Sweeney v Police HC New Plymouth CRI-2011-443-028
[2011] NZHC 2066
•26 August 2011
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2011-443-028
SEAN JAMES SWEENEY
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 15 August 2011
Appearances: N Harding for Appellant
J Marinovich for Respondent
Judgment: 26 August 2011 at 11:30 AM
JUDGMENT OF WHITE J
This judgment was delivered by me on 26 August 2011 at 11.30 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Solicitors: N Harding, Thomson O’Neil & Co, PO Box 22, Eltham 4353
Crown Solicitor, C & M Legal, PO Box 8217, New Plymouth 4342
SWEENEY V NZ POLICE HC NWP CRI-2011-443-028 26 August 2011
[1] Mr Sweeney appeals against his sentence of one year three months’ imprisonment imposed in the District Court at Hawera on 18 May 2011 on one charge of injuring with intent to injure under s 189(2) of the Crimes Act 1961 for which the maximum penalty is five years’ imprisonment.
Background
[2] Mr Sweeney was responsible for a prolonged assault on his then fiancée on
22 January 2011. Both had spent an evening drinking with a friend and, after they had gone to bed, the friend entered the bedroom and made sexual advances towards Mr Sweeney’s fiancée. She was resisting these when Mr Sweeney awoke and concluded that it was consensual. He was furious and punched both his fiancée and friend about their heads and bodies and also shoved and kicked them. The attack lasted for around an hour. The charge was laid only in respect of Mr Sweeney’s attack on his fiancée.
[3] She suffered moderate to serious injuries, including two black eyes, swelling to her face and nose, a bloodied mouth and deep bruising.
[4] Mr Sweeney pleaded guilty at an early stage.
Previous convictions
[5] Mr Sweeney has 17 previous convictions for offences committed over the course of 29 years. There are three male assaults female convictions as well as convictions for assault on a child and common assault. These are all, however, relatively dated, the most recent being from 2004. A range of sentences have been imposed for these violence offences, from periodic detention and supervision to fines of varying amounts and a four month period of imprisonment for one of the male assaults female convictions. Mr Sweeney was given a “final warning” by a District Court Judge for his most recent male assaults female conviction in May 2004.
Personal background
[6] Mr Sweeney is 44 years old and lived in Hawera. He was previously living with his fiancée, the victim, and her children. He was in a relationship with her for eight years, but this has now ended although she remains supportive. He has two adult children from a previous relationship with whom he is close. His immediate family is large, but he is only close to an older sister.
[7] Mr Sweeney left school at 14 and has worked since then. For the last 10 years he had been steadily employed at Fonterra and had recently been promoted to shift manager. He has good references from colleagues.
[8] Mr Sweeney’s parents were both drinkers and his step-father was abusive as a result. Mr Sweeney’s alcohol usage is at a harmful level and in his interview with the probation officer he agreed that it had been the cause of many of his problems. He said that he was concerned that he was going down the same path as his step- father. On the night of the offending he had drunk close to two dozen beers.
[9] He was assessed as posing a low risk of re-offending and as having motivation to address his issues, particularly through alcohol and relationship counselling. He appeared genuinely remorseful and said that he had lost everything that was important to him.
[10] The possibility of sentences of home detention and community detention were considered by the Probation Officer, but rejected on the grounds that they were not manageable while Mr Sweeney was working 12 hour night shifts. The Probation Officer therefore recommended a sentence of intensive supervision and community work.
District Court decision
[11] In sentencing Mr Sweeney District Court Judge Roberts relied on the decision in R v Harris,[1] which provides banding for offences of injuring with intent
to injure. The District Court Judge regarded the injuries caused as being in the moderate category which is band 2 of Harris. The District Court Judge saw the focus of the attacks upon the victim’s head as clearly demonstrating intention. The Judge said that this band justified a starting point of up to two years.
[1] R v Harris [2008] NZCA 528.
[12] In setting a starting point, the Judge identified the aggravating factors of deliberate behaviour, moderate injury, an attack to the head, and vulnerability or breach of trust in respect of the victim. There were also previous convictions and the final warning given to him.
[13] District Court Judge Roberts said that a two year starting point would perhaps set the offending at an “unjust” level. Consequently, he adopted a starting point of one year and eight months’ imprisonment. No uplift was imposed for Mr Sweeney’s previous convictions.
