Simpson v R
[2019] NZHC 3139
•29 November 2019
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-000019
[2019] NZHC 3139
BETWEEN ROPATA JOSEPH PEKAMU SIMPSON
Appellant
AND
THE QUEEN
Respondent
Hearing: 6 November 2019 Counsel:
A Simperingham and H N Tunstall for the Appellant L Marshall for the Respondent
Judgment:
29 November 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Ropata Simpson, appeals a sentence of imprisonment imposed on him by Judge Cathcart in the District Court at Gisborne on 11 September 2019.1
[2] Mr Simpson was sentenced to concurrent sentences of nine months’ imprisonment for aggravated assault,2 three months’ imprisonment for common assault,3 and nine months’ imprisonment for driving contrary to the terms of a zero alcohol licence (third or subsequent)4 and driving with excess breath alcohol (third or subsequent).5
1 R v Simpson [2019] NZDC 18513.
2 Crimes Act 1961, s 192; maximum penalty of three years’ imprisonment.
3 Section 196; maximum penalty of one year imprisonment.
4 Land Transport Act 1998, ss 32(1)(b) and 32(4); maximum penalty of two years’ imprisonment or a fine not exceeding $6,000, and disqualification from holding or obtaining a driver’s licence for one year or more.
5 Sections 56(1) and 56(4); maximum penalty of two years’ imprisonment or a fine not exceeding
$6,000, and disqualification from holding or obtaining a driver’s licence for more than one year.
SIMPSON v R [2019] NZHC 3139 [29 November 2019]
[3] In addition, Mr Simpson was disqualified from holding or obtaining a driver’s licence for six months from the date of his sentence. An alcohol interlock disqualification order was also imposed as well as a zero alcohol licence order.
[4] Mr Simpson appeals his sentence on the grounds it is manifestly excessive, and Judge Cathcart should have commuted it to a sentence of home detention.
Background
Aggravated assault and driving charges
[5] At about 1:30 a.m. on 1 December 2018, Mr Simpson was the driver of a Holden motor vehicle driving west on Abbott Street, Gisborne.
[6] At the time of driving, Mr Simpson had two previous convictions for driving with excess breath alcohol. He was also subject to the terms and conditions of a zero alcohol licence.
[7] Mr Simpson was stopped for a compulsory breath test. Mr Simpson evidently failed the roadside breath test as he was required to accompany the police officer to the Gisborne Police Station. When asked to do this, Mr Simpson refused and became verbally abusive. He was warned and subsequently advised he was under arrest. He refused to turn around to allow handcuffs to be applied. Nevertheless, handcuffs were ultimately applied.
[8] While Mr Simpson’s associate was being placed under arrest, Mr Simpson lunged forward and headbutted the arresting officer to his right eye socket causing extensive bruising and swelling to his eye.
[9] Once at the Gisborne Police Station, Mr Simpson undertook an evidential breath test which produced a result of 669 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath.
[10] Mr Simpson was also in breach of his Restricted Licence as he drove with unauthorised passengers and drove between the hours of 10:00 p.m. and 5:00 a.m.
Common assault charge
[11] In relation to the common assault charge, Mr Simpson was involved in an argument with his uncle Leroy Pardoe. He was jointly charged with his brother, Kupa Simpson.
[12] At about 4:30 p.m. on 28 January 2019, Mr Simpson, his brother and Mr Pardoe were at an address on Hooper Street, Gisborne. An argument emerged between Mr Simpson and his uncle. Mr Simpson’s brother who was waiting in a car in the driveway, jumped out of the car and ran into the property to assist Mr Simpson. Mr Simpson challenged Mr Pardoe to a fight. Both Mr Simpson and his brother approached Mr Pardoe. Mr Simpson punched Mr Pardoe “a few times”. His brother then punched Mr Pardoe twice. The brothers then left the address.
[13] As a result of the assault, Mr Pardoe suffered a small laceration to his forehead and tenderness to his face. He also suffered light bruising and swelling to the back of his head.
