Staiger v Police

[2022] NZHC 3012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000044

[2022] NZHC 3012

BETWEEN

JAMEN PAUL STAIGER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 November 2022
Appearances:	N Palmer for Appellant U Keller for Respondent
Judgment:	17 November 2022

JUDGMENT OF WYLIE J

(Appeal against sentence)

This judgment was delivered by Justice Wylie On 17 November 2022 at 10.00 am

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

Solicitors/counsel:

Hamilton Legal, Hamilton N Palmer, Hamilton

STAIGER v NEW ZEALAND POLICE [2022] NZHC 3012 [17 November 2022]

Introduction

[1]    On 28 June 2022, the appellant, Jamen Staiger, was sentenced by Judge R L B Spear in the District Court at Te Awamutu to one year and six months’ intensive supervision and 100 hours’ community work.1

[2]    Mr Staiger was before the Court for sentence in relation to a number of charges: breach of a community work order; driving whilst disqualified (x 2); escaping from Police custody; failing to remain stopped for a Police officer; resisting the Police; and failing to answer District Court bail. The driving whilst disqualified charges, the escaping Police custody charge and the charge of resisting the Police attracted the sentence of one year and six months’ intensive supervision and the imposition of special conditions recommended by the Department of Corrections. Mr Staiger was also disqualified from driving for a period of 15 months in relation to the charges of driving whilst disqualified. On the charge of failing to remain stopped, he was disqualified for 12 months. He was discharged without penalty on the breach of bail charge.

[3]    Relevant to the appeal, Mr Staiger was also charged with breaching a community work order contrary to s 71(1) of the Sentencing Act 2002. In December 2020, he had been sentenced to 100 hours of community work on a charge of driving whilst disqualified. He made very little progress with completing his sentence and, in October 2021, his probation officer applied to review the sentence under s 68(1)(a) of the Sentencing Act. At that point, Mr Staiger had only completed 4.75 hours of community work since the sentence was imposed. Judge Spear convicted Mr Staiger on the charge of breaching the sentence of community work and discharged him without penalty but with a final warning. The application to review the sentence was not opposed and the Judge cancelled the December 2020 sentence and substituted a fresh sentence of 100 hours’ community work in place of the sentence earlier imposed.

[4]    At the same time, the Judge dealt with an oral application made on Mr Staiger’s behalf under s 94 of the Land Transport Act 1998. Mr Staiger sought the imposition

1      Police v Staiger [2022] NZDC 12118.

of a community-based sentence instead of a further period of disqualification. The Judge declined this application.

[5]    Mr Staiger appeals the sentence of 100 hours’ community work imposed by the Judge (the resentence appeal). Although Mr Staiger did not raise it in his notice of appeal, Ms Palmer, appearing on his behalf, also put in issue the Judge’s decision declining his application under s 94 of the Land Transport Act (the s 94 appeal).

[6]The Crown opposes the appeal.

The appeal

[7]    The resentence appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 250 of the Act, Mr Staiger must satisfy this Court that there has been a material error in the sentence imposed and that a different sentence should have been imposed. In any other case, the appeal must be dismissed.

[8]    The appellate Court does not start afresh nor simply substitute its own opinion for that of that of the original sentencer. Rather, it must be shown that there was a material error “whether intrinsically, or as a result of additional material submitted” on appeal.2 If there is an error of the requisite character, the appellate Court will then form its own view of the appropriate sentence.3 The Courts have acknowledged that sentencing is not a science and that an appellate Court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing Judge.4 On appeal, the Court focuses on the end result rather than the process by which it was reached.5

[9]The s 94 appeal is a general appeal, by way of rehearing.

2      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

3      Tutakangahau v R [2014] NZCA 279 at [30].

4      Palmer v R [2016] NZCA 541 at [17].

5      Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau v R, above n 3, at [36].

Submissions

[10]   Ms Palmer submitted that the Judge should have substituted the community work sentence with a sentence of intensive supervision. She referred to the two pre- sentence reports received and to a psychological report obtained under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the s 38 report). She argued that no or insufficient consideration was given by the Judge to these reports and to Mr Staiger’s personal circumstances. She submitted that in the circumstances, a sentence of 100 hours’ community work was manifestly excessive. She also argued that the Judge failed to give any or any sufficient weight to Mr Staiger’s personal circumstances in dismissing the s 94 application.

