The Queen v Fisher

[2004] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/04

THE QUEEN

v

MICHAEL PAUL FISHER

Hearing:9 December 2004

Court:William Young, O’Regan and Randerson JJ

Counsel:J H M Eaton for Appellant

F E Guy for Crown

Judgment:17 December 2004 

JUDGMENT OF THE COURT

The appeal is allowed.  The sentence of 18 months imprisonment is quashed, and a sentence of nine months imprisonment (with leave to apply for home detention) is substituted.  The following conditions of release are imposed on the appellant:

(a)the standard conditions set out in s 14(1) of the Parole Act 2002;

(b)      a special condition that the appellant must reside at such address as is approved by his probation officer until his sentence expiry date.

REASONS

(Given by O’Regan J)

Introduction   

[1]       The appellant pleaded guilty to one charge of aggravated robbery and was sentenced by Judge Green in the District Court at Christchurch to a term of imprisonment of 18 months.  The Judge declined to grant him leave to apply for home detention.  The appellant now appeals against that sentence, and the refusal of leave.

Facts

[2]       The appellant pleaded guilty on the basis of a police summary of facts, which had been amended after discussions between the prosecutor and the appellant’s then counsel.  The summary says:

At about 12.30am on Wednesday 8 May 2002 the Defendant, Michael Paul FISHER was at The Jolly Poacher tavern on Victoria Street, Christchurch with two associates.

The complainant in this matter, Gyusun KIM, is a Korean businessman who was in New Zealand for a few days on business.

The complainant approached the defendant and his associates at The Jolly Poacher and asked if he could play pool with them.

After playing pool it was suggested they go to another bar.  All four males left The Jolly Poacher and headed across the road into a carpark.

They stopped for a smoke.

While they were smoking the defendant has been standing behind the complainant.

The defendant has then demanded the complainant’s wallet.

One of the defendant’s associates has held onto the complainant while the defendant has reached into the complainant’s pocket in an attempt to grab his wallet.

The complainant has struggled aggressively.  The defendant’s two associates began hitting the complainant on the face.

The complainant has fallen to the ground but was lifted up by one male while the other continued to punch him in the face.

During the struggle the complainant’s glasses were knocked from his face.

The complainant has continued to struggle and has eventually managed to get away.

As a result of this attack the complainant received bruising and grazes to his body.  He was seen by a Doctor but did not require any further medical attention.

When initially spoken to by Police the defendant denied any knowledge of this incident.  When subsequently spoken he admitted the facts as outlined and apologised for his actions.  He stated he had an alcohol and drug problem at the time.

The defendant is a 23 year old sickness beneficiary.  He has previously appeared before the Court.

History

[3]       After the depositions hearing, the appellant retracted his denial of the offending and made a full statement in which he named his two co-offenders.  This was done on the advice of his then counsel.  However his version of the events differed in some respects from that of the complainant, particularly his denial of involvement in the actual assault on the complainant.  In effect the appellant claimed he was a mere bystander.

[4]       The appellant then pleaded guilty, but at that time the presiding Judge indicated he had reservations about granting bail having regard to the appellant’s action in attempting to remove the victim’s wallet from the victim’s pocket.  When the appellant later appeared for sentence the Judge who was to sentence him indicated that imprisonment was inevitable, that home detention was a live issue, but that if it were granted there would be no deferment. 

[5]       The appellant then applied to withdraw his plea and enter a plea of not guilty.  That matter came before Judge Green on 21 July 2004, which was some months after the appellant would have been sentenced if he had maintained his guilty plea.  Judge Green found that the appellant had no clear defence to the charge and declined his application to withdraw his plea.  In short, Judge Green rejected the version of events which the appellant put forward in support of his application to withdraw his plea.

