Springall v Department of Corrections

[2012] NZHC 716

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-14 [2012] NZHC 716

BETWEEN  MICHAEL ALEXANDER SPRINGALL Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         13 April 2012

(Heard at At Auckland)

Counsel:         J Gurnick and G Prentice for Appellant

C R Hamlin for Respondent

Judgment:      13 April 2012

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Public Defence Service, Auckland –  [email protected]

Meredith Connell, Auckland –  [email protected]

SPRINGALL V DEPARTMENT OF CORRECTIONS HC HAM CRI-2012-419-14 [13 April 2012]

[1]      Michael Springall appeals against a sentence of five weeks imprisonment imposed by Judge Cocurullo[1]  following guilty pleas by Mr Springall to two charges of breaching his sentence of community work under s 71(1)(a) of the Sentencing Act.

[1] Department of Corrections v Springall DC Hamilton CRI02011-019-4778, 4 April 2012.

[2]      Following sentencing on 4 April 2012 Mr Springall immediately filed an appeal and also sought bail pending appeal.   Judge Cocurullo declined bail in a decision given that day.  Mr Springall has also appealed the bail decision.

[3]      Mr Springall has now been in custody for nine days and in light of his short sentence from which he would be entitled to release after two and a half weeks, I understand on 21 April 2012, the hearing of this appeal against sentence has been accorded urgency.

Factual background

[4]      On 28 April 2011 Mr Springall was sentenced to 120 hours community work for driving with excess breath alcohol and a further 40 hours community work for driving while disqualified, a total of 160 hours.   He was placed with the Te Rapa Community Work Agency but he did not comply with that placement.   He was required to report to the Te Rapa Community Work Centre on Wednesday 1 June

2011 and each subsequent Wednesday.   He did not report on Wednesday 15 June

2011 which gave rise to the first charge.  At the time the information was sworn on

29 June 2011 Mr Springall had  completed twenty five and a half hours of his community work sentence.  He pleaded guilty to the first charge on 3 August 2011.

[5]      However, he continued not to comply with his sentence.  He did not report on

7 October 2011 which gave rise to the second charge.  In the intervening period Mr Springall had completed an additional three hours of community work and had failed to report on 21 occasions.  He pleaded guilty to the second charge on 5 December

2011.  There were a number of remands on 3 August, on 5 December and finally on

23 March 2012 when Judge Cocurullo adjourned the sentencing of both charges to

give the appellant a final opportunity to demonstrate his willingness to comply with the Court’s orders by completing 48 hours of community work, a figure reached as is apparent from the sentencing judgment to which I shall shortly refer, after discussion between the Judge and Mr Springall.

[6]      By 4 April 2012 when he was sentenced Mr Springall had completed 16 hours community work of the 48 hours agreed on 23 March 2012.

District Court sentencing decision

[7]      Judge Cocurullo noted the community work orders of the Court which the appellant was required to obey.  He said that by failing to complete the community work Mr Springall was clearly disrespectful and disobedient of Court orders.   He said that when he saw the appellant on 23 March 2012 he made it clear that he did not want to send Mr Springall to prison, that he was a young man who in effect had his whole life ahead of him and he did not want to risk the potential of Mr Springall being on a treadmill of going to jail, coming out, continuing to offend, and going back to jail.

[8]      The Judge referred to a clear discussion he had with Mr Springall in which it was proposed that he do 48 hours of community work, and that as at 4 April 2012 the appellant had completed 16 hours (about a third of what had been discussed).  He said:[2]

… You  heard  my plea  on  23 March for you  to mature,  understand  the seriousness of the Court order and to do your community work.  You did not advise any difficulty in not being able to complete the suggested 48 hours.

[2] At [7].

[9]      He then referred to submissions made on behalf of the appellant that on normal sentencing principles the next step up is not prison but an electronically monitored sentence.  He referred to the chances that Mr Springall had been given to do his community work and “… a clear chance and agreement was put together when you saw me on 23 March”.  He said that in his view the reality was for Mr Springall, that he did not think much of Court orders.

[10]     He noted that Mr Springall was a young man with a very limited previous list and that he had not previously been in prison.  But he said he formed the clear view that   it   was   completely   inappropriate   to   adjourn   the   sentencing   to   canvas electronically monitored sanctions.  That was because in the view the Judge formed, Mr Springall was not an appropriate person to be the recipient of those types of sanctions.  He said:[3]

…  You  have  disdain  and  disrespect  for  Court  orders.    You  would  not faithfully complete any electronically monitored sentence without significant issues.  Your response to not completing your community work is a classic example of that.

[3] At [10].

[11]     He said he had considered ss 7, 8 and 9 of the Sentencing Act and the principle of deterrence both personal and general.  He then turned to the sentence of imprisonment he should impose.  He noted that the maximum prison sentence for the offending was three months.  He took a starting point of eight weeks imprisonment, noted there were no aggravating features which would require an uplift, but that mitigating features of age and personal circumstances together with the guilty pleas justified a discount.  That discount he set at three weeks, which I calculate as 37.5 per cent of the starting point.  He imposed the sentence of five weeks imprisonment which is now the subject of appeal.

Submissions

[12]    In support of the appellant’s contention that the sentence of five weeks imprisonment is manifestly excessive, counsel relies principally on the following grounds:

(a)      The Judge failed to have regard to s 16 of the Sentencing Act and the mandatory requirement that 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.

(b)The Judge failed to have proper regard to the mandatory consideration in  s  8(g)  of  the  Sentencing Act  of  the  need  to  impose  the  least restrictive outcome that is appropriate in the circumstances.

