R v Harriman
[2009] NZCA 156
•29 April 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA19/2009
[2009] NZCA 156THE QUEEN
v
WAYNE GRAHAM HARRIMAN
Hearing:22 April 2009
Court:Robertson, Heath and Fogarty JJ
Counsel:K E Becker for Appellant
T Epati for Crown
Judgment:29 April 2009 at 3.30 pm
JUDGMENT OF THE COURT
A THE APPEAL AGAINST SENTENCE IS ALLOWED.
BSentencing is remitted to the District Court on the basis outlined in [29].
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
[1] Mr Harriman appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Ongley, in the District Court at Palmerston North, on 12 December 2008. Mr Harriman had pleaded guilty to assaulting Mr Eric Brown, using a motor vehicle as a weapon, and driving a motor vehicle recklessly, thereby injuring Hinganui Brown, the 15 year old son of the assault victim. Mr Brown is Mr Harriman’s brother-in-law and Hinganui is his nephew. Initially, in respect of the incident involving Hinganui, a more serious charge was laid but the prosecution did not proceed with it.
[2] The appeal turns on a short point. The question is whether Judge Ongley erred in sentencing Mr Harriman without the benefit of a pre-sentence report. Mr Becker contends that the sentencing ought not to have proceeded until a report was available, whereas Ms Epati submits that, in the circumstances confronting the Judge, it was not essential for him to obtain a report.
The facts in outline
[3] At about 9am on 4 September 2007, Mr Harriman’s son drove to Mr Brown’s home, in Levin, to see Mr Brown’s son, Hinganui. Mr Brown came out of the house and verbally abused Hinganui, before punching him in the head with a closed fist. Hinganui ran home, being chased for some distance by Mr Brown.
[4] Mr Harriman was in bed when he heard his son yelling and crying outside. As he got up, he heard his son tell his mother that Mr Brown had assaulted him and taken his car. Mr Harriman became angry.
[5] Mr Harriman drove towards Mr Brown’s home. Both Mr Brown and his son were standing on a grass verge. Mr Brown yelled at Mr Harriman, using abusive language. Mr Harriman became angrier. He drove forward, did a u-turn, mounted the kerb, accelerated and deliberately drove towards Mr Brown. An eye witness estimated the speed at about 50km/h. Mr Brown was hit by the vehicle and Hinganui clipped, as the vehicle passed him by.
[6] Both Mr Brown and Hinganui were thrown up onto the bonnet of the car from which they fell to the ground. Both were injured. Mr Harriman drove back onto the road and headed north. He was stopped by Police. Mr Harriman was visibly upset and shaken. He admitted hitting Mr Brown with his car. He said he did not stop after the accident because he was going directly to the police station to report the incident.
Sentencing in the District Court
[7] On 18 September 2008, Mr Harriman entered pleas of guilty to two charges. He was remanded on bail for sentence. Both a pre-sentence report (with a home detention appendix) and victim impact statements were sought.
[8] While on bail pending the entry of pleas of guilty, Mr Harriman had been charged with additional driving offences; in particular dangerous driving and driving with an excess breath alcohol concentration. They occurred on 4 July 2008, as a result of driving between Otaki and Levin. Pleas of guilty to those charges were entered in the District Court at Levin on 22 October 2008. Mr Harriman was remanded for sentence contemporaneously with the charges relating to Mr Brown and his son.
[9] In the time between entry of pleas and sentence Mr Becker, for Mr Harriman, sought a report from a forensic psychiatrist, Dr Barry-Walsh. Dr Barry-Walsh’s brief was to assist Mr Becker on any psychological issues that might affect the length or nature of sentence to be imposed. Dr Barry-Walsh reported to Mr Becker on 26 November 2008.
[10] The report provides background on Mr Harriman’s past and expresses an opinion about depressed moods, associated with sleep disturbances. Dr Barry-White suggested that the incidents in issue occurred against the background of “reported post-traumatic symptoms”, dating back to described childhood physical abuse. Some information was provided on inter-familial relationships.
