Richmond v Police
[2019] NZHC 2001
•15 August 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2019-463-53
[2019] NZHC 2001
BETWEEN BRADLEY VINCENT RICHMOND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 August 2019 Appearances:
B Hall for Appellant
E Collis for Respondent
Result:
6 August 2019
Reasons:
15 August 2019
REASONS JUDGMENT OF DUFFY J
This judgment was delivered by me on 15 August 2019 at 2.30 pm.
Registrar/ Deputy Registrar
Solicitors:
C Tuck, Barrister, Tauranga Crown Solicitor, Tauranga
RICHMOND v NEW ZEALAND POLICE REASONS [2019] NZHC 2001 [6 August 2019]
[1] On 29 May 2019 in the Whakatāne District Court, Mr Richmond pleaded guilty to and was convicted of the following offences:1
(a)threatening to kill2
(b)dangerous driving3
(c)failing to stop for flashing blue and red lights4
(d)failing to answer court bail5
[2] On the lead offence of threatening to kill he was sentenced to six months’ imprisonment with lesser sentences of imprisonment being imposed concurrently for the remaining offences for which sentences of imprisonment are available.6 He was also disqualified from driving for 12 months on the charge of dangerous driving and for six months (to take effect on the expiry of the 12 months’ disqualification) on the charge of failing to stop for flashing red and blue lights.
[3] Mr Richmond appealed against the sentences of imprisonment and the length of the disqualification on the dangerous driving charge. Because he was refused bail pending the sentence appeal by the time the appeal was before me for hearing, on 6 August 2019, he had served just over two months of the sentence of imprisonment and was due for release on 29 August 2019.7 Because I was satisfied the appeal should be allowed I delivered a result judgment that day setting aside the sentences of imprisonment and imposing in their place sentences of 12 months’ intensive supervision and one months’ community detention, which took effect on
1 New Zealand Police v Richmond [2019] NZDC 10255.
2 Crimes Act 1961, s 306.
3 Land Transport Act 1998, s 35(1)(b).
4 Land Transport Act 1998, s 52A(1)(a)(ii).
5 Bail Act 2000, s 24.
6 These were the dangerous driving and breach of bail offences. On the failing to stop for flashing red and blue lights offence he was convicted and disqualified from driving for the mandatory minimum period under s 52A(3) of the Land Transport Act 1998.
7 Six months’ imprisonment is a short-term sentence of imprisonment under s4(1) of the Parole Act 2002, which means that in accordance with s 86(1) of that Act the release date is the date on which an offender, who is subject to such sentence, has served half of it.
Mr Richmond’s release from prison.8 I also reduced the 12 months’ disqualification from driving to nine months’. My reasons for doing so now follow.
[4]The appeal was advanced on three grounds:
(a)the starting point reached on the threatening to kill charge was too high
(b)the sentence received on the charge of dangerous driving was too high and not commensurate with what the co-offender received
(c)home detention was the least restrictive outcome and should have been imposed
Legal framework
[5] The right of appeal is available under s 244 Criminal Procedure Act 2011. The powers on appeal are set out in s 250. The Court can only allow the appeal if it is satisfied there is an error in the sentence, and that an alternative sentence should be imposed.
Background facts
[6] Between 18 March 2019 and 25 March 2019 Mr Richmond sent one text message and two Facebook messages to the victim, his former partner, with whom he was engaged in a custody dispute over their children. These messages included the threats:
SLUT MUTT BITCH CANT WAIT UNTIL YOU DIE FUCK I WANTED 2 SMOKE YOU AT UR WORK ANY WAY LATERS SLUT EVERY BODY NUKS YOU ARE AN SMUK THE P 2 GOT THE FUCKN CHEEK
Kunt have fucked me right up in the head bitch you ganna get whats coming to you bitch slut hangi pants whore dead bitch walking
I coming for yah
8 Richmond v Police [2019] NZHC 1905 – the two judgments should be read together.
[7] On 3 April 2019 Mr Richmond failed to attend the Whakatāne District Court in breach of his Police bail. Then on 11 April 2019 Mr Richmond was driving his vehicle east at Rotoma with his friend Mr Ruha. Neither wanted to be stopped by Police. Mr Richmond was subject to an arrest warrant because he had failed to answer his bail for the threatening to kill offence and Mr Ruha, who was also on bail, was in breach of his curfew conditions. The Police wanted to stop the vehicle because it had no operating rear lights. The Police signalled the vehicle to stop using flashing red and blue lights. Mr Richmond did not stop.
[8] There was an hour long chase through rural roads around Rotoma, covering about 50 kilometres. Half way through the pursuit, and while the vehicle was still travelling at speed, Mr Richmond swapped places with Mr Ruha. The pursuit was regularly above the speed limits, and the vehicle was often deliberately driven on the wrong side of the road. The headlights were switched off and on. Eventually Mr Ruha crashed the vehicle into a fallen pine tree which was lying across a forestry track off Pikowai Road. The vehicle was severely damaged. Mr Richmond and his companion fled into the forest. The two were located by a Police dog team.