Sentencing

[6]       The day after the dismissal of the appellant’s application to withdraw his guilty plea, he appeared before Judge Green for sentencing.  The Judge said he would sentence on the basis of the summary of facts, not “on the false evidence you gave yesterday, that you were merely a bystander”.  The Judge observed that the probation officer who prepared a pre-sentence report on the appellant noted that the appellant’s compliance with a supervision order made in 2001 was superficial, and that the appellant could be manipulative.  He did, however, take into account the fact that the appellant had been living with bail conditions which included a curfew for a substantial period (two years), and had complied with those conditions.

[7]       The Judge said that this Court had stated that street robbery for small amounts without actual violence would attract between 18 months and three years imprisonment, with more if there was actual violence.  This is apparently a reference to the decision of this Court in R v Mako [2000] 2 NZLR 170. He noted that there were a number of personal circumstances favouring the appellant, including the following:

(a)       No previous convictions for matters involving violence;

(b)        The appellant was himself a victim of violence, and the appellant’s father had suffered violence from an associate of one of the appellant’s co-offenders;

(c)        The appellant had been trouble free for two years and appeared to be growing out of the poor criminal behaviour he had shown earlier, having severed connections with criminal associates;

(d)        The appellant had a slight psychiatric history from the age of 17, but that appeared to no longer be a problem;

(e)        The appellant appeared to have controlled his drug and alcohol problems;

(f)         The appellant now had regular contact with his daughter.

[8]       However the Judge said personal circumstances did not count for a great deal.  He said the appellant would have been entitled to a substantial discount for his plea of guilty, but because he had resorted to falsehoods to try to evade imprisonment by changing his plea, not much discount could be given.  He noted that the summary did not indicate any violence by the appellant but said the appellant shared some responsibility for the violence because he initiated it when making the demand for the victim’s wallet.

[9]       The Judge took a starting point of two and half years imprisonment and gave the appellant twelve months credit for his plea of guilty and the other personal factors cited by the appellant’s counsel in mitigation.  The sentence was therefore 18 months imprisonment.

[10]     The Judge then turned to the issue of home detention.  He noted that the law had recently changed, leave to apply for home detention could be granted only if the Court were satisfied that it would be appropriate to grant it, taking into account the nature and seriousness of the offence, the circumstances and background of the offending and any other relevant matters in the victim report.  The Judge said there was no victim impact report (in fact, there was) but noted that it must have been a traumatic experience for the victim.  He noted that the offence was very serious (maximum penalty 14 years) and considering those matters and the appellant’s own background, he decided that it did not seem to be appropriate to grant leave to apply for home detention.  He therefore declined leave.

Submissions for appellant

[11]     Counsel for the appellant, Mr Eaton, submitted that:

(a)       The sentence imposed was manifestly excessive or otherwise unjust, having regard to the practical realities of the sentence imposed; and

(b)        The Judge was plainly wrong to refuse leave to apply for home detention.

[12]     In support of his first submission he said that the starting point of two and a half years was too high, and should have been at the lower end of the 18 month – three year range specified in Mako.

[13]     Mr Eaton also said that the Judge had given insufficient credit for mitigating factors.  He said that in assessing the extent of the credit given, it was necessary for the Court to consider the practical realities of the sentence, having regard to the parole implications.  A prisoner who is imprisoned for a term of less than two years and is not granted leave to apply for home detention must serve half of the sentence.  There is no opportunity to apply for earlier parole nor is there an opportunity to apply for back end home detention.  Thus the appellant would be required to serve a term of nine months imprisonment in the present case.  Mr Eaton contrasted this with the position which would apply to an offender facing a term of two and a half year’s imprisonment.  Such an offender could apply for parole at the end of ten months, and could apply for back end home detention for the three month period prior to the first parole date.  Thus, assuming the offender was granted both early parole and back end home detention, the offender would serve only seven months in prison.