[11] Although the psychiatric report was obtained, Mr Harriman failed to attend on a probation officer to enable the pre-sentence report and home detention appendix to be completed. A probation officer reported to the Court, on 8 December 2008, that three separate appointments had been made, but not met. The probation officer suggested that Mr Harriman had been “afforded ample opportunity” to attend.
[12] Notwithstanding her inability to interview Mr Harriman and to make further inquiries, the probation officer recommended a sentence of imprisonment and a special release condition requiring him to attend and complete drug and alcohol counselling to the satisfaction of a probation officer and service provider.
[13] Judge Ongley considered that he had sufficient information before him to sentence Mr Harriman. Therefore, he declined an application for adjournment and continued to sentence without a report, saying:
[13] You have a number of driving related convictions but you have had no relevant convictions since 1994. It is reasonable to disregard the earlier discreditable history because it does not suggest that you currently pose a future risk. You pleased guilty after preparation for trial, you were remanded for a pre-sentence report on 22 October, you failed to attend appointments and that has resulted in there [being] no pre-sentence report before the Court today. After hearing submissions I cannot see that a pre-sentence report could add anything to what is already known, including the report that has been provided to the Court from Dr Barry Walsh. For that reason I have declined an application for adjournment and resolved to continue with sentence. Your failure to attend appointments may have been excusable to some extent. It certainly does not increase the sentence.
Analysis
[14] Was it appropriate for sentencing to proceed in the absence of a pre-sentence report?
[15] Section 26 of the Sentencing Act 2002 (the Act) provides a discretion for the Court to direct a probation officer to provide a report, if an offender is charged with an offence punishable by imprisonment: s 26(1).
[16] Section 26(2) sets out the type of information that may be included in a pre-sentence report. Relevantly, for present circumstances, that includes information about the personal, family, whanau, community, cultural background and social circumstances of the offender and recommendations on the appropriate sentence, taking into account risk of further offending and the type of programmes that might assist in rehabilitation. Those aspects must be read in the context of s 8(g) of the Act which requires a sentencing Court to impose the least restrictive outcome appropriate in the circumstances, in accordance with the hierarchy of sentences set out in s 10A.
[17] A sentencing Court must not direct the preparation of a pre-sentence report on any aspects “of the personal characteristics or personal history of an offender” if a prior report dealing with those aspects “is readily available to the Court and there is no reason to believe that there has been any change of significance to the Court since the report was prepared”: s 26(3).
[18] Ms Epati, for the Crown, submitted that the s 26(3) discretion could have been exercised in this case. With respect, we disagree. The type of report to which s 26(3) refers is a pre-sentence report containing information to which s 26(2) refers and the discretion is limited to aspects of personal characteristics or personal history of an offender. A psychiatric report of the type prepared by Dr Barry-Walsh does not fall into that category.
[19] This Court has consistently held (both before and after the Act came into force) that a custodial sentence should only be imposed in rare circumstances without the benefit of a pre-sentence report. In re Moulin [1943] NZLR 325 at 327 (SC), Myers CJ explained why:
… I think I am right in saying that, in except where a sentence is fixed by law, a Judge of the Supreme Court never sentences a prisoner to a term of imprisonment or reformative detention without having Probation Officer’s report before him. The reason is simple. No matter what the prisoner’s previous criminal record may be, and no matter what the police or Crown Prosecutor may say of the offender’s character as gleaned from the Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information. It is not right, in my opinion, that any Court should sentence a person to a long term of imprisonment – in this case twelve months’ imprisonment with hard labour to be followed by twelve months’ reformative detention – without having had the opportunity of considering a report from the Probation Officer.