Decision on appeal
[9] Judge Ingram rejected the submission that the threats to kill were at the lower end of the scale of this type of offending. He considered the threats were serious and they should attract a serious sentence.9
[10] The Judge considered that the dangerous driving offending, while not injuring anybody else, placed a large number of people in the community at risk.10 He considered Mr Richmond’s involvement in this offending was serious because he was the owner of the vehicle, he was the one who started the chase and he subsequently continued it.11 The Judge considered this was “about as serious as it gets” in relation to the dangerous driving charge.12
9 New Zealand Police v Richmond, above n 1, at [9].
10 At [12] and [13].
11 At [8].
12 At [13].
[11] The Judge adopted a starting point of nine months’ imprisonment for the lead offence of threatening to kill. Despite the driving offences and breach of bail offence occurring on a different date and being different offences from the lead offence the Judge imposed concurrent sentences of two months’ imprisonment for the dangerous driving and the breach of bail offence. He gave Mr Richmond three months’ credit for the guilty plea, which reduced the sentence on the lead offence to six months’ imprisonment. Mr Richmond was also disqualified from holding or obtaining a driver’s license for 12 months on the dangerous driving charge, with a further six months’ disqualification to follow on the failing to stop for flashing blue and red lights charge.
[12] The sentence of six months’ imprisonment meant that Mr Richmond was eligible for a sentence of home detention. However, the Judge said nothing about whether he should impose this sentence rather than imprisonment.
Submissions
Appellant’s submissions
[13] Mr Richmond submitted that the starting point on the threatening to kill charge was too high. Given there is no established tariff case for threatening to kill, he then outlined comparable cases to support his argument on the level of the starting point.
[14] Mr Richmond relied on the remarks of White J in Allan v Police, on factors which may be relevant to determining the seriousness of the offence: namely, the degree of premeditation, apparent willingness to carry out threat, usage of a weapon, level of harm or fear caused and whether the threat was made to the victim.13
[15] Mr Richmond referred to McCleary v Police where the defendant threatened to kill her partner. A starting point of four months’ imprisonment was upheld by Asher J on appeal.14
13 Allan v Police HC Dunedin CRI 2011-412-37, 1 December 2011. Approved in Simon v R [2014] NZCA 207 at [22].
14 McCleary v Police [2014] NZHC 1581.
[16] Mr Richmond also referred to O’Connor v Police where the appellant threatened to kill a person who was the subject of a protection order against him.15 He entered her home and abused and threatened her stating “I hate you, I’m going to kill you bitch”. He threatened to take her to the river, hang her and then kill himself. He assaulted her by pushing her onto a couch and lying across her. The High Court considered the appellant might have expected a sentence of 12 months’ imprisonment on the threatening to kill and assault charges.
[17] In R v Sykes the appellant threatened to kill his estranged cousin at a tangi at the appellant’s home.16 He yelled at the victim, and smashed items in the house. He also threatened a family member. Mr Sykes pointed a pistol at the victim’s head and said “I will fucking kill you”. He then walked around the lounge of the house muttering “I’m going to kill you, I’m going to kill them”. As it transpired the pistol had been loaded with incorrectly sized ammunition. The offending had a significant emotional effect on the victim. The Judge adopted a starting point of 18 months’ imprisonment, referring in particular to the usage of a pistol as an aggravating factor.
[18] In Blair v New Zealand Police, the appellant threatened to kill his partner.17 Following an argument over the phone, he told her that if she called the police he would shoot her, her mother, her father and her brother in the head and also burn down the house. He also sent her a text threatening to kill her. He also threatened to kill a police officer and his family when being arrested. The Court adopted a starting point of 12 months’ imprisonment for the first threat, and 12 months cumulative for the second threat.18
[19] In Burchell v R the Court of Appeal considered a threat made by the appellant when talking to his probation officer.19 The appellant had become angry when recounting the details of his experience at the hands of the court system and Police. He said he knew where the Police Officer who he was enraged at lived, and that if he saw him again, he would kill him. The Court noted that it was significant that the
15 O’Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.
16 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
17 Blair v New Zealand Police HC Dunedin CRI-2010-412-10, 13 May 2010.
18 At [19].
19 Burchell v R [2010] NZCA 314.
officer was not present at the time. Further, that it was an unparticularised and opportunistic threat which was a spontaneous culmination of an angry, irrational tirade against Police officers and authorities in general. The Court considered that an end sentence of eight months’ imprisonment was improper, and so it was replaced with a sentence of four months’ imprisonment.
[20] Mr Richmond submitted that a starting point between four to six months’ imprisonment is available. He acknowledged the present offending is more serious than Burchell, but argued that it was less serious than in the other cases. He submitted that the threats were made out of frustration with the victim, with whom he is currently involved in a custody dispute regarding their children. He also submitted that there was nothing to suggest he was serious about carrying out the threat, there was no weapon involved, the threats were non-specific, and he has no history of violence.
