The Queen v Andrew Robin Porter

IN THE COURT OF APPEAL OF NEW ZEALAND

CA305/01

THE QUEEN

ANDREW ROBIN PORTER

Hearing:	27 September 2001
Coram:	Blanchard J Heron J Goddard J
Appearances:	D M Wilson QC and S K Ellis for Appellant J C Pike for Crown
Judgment:	27 September 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Mr Porter appeals against refusal to defer, under s78(2) of the Criminal Justice Act 1985, a sentence of 12 months imprisonment imposed on him after his conviction at a jury trial in the District Court at Hamilton on a charge of injuring with intent. He was acquitted of the more serious alternative charge of wounding with intent.
The incident took place in a hotel. The complainant had had a relatively small amount to drink and is described in the Judge’s sentencing notes as “unaggressive and sober”. He was returning to the bar to obtain a drink for himself when the appellant’s brother assaulted him by squeezing his nipple. There seems to have been no particular reason for this occurrence. It produced a minor confrontation. Seemingly on the spur of the moment, the appellant intervened and, with a glass in his hand, punched the complainant in the temple. The complainant suffered a cut or cuts requiring some 17 stitches. He has had to have plastic surgery and has suffered from depression. The victim impact report reveals that as a result of the attack he gave up his employment and left the country. He lost wages whilst recovering.
The sentencing Judge, who had of course presided over the trial, expressed the view that the appellant and his brother in giving their evidence had cynically taken advantage of the fact that the complainant had no memory and had attempted to shift the blame for the incident on to the complainant which, the Judge said, did the appellant no credit. However, the appellant had “balanced the ledger” since then. The probation officer’s report indicated that the appellant was now remorseful. The Judge took this into account.
The Judge referred to the appellant’s personal circumstances. He is a company director and the sole director of two successful businesses which depend upon his acumen, experience and responsibility. He said the businesses employ about 20 people. The appellant has a good reputation with his employees, his business associates and what the sentencing Judge described as “other supporters”. There were a number of character references provided, suggesting that the assault was regarded as being out of character.
However, the Judge also noted that the appellant had another assault conviction from about the same time, when the appellant was going through a separation. The Judge commented that he may have been under some pressure for that reason.
Reparation had been sought in the sum of $8,653.03, which the appellant had accepted. An order was made for payment of $3,600 immediately and the balance at $50 per week from the time of release from custody.
The Judge said that the sentencing principle guiding the Court in this sort of offending had to be deterrence to others. The Court needed to send a clear message that the community was not prepared to accept pub violence and the use of glasses in a pub as weapons. A term of imprisonment was appropriate. The appellant’s personal circumstances were not such that s5 of the Criminal Justice Act would suggest that the Judge could “avoid a term of imprisonment.”
He then turned to the length of the term of imprisonment. No credit was available for a plea but the appellant was entitled to call upon his good previous history and the Judge gave him credit for that, mentioning contributions to charities, sporting institutions and the like.
In the end, the Judge was satisfied that the appropriate sentence to impose was one of 12 months. He then considered suspension but declined to suspend because of the seriousness of the crime, resulting in significant injury, and the existence of another conviction for assault. However, the Judge granted leave to apply for home detention. Counsel had mentioned the delays in the hearing of such applications. The Judge said that this caused him concern but that he was proceeding on the basis that the probation service would convey his concern to the appropriate authorities.
The appeal challenges only the refusal of the Judge to defer the commencement of the prison sentence under s78(2) of the Criminal Justice Act which enables deferral where, as relevant, leave has been granted to apply for home detention and the Judge is satisfied that there are special reasons why the sentence should not commence immediately. Deferral may not be for a period exceeding one month. The sentencing occurred on 12 September and so any deferral could not be beyond 12 October.
Also of present moment is subs(4) of s78 which provides that except in relation to sentences cumulatively imposed, where a full-time custodial sentence is quashed on appeal or is otherwise set aside and another full-time custodial sentence is substituted therefor, the term of the substituted sentence is deemed to have commenced or shall commence on the date when the term of the original sentence commenced or would have commenced.
Accordingly, if this Court were to allow the appeal and reimpose the same sentence but with a deferral, then the deferment could not be beyond 12 October 2001.
