The Queen v Albert George Rowley Hill
[2002] NZCA 213
•29 August 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 166/02 |
THE QUEEN
V
ALBERT GEORGE ROWLEY HILL
| Hearing: | 27 August 2002 |
| Coram: | Blanchard J Robertson J Panckhurst J |
| Appearances: | J A Farrow for Appellant B J Horsley for the Crown |
| Judgment: | 29 August 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J |
Introduction
After trial in the District Court at Dunedin the appellant was sentenced to two years imprisonment on a charge of arson. He was also sentenced to six months imprisonment upon an associated charge of assaulting a female to which he pleaded guilty on arraignment. Leave to apply for home detention was granted.
A subsequent application to the District Prisons Board for release was declined on account of complications in relation to the place of residence (a rest home) to which the appellant might have been released.
In this appeal the appellant seeks the substitution of a suspended sentence of imprisonment, essentially upon the grounds that because home detention has not proved feasible this Court should reconsider the case and substitute that sentencing outcome.
Background
The appellant and his wife resided on a lifestyle block near Windsor about twenty kilometres from Oamaru. As at November 2000 they had been married for thirty-seven years. On 6 November the appellant became increasingly angry when his wife did not return home to prepare lunch for him in the middle of the day. When she did return at about 4.00 pm there was a heated exchange in the course of which the appellant violently assaulted his wife by pushing and punching her a number of times. Injuries were caused to an eye and in the area of an ear.
A daughter of the family went to the property, uplifted her mother and the two left. Still upset at what had occurred, the appellant obtained a can of petrol from an adjacent shed and poured it throughout the home. He set fire to the house. It was completely destroyed.
The appellant then inflicted a gunshot wound to his head, the long-term consequence of which is that his eyesight “remains limited” to adopt the description used in the pre-sentence report. The appellant is now aged 75 years. Aside from limited vision he also suffers from diabetes which has progressed to the point where he is insulin dependent.
On arraignment in the District Court on 21 January 2002 the appellant entered a plea of guilty to a Crimes Act charge of assault upon a female. He pleaded not guilty to arson and endeavoured to defend that charge on the basis that his daughter had inflicted the gunshot wound and then set fire to the house “to cover up … an attempt on (the appellant’s) life”, as the Judge said in his sentencing remarks. The jury rejected such defence.
The appellant was sentenced on 14 February 2002. The trial Judge began by setting out his conclusions that the arson was “a selfish act of revenge against (the appellant’s) wife”, precipitated by her taking steps to protect and remove herself which led to the appellant’s response that “if she left she left with nothing”. Hence the Judge assessed the arson as a serious and selfish act of revenge.
He then noted the thrust of counsel’s submission for the prisoner namely that while imprisonment was inevitable the term should not be more than two years, leaving the options of suspension or leave to apply for home detention available. Indeed counsel sought the former, or alternatively a grant of leave coupled with postponement of the commencement of imprisonment to enable home detention to be considered by the Prisons Board before the appellant lost his liberty.
The Judge also noted a submission on behalf of the Crown that a starting-point of three years imprisonment was appropriate for the arson which, in the event, the Judge adopted. Against the background of these submissions we turn to the Judge’s reasoning.
Regrettably it is evident that the approach adopted was not in accordance with principle. This Court has said on a number of occasions (when the suspended sentence regime was still available) that the first duty of a sentencer was to consider what was the appropriate custodial sentence for the particular offence. It was wrong to decide on a shorter sentence than appropriate in order to secure the ability to suspend. Then, if a sentence of two years or less was arrived at, the further question of its suspension fell for consideration. As to these matters it is only necessary to refer to the leading case of R v Petersen [1994] 2 NZLR 533 (CA). A similar approach is required in situations where leave to apply for home detention may arise. As under the former regime it is wrong to tailor the length of a sentence of imprisonment in order to secure the opportunity to grant leave.