[21] On the dangerous driving charge, Mr Richmond submitted that disqualification from driving for 12 months was manifestly excessive. He also submitted the sentence imposed of two months’ imprisonment places him at the top end of the sentencing range, as the maximum is three months’ imprisonment. In this regard Mr Richmond relied on Woodford v Police where a sentence of two months’ imprisonment on a charge of dangerous driving was reduced to six weeks’ imprisonment on appeal.20
[22] Mr Richmond accepted that he has previous driving convictions. However, they date back to 2011 and, he submits, the present offending was less serious. He refers to the fact Mr Ruha was sentenced to 100 hours community work, nine months supervision and disqualified from driving on the dangerous driving charge for six months. Mr Richmond submits that his culpability is equal to that of his co-offender. Accordingly, the disqualification period should have been the same for each offender.
[23] On the issue of home detention, Mr Richmond submitted that he is 30 years of age, with a relatively limited conviction history. He has a suitable home detention address, which is also suitable for electronic monitoring. He submits that a sentence of home detention sufficiently serves the purposes of the Sentencing Act 2002 by
20 Woodford v Police HC Christchurch CRI-2007-409-234, 5 December 2007.
holding him to account, denouncing his conduct and providing a sufficient deterrence to him and to others.
Respondent’s submissions
[24] The respondent submitted that the threatening to kill offending in this case is significantly more serious than in Burchell. Also, here the threatening messages were sent directly to the victim. The respondent emphasized the premeditated nature of the messages, as there were three sent over the space of a week with an additional call and text message seeking a response. The respondent submitted that this was not a spontaneous outpouring of frustration, but ongoing offending specifically designed to scare the victim. The respondent also submitted that the references to the victim’s workplace demonstrate a willingness on the part of Mr Richmond to carry out the threat. Finally, the respondent referred to the impact of the offending on the victim, it caused her to feel serious concerns for her safety and wellbeing, and it led her to believe her life may have been in danger.
[25] The respondent submitted the case falls midway between Burchell and McCleary v Police on the one hand (which attracted starting points of four months’ imprisonment), and on the other O’Connor v Police and Blair v New Zealand Police, which attracted starting points of 12 months.
[26] The respondent refuted Mr Richmond’s submission he has no history of violence because he has a conviction for robbery by assault from 2013.
[27] On the driving charges, the respondent referred to s 19 of the Sentencing Act 2002, which provides that a sentence of imprisonment cannot be combined with sentences of community work or supervision. Accordingly, the only appropriate sentence which could be imposed on the dangerous driving charge was imprisonment or a fine. Further, the respondent submitted that two months’ imprisonment and a total of 18 months disqualification was appropriate because of the deliberate, prolonged and dangerous nature of the chase as well as Mr Richmond’s previous driving convictions.
[28] Regarding the decision not to impose a sentence of home detention, the respondent submitted that Judge Ingram correctly considered that home detention would not act as an adequate deterrent. It relied on the remarks of the Court of Appeal in Polyanszky v R that the introduction of home detention as a discrete sentence has not removed a short-term sentence of imprisonment as an appropriate sentencing option.21 The respondent also referred to the remarks of the High Court in Brittin v Police that:22
When a court is considering sentencing for the purposes of deterrence, accountability, and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
[29] The respondent submitted that the serious nature of the offending, as well as the real risk of harm indicated that imprisonment was a proportionate response. They argued that Mr Richmond’s criminal offending “does not lend itself to the conclusion that he would comply with a sentence of home detention”, and also referred to the fact one of the offences was a failure to answer to Police bail. Further, that Mr Richmond has convictions involving failure to comply with court orders. Finally, they referred to the remarks in his pre-sentence report, where he was assessed as being a medium risk of re-offending, that drug use and relationship difficulties are factors contributing to his offending. The respondent submitted that the principles of rehabilitation and reintegration were best served through a sentence of imprisonment where Mr Richmond can undertake necessary courses.
Analysis
[30] The key focus of this appeal was whether Mr Richmond should have received a sentence of home detention or not. However, that assessment involved a two-stage process. A Judge must first decide whether the sentence that is otherwise appropriate is a short-term sentence of imprisonment (stage one) and then whether to commute that sentence to one of home detention (stage two).23 The assessment also requires the
21 Polyanszky v R [2011] NZCA 4 at [13].
22 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].
23 See R v Vhavha [2009] NZCA 588 at [31].
Judge “at stage one to operate on the assumption there is no stage two.” 24 Accordingly, it was first necessary for me to review the process by which Judge Ingram arrived at the term of imprisonment.