[14] The District Court Judge’s approach to mitigating factors is set out in [27] of
his sentencing notes which read:
I take into account the following mitigating factors: (a) Your guilty plea.
(b) Your offer of reparation and emotional harm. On this point I am not intending to make any specific orders. By all means, others can be alerted to the fact that in open Court, admittedly a criminal Court, you made an offer of emotional harm. I am not doing that for these reasons:
(i) I know nothing at all about the progress that sale is making. (ii) I do not know, too, when settlement may be effected. On
that I am working on the basis that the matter is still up in the air.
(iii) You now have a supportive complainant who has, as Mr Harding suggests, moderated an entrenched position she previously adopted but that in itself can go no more than to say today she is supportive. Many women trapped in abusive relationships lack the ability to stand up and maintain a firm position sending to you and others the message that violence within the domestic arena is not and never will be right.
(iv) Your employment. You have worked for a long time for the same employer.
(v) Your claim of abstinence [from alcohol].
[15] At the hearing of the appeal counsel agreed that as sub-paragraphs (iii), (iv) and (v) of [27](b) in the sentencing notes were not reasons for not making an order for reparation they should be read as separate mitigating factors, effectively as sub- paragraphs (c), (d) and (e).
[16] On the basis of all these mitigating factors, the District Court Judge discounted the starting point of one year and eight months to a sentence of one year and three months’ imprisonment. In other words, a discount of 25% was made.
[17] Notwithstanding the recommendation of the Probation Officer, the District Court Judge did not consider that intensive supervision and community work came anywhere near the tariff sentences required by Harris.
[18] The District Court Judge also rejected the possibility of a sentence of home detention, stating:
[30] As to home detention I do not intend to allow you the benefit of that sentence. This offending was serious. The photographs of this complainant demonstrate the severity and ferocity of your attack on her. Secondly you were operating on the basis of a final warning. You have not previously been deterred and when that final warning was imposed on you, you were told imprisonment would follow for further acts of violence against women.
[31] There are no grey areas. Notwithstanding all that has been said, Mr Sweeney, I do not see my way clear to fashion a sentence of home detention from the end sentence of one year and three months’ imprisonment that I now impose on you.
Submissions for Mr Sweeney
[19] In support of the appeal, Mr Harding submitted for Mr Sweeney that the District Court Judge had erred in failing to take into account Mr Sweeney’s offer of a payment to his victim for emotional harm, which would have led to a greater discount for mitigating factors, and then in failing to impose a sentence of home detention rather than imprisonment.
[20] Mr Harding provided further information about Mr Sweeney’s financial
position in the context of the relationship property negotiations with his former
partner and produced a copy of a letter dated 12 August 2011 from Mr Sweeney’s lawyers, who are acting for him in respect of relationship property matters, which showed that from his half share in the net assets:
he wishes to make an additional payment to your client [the victim] as emotional harm reparation in the sum of $30,000.00. This reparation offer is on account of the assault suffered by your client earlier this year.
Mr Harding pointed out that Mr Sweeney’s cashed up superannuation would provide him with more than sufficient funds to meet the offer of $30,000. Although the offer has not yet been accepted, Mr Harding submitted that under s 10(1)(a) and (b) and (3) of the Sentencing Act 2002 the Court must take into account the offer when determining the appropriate sentence.
[21] Mr Harding submitted that the District Court Judge had failed to do so because the 25% discount which he adopted solely represented Mr Sweeney’s early guilty plea in accordance with the decision of the Supreme Court in Hessell v R.[2]
Mr Harding suggested that, to recognise Mr Sweeney’s offer of emotional harm
reparation and remorse, a discount of 50% would be appropriate.
[2] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[22] On the question of home detention rather than imprisonment, Mr Harding submitted that in light of the decision of the Court of Appeal in R v D[3] a sentence of home detention ought to have been imposed by the District Court Judge. The fact that Mr Sweeney had been given a final warning in May 2004 did not require the Court on this occasion to sentence him to imprisonment.
[3] R v D [2008] NZCA 254, [2008] 2 NZLR 381.
[23] In response to my questions, Mr Harding submitted that it was mandatory under s 10 of the Sentencing Act 2002 to take into account Mr Sweeney’s offer and the failure to do so meant that the appeal should be allowed whether or not the final sentence imposed by the District Court Judge was “clearly excessive” in terms of
s 121(3)(b) of the Summary Proceedings Act 1957.