As revealed by the affidavits filed on behalf of the appellant, the position which has now arisen is that the District Prisons Board was unable to hear the matter on 24 September but there is another hearing on 8 October. Inquiries have revealed that it is likely that the home detention application will be heard on that date, subject to the availability of a report from the Probation Officer.
Although there has not been time to place before the Court full financial information concerning the appellant’s business, we do have information not apparently available to the Judge. There are two trucking companies of which Mr Porter is the owner/manager. They have a fleet of 14 trucks and there are 21 staff members. The appellant’s father has deposed that there is no-one employed by the companies who would be in a position to run them for the appellant. The father’s obligations to his own business and absence of detailed knowledge of his son’s business would preclude him taking charge.
The father refers to the effect on the business of the present world situation, including rises in fuel costs and changes in exchange rates. He says that the companies have a comparatively high debt loading but with a late model fleet of good quality trucks the business can return worthwhile income if properly run. However, since the sentencing both companies have come under pressure from their bankers who have demanded that no further cheques be written until the situation is clarified. The father has himself lodged $50,000 with the banker of one of the companies in order to keep it within overdraft limits.
A member of the accounting practice who advise the appellant has expressed the opinion that the business is viable. But the Court has been told that if the companies were to fail because the absence of the appellant, then significant numbers of the employees would lose their jobs and the trucks would be repossessed by finance companies.
On the basis of this additional material, Mr Wilson QC submitted that special reasons existed such that the commencement of the sentence should be postponed, although he accepted that this should not be beyond 8 October when the home detention is likely to be heard and the appellant must be present. The reasons given by counsel were the appellant’s remorse, the fact that he has now paid the reparation in full, the jeopardy in which an extensive business is placed because of the imprisonment of its owner/manager (who is said to be the only person capable of maintaining the personal relationships necessary to sustain and renew existing contracts), the number of economic dependants (employees) at risk of losing their livelihood if the companies fail, the appellant’s prospects of rehabilitation and the fact that he is unlikely to reoffend.
For the Crown, Mr Pike very properly pointed out that the appellant has already had the benefit of two merciful outcomes, namely that the jury did not convict on the wounding charge and that the Judge imposed a sentence which must be regarded as lenient. Whilst the Crown did not wish unnecessarily to put the employment of third parties at risk, counsel felt obliged to oppose the present appeal.
This matter has had to be dealt with in some haste and, as we have said, without the benefit of full financial details. There may be room for some scepticism over whether the companies would actually fail in the short period which has still to elapse before the home detention application can be heard. We would also not wish to be taken to be intending in anything we say to give any indication to the District Prisons Board of a view as to the appropriate outcome of that application.
On balance, however, we think that there is one factor amounting to a special reason for granting what is in effect a fairly limited suspension of the imprisonment until the Board has the opportunity of considering the application. That factor is the number of employees (and their families) who would be affected if the absence of Mr Porter from the business prior to 8 October were to lead to the failure of one or both of the companies. We have therefore decided that in these comparatively unusual circumstances it is preferable that there be a deferment. We should emphasise, however, that we are taking this step entirely because of the interests of the employees, not of Mr Porter who has received a fully merited sentence.
The appeal is allowed. The sentence of imprisonment is quashed and there will be substituted a sentence of imprisonment for 12 months but with an order deferring commencement of that sentence until 8 October 2001. There will also be orders for reparation and for nine months supervision as were made below, including the conditions of supervision. All other sentences imposed in the District Court are confirmed.
In the meantime Mr Porter is granted bail upon the following conditions:
[a]        That he is to observe a curfew at his home address, 37 Spinnaker Drive, Hamilton, between the hours of 7pm and 6am on each day;
[b]        That he is not to enter any licensed premises (other than supermarkets) or to consume alcohol; and
[c]        That he is to surrender himself to the prison authorities at Waikeria at 8am on 8 October 2001.

Solicitors:

Crown Law Office, Wellington

[2001] NZCA 277

27 September 2001