District Court decision
[14] Judge Cathcart recited the facts as above. On the lead charge of aggravated assault in relation to the arresting officer, the Judge commented on the seriousness of the offending as follows:
[8] I am sure you are aware now, Mr Simpson, headbutting the constable is a serious offence. Police officers in Gisborne are regularly assaulted by young men. There needs to be a deterrent message given to offenders—if they do it they will receive a stern sentence from the Court. The officers go about their lawful duty and do not need an arrogant man like you confronting them let alone having the audacity to headbutt the officer and cause him the injuries as noted. It is serious offending in its context. It carries a maximum penalty of three years’ imprisonment and the starting point must reflect that crime and those facts.
[15] Accordingly, the Judge adopted a starting point of eight months’ imprisonment. He said that figure “reflects the injuries to the officer and the aggravating factors relating to that offending.”6
6 R v Simpson, above n 1 at [9].
[16] The Judge then factored into that starting point an uplift to reflect all the other offending as well as an adjustment for totality purposes. He increased the starting point by a further overall period of four months to arrive at a figure of twelve months’ imprisonment.
[17] The critical parts of the sentencing for the purposes of this appeal are set out below:
[11] I do not consider there is any evidence of remorse by you sufficient for me to recognise it as a discrete independent mitigating factor. You are entitled to a discount for guilty pleas and I give you the full discount available. That equates to a figure of three months. I am now down to the territory of nine months’ imprisonment and whether that is converted to home detention.
[12] Hence my enquiry about the fact you have been sentenced to home detention in recent times and breached it twice. You were sentenced to home detention in 2016 when you appeared in the Tauranga District Court. It was for a period of five months. And then on 26 October you breached the home detention conditions and did so again on 12 January 2017. On the last matter you received an extra sentence of one month’s home detention.
[13] That means I must consider whether you are an appropriate candidate for home detention. Ms Baker reminds me you are only 25 years of age. You have employment. You have a young family you are trying to look after. They are all relevant personal circumstances. But you breached home detention before, twice, in the circumstances described to me by the probation officer. So, I have reached a firm view, sir, as to the appropriate outcome. I do not consider you a suitable candidate for home detention and it will be a term of imprisonment for you.
Approach on appeal
[18] Mr Simpson appeals his sentence under s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.7
[19] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error of principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.8
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].
The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9
Appellant’s submissions
[20] Mr Simpson appeals his sentence on the ground the Judge should have commuted it to home detention. In particular, Mr Simpson submits that:
(a)home detention will meet the necessary principles of deterrence and denunciation;
(b)the Judge placed too much emphasis on his prior breaches of home detention;
(c)because a short sentence of imprisonment was considered by the Judge, it was more appropriate that home detention be imposed instead; and
(d)the Judge did not turn his mind to the least restrictive sentence.
Home detention a sufficient deterrence
[21] First, Mr Simperingham, for Mr Simpson, accepted that the principles of deterrence and denunciation should feature strongly in this sentence for the reasons given by the District Court Judge. However, he submitted the Judge erred in assessing home detention as being of insufficient deterrence, pointing to Senior Courts precedent which has routinely held that home detention provides a considerable measure of deterrence and denunciation.
[22] It was submitted that a sentence of home detention would be a significant restriction on Mr Simpson’s liberty as it would prevent him from continuing with his employment where he was in line to commence a painting apprenticeship. That combination of consequences for Mr Simpson would amount to the necessary deterrence and denunciation.
9 Ripia v R [2011] NZCA 101 at [15].
[23] In this respect it was argued that the Judge failed to properly consider s 16 of the Sentencing Act 2002 (the Act), namely that the principles and purposes of sentencing can be achieved by a sentence other than imprisonment.
Prior breaches of home detention
[24] Secondly, Mr Simperingham submitted that in rejecting home detention as an appropriate sentence, the Judge placed too much emphasis on Mr Simpson’s two previous breaches of home detention.
[25] In 2016, Mr Simpson was sentenced to five months’ home detention for driving whilst disqualified and giving false details. He was convicted of breaching that sentence on two occasions. The first breach involved Mr Simpson’s father missing the most direct exit from the Tauranga motorway and causing Mr Simpson to be outside his curfew. Mr Simpson pleaded guilty and was sentenced to come up if called upon for a period of six months. That sentence, it was submitted, reflects a very low culpability for that offending.
