Te Tau v Police

[2015] NZHC 1716

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-12 [2015] NZHC 1716

BETWEEN

NATHAN TE TAU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 July 2015
Counsel:	K B Campbell for Appellant E M FitzHerbert for Respondent
Judgment:	24 July 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3.45 pm on the 24th day of July 2015

Solicitors:           Cooper Campbell Law, Levin, for Appellant

Crown Solicitor, Palmerston North, for Respondent

TE TAU v NEW ZEALAND POLICE [2015] NZHC 1716 [24 July 2015]

[1]      This is an appeal against a sentence of 18 months imprisonment imposed by Judge Bouchier in the District Court at Levin on 8 July 2015, on a number of charges including threatening to kill, male assaults female, breach of supervision, breach of community work and threatening to damage property with intent to intimidate.1   The grounds of appeal are:

(a)      a  guilty  plea  discount  of  25  per cent  should  have  been  allowed, instead  of  the  15 per cent  given,  in  accordance  with  a  sentencing indication;

(b)      a further discount should have been allowed for remorse; and

(c)      home detention should have been imposed.

[2]      The Judge also issued a protection order in favour of the victim.  That was initially challenged on this appeal on the grounds that the views of the victim had not been sought as required by s 123B(2)(b) of the Sentencing Act 2002.  A letter was produced at the hearing indicating that the victim did not object to the order. In the light of that, this ground of appeal was not pursued.

[3]      The appellant initially appeared on some of the charges on 12 February 2015, and on the more serious charges on 23 March 2015.  On 19 May 2015, Judge Lynch gave a sentencing indication.  He indicated that there would be a starting point of

18 months imprisonment, uplifted by three months for the appellant’s history.   He

described both the start point and the uplift for history as conservative.  He then said:

[13]      From the 21 months you would be entitled to deductions for remorse if there is remorse, engagement in a restorative justice process if there was engagement and of course you would be entitled to full credit for your guilty pleas.

[4]      The Judge went onto consider whether home detention would be an available sentence.  He noted some non-compliance with previous sentences, including those

the subject of the present charges, and said:

1      Police v Te Tau [2015] NZDC 12801.

[15]     So at first blush you would not appear to be a strong candidate for home detention, but if I gave Mr Campbell another opportunity to address me I am sure he would point out to me that you have never had the benefit of an electronically-monitored sentence before, so it may well be that I could be persuaded to impose home detention if you had all your ducks in a row and there was a supportive address and support from your probation officer for that type of sentence

[5]      It is not entirely clear whether the duration of the sentence indication, under s 64 of the Criminal Procedure Act 2011, was the standard five working days, or whether an additional period was specified.   In all events, the  Crown does not contest the proposition that there was timely acceptance of the indication.

[6]      The sentencing took place before Judge Bouchier on 17 July 2015.   The Judge adopted the signalled starting point  of 18 months and the uplift  of three months to 21 months. She then addressed home detention in these terms:

[9]       In considering whether the matter should be dealt with by way of a term of home detention because it is within the realms of that, having read the summary of facts relating to the threat to kill and male assaults female and considering the facts of that which I will not traverse in open Court but I am of the view that denunciation and deterrence of such offending is the key factor that the Court should be considering here.   Whilst I accept that rehabilitation and reintegrating are factors which the Court should also consider, a sentence of imprisonment in my view is needed to denounce and to deter such offending.

[7]      Having concluded that imprisonment was the appropriate sentence, the Judge considered the discount from the 21 months in these terms:

[10]      Taking the start point as has been said on the lead charges which has been explained by Judge Lynch in his sentencing remarks which I have already traversed, I note that the plea of guilty is not at the earliest available opportunity.  There was a plea of not guilty and there is a subsequent plea of guilty I do accept.  I am of the view that a 15 per cent reduction for the plea of guilty should be given.  I do not consider that there should be any other reductions. …

[8]      I deal first with the issue of home detention.  Mr Campbell for the appellant submits that home detention ought to have been imposed, because the appellant had demonstrated genuine remorse and commitment to change.   He submits that the appellant had expressed remorse, which had resulted in him reconciling with the victim.  He further submits that he had completed a drug and alcohol course while on remand.  Ms FitzHerbert for the respondent refers to the decisions of the Court of

