Read v Police
[2012] NZHC 1376
•18 June 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-117
CRI-2012-404-118
CRI-2012-404-119 [2012] NZHC 1376
ANTONY RAYMOND READ
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 June 2012
Counsel: H Laubsher for the Appellant
J Wall for the Respondent
Judgment: 18 June 2012
(ORAL) JUDGMENT OF WOODHOUSE J
Counsel/Solicitors:
Mr H Laubsher, Barrister, North Auckland Law Chambers, Albany
Mr J Wall, Meredith Connell, Office of the Crown Solicitor, Auckland
READ V POLICE HC AK CRI-2012-404-117 [18 June 2012]
[1] The appellant appeals against a sentence of six months home detention. This sentence was imposed in the District Court on 26 March 2012 for five offences. There was one offence of breach of a protection order, which has a maximum sentence of two years imprisonment. There was an offence of breach of a community work sentence, which has a maximum penalty of three months imprisonment. There were three breaches of conditions arising from a sentence of intensive supervision. The maximum penalty for these is six months imprisonment.
[2] The most serious offence, and the one that should be taken as the lead offence, was breach of the protection order. The order was made on 5 July 2011. The offence occurred on 4 October 2011. The offence was described by the Judge as follows:
[4] The breach of protection order charge today; this results from a protection order that was issued on 5 July 2011 against you in favour of the respondent [sic]. The respondent was at her home address in Stanmore Bay on 4 October 2011 when you arrived unannounced and uninvited and you were asked to leave. You decamped prior to police arrival and were spoken to on a later date. You had no explanation for your actions.
[3] It is relevant in this regard to note that the appellant had also been charged with assaulting the complainant. That charge was withdrawn. It is unnecessary to go into the reasons. The alleged assault arose out of the same broad circumstances giving rise to the breach of the protection order. I have mentioned this because it is clear from the sentencing notes that the Judge did not take into account any question of physical violence against the complainant in assessing the gravity of the breach of the protection offence. In the circumstances leading to withdrawal of the assault charge that was clearly the correct approach.
[4] The other offences are not to be discounted as of no consequence, but they are relatively minor in themselves and in context. In respect of the supervision sentence there was a failure to report as directed on two occasions, and on the third occasion a failure to attend a non-violence programme as directed. The breach of the community work sentence was a failure to report as directed. This occurred at the end of this offending, in November 2011.
The District Court sentencing
[5] After noting that the appellant had entered guilty pleas to these offences, and after briefly noting particulars of the offences, the Judge said:
[7] The probation report notes that your offending is linked to your issues of drinking, uncontrollable anger outburst, and difficulty with relationships. You are considered to be at a medium risk of reoffending but you are assessed as having a high motivation to deal with the alcohol addiction. You have also indicated you are willing to attend an anger management programme.
[8] As a result, a sentence of home detention with special conditions attached is the recommended sentence. As I indicated to you earlier, I am of the view that would be appropriate taking into account all the circumstances relating to your offending and your personal circumstances.
[9] I note that you have a number of breach convictions on your record and you have a conviction for male assaults female. A sentence of home detention with special conditions would be appropriate to denounce your behaviour, to provide deterrence and make it clear to you, you cannot offend or continue in this way; but also your rehabilitation needs to be considered to give you a chance in life to get on without future offending.
[10] On all charges you are therefore convicted and sentenced to home detention for six months to be served concurrently. The home detention address will be 2 Esmond Road at Takapuna.
[6] That is the extent of the Judge’s recorded assessment of the appropriate sentence. The remainder of his decision related to conditions of the home detention sentence and special conditions imposed following completion of that sentence.
Grounds of appeal
[7] The grounds of appeal were stated with commendable brevity in Mr Laubsher’s written submissions and his oral submissions in support. The essence of these submissions is that the starting point was clearly too high and the end sentence was manifestly excessive because of a failure to take into account the appellant’s time in custody on remand. Mr Laubsher referred to s 82 of the Sentencing Act 2002 and submitted that it is to be inferred from the way this is expressed that the court should, whenever considering a sentence other than imprisonment, have regard to any time spent in custody on remand. There were some further submissions which I will take into account in discussing the issues.
[8] For the respondent, Mr Wall responsibly acknowledged that there was an error in the failure to have regard to the time in custody on remand, although Mr Wall did submit that it is not mandatory to have regard to this when imposing a sentence other than imprisonment. Mr Wall also acknowledged another point made by Mr Laubsher to the effect that the sentences for the breach of the supervision and community work sentences were clearly excessive, but submitted that this does not mean that the overall sentence was manifestly excessive.