[26] Mr Simpson then pleaded guilty and was convicted for a second breach for failing to attend a four-day Tikanga Māori programme. His home detention was extended by one month as a sentence for that breach. He later successfully completed the programme.
Length of sentence and appropriateness of home detention
[27] Thirdly, Mr Simperingham submitted that as Mr Simpson’s sentence was a short sentence of imprisonment, home detention was more likely to be appropriate and came within the range of sentences available as an alternative to imprisonment.
[28] Mr Simperingham referred to Richmond v Police.10 In that case the appellant was sentenced to six months’ imprisonment for charges of threatening to kill, dangerous driving, failing to stop and failing to answer bail. He had a suitable address for electronic monitoring. On appeal, Duffy J held that it was appropriate to convert this to a sentence of home detention. Duffy J took into account the length of the
10 Richmond v Police [2019] NZHC 2001.
appellant’s sentence, the likelihood a sentence of imprisonment would increase the appellant’s risk of reoffending and the appellant’s rehabilitative needs given his methamphetamine addiction.11
The Judge did not turn his mind to the least restrictive sentence
[29] The fourth and final submission was that the Judge did not turn his mind to a consideration of the least restrictive sentence. Mr Simperingham submitted that the hierarchy of sentences and Senior Courts commentary support the proposition that prison is a measure of last resort.12
Respondent’s submissions
[30] Ms Marshall, for the Crown, submitted that the Judge made no error in exercising his discretion to impose a short sentence of imprisonment rather than a sentence of home detention. While Ms Marshall accepted that a sentence of home detention can provide a level of denunciation and deterrence, she submitted a sentence of imprisonment is still the appropriate outcome in cases of sufficient gravity such as this one.
[31] Ms Marshall pointed to Mr Simpson’s previous breaches of home detention as well as his broader criminal history as highlighting his unsuitability for a sentence of home detention. This is because he has repeatedly demonstrated a reluctance to abide by the Court’s authority and there is a high risk he will not comply with another sentence of home detention.
Legal principles
[32] Imprisonment is the most restrictive sentence in the hierarchy of sentences in the Act.13 Section 16(1) of the Act provides that 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.” When a Court is considering sentencing for the purposes of
11 At [78]-[80].
12 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
13 Sentencing Act 2002, s 10A.
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.14
[33] Home detention is available if the Court would otherwise sentence the offender to a short sentence of imprisonment (defined under s 4(1) of the Parole Act 2002 as a sentence of 24 months or less) and, as with the imposition of a sentence of imprisonment, the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences.15
[34] While a Court must always impose the least restrictive outcome appropriate in the circumstances,16 unless expressly stated, there is no presumption in favour of home detention where a short sentence of imprisonment is determined to be appropriate.17 It is ultimately a matter of discretion and an “evaluative assessment of all the circumstances” is required.18 Nevertheless, the Court of Appeal has previously commented that home detention provides a real alternative to imprisonment.19 This is because it carries with it the principles of denunciation and deterrence.20 As Hinton J observed in Korewha v R:21
...home detention is not a soft option. It still involves significant restriction on an offender’s liberty, and those sentenced to home detention regularly find compliance with its terms onerous.
[35] However, an appeal against the imposition of a short sentence of imprisonment rather than home detention does not provide the appellate Court with an opportunity to revisit or review the merits of the case.22 The question for the appellate Court is whether the sentencing Judge erred in exercising his or her sentencing discretion.
14 Section 16(2).
15 Section 15A(1).
16 Section 8(g).
17 R v Stacey [2002] NZCA 465 at [21].
18 R v Risschop [2008] NZCA 229 at [18]–[19].
19 R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].
20 R v Ismail [2016] NZHC 79 at [45].
21 Korewha v R [2018] NZHC 1896 at [25].
22 James v R [2010] NZCA 206 at [17].
Analysis
[36] It appears that two factors were of significance to Judge Cathcart. The first was the general fact that Mr Simpson had committed a violent offence against a police officer, which the Judge noted was a regular occurrence in Gisborne. The Judge considered that this alone warranted a stern response from the Court.