Threatening to kill
[31] There is no tariff case for the offence of threatening to kill. The circumstances are always decisive.25 There are, however, a number of factors which are generally relevant to determining the seriousness of a threat to kill. Those factors include:26
(a)the degree of premeditation;
(b)the apparent willingness of an offender to carry out the threat;
(c)the use of a weapon;
(d)the level of harm or fear caused to the victim;
(e)whether the threat was made to the victim
[32] Judge Ingram adopted a starting point of nine months’ imprisonment for the threatening to kill charge, which he considered to be the lead offence.27
[33] I agreed with the respondent that the offending must be categorised as more serious than that in Burchell and McCleary v Police. An important factor in Burchell, which justified the reduction of the starting point to four months’ imprisonment was the fact the threat was made to a third party, and in the context of an angry rant. The spontaneous nature of the threat was also important. Similarly, in McCleary v Police the threats were made at a time when Ms McCleary was distressed because she was separated from her children, the communication was made to a third party, and the threat was imprecise and lacked specificity.28 These elements were lacking from
24 R v Vhavha, above n 23, at [31].
25 Burchell v R, above n 19, at [25].
26 Allan v Police, above n 13.
27 New Zealand Police v Richmond, above n 1, at [20].
28 McCleary v Police, above n 14, at [13].
Mr Richmond’s threats, which were made on three occasions, and directly to the victim (although through message). The continued nature of those threats showed they were not spontaneous. Furthermore, due to the electronic nature of the threats, the victim would have had no way to know how serious Mr Richmond was.
[34] I also considered it significant here that the threats were made in a particular manner. Mr Richmond knew where the victim works. He referenced her work in the context of his threat, albeit a reference to what he had “wanted” to do rather than what he was planning to. The fact that he wanted to “smoke” her at her work was a clear communication to the victim that he knew where she worked, and had a desire to harm her there.
[35] The fact the threats were made electronically did not detract from their seriousness. However, the absence of an immediate ability to effect the threats reduced the level of harm caused. As was recognised by the Court of Appeal in Faaleaga v R:29
The inability to immediately effect a threat reduces the terror it might otherwise invoke, reducing the extent of harm resulting from the threat and thereby reducing culpability. We do not agree with the sentencing Judge that this factor cannot detract from the severity of the offending. Whether it does or not will turn on the specific facts.
[36] Nevertheless, here the reduction of harm was counter-balanced by the repeated nature of the threats, and the victim’s knowledge that Mr Richmond knew where she worked. Further the victim had expressed her fear of Mr Richmond doing something to either her or her children. Thus, she no longer feels safe in her home.
[37] Whilst I accepted the offending was not as serious as that in Blair, I considered it was closest to Blair where a starting point of 12 months’ imprisonment was adopted. Accordingly, I did not consider a starting point of 9 months’ imprisonment was manifestly excessive.
29 Faaleaga v R [2011] NZCA 495 at [11].
Dangerous driving
[38] In Woodford v Police, Ms Woodford was sentenced in the District Court to cumulative sentences of two months’ imprisonment for dangerous driving, and one months’ imprisonment for drink driving. On appeal these sentences were reduced to a total sentence of six weeks’ imprisonment. 30 She was also disqualified from driving for two years. Ms Woodford had been weaving within her lane, and on two separate occasions swerved, forcing oncoming traffic to stop. She was confronted by fellow motorists at a red light. She sped off, ramming two cars as she left. She drove through a red light, drove around stationary traffic and drove into the wrong lane.
[39] I considered Mr Richmond’s offending to be less serious than that of Ms Woodford. While he was driving the vehicle, it did not collide with other vehicles nor did it damage anything else. Also, the driving did not involve any actual threatened harm to other vehicles or the occupants, because apart from the pursuing Police vehicle there were no other vehicles in the vicinity. I accepted, however, there was the potential for such threats had other vehicles been present.
[40] The Judge considered the dangerous driving imperilled the Police officers who were in pursuit. However, they were able at any time to abandon the pursuit. Moreover, I would expect them to follow usual police procedures regarding chases and to withdraw from a chase once it became dangerous. Accordingly, I did not consider they were imperilled by Mr Richmond’s driving. Further, Mr Richmond only drove the vehicle for part of the time. Whilst, in principle, as owner of the vehicle he had authority to direct Mr Ruha not to drive in a dangerous manner Mr Ruha also had reason not to stop for Police that night, and so it was not clear to me that Mr Ruha would have acted under Mr Richmond’s direction.
[41]I recognised that Mr Richmond has prior driving convictions.
[42] In relation to the sentencing for the driving offending and the breach of bail my view was that once the Judge had concluded a short sentence of imprisonment was appropriate for the threatening to kill offence, at stage one of this process the Judge
30 Woodford v Police, above n 20, at [16].
had no option but to impose a sentence of imprisonment for the dangerous driving charge and the breach of bail charge as well. Because those sentences were imposed to run concurrently with the threatening to kill charge they were less onerous than if they had been imposed cumulatively. Accordingly, I did not consider the length of the terms of imprisonment on the driving or breach of bail offending to be excessive. There remains the period of disqualification, which I shall address later.
Home detention
[43] As mentioned earlier, this was where the focus of the appeal lay. I was satisfied the Judge had failed to consider a sentence of home detention, which was a sentencing error that meant this Court was now required to address whether home detention should be imposed or not.31 I also considered that at the time of sentencing the relevant factors weighed in favour of imposing a sentence of home detention. It was only because circumstances had changed by the time the appeal was heard that another sentence was actually imposed.