[9] Mr Wall submitted that the appropriate starting point for the offence of breach of a protection order would be around five months imprisonment and that there should be an uplift from that for the other offences. As a consequence of this submission, albeit with some additional points made, Mr Wall submitted that an end sentence of six months home detention was clearly not manifestly excessive. He did acknowledge, however, that it could be regarded as stern.
[10] I agree with Mr Wall’s submission that the primary focus to begin with must be on the appropriate sentence for breach of the protection order. The ultimate issue, having gone through this process, is whether the end sentence is manifestly excessive. The central issue is not whether the process adopted by the Judge might be in error to an extent. However, the difficulty here is that the Judge has gone straight to what does appear to be the end sentence. There was no discussion of a starting point for what would have to be taken as the lead offence – breach of the protection order. And there was no discussion of any uplift for other offences or for previous offences. And there was no discussion of any discount for a guilty plea. The impression is that the Judge assessed the end point as being the starting point; that is to say, six months home detention for each of the five offences. But most significantly, the Judge did not take into account the fact that the appellant, by the date of sentencing, had spent 19 weeks in prison on remand.
[11] Mr Wall placed some emphasis on a decision of this court in Narayan[1] and a survey of some other cases by the Judge in Narayan. Mr Wall’s submission that a
starting point of five months imprisonment in this case would be appropriate was based, in considerable measure, on Narayan and the other cases surveyed.
[1] Narayan v Police [2012] NZHC 988; HC Blenheim, CRI-2012-406-009, 11 May 2012, Williams J.
[12] In my judgment a starting point of five months imprisonment would be manifestly excessive. A starting point anywhere close to that is not justified by the cases referred to in Narayan or Narayan itself. The facts of this case, in relation to the lead offence, are set out above. This offence, as outlined by the Judge, may properly be described as at the low end of the scale of this type of offending. It is not offending – focusing on the facts of the offence without considering anything else – which could justify a sentence of imprisonment. And this does appear to be the way in which the Judge approached the matter. There is no indication in the sentencing notes of any consideration of imprisonment.
[13] On the basis of this analysis the starting point is therefore a sentence of home detention. In my judgment a sentence of home detention for the lead offence, in assessing a starting point, would be six months at the upper limit. It would probably be somewhat lower than that, but, for reasons I come to, it is unnecessary to go into much more detail.
[14] There is then need to have regard to the other relevant matters on sentencing, having adopted a starting point. There are the other offences, and they would warrant some uplift. There would then be need to have regard to some previous offences of relevance. There do not appear to be any significant mitigating factors of a personal nature. That leaves an appropriate discount for the guilty pleas.
[15] The reason I have not gone through a careful assessment of increases and deductions is that the time in custody of 19 weeks is a lengthy period of time in prison when compared – as best as one can compare these things – to an appropriate sentence of home detention for this offending. Arithmetically precise conversions of a prison sentence to a home detention sentence, or vice versa, are not possible. However, adopting a reasonably robust approach, I consider that the time spent in custody of 19 weeks together with the additional time spent serving the home detention sentence from 26 March 2012, easily equates to the maximum sentence that should properly have been imposed on this appellant had the matter been
assessed afresh on 26 March and he had not at that point spent time in custody. In this regard I note that the home detention sentence commenced on 26 March and was suspended on 17 April 2012 following filing of the appeal in the District Court on 12
April 2012.[2] In other words, approximately three weeks of the home detention
sentence have been served.
Result
[2] The 17 April 2012 date is information obtained at my request following delivery of the oral judgment at the end of the hearing. Mr Laubsher had been uncertain of the exact date but indicated it was around 17 April. I obtained the exact date because of the amendment in this transcript of the substituted sentence as had been stated in court when delivering the oral judgment. In this regard see the addendum.
[16] Having regard to these various considerations I am satisfied that the appeal should be allowed.
[17] All of the sentences of six months home detention are quashed and replaced with sentences of home detention expiring on 17 April 2012.
[18] The special conditions to apply following completion of the home detention sentence imposed in the District Court are to apply for six months on this substituted sentence. These are the special conditions referred to in the pre-sentence report. The six months of special conditions (and the standard conditions) commences on 20
June 2012.
[19] The Judge discharged the community work and intensive supervision sentences. Those orders are confirmed.
ADDENDUM
[20] The substituted sentences and the text of [16] and [17] are different from what I said in court when delivering the oral judgment. I had said that there would be a substituted sentence for the protection order offence commencing on 26 March
2012 and expiring on 3 July 2012. This was an error in calculation in relation to
what I had said at [15] and what I said at [15] contains the heart of the decision and
is unaltered. It was an error to the disadvantage of the appellant. I have, therefore,
effectively recalled the oral judgment to correct this error.
Woodhouse J
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