Police v P HC Wanganui Cri-2008-483-33

[2009] NZHC 420

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-483-000033

NEW ZEALAND POLICE

Appellant

v

P

Respondent

Hearing:         1 April 2009

Counsel:         H C Mallalieu for appellant

Respondent in person

Judgment:      7 April 2009

INTERIM JUDGMENT OF DOBSON J

[1]      On the first call of a charge of male assaults female, Mr P   pleaded guilty in the District Court at Marton on 19 November 2008.   The entirety of the sentencing notes are as follows:

Mr P  , you are 46 years of age.  You have never previously appeared in Court for any matter involving violence so you are not a person, by my estimate, who is violent by nature or by inclination.  What I will do is enter a conviction and order you to come up for sentence if called upon within six months.  That means if there was a repeat episode of some sort between you and the victim then you could come back to Court and be sentenced on this matter.  Stand down.

NEW ZEALAND POLICE V P HC WANG CRI-2008-483-000033  7 April 2009

[2]      With the consent of the Deputy Solicitor-General, the Police have appealed against this sentence as being manifestly inadequate.  In R v Wilson [2004] 3 NZLR

606, the Court of Appeal has suggested the following approach to  an appellate assessment of whether any particular sentence is manifestly inadequate:

[41]      Whether a sentence can be said to be manifestly inadequate turns first on the maximum sentence for the particular offence; then on a consideration  of  comparable  sentences,  to  the  extent  that  those  are considered to be appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case.

[3]      Whilst addressing what is important in the case of the particular convicted person is important, clearly the Police pursue such relatively unusual appeals also because of the unhelpful precedential effect of an aberrant sentence.  Recognition of that fact is reflected in the approach that adjustment to a manifestly inadequate sentence is to be by no more than the minimum extent necessary to remove the manifest inadequacy: Sipa v R (2006) 22 CRNZ 978 (SC) at [9].  Further, the Court can have regard to what would amount to the imposition of an injustice on the offender if there is an increase in sentence in circumstances rendering that unjust in the circumstances as they appear at the time of the appellate reconsideration.  Here, it was submitted for the Police that a period of imprisonment was the appropriate sentence.

[4]      However, Mr Mallalieu  acknowledged  the  need  to  consider  whether  that would cause injustice, in line with the approach of the Court of Appeal in R v Donaldson (1997) 14 CRNZ 537 at 550.   There can never be any notion of an estoppel in respect of sentencing because of the ever-present prospect of an appeal from a manifestly inadequate sentence.  Nonetheless, there is scope for recognising serious unfairness where a convicted person has accepted the outcome, lived by it, and is then required to completely re-order his or her life many months later.  This prospect was recognised in Donaldson as being most likely to have a harsh effect where re-sentencing would require substituting a previously non-custodial sentence for a prison sentence.  An appropriate course suggested in Donaldson is to indicate what  the  appropriate  term  of  imprisonment  would  have  been,  but  nevertheless decline to reverse a non-custodial sentence.

[5]      As to the circumstances of the offending, it appears that Mr P   did not dispute the summary of facts read to the District Court on the entry of his guilty plea. That revealed that he became angry and verbally abused his wife in the course of a domestic argument, that he grabbed her by her shoulder and shoved her into a door frame a number of times, slapped her across the face with an open hand, and head- butted her, making contact with her right eye.  The summary stated that Mr P   admitted slapping and head-butting his wife, declined to make a statement but acknowledged there was no excuse for his actions.

[6]      On argument of the appeal, Mr Mallalieu provided photographs of the victim showing a badly swollen and blackened eye.  The summary of facts suggested that the victim had required medical attention.

[7]      Conviction  on  the  charge  of  male  assaults  female  carries  a  maximum sentence of two years’ imprisonment.   Domestic violence is a serious scourge in New Zealand society and all cases, with only the rarest of exceptions, deserve to be treated seriously.  The consequences of domestic violence are far more wide-spread than the physical harm inflicted at the time.  It is a serious cause of dysfunctionality in domestic relationships and can cause long-term adverse effects on families, where inflicted in the presence of, or having impact on, children.  Although that particular consequence was not present here, it is pervasive to an extent that requires domestic violence in all contexts to be met with a “zero tolerance” response.