[37] The Second factor specifically related to the Judge’s determination that a short sentence of imprisonment was the most appropriate sentence in the circumstances. The Judge considered Mr Simpson’s past breaches of home detention suggested that he was likely to breach such a sentence again. While the Judge acknowledged Mr Simpson’s relatively young age and the fact he was in employment and providing for a family, he did not consider these factors to outweigh the risk he would breach a sentence of home detention. From the Judge’s sentencing notes, it appears that had it not been for those past breaches, a sentence of home detention would likely have been imposed.
[38] In coming to his decision, the Judge noted that the information about Mr Simpson’s past breaches was “in the circumstances described to [the Judge] by the probation officer”. Presumably, the Judge was referring to the Provision of Advice to the Court Report (PAC Report). There are two PAC Reports in Mr Simpson’s case as the common assault conviction was entered sometime after the other convictions.
[39] In the first PAC Report, dated 23 April 2019, the report writer noted that Mr Simpson’s criminal history was such that a sentence of imprisonment was an “available option” but nonetheless recommended a sentence of home detention. The report writer noted Mr Simpson had “previous non-compliance with community-based sentences as recent (sic) as 2017 for breaching Home Detention on two occasions.” However, those breaches were not explored any further.
[40] In the second PAC Report, dated 5 September 2019, the report writer noted Mr Simpson had gained a greater insight into his offending and imprisonment was no longer considered appropriate despite Mr Simpson facing an additional charge. That PAC Report, however, made no mention of Mr Simpson’s past breaches nor did it elaborate on the observations made in the first PAC Report.
[41] Given the paucity of information concerning Mr Simpson’s past breaches, it is difficult to discern from the information before me what exactly was before the Judge in this regard. If by “in the circumstances described to me by the probation officer” the Judge was simply alluding to the two PAC Reports, then the Judge must have taken Mr Simpson’s breaches at face value given the PAC Reports do not explain the breaches in any detail whatsoever.
[42] At the appeal hearing, Mr Simperingham elaborated on the breaches and explained them to me as I have described them at [25]–[26]. While I am unable to ascertain whether the Judge was aware of these explanations, in light of them being put before this Court I consider the Judge erred in concluding that home detention was not appropriate because Mr Simpson had previously breached such a sentence. It is clear that the first breach was minor in nature and very likely to have been accidental. While the second breach was more serious, it too was relatively minor. The resulting penalties support this conclusion. In any case, I do not consider the breaches to sufficiently establish a foundation to conclude that Mr Simpson is likely to once again breach a sentence of home detention, should he receive one. This is particularly so given the insight Mr Simpson has shown into his offending as outlined in the second PAC Report.
[43] In coming to this view, I in no way condone Mr Simpson’s past breaches. Nor do I suggest that this Court should ― or should be seen to ― turn a blind eye to breaches of its orders. Rather, I come to this conclusion having regard to the Judge’s inference from these breaches; that the risk Mr Simpson would again breach a sentence of home detention is high. The Judge therefore used the breaches to assess and conclude on Mr Simpson’s risk. If information of this nature is used solely to assess risk, a conclusion that a short sentence of imprisonment is more appropriate than one of home detention is likely to be inconsistent with the requirements for the imposition of a term of imprisonment in s 16 of the Act. I consider such a situation to have arisen in this case.
Home detention?
[44] As I have found the District Court Judge to have erred, I must consider whether home detention should have been imposed. In my view, it should have.
[45] That Mr Simpson has a relatively lengthy criminal history is undeniable. The majority of Mr Simpson’s past convictions involve either property-related or driving offences, particular driving while disqualified. Relevantly among these are a conviction for assault with intent to injure for which Mr Simpson was sentenced to 200 hours’ community work and nine months’ supervision, and a conviction for common assault for which Mr Simpson was sentenced to three months’ imprisonment (served concurrently with a sentence of imprisonment of two years for burglary). Mr Simpson received both convictions in 2012. Therefore, it has been some seven years since he has committed a violence offence.
[46] Mr Simpson also has several convictions for breaching supervision conditions and community work between 2012 and 2014, and one conviction for failing to answer District Court bail in 2016. For all but one of these breaches, Mr Simpson was convicted and discharged. This suggests that those breaches were minor. In any case, other than the breach of bail, Mr Simpson’s non-compliance convictions occurred over five years ago.
