Scanlan v Police

[2021] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-011140

[2021] NZHC 2071

BETWEEN

DEAN SCANLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 August 2021

Counsel:

I Stewart for Appellant

A Al-Janabi for Respondent

Judgment:

11 August 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 11 August 2021 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Kayes Fletcher Walker, Manukau

SCANLAN v POLICE [2021] NZHC 2071 [11 August 2021]

[1]    Mr Scanlan pleaded guilty to one charge of injuring with intent to injure1 and was sentenced to seven months and two weeks’ home detention.2 He now appeals this sentence as manifestly excessive and wrong insofar as a sentence of community detention and supervision should have been imposed.

Offending

[2]    Mr Scanlan was charged and sentenced alongside a co-defendant, Caleb Tema. The Crown summary of facts outlines the offending as follows. At about 1.00 am on Saturday, 19 October 2019, Mr Scanlan and Mr Tema were sitting in a car parked in a residential driveway in Flatbush, along with two others. The group was playing loud music from the car.

[3]    The complainant, unknown to the defendants, crossed the road and told them to turn the music down, leaning into the car and shaking Mr Tema by the neck and chest, yelling. Mr Tema got out of the car and began swinging punches towards the complainant’s head. The complainant tried to punch back. Mr Scanlan then got out of the car. He punched the complainant several times to the head and also kicked him a couple of times to the legs. The complainant was knocked to the ground, at which point Mr Scanlan punched him a couple of times. The complainant was repeatedly kicked, but it is unclear who by. The complainant managed to get up. Mr Tema attempted to continue punching him, but the complainant was able to block the punches.

[4]    Mr Tema picked up a wooden stake supporting a nearby tree and struck the complainant in the head, causing a large open wound. Mr Tema attempted to strike him again, but the complainant blocked it. Mr Scanlan then pulled Mr Tema away and tried to leave. As they drove away, Mr Tema threw three bottles at the complainant. They did not hit him, but Mr Tema yelled that he would come back and kill the complainant.

1      Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.

2      R v Scanlan [2021] NZDC 8236 [District Court decision].

[5]    The complainant suffered fractures to his cheekbone, nose and eye socket, and a large laceration to his head where he was struck with the stake, opening an artery. He also suffered multiple rib fractures, and bruising and pain in several areas.

[6]    Mr Scanlan was charged with injuring with intent to injure and, relevantly, Mr Tema was charged with wounding with intent to injure, which carries a higher maximum penalty.3

District Court sentence

[7]Judge D J Harvey descried the key facts as follows:4

[2] The circumstances of the offending were that you were both in a car listening to music that was on a very high volume. [The complainant] was disturbed by this and approached you and he expressed his desire for you to turn the music down. You Mr Tema, got out of the car and started to swing punches at him and a few moments later, you Mr Scanlan, got out and joined him. You punched the victim multiple times to the head, kicked him in the legs and he fell to the ground. You Mr Scanlan, punched him while he was on the ground and you Mr Tema, hit him with a stake.

[8]The Judge also said:

[3] I accept what Ms Stewart has to say that you Mr Scanlan, were not involved in that particular part of the activity and that it was a foray on the part of Mr Tema himself and that you Mr Scanlan, attempted to get him to leave immediately after.

[9]The Judge then identified a number of aggravating factors, namely:5

(a)The attack was a prolonged one.

(b)You targeted the head.

(c)It was in the nature of a group attack.

(d)It involved serious injury and you have heard the victim impact statements that have been read out. You have heard how your actions have destroyed the quality of life and enjoyment of life that [the complainant] is entitled to have. He is unable to pursue his sporting interests. His family were devasted, horrified, when news of this incident came to them.

3      Crimes Act, s 188(2). Maximum penalty seven years’ imprisonment.

4      District Court decision, above n 2.

5 At [4].

[10]   In fixing Mr Tema’s sentence, the Judge adopted a starting point of three and a half years’ imprisonment.6 After applying discounts for guilty plea, previous good character and youth, he arrived at an end sentence of one and three-quarter years, commuted to 11 months’ home detention.7 In relation to Mr Scanlan, he considered that a sentence of imprisonment for one and a quarter years reflected the severity of the offending but commuted this to a sentence of seven months and two weeks’ home detention.