[11]   Ms Keller, for the Crown, opposed the appeal. She submitted that the sentence of community work imposed was within the available range, that it was not manifestly excessive and that there was no error in the sentence imposed. She also submitted that the Judge considered the Provision of Advice to Courts (PAC) reports and the s 38 report when determining Mr Staiger’s sentence and when declining the s 94 application.

Analysis

The resentence appeal

[12]   The application to review the sentence of community work imposed in December 2020 was brought pursuant to s 68 of the Sentencing Act. Section 68 outlines when an offender or a probation officer can seek to review a sentence of community work and sets out when a Judge can vary, cancel or substitute such sentence. Relevantly, it provides as follows:

(1)An offender who is subject to a sentence of community work, or a probation officer, may apply in accordance with section 72 for an order under subsection (3) of this section on the grounds that—

(a)there has been a change of circumstances since the sentence was imposed that would justify the variation or cancellation of the sentence; or

…

(3)On an application under subsection (1), …the court may, if it is satisfied that the grounds on which the application is based have been established,—

(a)vary the sentence by reducing the number of hours of work to be done; or

(b)cancel the sentence; or

(c)cancel the sentence and substitute any other sentence (including another sentence of community work) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.

(4)When determining a substitute sentence under subsection (3)(c), the court must take into account the portion of the original sentence that remains unserved at the time of the order.

…

[13]   The substituted sentence must be one that could have been imposed initially and it must be imposed against the background that a sentence of community work was initially thought to be appropriate.6 The position was succinctly summarised by Grice J in Broderick v Department of Corrections.7 She observed as follows:

[24] The statute does not direct the court to impose a sentence in  substitution which should have been imposed on the offender at the time he was convicted. It requires the imposition of a sentence that could have been imposed at the time. In my view the re-sentencing court must form its own view, which may well differ from that of the sentencing court. Nevertheless, the original sentence would be considered as part of the re-sentencing process. But, as I indicated, it is for the re-sentencing Judge to form their own opinion.

[14]   Driving whilst disqualified is an offence pursuant to s 32(1)(a) of the Land Transport Act. It is punishable by a sentence of imprisonment of up to three months or by a fine not exceeding $4,500. In addition, the Court must order that the offender be disqualified from holding or obtaining a driver’s licence for a period of six months or more.

[15]   I have considered the summary of facts in relation to the offending which resulted in the December 2020 sentence. Mr Staiger had been disqualified from driving for a period of six months as from Wednesday 17 June 2020. On Monday 24

6      R v Morgan [2008] NZCA 232 at [25].

7      Broderick v Department of Corrections [2021] NZHC 1918.

August 2020, he was driving a motor vehicle on State Highway 29A at Mt Maunganui. He was subjected to a routine traffic stop. When he was required by the Police to identify himself, he gave a false first name. Subsequent enquiries revealed that the details provided to the Police were false. When he was questioned about driving whilst disqualified, Mr Staiger stated: “[It’s] none of your business”.

[16]   Clearly, a sentence of community work was available to the Court dealing with the matter in December 2020 and the sentencing Judge then considered that a sentence of 100 hours’ community work was appropriate. Unfortunately, the Court sentencing notes are not available. Insofar as I am aware, Mr Staiger made no attempt to challenge the decision at the time.

[17]   When resentencing, the Judge did not set out in any detail why he imposed another sentence of community work. However, it was clearly a sentence that could have been imposed for the offending at the time that Mr Staiger was convicted.

[18]   It does not necessarily follow that such sentence should have been imposed on resentencing.

[19]   Mr Staiger told the Judge at resentencing that he faced challenges completing the original sentence because of the COVID-19 lockdowns. He also told one of the report writers that there was confusion around when he should attend and whether he could work alone rather than in a team.

[20]   While there is no evidence before me, I can take judicial note under s 128 of the Evidence Act 2006 of the fact that there were significant periods post December 2020 when there were no relevant COVID-19 related restrictions in place, and during which a sentence of community work could have been advanced. Mr Staiger completed only 4.75 hours’ community work from December 2020 to October 2021. Further, any COVID-19 related concerns have now largely dissipated. I also note that Mr Staiger told one of the report writers that, although he breached his sentence of community work in the past, it was due to his then circumstances (and COVID-19). He advised that his circumstances had changed and that there were no barriers that would prevent him from completing any sentence the Court might wish to impose.

