Robertson v Police
[2012] NZHC 3103
•21 November 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-404-298 [2012] NZHC 3103
BETWEEN SHANE JOSEPH ROBERTSON Appellant
ANDTHE POLICE Respondent
Hearing: 12 November 2012
Appearances: S Clark for appellant
J MacGibbon for respondent
Judgment: 21 November 2012
JUDGMENT OF ALLAN J
Solicitors:
B Meyer, Auckland [email protected]
Crown Solicitor Auckland [email protected]
ROBERTSON V POLICE HC AK CRI 2012-404-298 [21 November 2012]
Introduction
[1] Mr Robertson pleaded guilty to three summary charges of common assault and one of injuring with reckless disregard. He was sentenced to 18 months imprisonment on the charge of injuring with reckless disregard, and six months imprisonment on each of the remaining three charges of common assault, to be served concurrently.[1] He now appeals against that sentence. There is no challenge to the calculation of the end sentence; rather the appellant’s case on appeal is that he ought to have been sentenced to home detention instead of imprisonment.
Offending background
[1] R v Robertson DC Pukekohe CRI-2012-057-514, 28 August 2012
[2] The appellant and his four victims had all attended a party in Waiuku. Soon after midnight on 10 March 2012, they left the party. Not long afterwards the appellant approached the victims, who were by then standing together at a nearby intersection. Evidently the appellant took exception to the fact that they had earlier been in the company of the younger sister of the appellant’s partner. There was a brief discussion between the appellant and the group, but the victims walked away because they did not feel comfortable around Mr Robertson. He pursued them. Once he caught up with them he punched them one after another with a closed fist. The attack was completely unprovoked.
[3] His first victim, Mr Neville, was struck in the face. He sustained a bloody nose. The second victim, Mr Honey, was struck on the back of his neck. He sustained a sore neck. The third victim, Mr Robert Tapfield, was struck in the face. No visible injuries were sustained. The fourth victim, Mr Daniel Tapfield, was the last to be assaulted. On being approached by the appellant, he raised his arms in a non-confrontational manner, telling the appellant he did not want to fight, As he was backing away in self-defence, Mr Robertson punched him in the face. As a result of the blow to the head, the victim fell to the ground and hit his head on the tar seal of the roadway. It is uncertain whether the blow struck by the appellant or the impact
of his head hitting the road rendered him unconscious. Judge Hubble, the sentencing
Judge, left that question open in his sentencing remarks.
[4] Mr Daniel Tapfield was taken to hospital where he remained unconscious for some time. There was a degree of bleeding within the brain, a serious laceration to the back of his head and a significant cut to his lip.
[5] In a detailed victim impact report Mr Tapfield said that he remained badly affected by the assault several months later. He was easily fatigued, physically and mentally, and was unable to carry out his obligations at work. He was obliged to undertake a retraining course and reduce his work hours. He was fearful of being alone at night in public places, and found his ability to solve complex problems had been compromised. He had nightmares and headaches and was often anxious. His range of activities had become restricted.
District Court sentencing
[6] Judge Hubble adopted a starting point of two and a half years imprisonment, by reference to the assault on Mr Daniel Tapfield. He considered that the four separate attacks constituted an aggravating feature. Further, although unable to take the appellant’s Youth Court history into account directly, he considered that he was not obliged to put it entirely to one side. That history included three separate notations for assault (including one in which a blunt instrument was involved). The Judge noted also that the appellant was on bail in respect of other charges at the time of the present offending.
[7] Counsel were agreed that the case fell within category one of R v Taueki.[2]
The Judge’s starting point of two and a half years imprisonment fell towards the lower end of that category. From that figure, he deducted six months for remorse and youth, and then a further 25% for the guilty plea. That produced the end sentence of 18 months imprisonment.
[2] R v Taueki [2005] 3 NZLR 372 (CA)
[8] With respect to home detention, the Judge said:[3]
Since you are within the two year bracket, I must also turn my attention to a community-based sentence of either home detention or community detention, and possibly supervision. From your perspective undoubtedly that would be a better result, possibly even from the community perspective, but overall I need to take into account the serious injury that Dan Tafield (sic) has suffered, and in my judgment the community-based sentences are not appropriate.
[3] Robertson at [6].
[9] It is a proper inference that in reaching that conclusion the Judge took into account certain matters expressly referred to earlier in his sentencing remarks:
[4] The maximum penalty for this offence of reckless disregard injuring a person is five years imprisonment. There was no element here whatsoever of self-defence or anything that could be said in your favour as far as the assaults are concerned. An aggravating feature is that you attacked not just one person but four. You are not a very large person yourself but you must have been ferociously angry when you did this. I do not ignore, but do not place great weight on your Youth Court offending but there are four quite serious assaults there, which do tend to indicate that you have a serious propensity to violence. So an aggravating feature is the number of victims, the fact that you do have this prior history, they were entirely unprovoked assaults, the attacks were made to the head and very serious injury has been incurred by at least one of the victims, and of course you were on bail at the time you did this facing charges of disorderly behaviour and resisting.
[5] … you are only 18, at the time you were even younger. As to remorse, certainly you have shown considerable remorse recently and that is a separate matter which I can take into account.
[10] Although the appellant has no previous convictions as such because all of his previous offending was dealt with in the Youth Court, his history is not irrelevant and may be taken into account by virtue of s 9(4) of the Sentencing Act 2002.[4]
The pre-sentence report
[4] Kohere v Police (1994) 11 CRNZ 442 (HC) at 444, and Geros v R [2011] NZCA 122 at [16].
[11] The pre-sentence report writer recommended a sentence of community detention and proposed a number of associated conditions. The report itself identified a number of issues, some favourable to the appellant and some not.
