Pritchard v The King
[2023] NZHC 2886
•16 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-046
[2023] NZHC 2886
BETWEEN DANIEL JOHN PRITCHARD
Appellant
AND
THE KING
Respondent
Hearing: 12 October 2023 Appearances:
S J Gill for Respondent
H N Prasad for Respondent
Judgment:
16 October 2023
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1]The appellant, Mr Daniel Pritchard, pleaded guilty to the following charges:
(a)twenty-seven charges of possession of objectionable material;1
(b)five charges of knowingly making or copying an objectionable publication;2
(c)one charge on doing an indecent act;3
1 Films, Videos and Publications Classification Act 1993, s 131A(1) — maximum penalty 10 years’ imprisonment; or $50,000 fine.
2 Section 124(1) — maximum penalty 14 years’ imprisonment.
3 Crimes Act 1961, s 125(1) — maximum penalty two years’ imprisonment.
PRITCHARD v R [2023] NZHC 2886 [16 October 2023]
(d)one charge of indecency with an animal;4 and
(e)one charge of resisting police.5
[2] The appellant received a sentence indication from Judge Tompkins on 29 March 2023, which he accepted on 4 April 2023. On 28 June 2023, in the Hutt Valley District Court, the appellant was sentenced by Judge Tompkins to two years and two months’ imprisonment.6
[3] The appellant appeals against the sentence on the basis it is manifestly excessive. The appellant says the Judge gave insufficient credit for alcohol and drug issues, mental health issues and s 27 cultural factors.
Leave to appeal out of time
[4] The appellant says he only received the transcribed decision of the District Court delivered on 28 June 2023 on 18 August 2023, so was therefore unable to file an appeal within the 28-day period. The notice of appeal is dated the same date, 18 August 2023. In the circumstances, I consider it is appropriate to grant leave to appeal the decision out of time.
The offending
[5] The appellant does not dispute the summaries of facts adduced in this case. In brief, the charges are generally of sexual-related offending. On one occasion, the appellant enticed a dog to lick his anus and genital area while he masturbated and made video recordings of the activity. Police later identified on the appellant’s phone five publications that were deemed to be objectionable publications and three videos that depicted evidence of indecency with a dog. On another occasion, the appellant sat down on a bench in an often-busy public street, completely exposed his penis and testicles, and stroked his penis. He attempted to evade police but was unsuccessful. On another date, a number of pornographic electronic images and video files,
4 Section 144 — maximum penalty three years’ imprisonment.
5 Summary Offences Act 1981, s 23(a) — maximum penalty three months’ imprisonment; or $2,000 fine.
6 Police v Pritchard [2023] NZDC 13477 at [10].
including a number related to young people and children, were located on the appellant’s phone. Due to the sheer quantity of files, only a small portion of the files were examined, 21 of which were deemed to be objectionable publications.
District Court decision
[6] The Judge gave a sentence indication on 29 March 2023 in which he indicated an amended starting point of three years and five months’ imprisonment.7 From that the Judge indicated that although the charges were originally laid in July 2021 and the sentence indication came almost two years later, nevertheless the full 25 per cent discount for guilty plea would be appropriate. The Judge had noted in his sentence indication that while it was not clear that other discounts would be available at sentencing, such discounts may be available depending on a pre-sentence report and potentially a s 38 report in relation to disposition.
[7] At sentencing, the Judge noted he had three reports before him, namely a psychological report by a clinical psychologist, dated 19 October 2020 (the psychological report), a comprehensive alcohol and drug assessment by an alcohol and drug clinician, dated 8 May 2023 (the AOD report), and a provision of advice to the Court report, dated 19 June 2023 (the PAC report). The Judge noted (as counsel for the appellant had accepted) that the three reports traversed “many of the factors” which might otherwise have been covered in a s 27 cultural report.
[8] The Judge noted the appellant’s extensive criminal history, including drink driving and similar offending as well as violent offending and sexual or sexual-related offending, including obscene exposure and doing an indecent act in public.8
[9] The Judge noted that counsel for the appellant sought additional discounts from the starting point to take account of the appellant’s upbringing and cultural factors and his struggles with alcohol and other substances over many years. The Judge noted that from the reports it was clear the appellant had a very significant alcohol and other substance abuse issue, and a high degree of sexual preoccupation that had been
7 As to the “amended starting point” adopted of 41 months, see n 17 below.
8 At [6].
sustained over many years. However, the Judge also noted the need to balance those issues against the “undoubted harm represented both to the individual victims in terms of each objectionable publication and the wider community itself.”9 Taking these factors into account, he Judge considered the most that could “properly be afforded by way of additional discounts over and above” the guilty plea discount was six months.10
[10] In “very round terms”, the discounts all together brought the end sentence down to two years and two months’ imprisonment.11
Submissions
Appellant's submissions
[11] The appellant initially filed submissions challenging the sentence in a number of ways. Following receipt of the respondent’s submissions, the appellant filed supplementary submissions clarifying and focusing on the areas still in dispute. The appellant accepts that the end sentence of one year and seven months’ imprisonment reached on the respondent’s calculations could not be regarded as manifestly excessive in the circumstances. The appellant maintains, however, that this is a clear case for home detention, in view of the appellant’s proven record to remain on electronically monitored (EM) bail for more than a year without issue.