[21]   Mr Staiger also complains that the Judge took no or little account of his personal circumstances as outlined in the PAC reports and the s 38 report when resentencing him.

[22]   It is common ground that the Court was required to take into account personal factors under s 68 of the Sentencing Act.

[23]There were three reports before the Court. I summarise each below.

[24]   In a PAC report prepared on 9 May 2022, Mr Staiger was assessed as presenting a low risk of re-offending. Mr Staiger told the report writer that he did not think about the consequences when he drove (and also that the Police had told him previously that he was able to drive). He also told the report writer he had escaped from Police custody and failed to remain stopped because he did not want to risk leaving his motor vehicle at the side of the road. Regarding the breach of community work charge, Mr Staiger said that he was confused about when he could attend and whether he should work alone during the COVID-19 lockdown period. The report writer requested that the Court should cancel Mr Staiger’s current sentence of community work as only 4.75 hours had been completed since December 2020. The recommended sentence was supervision with counselling in a driving-related programme together with a Departmental Programme to help Mr Staiger understand his offending pathway.  The report writer recorded there were no health issues for  Mr Staiger that would preclude him from successfully completing a community-based sentence.

[25]   A further PAC report was prepared on 2 June 2022. Again, Mr Staiger was assessed as presenting a low risk of reoffending. The report writer considered that Mr Staiger’s attitudes and sense of entitlement could be adequately addressed by a community-based sentence. An electronically-monitored sentence was not recommended as it would likely put significant pressure on Mr Staiger’s mental health. Instead, the report writer also recommended a sentence of supervision with counselling, attendance at a driving-related programme and a Departmental Programme to assist Mr Staiger in his thinking around his offending behaviour.

Alternatively, the report writer recommended intensive supervision with special conditions.

[26]   The s 38 report was prepared by a clinical psychologist, Mr Nick Lascelles. He met with Mr Staiger on 5 May 2022. He noted that Mr Staiger was diagnosed with Klinefelter’s Syndrome at the age of 24. Klinefelter’s Syndrome occurs when males are born with an extra chromosome. Mr Lascelles said that it is apparent Mr Staiger has learning difficulties and that elements of his executive functioning (capacity to plan, self-monitor, self-control, and flexible thinking) are markedly impaired. He described Mr Staiger as presenting as very immature, disruptive, socially unskilled, and as having difficulties with learning. He said at least some of those issues are likely to be attributable to Klinefelter’s syndrome. It was noted that Mr Staiger has also been diagnosed with ADHD. He has periods of mood dysregulation and elevated mood. Further, he was kidnapped and assaulted in 2020 on his birthday, leading to symptoms of post-traumatic stress response. Mr Lascelles assessed Mr Staiger as presenting a high risk of further general offending, most likely involving the breach of traffic regulations. He stated that Mr Staiger could be managed successfully under a community-based sentence such as intensive supervision. He noted that Mr Staiger places an extremely high value on driving as a means of independence and that he finds restrictions resulting from suspension or disqualification difficult to abide by. Mr Lascelles considered that Mr Staiger will need to be supported by his probation officer to problem solve this issue.

[27]   It is noteworthy that notwithstanding the mental health difficulties documented in the s 38 report, the recommendation made in relation to sentence emphasised the importance of structure and oversight by the Department of Corrections. The view was taken that Mr Staiger could be managed successfully under a community-based sentence such as intensive supervision.

[28]   Community work is lower in the sentencing hierarchy than imprisonment and intensive supervision8 and it is unusual for a defendant to challenge a sentence on the basis that a sentence higher in the sentencing hierarchy should have been imposed.

8      Sentencing Act 2002, s 10A(2).

The explanation for this course is the assertion made in submissions that intensive supervision is likely to provide more opportunities for rehabilitation than a sentence of community work.

[29]   This is not necessarily the case. Community work is community-based. It offers an element of rehabilitation, in addition to punitive and deterrence elements. Placements in community work programmes take into account the personal circumstances, needs and skills of an offender.