[14]     Mr Eaton accepted the general rule that the Court must impose a sentence that is proper for the offence and the offender, and leave questions of parole and remission to the legislature and the administrative authorities within whose province they rightly come: R v Smith CA310/94 19 December 1994.  But he said that the Courts have sometimes recognised that it is appropriate to consider the issue of parole.  For example, this Court said in R v Mwai [1995] 3 NZLR 149 at 157 that there is no inflexible rule, and in an appropriate case it is permissible to have regard to the realities of the case to ensure a just sentence. And in R v Staynor CA396/96 7 August 1986, this Court commented that, in an exceptional case, it was legitimate to have regard to matters such as remission or parole, noting that the earlier strictures of the general principle had been lessened by the power of the Court to order that a minimum period of imprisonment be served (at [5]).

[15]     Mr Eaton also cited the decision of William Young J in Palmer v Police (HC DUN AP 12/99 11 June 1999.  In that case the sentence had been reduced from 18 months to 12 months imprisonment, on account of a guilty plea, but the effect on the prisoner was minimal because he was entitled to parole after six months if sentenced to 18 months imprisonment and had to serve six months if imprisoned for 12 months.  William Young J said (at [6]):

The principle is that a prison sentence should not be increased to reflect a Judge’s awareness of the parole and remission system.  However, judicial blindness to parole and remission need not be absolute.  In particular, there are occasions where it is appropriate to take into account the practical effect of sentences, and in such a situation the judge must be realistic in terms of what the sentence actually imposed will really mean to the offender. 

[16]     Mr Eaton said that there was no real benefit to the appellant from the discount he received for his guilty plea, and that this meant that the sentence was either manifestly excessive or otherwise unjust.

[17]     In support of his second contention Mr Eaton argued that the Judge did not give proper consideration to the positive conduct of the appellant in the two years between the date of the offence and the date of sentencing, during which time the appellant had observed a strict curfew and had turned his life around.  He also noted that the appellant had been heavily penalised for his attempt to set aside his guilty plea, because he had received a lower discount, and also had his sentencing deferred until after a change in the Sentencing Act, altering the test for the granting of leave to apply for home detention had come into force.  He said that, but for this change in the law it is likely that leave to apply for home detention would have been granted.

Submissions for the Crown

[18]     On behalf of the Crown Ms Guy said that a starting point of two and a half years was not too high, relying on R v Mako at [59]. She said that there was actual violence in this case and a degree of premeditation in luring the victim to the carpark where the assault occurred.

[19]     Ms Guy also argued that the discount for mitigating features amounted to about 40 per cent of the starting point and was therefore adequate in the circumstances.  She said the Judge was right to temper the extent of the discount for the guilty plea, because the saving to the State of not having a trial was lessened by the appellant’s attempted change of plea, and the guilty plea could not be taken as a sign of acceptance of responsibility, remorse or regret in this case. 

[20]     Ms Guy strongly enjoined the Court not to consider the impact on the sentence of the provisions of the Parole Act.  She said that the matters which the appellant now complains of are issues which arise for any offender who gets a reduction from a starting point of between two years one month and three years to a sentence under two years and does not get leave to apply for home detention.  She accepted there may be situations where it is appropriate for the Court to consider the practical realities of the sentence (e.g. disparity) but said this was not a suitable case for such reconsideration. 

[21]     In relation to home detention, Ms Guy noted that s 97 of the Sentencing Act 2002 was repealed, and a new s 97 substituted, with effect from 7 July 2004.  The new section provided that the Court “may grant… leave… only if the Court is satisfied that it would be appropriate to grant leave”, taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim statement.  Previously this section said that the Court “must grant the offender leave… unless the Court is satisfied that it would be inappropriate to grant leave” taking into account the factors mentioned above and any other relevant matter.

[22]     Ms Guy said the granting of leave is a matter of discretion, it was open to the Judge not to grant leave in this case and that it was appropriate not to grant leave where the deterrent purpose of the sentence would be undermined by home detention: R v Papuni CA124/03 11 August 2003 at [18].