[12] Mr Gill submitted that as the appellant would have been only liable to a short term of imprisonment, then he would ordinarily have received a sentence of home detention, having successfully complied with EM bail. Therefore, the appellant submits he should either be regarded as having served his custodial sentence (being eight months’ imprisonment, on the assumption he would have been released on parole) or should be sentenced to home detention at his mother’s address.
Respondent's submissions
[13] The respondent opposes the appeal in part. The respondent submits there was no error in the Judge’s approach to the available discounts, but credit was available for
9 At [9].
10 At [10].
11 At [10].
the time the appellant spent on EM bail and accepts that this would bring the end sentence to one of a short term of imprisonment. The respondent says, however, that though home detention would therefore technically be available, the appellant’s conduct and history of offending warrants an end sentence of imprisonment.
Appellant’s supplementary submissions
Approach to appeal
[14] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.12 The Court must dismiss the appeal in any other case.13
[15] In an appeal against sentence, an appellate Court will not intervene unless a sentence was outside the range available to the sentencing Judge.14 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.15 An appellate Court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.16
Analysis
End sentence calculation
[16] Counsel point out the methodology employed by the Judge in reaching an end sentence of two years and two months is unclear.17 The parties are now in agreement
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 Criminal Procedure Act 2011, s 250(3).
14 Tutakangahau, above n 12, at [36].
15 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 12, at [36].
16 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 12, at [32].
17 It appears that in reaching an “amended starting point” of 41 months, the Judge prematurely included the two-month uplift in respect of the appellant’s previous convictions. However, the established two-step methodology outlined in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 clearly stipulates that any such uplift is to be added at the second stage, after a starting point has been reached. The starting point adopted by the Judge was therefore 39 months, not 41 months, and the two-month uplift is then applied at the second stage against that starting point, along with any guilty plea discount and other uplifts and discounts for factors personal to the offender.
as to the correct calculation, based on the established two-step sentencing methodology in Moses v R.18
[17] The first step is to calculate the starting point for the offending, incorporating the aggravating and mitigating factors of the offence. As outlined by the Judge in his sentence indication, the starting point adopted was three years and three months’ imprisonment, or 39 months. The second step is to adjust the starting point, applying uplifts and discounts that reflect the aggravating and mitigating factors personal to the offender, as well as any guilty plea discount, to reach the end sentence. Thus the 25 per cent discount, the discount of six months for the factors identified in the report, and the uplift of two months for the appellant’s previous convictions, are all to be taken against the starting point of 39 months. The correct end sentence calculation is therefore 25.25 months’ imprisonment, or two years and 1.25 months.
Discounts
[18] In addition to the 25 per cent discount for guilty plea, the Judge gave a discount of six months for matters arising from the reports. The appellant initially challenged this discount and submitted a 15 per cent credit should have been given for causative factors relating to the appellant’s upbringing. However, the six-month discount equates to a discount against the starting point of 15.38 per cent. The appellant now accepts that the six-month reduction from the starting point is unappealable and does not pursue any further discount for remaining drug- and alcohol-free for a period of time.
Credit for time spent on EM bail
[19] No credit was given for time the appellant spent on EM bail between 7 June 2022 and 28 June 2023. The respondent accepts that credit for time spent on restrictive bail is appropriate.19 The appellant seeks a further reduction of six months from the starting point. The usual ratio for discounts for time spent on bail is 40 to 50 per cent of the time spent on restrictive bail conditions.20 The appellant spent
18 Moses v R, above n 17.
19 Sentencing Act 2002, s 2(h).
20 See Longman v Police [2017] NZHC 2928.
just over a year on EM bail. I am satisfied a further discount of six months is appropriate to recognise the time the appellant spent on restrictive bail.
Conclusion as to correct sentence calculation
[20]Given the above, the end sentence calculation ought to have been as follows:
(a)starting point of 39 months;
(b)uplift of two months for previous convictions;
(c)25 per cent discount for guilty plea;
(d)six-month discount for causative factors relating to the appellant’s upbringing; and
(e)six-month reduction for time spent on EM bail.
[21] This leads to an end sentence of 19.25 months, or one year and 7.25 months. I round this down to an end sentence of one year and seven months’ imprisonment.
[22] The appellant accepts a sentence of one year and seven months’ imprisonment cannot be regarded as manifestly excessive. However, he submits the sentence ought to be commuted to a sentence of home detention.
