R v Ford

[2008] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND

CA675/07
[2008] NZCA 64

THE QUEEN

v

RICHARD ALLAN FORD

Hearing:20 February 2008

Court:Hammond, John Hansen and Priestley JJ

Counsel:R M Gould for Appellant

M E Ball for Crown

Judgment:18 March 2008 at 11 am

JUDGMENT OF THE COURT

A.THE APPEAL AGAINST SENTENCE IS ALLOWED.

B.       The sentence of two years, three months’ imprisonment is quashed.

C.       The appellant is sentenced to eight months’ home detention.

D.In addition to the standard conditions of home detention, the appellant is subject to the conditions set out in [22] of this judgment.

REASONS OF THE COURT

(Given by John Hansen J)

[1]       On 15 November 2007 the appellant was sentenced to two years, three months’ imprisonment on two charges of attempting to make intimate visual recordings and one charge of burglary.  He appeals on the basis the sentence is manifestly excessive.  His submission is the Judge should have imposed a sentence of home detention to enable rehabilitation options to be pursued.

Facts

[2]       On 15 December 2005 the appellant was trespassed from the BNZ Building in Wellington.  That related to an earlier incident that occurred in the public toilets of that building and resulted in the appellant being convicted of indecent assault.  He was imprisoned for this and other offending.

[3]       Just six weeks after his release from prison, on 21 December 2006, the appellant concealed himself in one of the toilet cubicles in the ladies’ toilet, and locked the door.  When the first victim entered the adjacent cubicle and was seated she heard a click from above and noticed a flash.  She left.  Soon after, the second victim entered the toilets and entered the adjacent cubicle.  She also heard a click and saw a flash.  She realised what had occurred and contacted security.  The appellant was apprehended in the toilet with two pornographic magazines and a Polaroid camera.  He had failed to take any photographs because he did not understand how to use the camera.

The sentencing decision

[4]       Judge Butler noted the proximity of the offending to the appellant’s release from prison, and his long list of previous convictions.  These included at least four other episodes of similar offending dating back to 2000.  He also noted that both the pre-sentence report and psychological report assessed the appellant as being at a high risk of reoffending.  He accepted that it was the appellant’s alcohol consumption that triggered the offending. 

[5]       The Judge identified the main aggravating features as being the proximity of the similar offending to the appellant’s release from prison, that he was in breach of a trespass order, and the gross breach of privacy involved.  In mitigation, he accepted the guilty plea and the appellant’s genuine wish to try and stop offending in this way.  He also accepted his remorse, but noted the appellant in the past had failed to follow through on opportunities for assistance.

[6]       The Judge took the burglary charge as the lead offence and adopted a starting point of three years’ imprisonment.  For the guilty plea, the remorse and the diagnosed condition he made an allowance of nine months’ imprisonment, imposing an effective sentence of two years and three months.  On attempting to make intimate visual recordings he sentenced the accused to nine months on each charge, concurrent.

Submissions

[7]       Ms Gould submitted that the sentence was inappropriate and manifestly excessive because it was not the least restrictive outcome.  The Judge’s finding that the appellant was not suitable for home detention conflicted with the fact that his terms of bail meant he had been effectively on home detention for ten months.  A detailed psychological report indicated the recommended sentence of nine months’ home detention followed by nine months’ supervision was a more appropriate sanction.  In essence, her submissions were focused on the rehabilitation of the appellant.  This was based on the fact that for the first time his paraphillic disorder had been diagnosed and he had responded well to one-on-one treatment. 

[8]       The Crown submitted that the starting point was appropriate and the sentence was not manifestly excessive.  Mr Ball submitted that the Judge was dealing with a case involving a gross invasion of privacy of a number of female victims committed within a short time of his release from prison for similar offending.  He further submitted that the reports to the Court confirmed the appellant was at high risk of reoffending.  He submitted the Judge was right to give weight to the need to protect the community and to denounce the appellant’s conduct.