[8]      While recognising that there are no tariff cases in respect of this offence because  circumstances  of  commission  and  of  offenders  vary  so  significantly, Mr Mallalieu  cited  a  number  of  authorities  as  comparators,  in  support  of  the submission that a term of imprisonment was the appropriate sentence in the present case.  I need mention only two.

[9]      In R v Reihana CA143/03 3 July 2003, the offender had visited his previous partner, letting himself into her home against her wishes.  After being asked to leave by the victim, the offender punched the victim in her eye causing her to fall.  The victim suffered a bruised and swollen eye almost to the point of closure and a split in her eyebrow that required sutures.   The Court of Appeal reduced a term of 10

months’ imprisonment to five months.  The only mitigating feature was the lack of previous convictions for violence, with Mr Reihana having been convicted after a District Court trial.

[10]     In Tai v R HC HAM AP85/03 3 February 2004 Paterson J, again the offender had gone to the victim’s house and, after being told to leave, became angry with the complainant.  He followed her around the house while she was holding their baby, deliberately bumped into her and yelled at her.  He then cornered her, grabbing her hair with both hands and pulled her head back and lifted her off the ground by her hair.  He then head-butted her in the forehead, stunning her and knocking her against the wall.  The victim received a bruised and swollen forehead and a nail mark in her skull.   A District Court sentence of nine months’ imprisonment was reduced on appeal to the High Court, to a sentence of six months’ imprisonment.   The Judge compared the circumstances with Reihana and found that those of Tai to be more serious.   However, a discount was recognised for an early guilty plea and other mitigating factors personal to the appellant.

[11]     The circumstances in the present case are certainly less serious than both those comparators.   It is, however, within the same broad range of seriousness of male assaults female convictions, and was certainly of a seriousness which should have required the sentencing Judge to consider a sentence of imprisonment.

[12]     Instead, the matter was dealt with on the spot, with no apparent consideration given to the need for a pre-sentence report.  Nor did the Judge acknowledge any of the purposes and principles of sentencing from ss 7 and 8 of the Sentencing Act 2002 which ought to have influenced the consideration of where this particular conviction was to be placed, relative to the most serious of such cases that could warrant a sentence  at or approaching the maximum.    Certainly,  there  is  no  suggestion  of requiring Mr P   to be accountable for the wrong he had done, there is no denunciation, and nor does the requirement to come up for sentence if called upon operate as a deterrent relative to the seriousness of the criminal conduct involved. Although it is difficult to expect consistency because of the diverse circumstances in which such convictions come before the District Court, there ought to have been

some recognition that the sentence was extraordinarily lenient, and a justification provided for that.

[13]     Mr Mallalieu was also concerned that the District Court Judge appeared to have had no regard to a victim impact statement and report from a victim adviser to the Court.   Those both suggested that the assault had caused trauma considerably beyond the physical injury suffered at the time.

[14]     For all these reasons, I was readily persuaded that the sentence was indeed manifestly inadequate.  On the basis of the seriousness of the offending, offset by the early guilty plea and Mr P  ’s previous good record, it seems that a sentence in a range between three and five months’ imprisonment would have been appropriate.

[15]     However, in considering an alternative sentence, I am strongly influenced by the unusual extent to which Mr P   appears to have turned his life around as a result of the crisis reflected in the assault to which he pleaded guilty.  Appearing on his own behalf, he acknowledged that he had been behaving badly at the time of the offending, with his behaviour adversely affected by drug use.  He had suffered an accident several months before the assault which he had treated as serious enough to keep him off work.  After the assault, he resolved to break from the company he had been keeping, and relocated to Christchurch where he found a supportive employer. He told me that he has had two promotions since starting work in Christchurch, and is effectively working a six day week, with responsibility for transporting furniture from factories to customers in the southern part of the South Island and on the West Coast.  He showed evident pride in the progress he has made at work, and in improving all other aspects of his life.

