Smith v Police HC Wellington CRI-2011-485-49

[2011] NZHC 2057

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-49

JOSHUA SMITH

Appellant

v

THE NEW ZEALAND POLICE

Respondent

Hearing:         2 August 2011

Counsel:         M Bagnall and M Dao for Appellant

S McClean for Crown

Judgment:      5 August 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 5th August 2011.

Solicitors:

John Miller Law , Barrister & Solicitor, PO Box 6314

Crown Solicitor, Wellington

JOSHUA SMITH V THE NEW ZEALAND POLICE HC WN CRI-2011-485-49 5 August 2011

[1]      On 14 June 2011 Judge Kelly sentenced Joshua Smith on five counts as follows:

(a)       Male assaults female;

(b)      Driving while licence revoked, third or subsequent time; (c)   Breach of release conditions (x3).

[2]      The male assaults female incident occurred on 5 January 2011.  The driving while licence revoked charge related to his arrest on 27 November 2010 when his car was pulled over by police.  Mr Smith pleaded guilty to that charge.  The three breach of  release  conditions  relate  to  failures  to  report  in  February  and  March  2011. Mr Smith pleaded guilty to these.

[3]      Judge Kelly refused to consider home detention and community work as an appropriate penalty for the appellant.  The Judge refused Mr Smith’s request for an adjournment  on  14 June  to  assess  his  address  for  an  electronically  monitored sentence and focused on imprisonment as the appropriate penalty.   The Judge sentenced Mr Smith to six months’ imprisonment on the male assaults female charge, six months’ imprisonment on the driving while licence revoked charge, and three months’ imprisonment on each of the breach of release conditions charges – all sentences to be served concurrently.  He was compulsorily disqualified from driving for 12 months.

[4]      Mr Smith advances three grounds of appeal as follows:

(a)       The  learned  Judge  did  not  properly  consider  the  suitability of  an electronically monitored sentence;

(b)The Judge failed to consider community work as an alternative to disqualification;

(c)       The Judge failed to give enough weight to the attempts he has made to turn his life around.

[5]      For the Crown, Ms McClean argued that:

(a)     Appropriate consideration was given to Mr Smith’s personal circumstances;

(b)      It was within the learned Judge’s discretion to select imprisonment as

the appropriate sentence without awaiting an EM report;

(c)      Section 94 was no longer available as an alternative to disqualification in light of the learned Judge’s conclusion that imprisonment was inevitable.

[6]      The factors taken into account by the learned Judge were as follows:

(a)      Previous offending – there were ten previous convictions for driving while disqualified and one of male assaults female; seven for breaches of sentence including community work and home detention (of which there were  five).   There were  also  two  convictions  for breach  of protection order among many others;

(b)History  of  non-compliance  –  among  his  many  non-compliances, failure to comply with special release conditions was significant;

(c)      Four offences in the current appeal were committed while on bail for the fifth (for driving while disqualified);

(d)Lack of remorse or motivation – according to the pre-sentence report the appellant showed little insight into his offending and displayed a sense of entitlement in driving and not reporting;

(e)      According to the pre-sentence report Mr Smith had a high risk of reoffending.

[7]      The  authorities  agree  that  when  a  sentencing  Judge  selects  between  the options of imprisonment and home detention, she is exercising a discretion.   That

narrows  the  field  on  appeal.[1]    The  question  for  me  therefore  is  whether  the sentencing  Judge  applied  an  incorrect  principle,  gave  insufficient  or  excessive weight to a particular factor or was plainly wrong.  Borderline cases will be resolved in favour of the sentencing Judge.[2]

[1] James v R [2010] NZCA 206 at [17].

[2] Polyanszky v R [2011] NZCA 4 at [13]. See also R v D [2008] NZCA 254 at [66].

[8]      There is no doubt that Mr Smith has a deeply problematic past.  He has seven full pages of convictions in his criminal and traffic printout including breach convictions directly relevant to whether he should receive a sentence of home detention.  The learned Judge had little time for any argument that this history did not accurately predict his likely future.

[9]      Mr Smith says that the three breaches of special condition charges relate to clashes between probation reporting requirements and his job.  He said further that he drove while disqualified because his job required it and he felt obliged to drive his work vehicle because his duties required it.

[10]     Mr Smith pleads that he is trying to turn his life around.  He certainly has the support of his new (and newly pregnant) partner and both his grandfather and uncle who run the concreting business.   He says that apart from the assault on his ex- partner, his recent offending does not show a sense of entitlement or disregard for constraints imposed upon him.  Rather, they show the pressures of trying to stay in work in the face of onerous release conditions and the lack of a licence.

[11]     I have some sympathy with that perspective.

[12]     If Mr Smith is to avoid spending a good part of the rest of his life in jail, a game breaker is needed.   If that opportunity is not provided now, Mr Smith will probably get caught up in the kind of ongoing cycle of punishment, driving while disqualified and further punishment that is described by Keane J in Maeva v Police as the wheel of offending.[3]   Without that opportunity it seems almost inevitable that

Mr Smith  will  receive  ongoing  punishment  with  decreasing  rehabilitative  or

deterrent effect.  I do not think that is in the interests of Mr Smith, his partner and family, or his community.

[3] Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].

[13]     Section 94 of the Land Transport Act 1998 would have allowed the Judge to substitute  a  community-based  sentence  for  the  12  months  disqualification.    Its purpose is to give drivers caught up in a hopeless cycle of disqualification an opportunity to work the penalty off rather than wait it out.   But in the case of Mr Smith, that was not possible because he was sentenced to prison.   Community work is not available alongside a prison sentence.

[14]     I consider that Mr Smith falls squarely within the purpose of s 94.  Failure to consider that section and its purpose was wrong in principle.   I acknowledge the reasons for the learned Judge’s reluctance to impose a community-based sentence. Mr Smith has a prodigious history of offending and, in this clutch of charges, a serious assault on a former girlfriend.  Nonetheless his tale of new hope has some substance in fact.  He was at least working when he should have been reporting and when driving.  There seems to be no excuse for the assault on the former girlfriend, and I am aware of previous breaches of home detention (the last one in May 2009), but I do not see why home detention was not a viable option in light of the other important factors in this case.  In the end, this sentencing can still be approached in my view with a sense of hope rather than resignation.

[15]     In light of the fact that the appellant has been in prison now for nearly two months, it is not appropriate to send the matter back.  Instead, I propose to adjourn the appeal to allow the Probation Service to urgently assess Mr Smith’s residence for suitability for home detention.  Once that information is to hand, I will make final

orders.

Williams J