Police v S HC Wellington CRI 2009-485-158

[2009] NZHC 2312

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-158

NEW ZEALAND POLICE

v

S

Hearing:         15 December 2009

Counsel:         K Grau for Appellant

C W J Stevenson for Respondent

Judgment:      16 December 2009

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      On 23 December 2008 Mr S   went to a house in Porirua, broke in through the front door and attacked the house owner.  During the course of the subsequent fight  he  stabbed  the  victim  in  the  shoulder.    He  pleaded  guilty  to  aggravated burglary, injuring with reckless disregard and threatening to kill.  He was sentenced to nine months’ home detention.  The Crown in this appeal say that sentence was manifestly inadequate for the offending.

[2]      The Crown say:

a)        the  one  third  discount  for  the  respondent’s  late  guilty  plea  was excessive;

NEW ZEALAND POLICE V S HC WN CRI 2009-485-158  16 December 2009

b)the eighteen month discount for 24-hour curfew on electronic bail was excessive;

c)        imprisonment was the appropriate sentence for this offending in the range of three to three and a half years’ imprisonment.

Facts

[3]      The summary of facts on which the District Court Judge sentenced Mr S   was as follows.

[4]      On 23 December 2008 the appellant went to a house in Porirua at 4.30 a.m. The appellant had been drinking and had decided to commit a burglary because he had received information there was a Playstation in the house.   He also believed there was a dog and he armed himself with a knife saying later that he did that to protect himself in case he encountered the dog.

[5]      The victim and his family were asleep when Mr S   tried to prise open the kitchen window.  He was unsuccessful.  He then went to the front door and punched in the window of the door and reached in and unlocked it.  As he entered the house he was confronted by the victim, the home owner.  Mr S   then took up a fighting stance by holding the knife above his shoulder and pointing it towards the victim. The victim then yelled at Mr S   to get out of the house.  Mr S   then yelled “I’ll fucking kill you”.  He then lunged towards the victim trying to stab him.  The victim  punched  Mr S    in  the  face.    A  scuffle  then  broke  out  during  which Mr S   stabbed the victim in the shoulder several times.  Mr S   then ran off. The  victim  was  admitted  to  hospital  with  the  most  serious  stab  wound,  to  his shoulder, which hit his collar bone.

[6]      Mr S   was charged with the three offences on 24 December 2008.  He was initially remanded in custody but on 13 February 2009 granted electronic bail.

[7]      Finally on 19 May 2009 at his request he was brought before the Court and entered  pleas  of  guilty  to  the  three  charges.    He  was  due  to  be  sentenced  on

3 July 2009.    However,  the  Judge  recorded  that  Mr S    claimed  that  he  had stabbed the householder while defending himself against an attack by that person and that his plea of guilty to the charge of injuring with reckless disregard was entered on the basis that he was acting in self defence but the force he used was excessive.  The Judge took the view that the appropriate approach was a disputed facts hearing.

[8]      The hearing was due to be undertaken on 24 September 2009, however, after an agreement between the prosecution and defence the summary of facts was amended and is reflected in the summary that I have provided.

District Court Sentencing

[9]      At sentencing the Judge after detailing the facts and the victim impact turned to the appropriate starting point.  After hearing the Crown and defence he concluded that a proper starting point was six years’ imprisonment.  He considered there were no aggravating features but took into account the following mitigating features:

a)        the appellant’s guilty plea coupled with what was said to be genuine remorse;

b)        his youth and previous good life; and

c)        his estimate that the appellant had spent on 24-hour e-bail curfew just over twelve months.

[10]     The Judge reduced the start sentence for the appellant’s guilty plea to four years’ imprisonment  giving him a full one third deduction.   For his  youth  and previous  good  life  he  reduced  the  four  years  by twelve  months  to  three  years’ imprisonment.

[11]     The Judge said that the appellant had been on e-bail for twelve months.  He considered that was equivalent of a two year’ sentence of imprisonment and gave a deduction of a further eighteen months reducing the starting sentence of six years’ imprisonment to what the Judge calculated as a term of imprisonment of eighteen

months.   He considered that this was an appropriate case for home detention and imposed a sentence of nine months’ home detention.

[12]     The Judge concluded that overall given, the appellant’s age, the twelve month

24-hour curfew when on e-bail and his remorse that it would be wrong to send him to prison.

[13]     The respondent submits that the Judge properly tailored his sentence to all of the circumstances.  The Judge concluded in the particular circumstances a sentence of  Home  Detention  was  the  appropriate  sentence.    Counsel  for  the  respondent stressed his youth.  He submitted that given his youth this was a case where mercy could be extended to avoid the effect of prison on such a young man.

[14]     Counsel submitted that it was now wrong to pick apart the sentence using a mathematical  approach  to  a  starting  sentence  together  with  aggravating  and mitigation features.  The respondent says, even on a mathematical basis, the sentence was justified.   The Judge could easily have started at five years’ imprisonment, deducted 50% for the guilty plea and youth and together with the period on e-bail would reduce the sentence to two years or less.  This would open up a sentence of Home Detention.   This was an appropriate sentence because of the respondent’s youth, remorse and good record.