[16]     Mr P   said that he has stable accommodation with an aunt and uncle, and the support of his employer.  He said that he had completed helpful counselling sessions in Wanganui, and was now “a more humble person”.  He suggested that he has suffered a penalty, feeling very badly about the assault, and suffers also because of the separation from his wife, and a grandchild of whom he is fond, who lives in the North Island.

[17]     Mr P   told me that he and his wife are now getting on very well, that they have spent periods of time together since he relocated to the South Island, and that they both look forward positively to a stronger relationship together.  This last piece of information appeared inconsistent with a job sheet tendered to the Court by Mr Mallalieu, which suggested that a recent enquiry by the Police of the victim indicated that she still wants to have nothing to do with him.

[18]     Since the hearing, the victim has been in touch with Mr Mallalieu and he has very promptly filed a Memorandum, appending a letter to him from Mrs P  . In that letter, she corroborates the description I was given by Mr P   of their current relationship.   She states that she does not hold any grudge, malice or negativity towards him and she also states that she is looking forward to a more positive relationship with him.

[19]     Providing this explanation  I have been  given of Mr P  ’s  extremely positive response to the fact of his conviction is correct, then this is one of those rare cases in which imposing now the sentence that would have been appropriate at the time  of  the  sentencing  in  the  District  Court  would  clearly  work  a  substantial injustice.   I am sufficiently concerned to avoid that, to defer my decision on re- sentencing pending the availability of a pre-sentence report.  The extent of the power to order a Probation report is addressed in s 26(1) of the Sentencing Act 2002.  That provides:

26       Pre-sentence reports

(1)If an offender who is charged with an offence punishable by imprisonment is found guilty or pleads guilty, the court may direct a probation   officer   to   provide   a   report   to   the   court   under subsection (2).

[20]     That might arguably confine the power to one exercisable only prior to an original  sentencing.    The  Court  of  Appeal  recognised  the  prospect  of  such  a constraint in R v Toki [2007] NZCA 335, without resolving the point (see [9], [10]). In Dempsey v Police, HC CHCH CRI-2008-409-181 17 October 2008, Panckhurst J interpreted Toki as mandating jurisdiction for appellate Courts to order reports after there has been a sentencing, in exceptional circumstances.   I treat the present circumstances as being exceptional, in the sense that I consider a report ought to

have been directed before the original sentencing, and that determining any other sentence on appeal without a report could cause material injustice.

[21]     I accordingly direct that a full pre-sentence report, including an appendix on the appropriateness of Mr P  ’s present domestic situation for a community based sentence, is to be prepared.   The report-writer should appreciate that all sentencing options are open, from not disturbing the extraordinarily lenient sentence that was imposed, to a community based sentence or a short prison sentence, or home detention as a substitute for it.   If, however, Mr P  ’s self-motivated rehabilitation is as dramatic as he described it, there is reason to believe that the first option will be chosen.

[22]     In the event that the Department of Corrections does not have any details for Mr P  , I record the details he gave me in response to my questions.   He is residing at Flat 4, 56 Sherborne Street, St Albans, Christchurch.   His telephone contact is 021 031 7960.  His employer is Arnott Inter-Island Carriers, 67 McAlpine Street, Sockburn, Christchurch.

[23]     I am also conscious that Mr P   had to travel from Christchurch and I reserve consideration  as  to  whether  a  further  hearing needs  to  be  convened,  or whether I might instead deal with the matter by way of telephone conference.   I accordingly direct that the appeal be adjourned, pending the issuing of a further Memorandum  by  me  after  production  of  the  Probation  Officer’s  report,  to  be followed within seven days by any supplementary submissions Mr Mallalieu wishes to make, in light of this interim judgment and the content of that report.

Dobson J

Solicitors:

Crown Solicitor, Wanganui for appellant

Mr V P  , 4/56 Sherborne Street, St Albans, Christchurch