Thomason v Police

[2016] NZHC 596

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2016-483-7 [2016] NZHC 596

BETWEEN

PIRI WAYNE THOMASON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 April 2016
Counsel:	D M Goodlet for Appellant N A Refoy-Butler for Respondent
Judgment:	7 April 2016

JUDGMENT OF BROWN J

Introduction

[1]      On 20 January 2016 the appellant pleaded guilty to a charge that he assaulted his partner with intent to injure her.   In the District Court at Wanganui Judge A C Roberts imposed a sentence of 12 months’ imprisonment from which sentence the appellant now appeals.

[2]      The  circumstances  of  the  offending  are  apparent  from  the  following

paragraph of the Judge’s sentencing notes:

[2]       The summary of facts I have read.  Your relationship has extended over 18 years, the past seven years you and your victim have been married.    The  summary  states  that  there  have  been  35  reported family violence incidents alerted to the police involving the same participants, you and your victim, all of that since the year 2000. There are children living under the same roof.   Your partner had been diagnosed with bone cancer and more recently thyroid cancer. Eighteen months ago the thyroid cancer was removed.   She has, however, significant scarring on her neck and upper chest.  You, of course, were alert to these issues.  Her breathing is compromised as it is.  Her neck and throat are painful, the summary reads, most of

THOMASON v NZ POLICE [2016] NZHC 596 [7 April 2016]

the time.  This was a late evening argument.  Within the summary is the indication that she had disclosed to you sexual infidelity.   The summary goes on to say she was eating her tea facing away from you, you came up behind her and grabbed her by the hair.   You dispute that, I note at interview, you turned her around to face you. You then placed both hands around her neck and started to strangle her, applying so much pressure it compromised her breathing.  She endeavoured to push you away.

The appeal

[3]      A notice of general appeal was filed dated 22 March 2016 which stated that the grounds of the appeal would be set out in a memorandum of counsel to be filed. When  I made  enquiry  of  counsel  at  the  hearing  as  to  the  whereabouts  of  that memorandum I was referred to the written submissions in support of the appeal dated 1 April 2016.  Hence there is no document which succinctly states the grounds on which the appeal is brought.

[4]      However  the  essence  of  the  appellant’s  complaint  is  that  Judge Roberts imposed a sentence of imprisonment rather than a sentence of home detention.  In fact, as the Department of Corrections report recorded, there was no suitable address available at the time and the report stated that, if the Court wished to impose an electronically monitored sentence, a remand would be required for the appellant to find suitable accommodation.

[5]      Consequently it was Ms Goodlet’s argument that Judge Roberts should have made an order under s 80I of the Sentencing Act 2002 granting the appellant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention when a suitable residence was located.

[6]      Having  concluded  that  the  end  sentence  should  be  one  of  12 months’ imprisonment, the Judge’s reasons for refusing to entertain home detention were recorded as follows:

[13]     Home detention is not available today but I do not consider home detention to be appropriate in any event. My reasons:

(a)      This was a serious assault.

(b)      There  is  a  documented  police  history  of  domestic  issues extending back over a long period of time.

(c)      You deny any issues.

(d)      Rehabilitative sentences have been skirted previously.

(e)       For you to contend at interview your relationship is “a good one” demonstrates your distorted thought patterns.

(f)       While you today have no suitable address, your history of sentence breach is proof enough you could not be expected to comply.

Relevant principles

[7]      The decision whether or not to impose a sentence of home detention is a discretionary decision.  Counsel for the respondent drew attention to the following passage in James v R:1

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.   The question is whether (the Judge) erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?  Ms Guy Kidd, for the Crown, properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree.   We are satisfied, in accordance with earlier  authority  in  this  Court,  that  the  decision  about  whether  home detention  will  meet  those  objectives  in  a  particular  case  is  a  strictly evaluative exercise.  It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[8]      I am bound by that approach, save that I consider that the formulation of the grounds upon which the discretionary decision may be challenged needs to be read in the light of the Court of Appeal’s previously stated preference for the May v May formulation.2  The distinction was explained in Alex Harvey Industries Ltd v CIR:3

[12]      Mr  McKay  favoured  the  test  enunciated  in  Fitzgerald  v  Beattie [1976] 1 NZLR 265, 268, and adopted by the majority (Thomas J dissenting) in Neumegen v Neumegen & Co [1998] 3 NZLR 310, 320, when deciding an appeal against the exercise of a discretion. The Court, it was said, will not disturb the order made in the discretion of the Judge at first instance unless it is satisfied that the Judge had proceeded on a wrong principle or had given undue weight to some factor or insufficient weight to another or is plainly wrong.