[13]     Counsel seeks on behalf of Mr Springall, that the sentence of five weeks imprisonment be quashed and substituted by a sentence that would result in the appellant’s immediate release.  Mr Gurnick said that submission reflected the reality of the situation, but his primary criticism of the Judge’s decision was that he failed to adjourn the sentencing to enable a home detention appendix to be completed and properly considered by the Court.

[14]     Counsel referred to the hierarchy of sentences in s 10A of the Sentencing Act. Also to the proper approach of the appellate court in cases such as this as stated by the Court of Appeal in Manikpersadh v R;[4]  that the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion with appellate review focusing, as in other sentencing appeals, on the identification of error, if any, in the Court below.

[4] Manikpersadh v R [2011] NZCA 452.

[15]     Counsel then referred to the case of R v Rawiri[5] and the discussion in that case on the impact of the Sentencing Amendment Act 2007. The Court said that significantly the legislature placed community based sentences well up in the hierarchy immediately below home detention[6]   and that the statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort.[7]

[5] R v Rawiri [2011] NZCA 244.

[6] At [17].

[7] At [18].

[16]     In that context the Crown refers to the judgment of Wild J in Fahey v Police[8]

[8] Fahey v Police HC Palmerston North CRI-2008-454-21, 4 June 2008.

where the Judge said:[9]

[9] At [12].

I agree with the Judge that he had no appropriate alternative other than to send Ms Fahey to prison.   Community work is the non-custodial sentence appropriate for the appellant’s offending.   If there is non-compliance with that sentence then, in the absence of some good excuse or explanation, the

offender goes to prison.   Here there were multiple breaches and no good explanation, so the Judge was correct, the offender went to prison.

[17]     That may be a fairly blunt statement of the situation as Wild J  and the sentencing Judge saw it in Fahey but it is difficult to accept the appellant’s insistence that somehow there has to be a degree of proportionality between the sentencing for the index offences and the sentence for breach of community work.

[18]     The sentence imposed for the offences of excess breath alcohol and driving while disqualified was appropriately community work, but Mr Springall breached that sentence which he a acknowledged by guilty pleas to two offences, and that is the matter for which he had to be sentenced on 4 April 2012.

[19]     Counsel also submitted that the Judge failed to have proper regard to s 8(g)(a) and that he did not give reasons why he did not consider an electronically monitored sentence would be unsuitable.

[20]     I do not accept that submission.  The Judge made it perfectly clear that he did not want to sentence the appellant to a prison term but he said there was no other option available to him in the circumstances, including the clear view he reached that the appellant was not an appropriate person for electronically monitored sanctions because he had shown distain and disrespect for Court orders.   That was an assessment the Judge reached after some considerable familiarity with the circumstances of this case.  The factual background to the appellant’s offending, I consider provides clear evidence to support that view.

[21]     I note also that the probation report states that electronic monitoring was discussed with the appellant who reported that he had to seek his mother’s approval. The report writer says he remained unsure as to whether Mr Springall clearly understood the implications of home and/or community detention and that he had not contacted the report writer since completing his assessment on 7 March 2012 which the report writer stated was reflective of his previous behaviour and his status.  In submissions today, Mr Gurnick said that the appellant’s mother claims to have telephoned and left a message at the probation service which was not returned.  But

whatever occurred, there were apparently no active steps taken to put before the

Judge information that would have enabled him to consider a home detention option.

[22]     The Crown attached to its submissions a table which shows sentences of around 4 to 6 weeks having been upheld for offenders on their second or third breach of community work and that in only two cases had a sentence of imprisonment been quashed in favour of a sentence of home detention.  One of those was the case of Wilkinson  v  Department  of  Corrections[10]    where  it  was  found  subsequent  to sentencing that  the appellant  was  pregnant.   The other is  the case of  Iwikau v Department of Corrections[11] which Mr Gurnick said was the case most favourable to the appellant.   In that case a sentence of home detention was substituted for a sentence of imprisonment.  But in the cases of Fahey, Henare v Police[12]  and others short sentences of imprisonment for second and subsequent breaches of community work were upheld.

Analysis

[10] Wilkinson v Department of Corrections HC Nelson CRI-2011-442-40, 25 October 2011.

[11] Iwikau v Department of Corrections HC Palmerston North CRI-2008-454-42, 26 September 2008.

[12] Henare v Police HC Christchurch CRI-2010-409-193, 14 October 2010.

[23]     The Crown accepts, as do I, that each case is fact specific.  In this case the appellant was given a clear warning by Judge Cocurullo on 23 March 2012 and an opportunity  to  correct  his  non-performance  following  two  previous  remands  to enable him to complete his sentence of community work.  There was ongoing failure to attend community work even after he pleaded guilty to the first charge.   Then there was disregard or certainly insufficient regard, for the comments and urgings of Judge Cocurullo on 23 March which were clearly aimed at giving the appellant every opportunity to avoid a sentence of imprisonment which the Judge made clear.

[24]     The appellant failed to take the necessary steps to enable an electronically monitored sentence to be considered on the basis of an appropriate home detention appendix.   Additionally the pre-sentence report referred to the appellant’s lack of

insight, remorse or any motivation to change.

[25]     All that is unfortunate in respect of a 20 year old offender who has not previously been subject to a sentence of imprisonment but I find no error in the Judge’s approach to sentencing.   I am not persuaded that the sentence imposed of five weeks imprisonment was wrong in principle or was manifestly excessive in all the circumstances of this case.

Result

[26]     The appeal is dismissed.