The Queen v Raymond Townhill

[2000] NZCA 372

IN THE COURT OF APPEAL OF NEW ZEALAND CA392/00

THE QUEEN

V

RAYMOND TOWNHILL

Coram:	Thomas J Keith J Blanchard J
Judgment (On the papers):	7 December 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. The appellant pleaded guilty to four counts of using a document to obtain a pecuniary advantage.  The Judge sentenced him to 18 months’ imprisonment and refused leave to apply for home detention.  The appellant appeals against sentence, but only in respect of the refusal of leave to apply for home detention.

2. The appellant applied for legal aid to bring the appeal.  That application was declined following consultation under the Legal Services Act 1991, as was an application by the appellant for leave to be present at the hearing of this appeal.  The appeal has been determined on the basis of written submissions received from the appellant.

3. The facts which gave rise to the charges can be shortly stated.  In October 1998 a chequebook was stolen from an Auckland address.  In January 1999 the appellant deposited one of those cheques written out to the value of $5,600 into his own account.  On three further occasions he repeated that exercise, obtaining a total of $21,092.  None of the money has been recovered.

4. The grant of leave to apply for release to home detention is governed by section 21D(3) of the Criminal Justice Act 1985.  In R v Barton [2000] 2 NZLR 459 this Court observed that the s21D(3) confers a wide discretion. The role of the sentencing Judge is to refuse leave in those cases where home detention is clearly not a viable option, such as where the gravity of the offending, protection of the community or victims, the need for deterrence or the absence of rehabilitative indicators relevant to the offender render home detention inappropriate: Ramsden v Police (High Court, Christchurch, A 3/00, 18 February 2000, Panckhurst J), cited with approval in R v Barton at 462. Judges are not expected to give extensive reasons for the grant or refusal of leave and appellate courts will not readily interfere with sentencing Judge’s discretionary assessments: R v Barton at 463.

5. The appellant is 39 years old and has 59 previous convictions for dishonesty offences.  The sentencing Judge described him as a recidivist.  He has been sentenced to a variety of sanctions in the past, ranging from community based sentences to relatively short terms of imprisonment.  At the time of sentencing he owed over $20,000 to the Corrections Department, most of which was reparation.  While the appellant had made some progress in the past year, this must be viewed against his continued offending.  The probation officer assessed his motivation to change as low to moderate.  The sentencing Judge, observing that previous sentences had failed to divert the appellant from criminal activities, was of the view that a deterrent penalty was necessary.  His reasons for refusing leave to apply for home detention were brief; he stated simply that leave would be inappropriate given the deterrent element of the sentence he proposed to impose. 

6. The first ground of appeal is that it is the appellant’s understanding that the Judge declined leave to apply for home detention because the appellant was living in a rural area not covered by the home detention.  The appellant submits that he is now living in an area which is covered, and accordingly seeks leave. This ground of appeal must fail.  The availability or otherwise of the home detention system in the appellant’s area of residence was not a factor entering into the Judge’s decision to decline leave.  In any case, this is not a matter relevant to the court’s discretion under s21D(3).

7. The remaining submissions advanced in support of the appeal concern the appellant’s personal circumstances.  The appellant cites family reasons, particularly the needs of his six children and his wife, who is having difficulty coping on her own.  The appellant also states that he has attended courses to rehabilitate himself for the good of himself, his family and the community. 

8. These factors are certainly relevant to the exercise of the discretion under s21D(3) and we commend the appellant’s efforts towards rehabilitation.  Were the other circumstances of this case different these factors might justify leave.  However, we consider that despite these factors the sentencing Judge correctly exercised his discretion in refusing leave.  The offending in this case was not only serious, but it occurred against a background of a long history of dishonesty offending by the appellant.  Previous more lenient sentences have failed to achieve change and there are as yet few real indicators of rehabilitation.  The sentencing Judge rightly treated deterrence – particularly the deterrence of the appellant himself from further offences of dishonesty - as the paramount consideration in sentencing. That deterrent effect would be reduced if home detention became available.  We agree with the Judge’s determination that home detention would be inappropriate in this case. 

9. The appeal is accordingly dismissed.