In this instance the required approach was not adopted. The Judge rightly noted that there was no basis to depart from a sentence of imprisonment in this case. Then, without confronting the question of the appropriate term, he turned to whether there were factors which justified suspension. He considered that the appellant’s age, that he was unlikely to reoffend and, “perhaps, some diminished responsibility” were all relevant considerations, but nonetheless that suspension would rob the sentences of the necessary effects of deterrence and denunciation.
In light of that conclusion the Judge next considered the question of leave to apply for home detention. He concluded leave was appropriate with the likelihood that the appellant would be released to a residential rest home. However, postponement of the sentence of imprisonment while a home detention decision was taken was not seen as appropriate.
Only at this point did the Judge address the appropriate duration of the necessary term of imprisonment. Revealingly he said this:
The view that I had formed is that I can, taking into account your age, limit the term of imprisonment to one of two years imprisonment on the charge of arson.
He then imposed the concurrent six month term for assault.
It is clear from both the structure of the sentencing notes and the above extract that the two year sentence was tailored to enable leave to apply for home detention in particular to be considered. We think it is also clear that the learned Judge believed a release to home detention would eventuate and indicated as much in his remarks. The frustration of that expectation became central to the argument on appeal.
On 21 March the District Prisons Board considered the appellant’s release application. A report to the Board from the Probation Service was against home detention. Although the appellant was considered suitable in terms of his risk of reoffending (assessed as low) and on account of his age and health, two factors counted against release. The proposed residential address was a Dunedin rest home in which the appellant had been resident for fifteen months prior to his sentence. He was welcome to return there. However, the Department of Corrections deemed the rest home unsuitable because an electronic monitor would apparently cause interference with electronic health equipment at the home. Secondly, the appellant’s ex wife was opposed to his release. The application was declined by the Board on account of “the lack of acceptable accommodation and the views of the victim”.
Appeal Arguments
Mr Farrow frankly advanced the appeal on the basis it was “brought essentially by way of rehearing due to events that occurred after the date of sentencing”. He characterised the decision of the Board as unexpected and certainly unanticipated by the sentencer. Counsel argued that deterrence and denunciation had now been achieved since the appellant has been in custody for over six months. He submitted that in the particular circumstances we should substitute a suspended sentence which would assuredly deter the appellant from further offending.
Mr Horsley challenged the appellant’s approach as unprincipled. He submitted that the function of this Court was to assess whether the sentence imposed was clearly excessive, inappropriate or wrong in principle. Such was not suggested. Instead counsel for the appellant asked that we reconsider the sentence imposed on account of an administrative decision unfavourable to the appellant in relation to home detention. This, said Mr Horsley, would be a wrong approach. The function of the sentencer was to decide whether leave to apply for home detention should be granted or not. The administrative decision which followed was not the concern of the Judge below or of this Court. In particular an unexpected decision in relation to release to home detention did not afford a ground of appeal in itself.
Discussion
We accept Mr Horsley’s argument. There are of course situations in which it is appropriate to vary a sentence on appeal on account of information which was not available to the sentencer. Such information however must be of a kind which, had it been known, would have influenced the sentence at the time of its imposition. For example some undiagnosed medical condition which indicated diminished responsibility at the time of the offending or some factor relevant to the offender’s personal circumstances which clearly alleviated future risk (relocation of the offender, or his victim, for example).
The new information in this instance was not of that character. The decision concerning release was the province of the Prisons Board, subject only to a review of it. Obviously the outcome of the application was not information which could legitimately influence the original sentence.
The point can be made in another way. Rightly in our view Mr Farrow accepted that the only other possible sentencing response in this case was a suspended sentence. Faced with the Judge’s sentencing remarks counsel accepted that it could not be said the discretion not to suspend had been wrongly exercised. We agree. The seriousness of the offending told against suspension. Age and health aside, the appellant’s personal circumstances did not assist either. In the absence of some other appropriate and available sentence, which was wrongly rejected, this Court cannot intervene.
The appeal is dismissed.
Solicitors:
Webb Farry, Dunedin for Appellant
Crown Law Office, Wellington
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