[47] The relevance of these timings is two-fold. First, Mr Simpson’s relevant violence convictions occurred some time ago. In this regard, the current offending can be said to have been out of character. Second, these convictions along with the non- compliance convictions occurred while Mr Simpson was between the ages of 18 and
22. His youth could very well account for some of his past offending. This is reinforced by the fact that aside from the offending which is the subject of this appeal and the breaches of home detention that I have already mentioned, Mr Simpson has not offended since 2016.
[48] It is therefore unfair to look at Mr Simpson’s previous convictions at face value. It is clear from the second PAC report that Mr Simpson has matured since his offending, and certainly since his previous convictions. In my view, these factors supported a sentence of home detention.
[49] It is also likely that Mr Simpson’s previous drink-driving offending was fuelled by an alcohol dependence rather than simply a disregard for the law. This is evident from the first PAC Report which noted that Mr Simpson’s alcohol and low drug use were identified as rehabilitative needs. His alcohol use in particular has resulted in a moderate risk of health problems.
[50] Given these circumstances, I consider that a sentence of home detention would have been more beneficial to Mr Simpson’s rehabilitative needs than a short sentence of imprisonment, particularly in respect of his alcohol abuse. This is particularly so given his relative youth. I agree with Mr Simperingham that Richmond provides assistance in this regard. In that case, Duffy J discussed the findings of recent research which revealed the lack of utility of short sentences of imprisonment, especially sentences of six months or less; 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.23 Mr Simpson’s sentence falls within this category given he would have been released after having served half of the sentence.24
[51] I acknowledge that deterrence and denunciation of the offending were relevant factors in this case. However, these too could have been satisfied by a sentence of home detention. As Mr Simperingham submitted, the practical effect of home detention would be the same as imprisonment in that Mr Simpson would not be able to work and provide for his family in the same way he did prior to his offending. However, he would be placed in a more supportive environment where he could focus on his rehabilitation and his children. His partner has indicated she is willing to support him even if Mr Simpson himself does not wish to be a burden on her.
[52] Overall, I consider Mr Simpson’s circumstances are such that a sentence of home detention was the most appropriate sentence. As Duffy J said in Richmond, there will be occasions when the Court has no alternative but to impose a short sentence of imprisonment.25 This will likely be the case if Mr Simpson were to offend again in a similar manner.
23 Richmond v Police, above n 10, at [74]-[75], citing Department of Corrections An Overview of Corrections in 2019 (Department of Corrections, 2019).
24 Parole Act 2002, s 86(1).
25 Richmond v Police, above n 10, at [79].
[53] In my view an appropriate sentence would have been one of five months’ home detention. While the length of a sentence of home detention is generally half of the length of a prison sentence, a longer term of home detention may occasionally be warranted.26 Here the general approach would have led to around four months’ home detention, which I consider would have been insufficient to meet the requirements of denunciation and deterrence.
[54] However, by the time of this judgment, Mr Simpson would have spent just over two months in prison. This equates to one month on home detention. Taking this into account, the appropriate sentence is four months’ home detention.
Result
[55]The appeal is allowed.
[56] Mr Simpson’s sentences of imprisonment are set aside and substituted with a sentence of four months’ home detention.
[57]Mr Simpson is to:
(a)travel directly to 27 Sirrah Street, Okitu, Gisborne, and wait there until his home detention connection is complete;
(b)reside at 27 Sirrah Street, Gisborne, and not move to any new residential address without the prior written approval of a Probation Officer;
(c)remain at 27 Sirrah Street, Okitu, Gisborne, at all times unless an absence has been authorised by a Probation Officer;
(d)attend and complete an appropriate alcohol abuse programme including an educational programme to the satisfaction of a Probation Officer.
26 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [59].
The specific details of the appropriate programme shall be determined by a Probation Officer;
(e)attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of the Probation Officer;
(f)attend the Whakamanahia drink drive programme; and
(g)not possess, consume or use any alcohol or drugs unless prescribed to him.
Doogue J
Solicitors:
Woodward Chrisp, Gisborne Crown Solicitor, Gisborne
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