Submissions for the Crown
[24] For the Crown, Mr Marinovich submitted that under s 121(3) of the Summary Proceedings Act 1957 the Court may confirm the sentence or quash it and substitute another sentence only if satisfied that the sentence imposed by the District Court was “clearly excessive”. Mr Marinovich also pointed out that under s 15A(1) of the Sentencing Act 2002 a sentence of home detention may be imposed only if the Court would otherwise sentence the offender to a short term of imprisonment.
[25] Mr Marinovich submitted that the sentence of imprisonment in this case was appropriate taking into account the vulnerability of the victim, the attack to the head and the nature of the injuries inflicted. The District Court Judge’s decision putting the offending into band 2 of Harris and adopting a starting point of 20 months’ imprisonment could not be said to be outside the appropriate range. A 25% discount for the totality of the mitigating factors was also within the available range. The District Court Judge considered both the offer of reparation for emotional harm and the possibility of home detention. As it was open to the District Court Judge to reject home detention and impose the short term of imprisonment, the sentence was not “clearly excessive” and the appeal should be dismissed.
[26] Mr Marinovich accepted, however, that the High Court had more information about Mr Sweeney’s financial position and the terms of his offer of emotional harm reparation than the District Court Judge had had. Mr Marinovich also accepted that when all of the separate mitigating factors were taken into account, namely the guilty plea, the significant offer of emotional harm reparation, and the other factors mentioned by the District Court Judge in [27](b)(iii), (iv) and (v) a discount in the range of 25% to 33% would be more appropriate.
[27] While in terms of Hessell v R the case against Mr Sweeney was strong so that the discount might be less than 25%, when the other factors were taken into account, particularly his genuine remorse, a higher figure would have been appropriate.
[28] Notwithstanding this acknowledgement, however, Mr Marinovich submitted that the District Court Judge’s decision rejecting the possibility of home detention
for the reasons set out in [30]-[31] of the sentencing notes was correct and therefore while the term of imprisonment might need to be reduced to reflect the increased discount for the mitigating factors a term of imprisonment rather than home detention was still appropriate.
Appellate approach
[29] Appeals to the High Court against convictions and sentences in the District Court in summary proceedings are general appeals: ss 115, 119 and 121(1) of the Summary Proceedings Act 1957. The High Court has both general and specific powers in respect of such appeals: s 121(1) and (2) to (6). To the extent that such appeals are general appeals, the High Court is required to come to its own view on the merits because those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment: Austin
Nichols & Co Inc v Stichting Lodestar and Kacem v Bashir.[4] The power of the High
Court to rehear the evidence in the District Court and to receive further evidence under s 119(2) and (3) of the Summary Proceedings Act is a “classic indicator of a general appeal”: Kacem v Bashir.[5]
[4] Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [3]-[5] and [16]; and Kacem v Bashir [2011] 2 NZLR 1 (SC) at [31]-[32].
[5] Kacem v Bashir at [33].
[30] In the case of sentencing appeals, the power of the High Court to consider evidence that was not before the District Court is reinforced by s 121(3)(b) which empowers the High Court to quash a District Court sentence if satisfied that:
substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court ...
[31] At the same time when the High Court is determining an appeal under s 121 of the Summary Proceedings Act it is itself exercising a discretionary power which is not unfettered: cf R v Shipton, Stewart v Police, Yorston v New Zealand Police, and
Gray v Serious Fraud Office.[6]
[6] R v Shipton [2007] 2 NZLR 218 at [138]; Stewart v Police HC Rotorua CRI-2009-470-00028, 16 September 2009 at [6]; Yorston v New Zealand Police HC Auckland CRI-2010-404-00164, 14 September 2010 at [13]-[15]; and Gray v Serious Fraud Office HC Auckland CRI-2010-404-476, 31 March 2011 at [17]-[18].
[32] The specific powers of the High Court in respect of District Court sentence appeals are contained in s 121(3)(a) and (b) of the Summary Proceedings Act which provides that the High Court may confirm the sentence or quash it:
(b) if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court ...
[33] Summary Proceedings Act appeals against District Court sentences imposed under the Sentencing Act 2002 will involve consideration of the application of provisions of that Act, including relevant mandatory and discretionary statutory requirements and guideline judgments: R v Clifford.[7] Failure by a District Court Judge to take into account a mandatory statutory requirement or to apply a guideline judgment or to exercise a discretionary power on the basis of established principles is likely to mean that the sentence imposed will be “clearly excessive” or “inappropriate”.