[9]       Counsel did not address any jurisdictional issues.

Discussion

[10]     Subparts 2A and 2B of the Sentencing Act 2002 were very recently considered by this Court in R v Hill [2008] NZCA 41, where the Court was concerned with jurisdiction and the circumstances where a sentence of home detention was the proper sentencing outcome.

[11]     Relevantly for present purposes, the appellant’s offending occurred in December 2006. Section 80A of the Sentencing Act came into force on 1 October 2007, and the Court’s power to impose a sentence of home detention in such circumstances is governed by s57 as this Court noted in Hill at [28]:

We deal first with jurisdiction. The appellant’s offending occurred in October 2006. Section 80A of the Sentencing Act came into force on 1 October 2007 (see s2 of the Sentencing Amendment Act and the Sentencing Amendment Act 2007 Commencement Order 2007). Accordingly the Court’s power to impose a sentence of home detention in this case was governed by s57 of the Sentencing Amendment Act rather than s15A of the Sentencing Act. In contrast to the position under s15A, a court’s power to sentence to home detention under s57 is not limited to cases where a “short-term sentence of imprisonment” (currently two years or less) would otherwise have been imposed. Rather, it depends simply on the existence of a power to imprison (s57(a)). In the present case, then, the Judge had jurisdiction to sentence the appellant to home detention. The question is whether he was wrong as a matter of principle not to have exercised that jurisdiction.

The appellant’s offending occurred in December 2006.  Therefore in this case the jurisdiction to impose a sentence of home detention exists notwithstanding the sentence imposed. 

[12]     This Court continued:

[33]      The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.  The explanatory note identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”: at 5. 

[34]      Second, the home detention provisions sit within the general context of the Sentencing Act.  Accordingly, a sentence of home detention must be imposed in a way that is consistent with the purposes and principles of sentencing as set out in the Act (and in any other relevant legislation). 

[35]      Third, as Ms Markham submitted, this Court has said previously that sentences should not be artificially “tailored” to enable offenders to have the benefit of the home detention option (R v Sipa and Edwards CA390/05 7 December 2005 at [24]).  This will be particularly relevant to cases governed by s 15A, given the absolute jurisdictional limit it imposes through the use of the defined term “short-term sentence”. 

[36]      Fourth, in determining whether there is jurisdiction under s 15A(1)(b) (ie, whether the Judge would otherwise impose a “short-term sentence”), the relevant figure is the end sentence rather than the starting point.  But under both ss 15A and 57 the starting point and the factors which lead to the end sentence will be relevant to the decision whether or not a sentence of home detention should be imposed.  Where the giving of a significant discount to reflect an offender’s personal circumstances produces an end sentence that is sufficiently low to raise the possibility of home detention, those personal circumstances will also be relevant to the question whether home detention should be imposed.

[13]     Finally, in relation to a sentence of home detention the explanatory note to the relevant Bill, the Criminal Justice Reform Bill, is important.    It reads:

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years.  This increase is no longer sustainable, neither financially nor socially.  New Zealand’s imprisonment rate is considerably higher than countries that we habitually compare ourselves with, such as the United Kingdom, Canada, and Australia.  The Bill, which includes some measures that will have an immediate effect and others that will take longer for their impact to be felt, is intended to contribute to a reduction in the imprisonment rate over time.

[14]     We also consider it is appropriate to consider the sentence as if s15A applied.  In this case the starting point of three years was in the range available to the Judge.  The allowance made for the various mitigating factors was 25 per cent. 

[15]     In the circumstances of this case we consider a more generous allowance should have been made.  This was necessary to recognise the appellant’s early guilty plea, his remorse, and the fact that the psychological condition that caused him to offend in this manner had finally been identified.  Allied to this were the real steps he has been taking towards rehabilitation.  We accept that the report prepared by the clinical psychologist assessed his risk of reoffending as high over the next five years. But that must be read in context.  Firstly, it is said at page 4 of that report:

In the last two months he has made significant gains as he has started to effectively put his understanding and coping strategies into practice.  However, treatment still needs to be ongoing.