[44] The final sentence of six month’s imprisonment clearly meant that Mr Richmond was eligible for a sentence of home detention. However, the sentencing notes show that this sentence was not specifically considered by Judge Ingram.
Instead, Judge Ingram is relevantly recorded as stating:32
[15] I have received a probation report on you which recommends a community-based sentence. I regret to say that I do not consider this type of offending at this level could ever appropriately dealt with by way of a community-based sentence
…
[18] I am satisfied on the basis of the authorities and the statutory factors that a sentence of imprisonment is required here and nothing less than a sentence of imprisonment could ever be appropriate for the way that you have behaved here.
31 See R v Vhavha, above n 23, at [28]; and Fomai v Police [2014] NZHC 377 at [18].
32 New Zealand Police v Richmond, above n 1, at [15] and [18].
Relevant principles
[45] A sentencing Judge is bound to consider whether home detention should be imposed if it is available; in R v Vhavha William Young P observed: 33
[29] Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act 2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short- term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.
Although those observations were made in the context of a minority judgment William Young P’s reasoning in Vhavha was subsequently approved by the Court of Appeal in Osman v R,34 and in Manikpersadh v R,35 and it has been applied in this Court.36 Accordingly, the principle is now well established.
[46] In Brittin v Police Woodhouse J provides a helpful synthesis of the relevant principles:37
The following principles, contained in the Sentencing Act and leading cases, are relevant:38
(a)Imprisonment is a measure of last resort.39
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)When considering the imposition of a sentence of imprisonment, 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.40
33 R v Vhavha, above n 23, at [29].
34 Osman v R [2010] NZCA 199 at [20].
35 Manikpersadh v R [2011] NZCA 452 at [14].
36 Fomai v Police, above n 31; Brittin v Police, above n 22; and Tanoa v New Zealand Police [2017] NZHC 2836.
37 Brittin v Police, above n 22 at [55].
38 This summary is taken in large measure from Fairbrother v R [2013] NZCA 340 at [23]-[29].
39 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
40 Sentencing Act 2002, s 16(1).
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.41
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.42
(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.43
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.44
(h)The judge must make a considered and principled choice between the two forms of sentence, 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.45
[47] In Brittin v Police Woodhouse J found the sentencing Judge had erroneously exercised his discretion because he had failed to give adequate weight to the above principles. In the present case there was no express consideration given to those principles. In this respect the present case was analogous to that of Fomai v Police where the sentencing Judge had also said nothing about imposing home detention.46
[48] In Fomai the sentencing Judge erred by generally referring to and rejecting submissions that were made to him for a “community-based sentence”.47 A reference to a community-based sentence is not a reference to a sentence of home detention.48 As was recognised in Fomai, a community-based sentence is defined in s 44 of the Sentencing Act as a sentence of community work, supervision, intensive supervision or community detention; it does not include a sentence of home detention. The sentencing Judge’s references to a community-based sentence could not inferentially be understood to include home detention as well, even if allowance was made for the
41 Sentencing Act 2002, s 16(2).
42 R v Iosefa [2008] NZCA 453 at [41].
43 Manikpersadh v R, above n 35, at [17]-[19].
44 Sentencing Act 2002, s 7(1)(h).
45 Fairbrother v R, above n 38, at [30].
46 Fomai v Police, above n 31, at [17].
47 At [17]
48 At [17].
circumstances of sentencing in the District Court and the possibility of a busy list Court where a sentencing Judge cannot be expected to articulate every point that may be relevant.49 In this regard Woodhouse J went so far as to find that a sentencing Judge is obliged to consider home detention when it is technically available in terms of s 15A of the Sentencing Act, even where there was no submissions for a defendant that home detention should be imposed.50 I agree with this reasoning.
[49] The failure of the sentencing Judge in Fomai to specifically address whether home detention was an appropriate sentence meant:51
… the question of home detention needs to be assessed by this Court. It is not an assessment on appeal of the exercise of a discretion by the sentencing Judge, but an original exercise of discretion by this Court.
[50] I take the same view. There is a clear difference between an appeal based on the failure to exercise a sentencing discretion and an appeal based on an erroneous exercise of this discretion. With the former, once the appellate court is satisfied the discretion was not exercised it must do so itself. With the latter, the appellate court must first determine if the discretion has been exercised erroneously, which is done according to the standard approach for appeals against the exercise of discretion.52 This requires an appellant to establish the sentencing judge has applied an incorrect sentencing principle, given insufficient or excessive weight to a particular factor, or was plainly wrong.53 It is only then that the appellate court can proceed to exercise the discretion itself.