[7] R v Clifford [2011] NZCA 360 at [51]-[63].
[34] The present case involves both the mandatory requirements of s 10 of the Sentencing Act relating to offers of emotional harm reparation and the discretionary provisions of s 15A relating to sentences of home detention. If the District Court Judge failed to take into account the mandatory requirements of s 10, the sentence is likely to be “clearly excessive” or “inappropriate”.
[35] The question whether the imposition of a sentence of home detention rather than imprisonment is solely an exercise of the District Court Judge’s discretion will need to await the outcome of the appeal in Manikpersadh v R.[8] In the meantime it is appropriate to follow the approach of the Court of Appeal in:
[8] Manikpersadh v R [2011] NZCA 28.
(a) R v D[9] that the question whether a sentence of home detention rather than a sentence of imprisonment should be imposed
[9] R v D [2008] NZCA 254 at [66].
involves the exercise of a discretion;
(b)R v Hill[10] that there is a real public interest in sentences of home detention being imposed in appropriate cases;
[10] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [36].
(c) R v Iosefa[11] that home detention is a real alternative to imprisonment in that it carries with it in significant measure the principles of denunciation and deterrence; and
[11] R v Iosefa [2008] NZCA 453 at [41].
(d)R v Hill[12] that under s 15A of the Sentencing Act the factors leading to the starting point and the end sentence, including the offender’s personal circumstances, will be relevant to the home detention decision.
Issues in this appeal
[12] at [36].
[36] There was no challenge to the District Court Judge’s starting point of one year and eight months’ imprisonment which was appropriately adopted to reflect the aggravating factors involved in Mr Sweeney’s attack on his fiancée.
[37] The two issues in the present appeal are:
(a) Was the District Court Judge’s discount of 25% sufficient to reflect the nature of Mr Sweeney’s offer of emotional harm reparation and the remorse reflected in the offer?
(b)Taking into account any increased discount for mitigation, was the imposition of a sentence of imprisonment rather than home detention appropriate in the circumstances of this case? This issue includes consideration of the “final warning” given to
Mr Sweeney in 2004.
The offer of emotional reparation
[38] The mandatory statutory requirements relating to an offer of emotional reparation are contained in s 10 of the Sentencing Act 2002, the relevant parts of which provide:
10Court must take into account offer, agreement, response, or measure to make amends
(1) In sentencing or otherwise dealing with an offender the court must take into account—
(a) any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim:
(b) any agreement between the offender and the victim as to how the offender may remedy the wrong, loss, or damage caused by the offender or ensure that the offending will not continue or recur:
....
(2) In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—
(a) whether or not it was genuine and capable of fulfilment; and
(b) whether or not it has been accepted by the victim as expiating or mitigating the wrong.
(3) If a court determines that, despite an offer, agreement, response, measure, or action referred to in subsection (1), it is appropriate to impose a sentence, it must take that offer, agreement, response, measure, or action into account when determining the appropriate sentence for the offender.
(4) Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—
(a) compensation has been paid
....
[39] Under s 10 the Court is able to take into account any evidence that an offer of amends has been made. That does not, however, equate to an unquestioning acceptance of the offer. The Court is clearly required by s 10(2) to inquire further into the genuineness and realism of the offer, and its acceptance by the victim. Those matters will determine its weight. An offer which is meagre or unrealistic, lacking in
genuine intention or which the victim rejects is unlikely to count for much if at all: R
v Singh and R v Holt.[13]
[13] R v Singh (2003) 20 CRNZ 158 (CA); and R v Holt CA59/06, 30 May 2006 at [65]-[66].
[40] In the present case, in terms of s 121(3)(b) of the Summary Proceedings Act, I had substantially more information than the District Court Judge had relating to Mr Sweeney’s offer of emotional harm reparation. The information I had suggested that the offer of amends was genuine and realistic. While it is not yet known whether it has been accepted by the victim, I consider it a sincere offer which deserves some recognition in sentence. Crown Counsel agreed with this approach.
[41] An offer of amends may also be made concrete by making it into an order for reparation on sentencing. That approach, however, requires attention to the principles of reparation in s 32 of the Sentencing Act and it may not be appropriate where the offer of amends exceeds that which the Court would have ordered as reparation: Clutha Chain Mesh Products Ltd v Department of Labour.[14] I consider that to be the position here.