The report writer continued, “However this risk will reduce over time if he remains offence free.  It would be further reduced by ongoing treatment to meet his criminogenic needs.”  It is apparent that the one-on-one treatment received by Mr Ford from Ms Hughes has led to considerable improvement, which is why she recommended it over the WellStop programme.  She considered he needed a programme individually tailored to his need rather than the group programme at WellStop.  A further positive report was received from Care NZ, dealing with his alcohol use.  Finally, it is clear that the appellant’s family are supportive and prepared to provide a home and care for his needs.

[16]     In all of those circumstances we are satisfied that an appropriate allowance would have been one-third off the lead sentence.  That would mean a sentence of two years’ imprisonment, which would fit within the criteria of s15A.    Accordingly, we would have allowed the appeal and imposed a sentence of two years’ imprisonment.

[17]     However, for the reasons given in Hill, home detention is available in this case.  We turn to consider whether home detention is appropriate in Mr Ford’s circumstances.

[18]     Prior to sentence Mr Ford was remanded for assessment as to the suitability of home detention.  Community Probation and Psychological Services (CPPS) reported to the Court on 13 November 2007 that the suggested address where he would reside with his brothers was deemed suitable.

[19]     We accept that Mr Ford has a deplorable record.  He has persistently offended in ways that are a gross invasion of the privacy of others.  In conventional sentencing terms, he could not cavil at a sentence of imprisonment, even a stiff one, for the sorts of things that he keeps doing.  The difficulty in this case is that a great deal more is now known about this man and why he offends as he does.  Appropriate treatment is at last being undertaken, and endeavours made to turn him around.  What has greatly exercised us in this case is whether, in terms of the Sentencing Act principles, and the interests of society at large, it is better to try and bring this offending under control.  Not without some distinct hesitation we have concluded that it is in society’s interests that he should be given that opportunity, both for his own sake, but more particularly to try and break the cycle of offending.  This will be best met by imposing a sentence of home detention with appropriate conditions.  Those conditions will allow Mr Ford’s one-on-one treatment to continue.  It may be said that this is taking something of a risk with this man.  That is undoubtedly true, but it is not one the Court would be prepared to entertain without some realistic prospects of success.  That appears to us to be so in this instance.  However it must be made plain to Mr Ford that if he does not avail himself of what is very much a “last opportunity”, and should he re-offend in the future, then he could expect a court to take a very firm line indeed with him.

[20]     This conclusion requires us to address the length of the term of home detention, because a prisoner serves the whole of the sentence of home detention.  For a sentence of two years, three months he would have been eligible for parole after nine months.  Allowing for the fact that he has spent three and a half months in prison, we consider an appropriate sentence of home detention at this juncture would be eight months.  That would allow for the ongoing treatment of Mr Ford.

[21]     Accordingly, the appeal is allowed and the sentences of imprisonment are quashed.  We substitute a sentence of eight months’ home detention, concurrent, on each charge.

[22]     In addition to the standard conditions of home detention, the following conditions are imposed:

(i)He is to reside at 20A Miranda Street, Porirua, while subject to the sentence of home detention, or at such other address as may be authorised in writing by CPPS.

(ii)On his release from prison he is to travel directly to 20A Miranda Street and await the arrival of a representative from the monitoring agency and CPPS.

(iii)He is not to be in possession of, or consume, alcohol or non-prescription drugs.

(iv)He is to continue treatment through the Department of Corrections Psychological Service as directed.

(v)He is to attend any other programmes or treatment to address offending as directed.

(vi)      He is to undertake employment as approved by CPPS.

[23]     We also impose the following post-detention conditions:

(i)To continue with treatment through Psychological Services as directed by the probation officer, for a period of six months.

(ii)To attend any other programmes to reduce the risk of reoffending as directed by the probation officer, for a period of six months.

Solicitors:
Crown Law Office, Wellington