Ryland v Police
[2023] NZHC 2100
•8 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000274
[2023] NZHC 2100
BETWEEN MATTHEW RYLAND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 August 2023 Appearances:
K R Borich for Appellant H F Brown for Respondent
Judgment:
8 August 2023
REASONS JUDGMENT OF VAN BOHEMEN J
[appeal against sentence]
This judgment was delivered by me on 8 August 2023 at 3:30 pm.
Registrar/Deputy Registrar
……………………………..
Solicitors:
Public Defence Service, Waitakere Crown Solicitor, Auckland
RYLAND v NEW ZEALAND POLICE [2023] NZHC 2100 [8 August 2023]
[1] On 19 May 2023, Matthew Ryland was sentenced by Judge L Tremewan in the District Court at Waitakere to nine months’ supervision after pleading guilty to one charge of being unlawfully on a property.1 Mr Ryland appeals that sentence on the basis that it was disproportionate to his offending and based on an erroneous finding by the Judge that he had a continuing issue with alcohol.
[2] The Police submit that it is unclear whether there was jurisdiction to impose the order for supervision. They suggest that an appropriate sentence may be an order to come up for sentence if called upon.
[3] At the hearing on 8 August 2023, I quashed the sentence of supervision and ordered that Mr Ryland come up for sentence if called upon within six months of the date of this decision. This judgment sets out the reasons for my decision.
The offending
[4] At around 9:45 pm on 11 October 2022, Mr Ryland entered a property on the Te Atatu Peninsula in Auckland. He walked onto the deck and up to a table and left with a pair of running shoes worth $100.
[5] When arrested on 3 March 2023, Mr Ryland told Police the location of the shoes which were subsequently seized. Mr Ryland said he did not remember the incident because he was drunk.
Sentencing decision
[6] The Judge’s sentencing notes were brief. The Judge said that Mr Ryland’s sentence would be for nine months’ supervision with a probation officer and ordered that Mr Ryland undertake any assessment, course, programme, counselling, or treatment as directed for alcohol issues or any other issue. The Judge said that this was designed to give Mr Ryland support and oversight. The Judge expressed the hope Mr Ryland would see it as an opportunity. It was not imposed as punishment, but to help Mr Ryland by encouraging him to carry on making better choices as the Judge said she had heard that he had since tried to do.
1 Police v Ryland [2023] NZDC 12452.
Approach on appeal
[7] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.2 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[8] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.3 Unless there is a material error in the end sentence, the Court will not intervene.4 There will be a material error if the end sentence is manifestly excessive or wrong in principle.5 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.6 Accordingly, mere tinkering is not permitted.7 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.8
Relevant provisions of the Sentencing Act 2002
[9] Under s 45 of the Sentencing Act 2002, a Court may sentence an offender to supervision if the offender is convicted of an offence punishable by imprisonment. Provided the sentence is greater than six months but less than a year, the sentence may be for any period the Court thinks fit.9
2 Criminal Procedure Act 2011, s 250(3).
3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30] .
4 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 3, at [14].
5 Tamihana v R, above n 3, at [14].
6 Tutakangahau v R , above n 3, at [36]; Tamihana v R , above n 3, at [14].
7 Maihi v R [2013] NZCA 69 at [21].
8 Tutakangahau v R, above n 3, at [36].
9 Sentencing Act 2002, s 45(2).
[10]Section 46 provides:
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[11] Under s 48, an offender who is sentenced to supervision is subject to the standard conditions in s 49 and any special conditions imposed by the Court under ss 50 or 52, or both.
[12] Section 49 requires an offender who is sentenced to supervision, among other things, to report to a probation officer as and when required, to notify a probation officer of their residential address and nature and place of employment, not to move to a new address without the approval of a probation officer and to take part in a rehabilitative and reintegrative needs assessment as and when required by a probation officer.
[13] Under s 50, the Court may impose conditions related to a programme if satisfied that there is a significant risk of further offending by the offender; standard conditions alone would not adequately reduce that risk; and the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Under s 51, a programme for the purposes of s 50 includes any non-residential counselling or assessment or attendance at a therapeutic, rehabilitative, or reintegrative programme.
[14] Under s 52, the Court may impose other special conditions if satisfied that there is a significant risk of further offending by the offender, that standard conditions alone would not adequately reduce that risk and that the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
Submissions for Mr Ryland
[15] Ms Borich, counsel for Mr Ryland, submits that the sentence of supervision was disproportionate to the offending and that there was no further evidence to support that Mr Ryland has a continuing issue with alcohol. She says that Mr Ryland’s
offending was at the lower end of the scale and notwithstanding his significant criminal history, his last conviction was three years prior. She explains that Mr Ryland has recently started studying Land Surveying and that he was charged around four months after his offending, during which time he was been without incident. Ms Borich says that the Court can draw from the fact that Mr Ryland has not committed any further offending since that there is no continuing issue with alcohol.