[51] Here the respondent approached the appeal as if it were an appeal based on the wrongful exercise of a discretion, rather than the absence of such exercise. Accordingly, they assumed the wrong approach, which led to an erroneous reliance on the Court of Appeal’s decision in Polyanszky v R, to support its arguments for this Court not to interfere with the sentence Judge Ingram imposed.54
49 Fomai v Police, above n 31, at [18].
50 At [18] and see s 16 of the Sentencing Act 2002.
51 Fomai v Police, above n 31, at [18].
52 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
53 At [17].
54 Polyanszky v R, above n 21, the appeal was approached as an appeal against the exercise of a discretion and the approach set out in James v R was applied.
[52] However, Polyanszky did not involve the failure to consider home detention, rather the appeal was brought on the basis the sentencing judge’s assessment had wrongly led to him deciding against home detention. Thus, it was a standard appeal against the exercise of the sentencing discretion, albeit one that was finely balanced in the circumstances. This led the Court of Appeal to state:55
…when an offender is on the cusp of home detention the Court will ordinarily defer to the assessment of the sentencing Judge.
In such circumstances Ms Polyanszky’s appeal failed because she could not show the sentence she received was “wrong in principle or was manifestly excessive.56
[53] Further, Polyanszky involved an appellant who was selling cannabis commercially. She had previous drug convictions. In 2003 she was convicted of cultivating cannabis and in 2007 she had been found with 520 grams of cannabis. On those two earlier occasions she had received non-custodial sentences. The pre- sentence report recommended home detention. The sentencing Judge addressed whether he should give home detention or not. He concluded that he was bound by the guideline judgment in R v Terewi where the Court of Appeal had stated that the paramount consideration for commercial drug dealing was deterrence of others.57 The effect of R v Terewi is generally understood to exclude non-custodial sentences as a rule of thumb.58 The sentencing Judge considered Ms Polyanszky was well aware of the risk of imprisonment because she had referred to that risk when selling cannabis to an undercover police officer. Moreover, Ms Polyanszky had advised the pre- sentence report writer that she spent her days living at home on a domestic purposes benefit watching television and smoking cannabis, which led the sentencing judge to conclude that a sentence of home detention it would have little impact on her by way of deterrence.
[54] Accordingly, I consider that Polyanszky is distinguishable from the present case as the circumstances and the nature of the appeal are quite different.
55 Polyanszky v R, above n 21, at [13].
56 At [16].
57 R v Terewi [1999] 3 NZLR 62 (CA) at [15].58 R v Vhavha, above n 23, at [35] where William Young P referred to the expressed rule of thumb in R v Terewi that in cases of commercial drug dealing the power to suspend a prison sentence should be exercised only in exceptional circumstances.
Should Mr Richmond have been sentenced to home detention?
[55] Mr Richmond was not someone who was on the cusp of home detention. Many of the ss 7 and 8 factors in his case strongly pointed towards a sentence of home detention.59
[56] In R v Rawiri the Court of Appeal recognised imprisonment to be a measure of last resort, which weighs against this sentence imposed on Mr Richmond.60
[57] The Court of Appeal has also observed the closer the appropriate prison sentence is to the two year maximum the more likely home detention will be inappropriate and the lower the appropriate prison sentence is the more likely home detention will be appropriate.61 Here the prison sentence the Judge arrived at was one quarter of the two year maximum sentence, which weighed in favour of home detention.
[58] Mr Richmond had a suitable address from which to serve home detention. He had successfully completed a sentence of home detention in 2013. He had breached a sentence of community work in February 2018, but the penalty imposed was that he was convicted and discharged, which suggests the breach was not serious. The only other non-compliance was his present offence of failure to answer to police bail. On balance his previous history supported a sentence of home detention.
[59] The threatening to kill offending that led to the prison sentence was the first offence of this type, being a threat of violence to a person more vulnerable than himself and someone with whom he had been in a domestic relationship. He had no history of family violence. These circumstances weighed in favour of home detention. Whilst there was a need to deter him from like offending in the future it was not as strong as would be the case if he had a history of family violence.
[60] The offending was accepted by the Judge as having been driven by drug addiction, which in light of Mr Richmond’s criminal history would suggest it was
59 Sections 7 and 8 of the Sentencing Act 2002.
60 R v Rawiri, above n 39, at [18].
61 See R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; and Garnett v R [2010] NZCA 173.
otherwise out of character. This also supported a sentence of home detention, particularly if steps were also put in place to address the drug addiction.
[61] It is worth reviewing Mr Richmond’s personal circumstances and his criminal history. He is 30 years old. He is Māori. He has not been to prison before. For someone of his race, age, who is seemingly either an unskilled or semi-skilled worker, has had periods of unemployment and is a drug user, his criminal history is relatively insignificant. He has no record of gang involvement. Persons in similar circumstances can often have a more extensive and serious criminal history. This suggests that with some assistance he is capable of rehabilitation and reintegration into the community.
A sentence of home detention is more likely to achieve this.62
[62] Mr Richmond’s criminal history began in 2007 when he was 18 years old with the offences of driving while suspended and driving with an excess breath alcohol level. For these offences he received community work and was disqualified from driving for six months. The following year, in 2008, there was a second excess breath alcohol offence for which he was fined and disqualified from driving for six months.