Home detention
[23] Given that the end sentence calculation is a short term of imprisonment, the possibility of a sentence of home detention is available. The appellant submits it is appropriate to commute the sentence to home detention in this case as the least restrictive sentence to meet the purposes of deterrence, accountability and denunciation.
[24] The respondent submits that this is a case of serious and prolonged offending, mostly of a sexual nature, and involving victims both known and unknown. The appellant has a history of such conduct and has previously been sentenced to
community-based sentences, and more recently a term of imprisonment, for similar offending. The respondent says an end sentence of imprisonment for the present convictions appropriately denounces the appellant’s conduct and holds him accountable for his offending.
[25] The availability of home detention does not mean that a short term of imprisonment is not a sentencing option.21 Indeed, there is no presumption that a short term of imprisonment will be commuted to home detention.22 An analysis of the circumstances of the particular case is required. In Fairbrother v R the Court of Appeal stated:23
… the judge must make a considered and principled choice between the two forms of sentence [a short sentence of imprisonment and home detention], 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.
[26] Section 16(1) of the Sentencing Act 2002 provides that when considering the imposition of a sentence of imprisonment for any particular offence, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. Section 16(2) provides that the court must not impose a sentence of imprisonment unless it is satisfied that the listed purposes of sentencing, which include holding the offender accountable for the harm done, providing for the interests of the victim of the offence, and denouncing the conduct in which the offender was involved, could not be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the application of the principles of sentencing of the particular case.
[27] Mr Gill made a number of good points in support of his submission that the short term of imprisonment should be commuted to home detention. He said that in the circumstances Mr Prichard could look to seek the counselling and assistance he needs for rehabilitation if he was on home detention and it could be a condition of the home detention sentence. Mr Prichard would be on home detention longer than he would be serving in prison, given his likely release dates. Mr Gill submitted that it
21 Polyanszky v R [2011] NZCA 4 at [13]; and Heta v R [2012] NZCA 267 at [21].
22 R v Vhavha [2009] NZCA 588 at [29]; and Manikpersadh v R [2011] NZCA 452.
23 Fairbrother v R [2013] NZCA 340 at [30].
was in the public interest that Mr Prichard be allowed to use the time spent on home detention seeking assistance which would manage or contribute to the management of the risk of future offending. Mr Gill also pointed out that Mr Prichard had been on EM bail for a reasonably long period of time without incident. No offending occurred in that period.
[28] In considering whether the criteria for home detention have been met, the Court is required to consider a pre-sentence report prepared by a probation officer.24 In this case, the PAC report noted that the appellant may be eligible for home detention and found no issues with the suitability of the home detention address. However, on the basis of the appellant’s offending history, particularly his sexual offending history and the seriousness of the current sexual offending, the report writer recommended a term of imprisonment appeared to be appropriate.
[29] In determining whether to impose a sentence of home detention in lieu of a sentence of imprisonment, I have considered all the information before the Court, including the psychological report, the AOD report, and the PAC report, and have had regard to the nature of the offending. I consider that the offending in this case is serious, mostly of a sexual nature, and is the latest in a considerable history of offending, as evident in the extensive criminal history of the appellant. The present set of charges represents offending which has been prolonged, having occurred between November 2019 and May 2022, and to an extent represents an escalation, given the amount of digital material involved and the involvement of an animal.
[30] In spite of the submissions made by Mr Gill, I consider that no sentence less than a sentence of imprisonment would meet the principles of sentencing, in particular denunciation of the appellant’s conduct, deterrence, and holding the appellant accountable for his offending. Having regard to the public nature of some of the offending, I also consider the safety of the community is best met by a sentence of imprisonment as opposed to a sentence of home detention. I consider this is the least restrictive outcome available in the circumstances.
24 Sentencing Act, s 80A(2A).
Conclusion
[31] I am satisfied that the sentence in this case of two years and two months’ imprisonment was manifestly excessive. While the starting point and discounts applied in this case were correct, the Judge ought to have provided a further discount of six months to account for the time the appellant spent on restrictive EM bail. No sentence less than a sentence of imprisonment would meet the principles of sentencing, in particular denunciation of the appellant’s conduct, deterrence, holding the appellant accountable for his offending, and the safety of the community. The end sentence ought to have been a sentence of one year and seven months’ imprisonment, as the least restrictive outcome available in the circumstances.
[32] As the sentence is a sentence of imprisonment in respect of a conviction for a qualifying offence, the appellant is automatically registered pursuant to s 7(1) of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. No further order is necessary in this regard.
Result
[33] The appeal is allowed. The sentence of two years and two months’ imprisonment is set aside. A sentence of one year and seven months’ imprisonment is substituted in its place.
Grice J
Solicitors:
Steve Gill Law
Luke Cunningham & Clere, Wellington
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