Appeal in Manikpersadh2  v R and Fairbrother v R3  which hold that the decision between home detention and a short period of imprisonment is the exercise of a fettered discretion, and that the question on appeal is whether there has been an error by the sentencing Court.  She submits that the Judge gave clear consideration to the relevant  sentencing principles,  acknowledging the relevance of the need  for the appellant’s rehabilitation and reintegration but considering that the purposes of denunciation and  deterrence  required  that  this  particular offending be  met  by a sentence of imprisonment.  Counsel also submits that the Judge had the benefit of a pre-sentence report which, on the basis of a proven history of compliance problems, concluded the appropriate sentence was one of imprisonment.   The respondent accordingly submits that there has been no error on the question of home detention and that the Judge made a “principled choice” in favour of imprisonment.

[9]      I consider that there is no error in the exercise in the discretion to decline home detention. As Judge Lynch had noted, the appellant was not a strong candidate for home detention.  That issue required consideration by the sentencing judge.  The Judge weighed all relevant factors and concluded that it would not be appropriate. That conclusion was reached by a proper application of the principles governing the exercise of the sentencing judge’s discretion, and is therefore not amenable to review under the principles governing this appeal.

[10]     That leaves for consideration the grounds  of appeal which  challenge the length of the term of imprisonment.  Mr Campbell submits that the discount of three months allowed by the Judge for the guilty plea was insufficient, in that the discount of approximately 15 per cent was not a “full discount” as indicated in the sentencing indication.

[11]     Counsel for the respondent acknowledges that the discount granted was not a “full discount” for the guilty plea and acknowledges that the discount could have been higher.   However, counsel submits that this has not lead to an end sentence

which is manifestly excessive.

2      Manikpersadh v R [2011] NZCA 452.

3      Fairbrother v R [2013] NZCA 340.

[12]     I  consider  that  the  reference  to  a  “full  discount”  for  a  guilty  plea  was understood by all concerned to be a reference to a 25 per cent discount for a guilty plea referred to by the Supreme Court in Hessell v R.4   Where a defendant enters a timely  plea  of  guilty  following  a  sentencing  indication,  s 116  of  the  Criminal Procedure Act applies.   If the sentencing indication is to be departed from, s 115 provides for an opportunity to the defendant to withdraw the plea.  That section was not  invoked  here,  but  the  sentencing  notes  indicate  that  counsel  raised  the discrepancy  between  the  discount  indicated  and  the  discount  allowed  at  the

conclusion of the sentencing remarks.

[13]     In the circumstances, I consider that the Judge ought not to have departed from the indicated discount without giving a prior indication of her intention to do so.   In those circumstances, I consider that, whether or not the end sentence was within the available range,  the  sentence needs  to  be adjusted  on  this appeal  to conform with the indication.

[14]     The third issue on the appeal is whether there should be some additional discount for remorse and completion of the alcohol and drug course.  Judge Lynch in the sentencing indication had referred to the possibility of a deduction for remorse and  engagement  in  a  restorative  justice  process  if  those  factors  were  present. Judge Bouchier in her sentencing remarks noted the appellant’s acceptance that he has an anger management problem coupled with substance abuse issues, and his completion of an alcohol and drugs brief programme.   She considered that no additional discount on that account was appropriate.   That was a matter for the exercise of the sentencing judge’s discretion.  She gave proper consideration to that question.  The Judge did not err in concluding that no discount was appropriate.  Her decision not to allow a discount has not led to a sentence which is outside the available range.

[15]     In the light of my conclusions, the end sentence must be reduced to reflect the full credit for the guilty plea.   A 25 per cent discount on 21 months is about five

months and one week.  In all the circumstances I consider it appropriate to round that

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

up to a discount of six months.  That leads to reduction of a further three months, to an end sentence of 15 months.

[16]     The appeal is allowed.  The sentence of 18 months imprisonment is quashed and a sentence of 15 months is substituted.  The conditions imposed by the Judge remain in place. The protection order is confirmed.

“A D MacKenzie J”