[63] He next offended in 2009 when he received a dangerous driving charge for which he received a fine of $600 and was disqualified from driving for six months.
[64] He did not offend again until 2011 when he committed the offences of fighting in a public place, for which he received a $200 fine; drove while his licence was suspended or revoked, for which he received a $200 fine and further disqualification from driving for six months; and shoplifted an item under $500, for which he was to come up for sentence if called upon within six months.
[65] There was no further offending until 2013 when he committed the more serious offence of robbery by assault, for which he received ten months’ home detention and 140 hours community work. These sentences were served without incident.
[66] He did not reoffend again until 2017 when between September and November of that year he shoplifted an item under $500, for which he received 40 hours
62 See discussion herein at [74] – [78].
community work and was disqualified from driving for two months; and stole property under $500, for which he received the same sentence. At this time he would have been unemployed and on a job seekers benefit.63 While that does not excuse the theft offences it provides some explanation for them.
[67] Then in February 2018 he breached the community work sentence for which he was convicted and discharged. Also, later in February 2018, he received property between $500 and $1,000 in value for which he received a sentence of 60 hours community work and was ordered to pay reparation of $130. He complied with that sentence.
[68] This was the sum total of his offending until the present offences were committed this year. Apart from the one offence of robbery by assault the remainder of the prior offending lies between minor to moderate. Nothing came close to attracting a sentence of imprisonment. There are periods of time when he has not offended, which shows he is capable of not offending.
[69] The sentence of home detention he received in 2013 for robbery by assault was successful insofar as he served the sentence without problems and he did not re-offend until some three years later in 2017, when he committed the two minor theft offences of items under $500. All of which suggests he responded well to home detention. Indeed by 2017 he would have been unemployed and it is likely that the period of unemployment coupled with methamphetamine use led to the resumption of offending in late 2017. Even then nothing too serious was done until the present offending.
[70] I am satisfied that Mr Richmond’s use of methamphetamine coupled with the difficulties he was having relating to the custody issues with his former partner led to the explosive and unacceptable threats. The subsequent driving offences occurred because at the time the police saw him driving the vehicle he was in breach of his bail and therefore he tried to avoid them by speeding off in the vehicle. Thus, the consequences of the earlier offending in March 2019, which led to him being on bail, followed by the breach of bail then influenced the offending in April 2019. It did not
63 The pre-sentence report, which was written on 22 May 2019 states his last employment was three years ago in Whangarei on the wharf operating machinery.
help that Mr Richmond was in his vehicle with Mr Rahu, who also had reason to avoid the police.
[71] I acknowledge deterrence and denunciation of the offending were relevant factors. However, these can be satisfied by a sentence of home detention.64
[72] There are other relevant factors which also need to be considered. As was noted by the Court of Appeal in Manikpersadh v R, s 7 of the Sentencing Act includes the requirement for having regard to an offender’s rehabilitation and reintegration into the community.65 Also in Manikpersadh v R, the Court of Appeal noted the requirement in s 8 for the sentencing Judge to have regard to the least restrictive outcome, the offender’s personal circumstances including his personal and family background and relevant rehabilitation.66
[73] There is no presumption in favour of granting home detention.67 The availability of a sentence of home detention as a sentence has not removed a short- term sentence of imprisonment as a sentencing option.68 However, like any other sentence of imprisonment a short sentence of imprisonment should only be imposed as a last resort. This is likely to arise when an offender has already shown there to be or there is good reason to believe, he or she cannot satisfactorily complete a sentence of home detention, or there is no suitable address from which to serve home detention.
[74] Moreover, recent research reveals the lack of utility of short sentences of imprisonment, particularly sentences of six months or less, which is a further reason for viewing them as a measure of last resort.
[75] The research reveals that an offender is more likely to return to prison after being sentenced to a prison sentence of six months or less than would be the case if an alternative sentence were imposed. In “An Overview of Corrections in 2019”, the Department of Corrections states that persons identified as “very short serving
64 R v Iosefa, above n 42, at [41]; and Fairbrother v R, above n 38, at [29].
65 Manikpersadh v R, above n 35, at [15].
66 At [16].
67 R v Vhavha, above n 23.
68 Polyanszky v R, above n 21, at [13].
prisoners” which are defined as persons serving a sentence of imprisonment of 12 months or less present as one of the most challenging groups of prisoners.69 Of these persons 36 percent receive a subsequent sentence of imprisonment within 12 months of their release from prison. Further, the Department of Corrections Annual report for 2017/2018 reveals that for offenders who receive a prison sentence of six months or less, 39.5 per cent are subsequently re-imprisoned.70 This is the highest figure for recidivism, the risk of which increases considerably when prison sentences are for six months or less.