Among the principal points made were these:
(a) Although the appellant expressed remorse towards the most seriously injured victim, there was none in respect of the other three victims. The appellant is reported to have said, “Nothing really happened to them”;
(b)He displayed an attitude supporting the use of violence for the purpose of protecting family and friends. He could offer no reason for resorting to violence on this occasion, other than that he “became mad”;
(c) The appellant was currently residing with his mother in her home. He has an 18 month old baby daughter with a previous partner. He sees his daughter frequently;
(d)He was not currently employed and was in receipt of an unemployment benefit. He told the report writer he had made a negative name for himself around the Waiuku District, and was finding it difficult to obtain work. He had considered joining the Army, but the birth of his daughter had changed his mind about that;
(e) The appellant acknowledged that alcohol had been a factor in the present offending, and also that all of his previous assaults had been committed under the influence of alcohol;
(f) He was considered to present a medium risk of re-offending, given his lack of impulse control, his propensity for violence, and his previous Youth Court appearances on charges of a similar character. Of relevant concern was his claimed entitlement to use violence in order to protect his family;
(g)Although the appellant’s risk of non-compliance with a community- based sentence was difficult to assess (because he had not received any such sentence in the past), the risk of non-compliance with the conditions of any such sentence was considered to be low.
Proper approach on appeal
[12] The correct approach where home detention is in issue at appellate level was discussed by the Court of Appeal in James v R.[5] There, at [17] the Court said:
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. (footnotes omitted)
[5] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
[13] In essence the sentencing Judge exercises a fettered discretion. An appellate Court must accordingly focus upon the identification of error, if any, in the Court below. Among the matters to be taken into account will be the need to have regard to ss 7 and 8 of the Sentencing Act, which are relevant to a decision as to whether or not to commute a sentence of imprisonment to one of home detention.[6]
Discussion
[6] Manikpersardh v R [2011] NZCA 452 at [12] and [14].
[14] Here, several factors might be thought to suggest that home detention, rather than imprisonment, was the appropriate sentencing outcome. Among them were the appellant’s youth (he was 18 years old at the time of the offending), the absence of previous District Court convictions, the fact that he had not had the benefit of extended periods of supervision and supporting programmes, the stability provided in his life by his young daughter, and the availability of a home detention address owned by his mother who appears to be a stable and significant influence in his life.
[15] The Judge acknowledged that home detention would be a better outcome for the appellant. He also commented that he thought it might be a better outcome for
the community. By that, I take the Judge to mean that home detention and the
imposition of suitable conditions might be more likely to bring about positive changes in the appellant’s life than a term of imprisonment. But the Judge considered that these matters were outweighed by the seriousness of the injuries suffered by the principal victim.
[16] While the Judge’s approach is to a degree understandable, I do not agree that the appellant’s culpability was such as to outweigh factors favouring home detention. I accept that these were ferocious assaults in the sense that the appellant struck each of the victims on the head in turn, but each was struck only once. The seriousness of the outcome for the principal victim was not readily foreseeable. No weapon was involved. The offending was not premeditated. Without minimising what was a serious incident, the appellant was entitled to bring the various ss 7 and 8 factors into account. They suggest that home detention was the appropriate sentence, although I agree that a more sustained attack would have disqualified the appellant from home detention consideration.
[17] I am concerned that if the appeal fails, the appellant will simply serve his term of imprisonment and then be released without the benefit of the type of targeted assistance that would be available by means of the imposition of conditions accompanying a home detention sentence. The appellant is, in my view, plainly in need of focused assistance with respect to his alcohol and violence issues, and also no doubt wider life skills.
[18] I consider the appropriate sentencing response in this case to be a sentence of home detention, and for that reason I propose to allow the appeal. In doing so, I note that the appellant has served almost three months of his sentence of imprisonment. That experience may already have had a salutary deterrent effect upon him.
Result
[19] The appeal against sentence is allowed. The sentences of imprisonment imposed upon the appellant are quashed. I substitute a sentence of nine months home detention. That term is fixed, having regard to that portion of the sentence of imprisonment already served by the appellant. It takes into account also the fact that
a sentence of home detention must be served in its entirety, while a short term sentence of imprisonment does not. The result is that the sentence of home detention will inure for some time past the appellant’s likely release date from prison, had he served his sentence. But that consideration is outweighed by the benefits of a sentence of home detention, both for the appellant and for the community. In particular, it will ensure that there is time for the appellant to benefit from focused assistance, which he plainly needs.
[20] On numerous occasions it has been said that a sentence of home detention is not to be regarded as a soft option; especially for a young man it has a significant punitive aspect. He will not find it easy and he must bear in mind the likely consequences of a breach of any home detention condition, namely a return to prison.
[21] I impose the following special conditions:
(a) Immediately following his release from custody the appellant is to go directly to 27A Meachen Terrace, Waiuku, there to await the arrival of the probation officer and a representative of the electronic monitoring company;
(b)He is to reside at that address or such other address as may be approved by the probation officer for the duration of the sentence of home detention;
(c) He is to attend and complete any appropriate programme(s) as may be directed by the probation officer;
(d)He is not to possess, purchase, or consume alcohol and/or illicit drugs for the duration of the sentence of home detention;
(e) He is to undertake and complete an Alcohol and Drug assessment and if found suitable, attend any programme administered by the Community Alcohol and Drug Service, and abide by the rules of the
programme to the satisfaction of the probation officer and the
Community Alcohol and Drug Service;
(f) He is to undertake and complete the “Living Without Violence” Anger Management Programme administered by Friendship House, and abide by the rules of that programme to the satisfaction of the probation officer and Friendship House.
C J Allan J
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