Steele v Department of Corrections

[2016] NZHC 2144

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2016-488-28 [2016] NZHC 2144

BETWEEN

MARCUS JAMES STEELE

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	9 September 2016
Appearances:	Appellant in person J W Wall for the Respondent
Judgment:	9 September 2016

ORAL JUDGMENT OF MUIR J

Counel/Solicitors:

J W Wall, Crown Solicitor, Whangarei

Copy to the Appellant

STEELE v DEPARTMENT OF CORRECTIONS [2016] NZHC 2144 [9 September 2016]

Introduction

[1]      Mr Marcus Steele appeals from a conviction imposed by Judge M J Hunt on

29 June 2016 following a guilty plea in relation to a charge under s 70(a) of the Sentencing Act 2002 – namely failure to comply with a condition of sentence of supervision in that he “failed to attend a programme as per his special conditions and as directed”.1   He also appeals the sentence imposed by Judge Hunt which was one of supervision with a condition that he attend such programmes as considered appropriate by a probation officer.

[2]      This matter first came before me on Tuesday 6 September 2016. At that time it was apparent that Mr Steele had, for whatever reason, not received a copy of the Crown’s submissions in opposition to his appeals.   I considered the appropriate response was to adjourn the hearing for two and a half days until this morning so Mr Steele could have an opportunity to review that material and respond as appropriate.

[3]      I have heard further this morning from both Mr Steele and Mr Wall for the

Department and from Mr Steele in reply. The issues have now been fully traversed.

Background

[4]      The background to the matter before Judge Hunt can be shortly stated.  On 5

June 2014 Mr Steele was convicted by Judge Thorburn in the District Court for the offensive use of a telephone under s 112(1) of the Telecommunications Act 2001.  He appealed from that decision to this Court.   Although on its face his appeal was limited to one of sentence only, it was dealt with by Toogood J on a basis which included an appeal from conviction.  Toogood J dismissed both appeals noting that Mr Steele had pleaded guilty to the charge, that there were no grounds to suggest a miscarriage of justice in respect of his conviction and that the sentence imposed, for what he considered to be an outburst of some intensity against the victim, was not

one which could be described as manifestly excessive.2

1      R v Steele [2016] NZDC 14399.

2      Steele v Police [2014] NZHC 2626.

[5]      Mr Steele then sought leave to appeal to the Court of Appeal.  On 14 May

2015 the Court of Appeal delivered its judgment declining such leave.3    The Court recorded that among the points taken on appeal was that the police had failed in their duties of disclosure.   That is a similar theme to one advanced in Mr Steele’s submissions today although the particular disclosure issue now relied on is discrete.

[6]      The Court held that there was no irregularity as to either the conviction or sentence such as to justify the grant of an application for leave.  In doing so it dealt substantively with all of the appeal points taken.

[7]      While Mr Steele’s appeal to the High Court and subsequent application for leave were being disposed of, the supervision components of his original sentence were suspended.   With the decision of the Court of Appeal they were again reactivated.

[8]      There followed three alleged breaches of Mr Steele’s conditions of sentence which were each the subject of prosecutions. They involved an alleged:

(a)       failure to report;

(b)      failure to abide by a residence condition; and

(c)       failure to undertake a programme as directed.

[9]      The specific programme which Judge Thorburn had in contemplation in his sentencing notes was  an anger management  course because, he said,  Mr Steele probably needed to “deal with some issues in that respect”.

[10]     In  tandem  with  these  prosecutions  Mr  Steele  applied  under  s 54  of  the Sentencing Act 2002 for orders varying or cancelling his sentence of supervision. There followed a cross-application by the Department in relation to the same matter. Those  applications  were,  by  order  of  the  District  Court  on  2  December  2015, directed to be heard simultaneously with the charges of breaching conditions.

[11]     When the matter came before Judge Hunt on 29 June 2016 it is obvious from His Honour’s sentencing notes that it was dealt with in a collaborative and constructive way.  Mr Steele was at that stage represented by counsel, Mr Littlefair. Through Mr Littlefair he indicated a willingness to plead guilty to one charge of a breach of the supervision order, namely that relating to attendance at programmes as directed by the Probation Service.  Simultaneously, the Department sought leave to withdraw the charges relating to the failure to abide by the residence condition and failure to report.

[12]    Mr Wall who was counsel before Judge Hunt and who appears for the respondent on this appeal advises that the Department’s intention in agreeing to the withdrawal of the remaining two charges was to “draw a line” under this offending and to facilitate the move by Mr Steele to the Papakura District where he could, if required by a probation officer, undertake an anger management or similarly useful course.

[13]     In his sentencing notes Judge Hunt noted discussions with Mr Steele about the sentence he intended to impose on the admitted charge and in particular his intention to impose a further term of supervision for the specific purpose of ensuring that he undertook the course initially contemplated.  Because there were some issues as to precisely which course would suit Mr Steele’s needs, the availability of relevant counsellors and the time necessary to complete it, the period of supervision imposed by Judge Hunt was nine months.

[14]     He stated in his sentencing notes that although Mr Steele had not agreed with that outcome, nevertheless it was one which the Court determined was appropriate. He said:4

[2]       As you have heard the condition that attaches to the supervision that I impose is that you are to attend such programmes, including anger management  counselling,  if  considered  appropriate,  as  directed  by  a probation officer.  That might be finance, it might be alcohol, it might be a mix of things that you can discuss and work through with your probation officer.