[30]   Taking into account Mr Staiger’s circumstances, I am not persuaded that the various factors identified in the reports meant that a sentence of community work was inappropriate. As already noted, Mr Staiger advised the author of the 9 May 2022 PAC report that he could then see no barrier to him completing whatever sentence the Court imposed. There do not appear to be any other direct health concerns. Mr Staiger may be resistant to a sentence of community work but sentencing is not a multi-choice exercise. Moreover, the Judge tailored Mr Staiger’s sentence to his circumstances. He sentenced Mr Staiger to one year and six months’ intensive supervision on the other charges he faced. Community work and intensive supervision are sentences which can be imposed together and the combination of sentences imposed by the Judge satisfied not only the sentencing principles of rehabilitation and punishment but also recognised the importance of a community-based sentence as suggested by the PAC and s 38 reports.

[31]   Mr Staiger places a high value on driving a motor vehicle as a means of independence and he finds any disqualification difficult to abide by. It was suggested in the reports that Mr Staiger requires support from his probation officer to solve this issue. To this end, the Judge imposed special conditions as recommended in the PAC report of 2 June 2022. He required Mr Staiger to attend and complete an appropriate “One for the Road Programme” or “The Right Track Programme” and to undertake and complete a Departmental Short Motivational Programme.

[32]   In addition, on a totality basis, the overall sentence imposed was appropriate. The Judge convicted and discharged Mr Staiger for breaching community work under s 71 of the Sentencing Act and provided him with a final warning. He also convicted

and discharged Mr Staiger for breaching bail. The end sentence imposed for all of the offending, 100 hours’ community work with a final warning and 18 months’ intensive supervision, was well within range.

The s 94 appeal

[33]I now turn to s 94 of the Land Transport Act. Relevantly, it provides as follows:

94       Substitution of community-based sentences

(1)This section applies if—

(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)the court, having regard to—

(i)the circumstances of the case and of the offender; and

(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)the likely effect on the offender of a further order of disqualification; and

(iv)the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection

(3)  if this section applies.

(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a)the court must impose a community-based sentence on the offender; and

(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of

the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—

(a)that sentence is appropriate; and

(b)a suitable programme is available; and

(c)the offender attends a suitable programme.

…

[34]   Differing views have emerged in this Court on the application of s 94. In Wilson v Police, Doogue J stated that s 94 only justifies a variation from the norm where the personal circumstances of the offender, and in particular the offender’s rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.9 Davison J was willing to exercise the discretion under s 94 where he considered that the offender was trapped in a cycle of offending and that the purposes of sentencing were best achieved by imposing a different sentence.10

[35]   Having regard to the directions made by the Court requiring that Mr Staiger undertake various driving related courses, it seems to me clear that the Judge did consider the impact of the order for disqualification and the previous order when he considered the s 94 application. The Judge expressly noted that he was not satisfied that a s 94 application was appropriate in the circumstances of Mr Staiger’s offending.

[36]   In my view, the Judge was entitled to decline to use the discretion conferred by the section to substitute disqualification for a community-based sentence, particularly in circumstances where Mr Staiger had recently failed to complete a Court ordered

9      Wilson v Police [2014] NZHC 3028 at [12].

10     Poona v Police [2018] NZHC 791 at [21].

community-based sentence. I cannot see that there was any error in declining the s 94 application.

Section 68(4)

[37]   The Judge did not expressly refer to s 68(4) of the Sentencing Act and there is nothing in his sentencing notes to suggest that he took into account the portion of Mr Staiger’s original sentence that remained unserved at the time of substituting the new sentence. The obligation imposed by s 68(4) is mandatory. Although the matter was not raised in argument, in my view, the Judge should have allowed for the fact that Mr Staiger had completed 4.75 hours of the sentence of community work imposed in December 2020. The substituted sentence should have been for a sentence of community work for 95.25 hours.11

[38]   Although the error has not resulted in a sentence which is manifestly excessive, there was a material error in the sentence imposed and a different sentence should have been imposed. Accordingly, the appeal is allowed to this limited extent.

Result

[39]   For the various reasons I have set out, I allow the appeal, but only to the extent of amending the substitute sentence to one of 95.25 hours of community work. In all other respects, the appeal is dismissed.

Wylie J

11     Hough v Police [2017] NZHC 93.