[76] In a paper dated 29 March 2018 titled “Using Evidence to Build A Better Justice System: The Challenge of Rising Prison Costs”, Dr Peter Gluckman in his role of the Prime Minister’s chief science advisor described the effect of prisons in this way:71
4. The strong evidence base related to what fuels the prison ‘pipeline’ suggests that prisons are extremely expensive training grounds for further offending, building offenders’ criminal careers by teaching them criminal skills, damaging their employment, accommodation and family prospects, and compounding mental health and substance use issues. On release, even after a short period of imprisonment, for example on remand, offenders have been found to reintegrate poorly to the community. Furthermore, this does nothing to reassure victims that the risk of harm is being effectively managed by the justice system.
5. It is now well understood that prisons act as recruitment centres for gangs (especially for young offenders) and underpin the illegal drug trade. Imprisonment leaves those incarcerated with high rates of undiagnosed and untreated alcohol/drug addictions and mental illness. They have a negative impact on the next generation, given that a high percentage of people in prison are parents. These issues disproportionately affect Māori.
[77] Mr Richmond readily fell within the above description given by Dr Gluckman. He is Tūwharetoa, and he is seriously addicted to methamphetamine. The act of placing him in a prison environment should only have been of last resort.
69 Department of Corrections An Overview of Corrections in 2019 (Department of Corrections, 2019).
70 Department of Corrections Annual Report 1 July 2017- 30 June 2018 (Department of Corrections, 8 October 2018) at 165.
71 Professor Sir Peter Gluckman Using Evidence to Build A Better Justice System: The Challenge of Rising Prison Costs (Office of the Prime Minister’s Chief Science Advisor, Wellington, 29 March 2018) at 4.
[78] The community-based sentences Mr Richmond had received to date have adequately penalised him for his offending without putting him at risk of becoming a recidivist offender. This is demonstrated by his criminal history. For a 30 year old man who has a methamphetamine addiction and been unemployed for the last three years, he has done well not to have committed more offences and offences of a serious character. Accordingly, I considered there were multiple relevant factors that supported him receiving a sentence of home detention. These outweighed any considerations for imprisonment, particularly when a short term of imprisonment was likely to adversely impact on Mr Richmond’s prospects for rehabilitation and indeed, brought with it the greater likelihood of his returning to prison in the near future whereas home detention is not seen to carry such risk.
[79] There will be occasions when the Court has no alternative but to impose a short sentence of imprisonment. However where, as was the case here, home detention is a suitable sentence and it has been shown to be successful in the past, I consider there was every reason to avoid imposing a short sentence of imprisonment. In my view an appropriate sentence would have been one of six months’ home detention. The length of a sentence of home detention is generally half of the length of a prison sentence, which reflects the fact that for a short term sentence of imprisonment the release date is half that sentence. However, on occasion more than half the length of the prison sentence may be warranted.72 Here the general approach would have led to three months’ home detention, which I consider would have been insufficient to meet the requirements of denunciation and deterrence.
The sentence imposed
[80] Mr Richmond had been denied bail pending the determination of his appeal. The Parole Act 2002 provides that for short sentences of imprisonment a sentenced prisoner only serves half the sentence imposed.73 By the time the appeal was heard Mr Richmond had served just over two months of the sentence of imprisonment and was due for release on 29 August 2019. In such circumstances it would have been wrong to impose a sentence of six months’ home detention. For these reasons I
72 See Brittin v Police, above n 22, at [59].
73 Parole Act 2002, s 86(1).
considered a community based sentence was more appropriate. It offered the best opportunity to provide for Mr Richmond to overcome his drug addiction, which seemed to me also to be the most effective way to achieve his rehabilitation and reintegration into the community, as well as ameliorating the adverse effects of his time in prison.
[81] I considered that in terms of sentencing principles the experience of two months’ imprisonment could count towards and satisfy the need for denunciation and deterrence, despite the statistical data to the contrary. What was then needed was a sentence that could aid in Mr Richmond’s rehabilitation and reintegration into the community and impose the least further restriction on his liberty.
[82] Mr Richmond recognises that he has a serious methamphetamine addiction. In the pre-sentence report he described himself as being a heavy user of methamphetamine by intravenous injection. The pre-sentence report had recommended a sentence of supervision and community work. Given his limited resources Mr Richmond is not someone who could obtain help for his drug addiction privately. I considered in the circumstances the sentence which would best assist with his rehabilitation and reintegration, as well as being most likely to avoid further offending, was to impose a combined community-based sentence of 12 months’ intensive supervision and one month community detention. Attendant on the intensive supervision were special conditions relating to him being assessed for and participating in programmes for drug treatment and for family violence issues. The specific conditions imposed on the intensive supervision sentence are set out in the result judgment.74
[83] Regarding the period of disqualification for the dangerous driving offending, the co-offender received a six months’ disqualification. He did not start this driving episode and he did not own the vehicle, but other than that his driving seems to have been no different from Mr Richmond’s. I considered there was too great a disparity between the disqualification Mr Richmond received and that which Mr Ruha received. Accordingly, I reduced the disqualification to nine months. The difference in length
74 Richmond v Police, above n 8.
was to reflect the fact Mr Richmond as owner of the vehicle had some measure of control over how it was driven and because he initiated the attempt to escape the Police.
Duffy J
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