Sangster v Department of Corrections

[2021] NZHC 2371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000284

[2021] NZHC 2371

BETWEEN

STEVEN JASON PAUL SANGSTER

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	7 September 2021
Counsel (via VMR):	DHP Schellenberg and CJJ Mair for Appellant J Nedeljkov for Respondent
Judgment:	10 September 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 10 September 2021 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. DHP Schellenberg, Auckland. CJJ Mair, Auckland.

SANGSTER v DEPARTMENT OF CORRECTIONS [2021] NZHC 2371 [10 September 2021]

The appeal

[1]                 Judge N R Dawson found Steven Sangster guilty1 of breaching prison release conditions without reasonable excuse.2 Mr Sangster appeals. He contends the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice has occurred.3

Background

[2]                 The alleged offending occurred 1 December 2020. A long run-up is necessary, beginning 20 May that year. Mr Sangster was then released from prison. His release conditions were explained. Mr Sangster signed a copy.

[3]                 In early September 2020, Mr Sangster failed to attend an alcohol and drug test and twice failed to report to Community Corrections. A warrant for Mr Sangster’s arrest issued.

[4]On 19 September 2020, Mr Sangster sprained his knee playing touch rugby.

The Judge accepted the injury was “severe”.4

[5]                 On 30 September 2020,  Melinda  Chan,  a  probation  officer,  telephoned  Mr Sangster.5 He told her about the injury and that he was on crutches. He also said he was anxious about the warrant. Mr Sangster sent Ms Chan by text message, his medical records in relation to his knee. Ms Chan directed Mr Sangster to report the following Tuesday and weekly thereafter.

[6]Mr Sangster reported, as required, 13, 20 and 27 October 2020.

1      Department of Corrections v Sangster [2021] NZDC 11713.

2      Sentencing Act 2002, s 96(1). The offence is punishable by maximum term of one year’s imprisonment.

3      Criminal Procedure Act 2011, s 232(2)(b).

4      Department of Corrections v Sangster, above n 1, at [11].

5      Ms Chan accepted in cross-examination she could not be sure she had called Mr Sangster (as against him calling her).

[7]                 On 3 November 2020, Mr Sangster telephoned Glendon Motufoaki, another probation officer. Mr Sangster  said  he  could  not  report  as  his  knee  was  sore. Mr Motufoaki told Mr Sangster to report 10 November 2020.

[8]                 Mr Sangster did not report then or 17 November 2020.6 He also changed address without informing Community Corrections.

[9]                 On 24 November 2020, Mr Motufoaki visited Mr Sangster at his new address, having learned of it from the Ministry of Social Development. Mr Sangster acknowledged to Mr Motufoaki he had no excuse in relation to the 17th, albeit       Mr Motufoaki accepted in cross-examination Mr Sangster might have referred to his knee injury.

[10]            Mr Sangster failed to report 1 December 2020. Mr Motufoaki accepted he might have missed a telephone call from Mr Sangster on this date. Mr Sangster said he did not report as could not walk from the nearest bus stop (because of his injury), and he could not afford other means of transport. In cross-examination, Mr Sangster accepted he did not attempt to contact Mr Motufoaki by text message.

[11]Judge Dawson outlined much of this background, then said:7

The evidence indicated that the injury to your knee had improved after eight weeks and 1 December 2020 was after the eight-week period. However, in your evidence you say that although it had improved, you still were required to use crutches and you could not go more than 10 metres without crutches. You say  when  you  could  not  report  on  1  December  2020,  you  rang  Mr Motufoaki a couple of times, but you could not contact him to tell him that you could not be there. In cross-examination, you accepted you did not make any effort to text Mr Motufoaki which you could easily have done from your phone, nor did you attempt to contact anyone else in the probation office when you could not contact Mr Motufoaki.

I am, therefore, of the view that you should have tried harder and you did not. The obligation is upon you to attend unless you had a reasonable excuse and you have an obligation to convey that reasonable excuse and the means to do so is open to you, but you did not do so.

It is not an egregious breach in my view, but it is, nevertheless, a breach and, on that basis, I find the charge has been proved and you are guilty as charged.

6      In relation to the 10th, Mr Sangster said he did not have transport and his knee was sore. He also said he attempted to call Mr Motufoaki. Mr Motufoaki said Mr Sangster did not.

7      Department of Corrections v Sangster, above n 1, at [8]–[11] (emphasis added).

Mr Sangster, given the circumstances of the matter, as I have heard them, I accept you had a severe injury. You did not try as hard as you should and that was your biggest mistake.

Principle

[12]            An appeal of this nature is a rehearing, but an appellant must persuade the appeal Court of error. Customary caution is required in relation to credibility findings and other advantages enjoyed by the trial Court.8

Mr Sangster’s case on appeal

[13]            On behalf of Mr Sangster, Mr Schellenberg contends the Judge conflated the reasonableness of Mr Sangster’s failure to appear on 1 December 2020 with the reasonableness of his communications with Community Corrections on or about that date.9

[14]            Mr Schellenberg emphasises s 96(1) of the Sentencing Act 2002 criminalises breach, without reasonable excuse, of any condition imposed under ss 93 or 94 of that Act, the s 93 standard conditions incorporating reporting to a probation officer “as and when required”.10

[15]            In short, Mr Schellenberg contends the Judge focussed on Mr Sangster’s failings as a correspondent as opposed to the  reasonableness of his  failure to attend 1 December 2020.

The argument for the Department of Corrections

[16]            On behalf of the Department, Ms Nedeljkov acknowledges the decision can be read as Mr Schellenberg contends.   However, she argues the Judge did not err.     Ms Nedeljkov says the Judge was merely saying the absence of a text message was a “factor to be taken into account in assessing whether the excuse was reasonable in all

8      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].

9      The prosecution must exclude the possibility of a reasonable excuse (beyond reasonable doubt) once an evidential foundation for such an excuse is raised. Whether an excuse is reasonable turns not on the defendant’s perception, rather, objective assessment: A v Police [1999] 2 NZLR 501 (HC) at 506.

10 By s 14(1)(b) of the Parole Act 2002.

the circumstances”. Ms Nedeljkov says the totality of the evidence, including earlier breaches, reveals an obvious instance of a breach 1 December 2020. Or in short, the charge was properly proved.

Analysis

[17]            I accept Mr Schellenberg’s submission the Judge decided the charge on the reasonableness of Mr Sangster’s communication, not the reasonableness of the excuse for failing to comply with the reporting condition. The italicised portions of the decision, as to which see [11], support this conclusion rather than the Crown’s interpretation.

[18]            Should the appeal be dismissed given the strength of the evidence? The record permitted the Judge to find the charge proved. While Mr Sangster was injured, his injury did not preclude him from reporting 13, 20 and 27 October 2020, or from changing address. Moreover, Mr Sangster did not inform Community Corrections about this change, or report early September or 10 and 17 November 2020. So, it was open to the Judge to conclude Mr Sangster was using his injury as a crutch, no pun intended. I would have reasoned this way to dismiss the appeal but for one thing: the Judge appears to have accepted Mr Sangster’s testimony. This is important. It counts against me finding the charge proved given the limitations inherent to the record, and the customary caution on the part of appeal Courts in relation to credibility determinations.

Result

[19]            The appeal is allowed; the conviction quashed. I order no re-trial as the Judge convicted and discharged Mr Sangster without further sentence.

……………………………..

Downs J