The appeal

[15]     Because Mr Steele’s appeal against conviction follows the entry of a guilty plea to the single charge faced by him, the principles recognised by the Court of Appeal in decisions such as R v Le Page5 are engaged.  The general rule, as Toogood J pointed out in Mr Steele’s earlier appeal,6 is that an appeal against conviction will only   be   entertained   following   a   guilty   plea   and   sentence   in   exceptional

circumstances, that is where a miscarriage of justice will result if the conviction is not overturned.  In that respect His Honour referred to Le Page where the Court of Appeal had observed that a miscarriage of justice will be indicated in at least three broad situations.    Normally there must be either a material mistake or misapprehension on the part of the defendant affecting plea entry, absence of a valid charge in law, or the entry of a plea through a wrong decision on a question of law. However, these are not exhaustive criteria and a court may consider any ground which establishes a miscarriage of justice.

[16]     Mr Steele’s argument is premised on an inadequacy of disclosure.

[17]     The relevant background is as follows.

(a)      On 14 January 2016 the respondent provided disclosure under the Criminal Disclosure Act 2008 of, among other things, email correspondences between Mr Steele and Mr Considine of the Department  relating to  the subject  of Mr  Steele’s  attendance  at  a course identified as suitable for him – a “Man Alive” programme.  It also included other material.

(b)At some time subsequent to 29 June 2016 Mr Steele has obtained, informally from a contact within the Department, what he refers to as a “screen dump” and which is set out at para 7 of his submissions. That document appears to be an internal document which recites among other things dates of Mr Steele’s attendance at the Probation

Office.    The  document  records  failures  to  report  on  01.08.2015,

5      R v Le Page [2005] 2 NZLR 845 (CA) at [16] – [19].

6      Steele v Police, above n 2, at [16].

08.09.2015,   15.09.2015   and   22.09.2015.     Mr  Steele  says   this document was never disclosed to him.

[18]     It  is  clear  from  the  Court  of  Appeal’s  judgment  in  the  earlier  appeal undertaken  by Mr  Steele  that  he  has  longstanding  issues  with  the  adequacy of disclosure going back to the original charges that he faced under the Telecommunications Act.  I have been provided with extensive materials indicating ongoing submissions in relation to that matter, including to the Privacy Commissioner.  However, the issues I must address are whether:

(a)      there has been any inadequacy of disclosure in relation to the specific charge for which Mr Steele entered a guilty plea – namely failure to attend a programme as directed; and

(b)      if so, whether any miscarriage of justice has resulted.

[19]     I can identify no inadequacy of disclosure in relation to that specific matter. The  “screen  dump”  to  which  Mr  Steele  refers,  if  it  was  properly disclosed,  is directed  to  a  failure  to  report  and  not  to  the  attendance  failure  at  an  anger management or equivalent programme.  I consider that Mr Steele had available at the time he entered his guilty plea to that charge all information which could properly be described as relevant being the email exchanges which had taken place between himself and Mr Considine relating to identification of and attendance at the Man Alive course.

[20]     Moreover, at the time he entered his plea Mr Steele also had available Mr Considine’s affidavit in opposition to his application to vary or cancel the sentence of supervision.  That affidavit set out all the relevant background and confirmed Mr Considine’s belief that such a course remained appropriate.

[21]     I also take into account the fact that Mr Steele was represented on 29 June

2016 and that, as a result of the submissions made by his counsel, the two other charges faced by Mr Steele that day were withdrawn.   I regard the guilty plea as having been entered on a free and informed basis following what is apparent to me

were constructive discussions between counsel representing Mr Steele, counsel representing the respondent, Mr Steele and the Court.

[22]     Nor was there, in the context of the matters before the Court on 29 June a requirement  to  further  address  Mr  Steele’s  application  under  s 54  because  the sentence of supervision had by that time expired (the relevant date being 17 January

2016).  It was in that sense, as Mr Wall says, “otiose”.

[23]     Accordingly, I cannot identify in any of these circumstances surrounding the entry of Mr Steele’s guilty plea on 29 June 2016, to the single charge he then faced, any miscarriage of justice.

[24]     I then address the second part of Mr Steele’s appeal which is against the

sentence which was imposed by Judge Hunt.

[25]     As I have indicated, the sentence of supervision which the Judge imposed was with the singular purpose of ensuring that Mr Steele undertake, as required, such courses, whether they be in relation to anger management, finance or otherwise, as best promoted his rehabilitation prospects.  In that sense all that Judge Hunt did was reaffirm the earlier condition which had been breached.   There was in fact no additional punitive element in relation to the sentence imposed on 29 June.  It was simply an attempt to revert to the position that previously pertained.

[26]     In that context I can see no manifest injustice in relation to the sentence imposed on 29 June.  Indeed, I consider the approach adopted by Judge Hunt, with the concurrence of counsel for Corrections, was informed, humane and directed to Mr Steele’s best overall prospects of rehabilitation.

Result

[27]     Accordingly, I dismiss the appeal both in respect of conviction and sentence.

[28]     I wish Mr Steele well in the future.

Muir J