[20] That statement of principle has been followed frequently: eg R v Spring CA221/85 18 November 1985, R v Johansen (1997) 15 CRNZ 111 (CA) and R v Bellingham (2005) 21 CRNZ 561 (CA). The Court in Bellingham said:
[12] [The comments of Myers CJ set out at [19] above] are as pertinent now as they were over 60 years ago. Although it has often been said that personal circumstances can carry little weight when sentencing for drug offending, it is nonetheless important that the Court should have the benefit both of the factual information supplied in a pre-sentence report and the opinion of the officer in his or her areas of expertise. Having said that, we accept that in this case, as counsel for the respondent has submitted, the principal matters able to be put in mitigation or otherwise relevant to sentencing were in fact before the Judge. We, of course, have had the benefit of reading the pre-sentence report and have been able to take it into account in our deliberation.
[21] The purpose of a pre-sentence report is to ensure that a sentencing Judge has adequate information about an offender, before imposing a sentence of imprisonment or deciding whether a non-custodial sentence is sufficient to respond to particular offending. Given that purpose, it is inappropriate to sentence unless the Judge can rule out any reasonable possibility that further information might come to light that could affect the credit to be given to mitigating factors.
[22] A possible exception to that general rule is a case involving offending that falls into a relatively strict tariff guideline decision, such as R v Fatu [2006] 2 NZLR 72 (CA), in the context of offending involving the Class A controlled drug methamphetamine. If a sentencing Judge were satisfied that an offender had given an informed waiver of the pre-sentence report and sufficient assurances were available to satisfy the Judge that all relevant personal information was before him or her, it would be open to sentence without one. Otherwise, exceptional circumstances would be required, to be assessed on a case by case basis.
[23] In this case Judge Ongley was not asked by counsel for Mr Harriman to sentence in the absence of a report. Indeed, Mr Becker asked for Mr Harriman to be remanded in custody, so that a report could be obtained. Further, Mr Harriman’s personal circumstances were unusual and, despite Dr Barry-White’s report, we cannot rule out the reasonable possibility that further information might have come to light that was relevant to type and length of sentence.
[24] For example, Mr Harriman, aged 52 years at the time of the offending, had not been before the Courts for almost 12 years. Between 1972 and 1996 he had constantly offended, on many occasions violently. Notwithstanding the depth of Dr Barry-White’s report on psychological issues, some further insight may have been gained into the sudden revival of criminal activity had a pre-sentence report been obtained. Further information about both inter and intra familial dynamics would have been helpful to any sentencer.
[25] In addition, a Judge had directed a home detention appendix, suggesting that that was considered a possible sentence. Dr Barry-White’s report did not (and could not) deal with issues of suitability of address and occupation to which that appendix is directed: s 26A of the Act. A sentencing Judge should have awaited information to ascertain whether it was desirable (from the perspective of both Mr Harriman and the community) that he remain in the community subject to a sentence of home detention rather than being imprisoned.
[26] Applying the line of authority beginning with Re Moulin, we hold that it was not open to the Judge to sentence without a pre-sentence report.
[27] In our view Judge Ongley erred in proceeding to sentence without a pre-sentence report. What was required was a short remand in custody to ensure a pre-sentence report was obtained. Notwithstanding a remand in custody, a probation officer could still have completed a home detention appendix.
Disposition
[28] The next question is how we should dispose of the appeal. Since 26 June 2008, this Court has been empowered, by s 385(3)(c) of the Crimes Act 1961, to remit sentencing to the District Court: s 13 of the Crimes Amendment Act 2008. We consider that the most appropriate option. That will enable the District Court to obtain a pre-sentence report and to sentence on the basis of the information contained in it, Dr Barry-White’s report and the victim impact statement. As to the latter, it may now be possible to obtain a victim impact statement from Hinganui. One was not available originally because he could not be located.
[29] Sentencing is remitted to the District Court with a direction that it obtain a pre-sentence report and home detention appendix before sentencing Mr Harriman afresh.
[30] Mr Harriman will remain in custody meantime to facilitate completion of the pre-sentence report.
Solicitors:
Crown Law Office, Wellington
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