The discount
[14] Clutha Chain Mesh Products Ltd v Department of Labour (2004) 2 NZELR 261 (HC) at [19].
[42] As Mr Marinovich acknowledged, the discount of 25% adopted by the District Court Judge for all of the factors referred to in [27] of his sentencing notes does not seem to give sufficient weight to each of those factors, especially when it is necessary to take into account not only the discount for the guilty plea, which in terms of Hessell v R may be up to 25%, but also in addition discounts for the significant offer of emotional harm reparation, remorse and the other factors referred to in [27].
[43] For these reasons I agree with counsel that the discount should have been significantly more than 25%. I do not agree with the submission by Mr Harding for Mr Sweeney that it should have been 50%. In my view a discount of 33% would be
appropriate to reflect the relevant personal mitigating factors in this case.
[44] This means that the District Court Judge’s starting point of 20 months’
imprisonment should be reduced to 13 months.
Home detention?
[45] In considering whether the sentence of imprisonment rather than home
detention was “clearly excessive” or “inappropriate” in this case, I take into account:
(a) The purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act and the requirement of s 16 of the Sentencing Act that a sentence of imprisonment should be avoided as far as that is practicable and consonant with the
safety of the community: cf Gray v Serious Fraud Office.[15]
[15] Gray v Serious Fraud Office HC Auckland CRI-2010-404-476, 31 March 2011 at [23]-[30].
(b)The availability of a sentence of home detention in terms of s 15A of the Sentencing Act.
(c) The decisions of the Court of Appeal referred to in [35] above.
[46] Taking these factors into account, together with the reasons which led to the reduced sentence of 13 months’ imprisonment, I am satisfied that a sentence of home detention should be imposed rather than a sentence of imprisonment.
[47] In reaching this conclusion I accept Mr Harding’s submission that the “final warning” given to Mr Sweeney in 2004 does not require a sentence of imprisonment. It is well-established that a final warning of that nature does not affect subsequent sentencing or the obligation to impose the appropriate sentence to the facts of the further offending: cf R v Downey, and Hall’s Sentencing.[16]
[16] R v Downey CA 117/84, 10 August 1984; and Geoffrey G Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [I.6.12(d)].
[48] In considering the term of the sentence of home detention, I take into account the decision of the Court of Appeal in R v Bisschop[17] where it was decided that the
proper approach is “an evaluative assessment of all the circumstances”, that is the
factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate. The Court of Appeal held that it does not automatically follow that the appropriate term of home detention would be half the appropriate sentence of imprisonment in every case.
[17] R v Bisschop [2008] NZCA 229 at [17]-[21].
[49] Following this approach in Mr Sweeney’s case, I consider that the appropriate term of home detention would have been eight months if the sentence had been imposed when he was convicted in the District Court. But, taking into account the fact that Mr Sweeney has already served three months of his District Court prison sentence, which equates to a six month sentence, the term of his home detention sentence should be reduced to five months.
[50] There was a home detention appendix before the District Court which indicated that there was a suitable address for electronic monitoring, namely 43a Egmont Street, Hawera, and that the other occupants of the residence were suitable persons for that purpose. Both consented to Mr Sweeney residing with them and appeared to be able to provide a stable source of support for him. As already noted, the reason why home detention was not recommended was that Mr Sweeney’s 12 hour night shifts made him an unsuitable candidate. Now that he is no longer employed on night shifts, he is a suitable candidate for home detention.
Result
[51] The appeal is allowed and under s 121(3)(b) of the Summary Proceedings Act
1957 the sentence of imprisonment is quashed and a sentence of five months’ home
detention is substituted, subject to the following special conditions:
(a) Upon being released from prison, Mr Sweeney is to travel directly to 43a Egmont Street, Hawera, and await the arrival of his Probation Officer and a representative of the monitoring company.
(b)Mr Sweeney is to reside at the address for the duration of the sentence and is not permitted to leave it without the prior approval of his Probation Officer.
(c) Mr Sweeney is to abstain from consuming alcohol and non- prescription drugs for the duration of the sentence.
(d) Mr Sweeney is to complete the Community Alcohol and Drug
Service Intensive Outpatient programme (or an equivalent programme) as directed by his Probation Officer.
D J White J
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