage, and that his behaviour indicated a lack of motivation to deal with his rehabilitative needs.

[31]   In the most recently updated PAC report, dated 13 May 2024, the writer made the following observations, which indicate that he did not rule out the suitability of a sentence of home detention:

The PAC dated 3 August 2023, recommends a sentence of Intensive Supervision for the three Driving Whilst Disqualified charges. Given his two additional convictions for Shoplifting and another charge pending, I am of the opinion that an escalation in the sentencing tariff is warranted. An electronic monitoring sentence would meet the needs and  principles  of  the  Sentencing Act. Unfortunately, Mr Patuwai has failed to provide an appropriate address to be canvassed and his continued failure to engaged (sic) with this service during this current remand period, similarly like that of several community-based sentences when he attracted convictions for breaching those sentences.

Should the Court wish to pursue an electronic monitoring sentence, a further remand is sought. Alternatively, a sentence of imprisonment with leave to apply for Home Detention could be a viable option.

[32]   The report writer also recorded that there had been no responses to repeated attempts to follow up with Mr Patuwai about a suitable address for an electronic monitoring sentence as well as an update on his personal circumstances.

[33]   In the circumstances I accept the submissions of the respondent that a sentence of imprisonment was appropriate. I also accept that the notional end sentence might be seen as generous, given that a cumulative sentence would have been available for the theft charges as they were unconnected to the driving charges. The Crown submits that Mr Patuwai “could  be considered  fortunate” to  have received a  sentence  of  20 months, when it could justifiably have exceeded two years.

[34]   Mr Donnelly for the Crown further submits that Mr Patuwai was not deterred from offending of this type by his previous sentence of intensive supervision, which was imposed for a similar combination of offences as those currently faced. In addition, the last time Mr Patuwai was sentenced to home detention in 2018, he was convicted on four charges of breaching that sentence, three of which were representative. Mr Donnelly says this is indicative of a pattern of non-compliance which pre-dated those breaches, with Mr Patuwai’s criminal history also recording earlier breaches of supervision and  community  work.  He  also  contends  that  home detention would not meet the purposes of denunciation and deterrence. He notes that the present offending was committed while Mr Patuwai was either subject to a sentence of intensive supervision or on bail, and that when Judge Bolstad gave him an opportunity for an electronically monitored sentence to be considered by adjourning the hearing, he instead committed further offending.

[35]   Mr Patuwai’s family circumstances and the interests of the children are a particularly important consideration weighing in favour of a non-custodial sentence.36 The Judge specifically considered this and the consequences for the children of their father being imprisoned.37 Her Honour made a considered and principled choice between the two forms of sentence — custodial simpliciter or with leave to apply for home detention. In the circumstances, she faced a difficult exercise, but the factors weighing against granting leave made the custodial sentence appropriate. The Judge’s reasons are succinct but sufficient, referring to previous breaches and offending while on bail, as well as the failure to take the opportunity for rehabilitation.38 Although the Judge  had taken steps to  provide  the  opportunity,  Mr  Patuwai  did not  make  any

36     Leota  v  Police  [2023]  NZHC  916  at  [37];  R  v  Maru  [2023]  NZHC  790  at  [82]–[84]; and

Theodore v Police [2018] NZHC 2364 at [35].

37     Sentencing notes, above n 5, at [11].

38     At [13] and [21].

attempts to obtain his driver’s licence following the adjournment of the original sentencing date. In addition, Mr Patuwai committed a number of further offences while on bail after the initial PAC report was produced, and following a specific warning by Judge Bolstad that he needed to “walk the talk”. While these offences were not committed while he was subject to an electronically monitored sentence, other breaches occurred while Mr Patuwai was on home detention in 2018. These were some time ago, but are indicative of a pattern of non-compliance that is unable to be adequately managed by electronically monitoring. The Judge had ample material from which to conclude that an electronically monitored sentence was not an appropriate option.

[36]   I am satisfied that the Judge made no error in her decision to decline leave to apply for home detention.

Conclusion

[37]For the reasons set out above the appeal is dismissed.

Grice J

Solicitors:

MJL Law, Gisborne for Appellant

Rawhiti Legal, Crown Solicitor Gisborne for Respondent