Discussion

[15]     No challenge can properly be made to the six year starting sentence by the Judge.  This was very serious offending.   Breaking into a residential house armed with two knives knowing there would be people present and, when confronted, using a knife, all illustrate the very serious offending.  The starting point could easily have been higher (by analogy R v Mako [2000] 2 NZLR 170 CA). I agree with the Judge that there were no aggravating features beyond those inherent in the start sentence of six years’ imprisonment.

[16]     I reject the respondent’s submissions that the correct approach for the Judge was  to  decide  on  the  appropriate  sentence  type  and  structure  the  sentence

accordingly.  This ignores appellate authority and the need for consistent sentences. Judges are simply not free to choose the sentence type they think might be best.  Nor is a complaint of a mathematical approach to sentencing appropriate.  The appellate courts have given clear direction as to an appropriate sentencing process for Judges to follow (R v Taueki [1999] 3 NZLR 62). That process ensures all relevant features are properly taken into account. It does allow Judges to legitimately go outside sentencing norms in particular cases.

[17]     However,  the  respondent’s  submission  for  a  “sentence  type”  selection process as the first step by a sentencing Judge would be a chaotic basis to reach a fair and proper sentence.

[18]     It could not be said that the appellant pleaded guilty at the first reasonable opportunity.  He pleaded guilty six months after he first appeared in Court after the first date for depositions had been adjourned.   His delay in pleading guilty to the charges was, it is said, in part occasioned by his negotiation with the Crown, ultimately successful,  to  reduce  the  aggravated  wounding  charge  to  injury with intent.   The negotiations did not appear to begin until many months after the respondent’s  first  appearance.    Pleas  could  also  have  been  entered  to  the  other charges much earlier.  Early guilty pleas illustrate true remorse and give substantial relief to the stress of victims by the acceptance of wrongdoing by the offender.  In those circumstances a one third deduction for Mr S  ’s guilty plea was beyond what could be justified.  At best Mr S   could have expected a 25% reduction from the start sentence of six years’ imprisonment to four and a half years’ imprisonment. The Judge was wrong to give him the full one third deduction when he clearly had not pleaded guilty at the first reasonable opportunity.

[19]     Here  the  total  discount  for  the  guilty  plea  plus  other  mitigating  factors reduced a start sentence of six years to eighteen months.   The mitigating factors other than the guilty plea could not justify a further reduction of three years’ imprisonment from the six year start date.

[20]     Firstly,  dealing  with  the  Judge’s  reduction  of  the  sentence  by  eighteen months because of the time the respondent spent subject to e-bail.   The Judge’s

estimate that the appellant had spent twelve months on electronically monitored bail was incorrect.  As I have recounted the appellant spent the first few months after his arrest in late December 2008 in prison.  He will get a full recognition for that period spent in custody.  He was given electronic bail on 13 February 2009 and sentenced on 21 September 2009, some seven months later.  Therefore what can be taken into account is the fact that he spent seven months on electronic bail.

[21]     There is no rule of law, statutory or otherwise, which provides the period of time an accused spends on electronic bail must be deducted from his sentence.  It is proper to acknowledge that electronic bail does place a substantial restriction on the freedom of an individual.   Especially, as here, where the period during which the offender is subject to electronic bail is substantial, a discount can be appropriate. However, such discounts will generally be modest, typically substantially less than the period an accused has spent on remand.   Here, an allowance of two to three months adequately reflects the seven months spent on home detention (R v Edwards [2008] NZCA 205, R v Tamou [2008] NZCA 88).

[22]     The Judge was correct to provide a reduction for the accused’s youth but not his previous good conduct.   The respondent had previously been dealt with in the Youth Court in respect of aggravated robbery, assault, assault with intent to injure and burglary.   While it would not be proper to increase any sentence for the respondent’s past misconduct he could hardly expect any “good conduct” discount. A  further  nine  months  deduction  is  generous  for  “youth”  making  for  a  total deduction  of  one  year  for  electronic  bail  and  youth.    The  mitigating  features therefore total two and a half years, eighteen months for a guilty plea and twelve months  for  e-bail  and  youth.    This  is  a  deduction  of  over  40%  from  the  start sentence.   That leaves a sentence of three and a half years’ imprisonment.   This would have been an unimpeachable sentence in the District Court.

[23]     Mr S   has now spent three months on home detention.  Some allowance must be made for that time on Home Detention.  In addition note must be taken of the fact that this is a Crown appeal where, if an appeal is allowed, especially where as here it involves an offender who is not in prison going to prison, sentences are only generally increased to the minimum necessary.

[24]     For the reason given, therefore, I am satisfied that the Judge did err in his assessment of the effect of the relevant mitigating factors.  As a result I am satisfied that a sentence of nine months’ home detention was manifestly inadequate.  I quash the sentence of nine months’ home detention and substitute instead a sentence of two years, nine months’ imprisonment.

[25]     The respondent therefore should surrender to the Wellington Police Station by 5.00 p.m., Friday 18 December 2009.

Solicitors:

C W J Stevenson, Barrister, PO Box 31636, Lower Hutt

Ronald Young J

K Grau, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]