Mr Scanlan’s appeal

[11]   Ms Stewart, on behalf of Mr Scanlan, submits that the Judge erred in three respects, namely:

(a)The Judge wrongly sentenced to Mr Scanlan on the same charge as faced by Mr Tema, namely the charge of wounding with intent to injure. Mr Scanlan was in fact charged with, and pleaded guilty to, injuring with intent to injure. This, Ms Stewart submits, led the Judge to adopt a starting point of three years, six months’ imprisonment instead of a starting point more appropriately in the region of two between two and two years, six months’ imprisonment.

(b)The Judge gave an insufficient allowance for Mr Scanlan’s lesser role and culpability, estimating that the Judge only allowed a discount—as an adjustment to the starting point of three years, six months’ imprisonment—in the order of 15 per cent.

(c)The Judge gave insufficient discounts of 25 per cent total for personal factors, including his previous good record, background, youth and remorse.

(d)A sentence of community detention and supervision better meets the purposes and principles of sentencing, having particular regard to the low level of Mr Scanlan’s culpability and his capacity for rehabilitation.

6 District Court decision, above n 2, at [5].

7      At [6]-[7].

[12]   Ms Al-Janabi, for the respondent submits that the sentence handed down to Mr Scanlan was well within range, noting that the Judge appears to have adopted a starting point in the order of two years, six months and applied a 50 per cent discount for guilty plea and personal circumstances, including Mr Scanlan’s youth and remorse.

Assessment

[13]   While Judge Harvey did not provide a breakdown of his sentence, I agree with Ms Al-Janabi that in order to arrive at a notional sentence of imprisonment of one year, three months’ imprisonment, the sentence corresponds to a starting point in the order of two years, six months and a discount of 50 per cent for guilty plea and personal circumstances. I also agree with Counsel that the starting point is well within range.8

[14]   The remaining issue is whether a more substantial discount should have been given for personal circumstances and a non-custodial sentence imposed. There is no dispute that the guilty plea attracted a discount of 25 per cent. Ms Stewart submits however that a 25 per cent discount for personal circumstances was manifestly inadequate. She says that a discount of 25 per cent for youth and remorse alone is mandated and that a further discount of 20 per cent for previous good character and background is warranted. She says this could be reduced to a collective 35 per cent to avoid double-counting. On this analysis, the notional sentence of imprisonment should have been in the order of 12 months. From this she submits a non-custodial sentence was the least restrictive outcome, particularly given Mr Scanlan’s strong rehabilitative prospects: he has strong whānau support and had, until sentencing, a job as a builder he is passionate about.

[15]   I accept that a greater discount, in the order of 35 per cent could have been afforded to Mr Scanlan having regard to his combination of personal factors identified by Ms Stewart. Mr Scanlan was 18 at the time of the offending and has no previous convictions. He also suffered recent family trauma with his father’s passing. In recent years he has gravitated toward a “Siren” music group, where he’ found support and belonging. He has worked as a builder since the age of 16 and continued to do so until the sentencing. He was with members of his friends in from his Siren group, as the

8      For example, O’Doherty v Police [2014] NZHC 2312.

sober driver, at the time of the offending. He is clearly remorseful. But this does not take the 15-month notional sentence of imprisonment out of range given the serious nature of the offending. This was a group attack causing serious injury. Furthermore, most significantly, the sentence was commuted to home detention and the difference in terms of end sentence is a about one and half months’ home detention. Given the seriousness of the offending, the period of home detention imposed by the Judge is not manifestly excessive.

[16]   The more difficult issue is whether the sentence should have been commuted to one of community detention and supervision as suggested by Ms Stewart, which I accept was available to the Judge. This was the sentence recommended in the Corrections’ pre-sentence report. But I am not satisfied that the Judge erred in taking the approach he did and it was an assessment that deserves a fair margin of appreciation.9 In this regard, I consider a sentence of home detention adequately serves the purposes and principles of sentencing in Mr Scanlan’s case. First, as I have noted the offending is serious offending that caused significant long-term harm to the victim. While I accept that Mr Scanlan’s culpability is markedly less than Mr Tema’s, a clear deterrent sentence is nevertheless warranted. A sentence of home detention achieves this. Second, home detention provides a full opportunity for rehabilitation within a supportive family environment. Ms Stewart submitted that the strictures of home detention meant that retaining employment was difficult. But there was no evidence from an employer to this effect.

[17]   Overall, and with respect to Ms Stewart’s careful submissions on this issue, a sentence of home detention is appropriate. Furthermore, given the seriousness of the offending, the period of home detention imposed by the Judge is not manifestly excessive.

[18]The appeal is dismissed.

9 See Palmer v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159] and [162].