[16] Ms Borich acknowledges that the Judge imposed the sentence of supervision with a rehabilitative focus but submits that the practical impact is ultimately punitive because of the reporting requirements attached to it and the length of the sentence. Ms Borich refers to S v Police and says it is an error to impose excessive punishment as a rehabilitative measure.10 Ms Borich submits that an end sentence of conviction and discharge or come up for sentence would have been more appropriate.
Submissions for Police
[17] Ms Brown, counsel for the Police, submits that the sentence of supervision was imposed in accordance with the statutory guidance in s 49 of the Sentencing Act given the Judge’s explanation that the sentence was to help Mr Ryland by encouraging him to continue to make better choices. Ms Brown observes, however, that the Judge’s notes do not disclose any analysis of whether there was a significant risk of further offending by the offender as required for the special condition related to an alcohol programme. Ms Brown says that it is unclear whether the required threshold of Mr Ryland presenting a significant risk of further offending is properly met given the only matters that appear to have been before the Judge were Mr Ryland’s own admission that he was intoxicated while he was offending, and in light of his significant criminal history prior to 2019.
[18] Ms Brown also observes that a sentence of supervision without the special condition imposed by the Judge would not address the issues identified by the Judge. Ms Brown notes that the maximum penalty for Mr Ryland’s offence is only three months imprisonment, that the offending is of a low to moderate level, that the value
10 S v Police HC Hamilton AP160/89, 16 October 1989.
of the property taken was low and had been returned, that Mr Ryland pleaded guilty at an early stage and that he spent two to three days in custody between arrest and bail.
[19] While leaving any substituted sentence to the Court, Ms Brown submits that, in the absence of any need for a punitive sentence, an order to come up for sentence may be appropriate.
Analysis
[20] A sentence of supervision is in Tier Four of the Hierarchy of Sentences, from most restrictive to least, as set out in s 10A of the Sentencing Act.
[21]As Asher J observed in Sherley v Police:11
[17] A sentence of supervision is a significant sentence. It ranks as more serious than fines and reparation. It can involve a very considerable imposition on personal liberty. The offender is required to report, to live and to take employment where directed, and not to move without permission. There can be a requirement imposed by the probation officer on the offender not to associate with any specified person, and a requirement to take part in a rehabilitative or reintegrated needs assessment.
[22]Such a sentence cannot be imposed if the requirements of s 46 are not met.
[23] While Judge Tremewan is an experienced judge and has particular expertise in drug and alcohol matters, in Mr Ryland’s case it appears as if she may not have turned her mind to the specific requirements of s 46. The Judge’s references to the sentence being intended to provide support and oversight and to encourage Mr Ryland to carry on making better choices are consistent with an objective of reducing the likelihood of further offending by Mr Ryland through his rehabilitation and reintegration. However, there is no explicit consideration of whether such a sentence was required in the circumstances of Mr Ryland and the offending for which he had been sentenced.
[24] However, even if it is accepted that the Judge had implicitly been satisfied that the requirements of s 46 had been met, there is nothing to indicate that the Judge had considered the requirements of ss 50 and 52 when imposing the special condition that
11 Sherley v Police [2012] NZHC 1499 (footnotes omitted).
Mr Ryland undertake any assessment, course, programme, counselling, or treatment as directed for alcohol issues or any other issue. Both sections require that the Judge had to be satisfied that there was a significant risk of further offending by Mr Ryland and that standard conditions alone would not adequately reduce that risk.
[25] While Mr Ryland has a significant criminal history, prior to the current offending his most recent offending was in 2019 and was of a different order of seriousness. It is not apparent that that history and Mr Ryland’s acknowledgement that he had been drunk and that he could not remember the incident could support a conclusion that there was a significant risk of further offending by Mr Ryland unless he was subject to the special condition imposed by the Judge. That is particularly so in the absence of any consideration of Mr Ryland’s current circumstances, including the fact he is now engaged in a course of regular study.
[26] I also accept Ms Borich’s submission that the sentence was not the least restrictive outcome that could have been appropriate in the circumstances.
[27] For these reasons, I accept that the Judge erred and agree that the sentence of supervision should not stand. Accordingly, I am satisfied I should quash the sentence of supervision and substitute it with an order that Mr Ryland come up for sentence if called.
Result
[28]I allow Mr Ryland’s appeal,
[29]I quash the sentence of supervision imposed by Judge Tremewan.
[30] I order Mr Ryland to come up for sentence on the charge of being unlawfully on a property if called upon within six months of the date of this judgment; that is by 8 February 2024.
G J van Bohemen J
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