Home detention: applicable provision

[23]     Both counsel proceeded on the assumption that the new s 97 applied in this case, notwithstanding that the offending occurred prior to the coming into force of the Sentencing Amendment Act 2004, which effected the amendment to s 97 to which we have referred.  In our view that assumption was incorrect.

[24]     Recently, this Court considered a similar issue in relation to s 86 (which provides for the imposition of minimum periods of imprisonment in some cases), and which was also amended by the Sentencing Amendment Act 2004.  In R v Chadderton CA345/04 6 December 2004, the Court determined that the imposition of a minimum period of imprisonment would be justifiable under the amended s 86 (because a new subcl (d) would apply) but would not have been justified under the s 86 in force before the passing of the 2004 amendment.  The Court therefore considered the application of s 6 of the Sentencing Act, which says an offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.  The Court observed at [14]:

…we are not attracted to a result that would be supportable only by reliance on the new form of s 86, not in force at the time of the offending.  If triggered by s 5(3), s 6 requires the application of the former law.  To avoid that result would require us to conclude that although in fact, applying the decision in [R v Moon CA366/02 27 February 2003], there would have been no minimum sentence imposed had the Act not been amended, in law if it was always open to impose such sentence and so it is now legitimate to do so, despite the need to rely on the new subcl (d).  That would infringe the policy of s 6, itself an application of s 25(g) of the New Zealand Bill of Rights Act 1990 discussed in R v Pora [2001] 2 NZLR 37 and in turn echoing Article 15 of the International Covenant on Civil and Political Rights.

[25]     Thus the Court interpreted s 6 as applying to the actual penalty to be imposed on an offender for an offence, not as applying only to a generic increase in the penalty available for a particular offence.  Applying the same logic to the present situation, we are of the view that, where a Judge is considering whether to grant leave to apply for home detention in relation to offending which occurred before the coming into force of the Sentencing Act 2004 (on 7 July 2004), the discretion should be exercised in accordance with the section as it stood prior to that date.

[26]     That has significant consequences for the present case, because it seems to us reasonably clear that leave to apply for home detention would have been granted in this case under the old test.  In any event, since the Judge considered the matter under what we now believe was the wrong test, it is appropriate that we now address the issue afresh.  We are satisfied that, in the circumstances of this case, particularly the circumstances and background of the appellant, it would have been appropriate to grant leave in this case, notwithstanding the seriousness of the offending.  In particular, we take into account his strict compliance with bail conditions for over two years, the apparent turning around of his life during that period, his conquering of his drug and alcohol addiction, his re-establishment of contact with his young daughter, the opportunity for strict supervision by his parents in his home environment, his severing of associations with previous criminal associates and the strong family support available to him.

[27]     In view of that conclusion, it is not necessary to address the argument that the sentence itself was manifestly excessive or otherwise unjust: that argument was predicated on the fact that the appellant was prevented from applying for home detention and had to serve half of the 18 month term in prison.

Practical outcome

[28]     Mr Eaton pointed out to us that, if leave to apply for home detention were now allowed, an application would not be able to be made until February 2005, and, if leave were granted, it would not be likely to take effect until about a month before the end of the appellant’s current sentence.  We accept that would lead to injustice in the present case. 

[29]     In our view, it is therefore appropriate to alter the sentence imposed on the appellant to ensure that such an injustice does not eventuate.  For that reason we have determined that it is appropriate to allow the appellant’s appeal against sentence, quash the sentence of 18 months imprisonment and substitute a sentence of nine months imprisonment.  We think it is appropriate that the probation service should be able to direct the appellant to reside with his parents (as he said he planned to do if granted home detention) or at some other appropriate address.  In accordance with s 93(1) of the Sentencing Act 2002, we therefore impose the following conditions of release on the appellant:

(a)       The standard condition set out in s 14(1) of the Parole Act 2002; and

(b)A special condition that the appellant must reside at such address as is approved by his probation officer.

Solicitors:
Crown Law Office, Wellington