1      James v R [2010] NZCA 206 at [17].

2      May v May (1982) 1 NZFLR 165 (CA).

3      Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 (CA).  Similarly Novartis New Zealand

Ltd v Aktiebolaget Hassle [2004] 2 NZLR 72 (CA) at [53].

[13]     But  this  Court  has  more  recently  indicated  that  it  prefers  the formulation in May v May (1982) 1 NZFLR 165, 170, to that of the Court in Fitzgerald v Beattie.   See Harris v McIntosh [[2001] 3 NZLR 72 (CA)]. That formulation reads:

“an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.”

[14]      The significant difference is that the latter test omits any reference to the Judge having given undue weight to some factor or insufficient weight to another.  Weighing and balancing the various factors is an integral part of a Judge’s exercise of his or her discretion.   This Court will not repeat that exercise unless the Judge has given such excessive weight to some factor or such patently inadequate weight to another as to be “plainly wrong”.  The problem is that, if the phrases “undue weight” and “insufficient weight” have this meaning, they are tautologous and unnecessary.  If, on the other hand, they do not have that meaning they suggest that the Court will be prepared to substitute its view for that of the Judge – which it will not do.

[15]     We  therefore  reiterate  that  the  formulation  in  May  v  May,  as endorsed in Harris v McIntosh, is to be treated as the applicable test for examining on appeal the exercise of a discretion in the Court below.

[9]      It is appropriate that I draw attention to this distinction given the tenor of the submissions for the appellant discussed below.

[10]     Counsel for the respondent further noted the observations of the Court of

Appeal in R v D concerning borderline cases:4

[65]      Home detention is a hybrid sentence, regarded as neither custodial nor community-based.  It is not listed among the community-based sentences set out in s 44 of the Act.  On the other hand, s 80A(5) makes it clear that an offender who is sentenced to home detention is not in custody while that sentence is served.

[66]      In  a  case  like  this,  the  sentencing  Judge  is  required  to  form  a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the  more likely it is that the chosen sentencing response will be appropriate.

[11]     However counsel appropriately also noted the subsequent comment in R v

Fairbrother:5

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”.  Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

Discussion

[12]     Ms Goodlet filed detailed written submissions and spoke to them lucidly at the AVL hearing. Those submissions can be conveniently analysed into three parts.

[13]     The first part  comprised a number of contentions  directed  to the weight which it was submitted that Judge Roberts had given to particular factors, eg:

Para 7	:	“giving excessive weight to the seriousness of this assault”
:	“did not sufficiently consider the opportunity for rehabilitation …”
Para 9	:	“did not give sufficient weight to the fact that the appellant had never had the opportunity for an electronically monitored sentenced before”
Para 15	:	“gave insufficient weight to the fact that since 2007 the appellant has had three further community based sentences which he has completed successfully”
Para 16	:	“undue weight was given to the appellant’s history of sentence breaches”
Para 17	:	“the views of the victim were not given sufficient weight”.

[14]     No doubt  the formulation  which  appears in  James  v R,  upon  which  the appellant relied, influenced the presentation of such submissions.   However, as is apparent from Alex Harvey Industries, it is not open to this Court to entertain a challenge to a discretionary decision by reference to the weighting of factors unless the weighting is so excessive or inadequate that it results in the decision being “plainly wrong”.

[15]     I do not consider that any of the matters which Ms Goodlet identified as having been given insufficient weight or undue weight by the Judge could fairly be said to have resulted in the decision being plainly wrong.  In fairness to Ms Goodlet I should record that I did not understand her to so submit.

[16]     However Ms Goodlet further argued that when all the relevant factors of s 7 and 8 are taken into account the District Court Judge was plainly wrong not to exercise the discretion to commute the sentence to one of home detention.  In effect this second aspect of the appellant’s submission amounted to an argument that the balancing exercise undertaken by the Judge was in error, as reflected in the final paragraph of the submissions:

19.It is submitted that when balancing and considering all the purposes and principles of sentencing, acknowledging that home detention does provide a deterrence and denunciation, considering the views of the victim, the level of this assault and whether home detention would  be  the  least  restrictive  option  appropriate  the  Sentencing Court ought to have commuted the sentence of imprisonment into one of home detention.

[17]     It  may  be  that  different  Judges  could  have  reached  different  ultimate conclusions as to the appropriate sentence in the present case.  That simply reflects the fact that this case might be viewed as one close to the line between the sentences of imprisonment and home detention.

[18]     However the Judge explicitly identified the factors that led to his favouring a sentence of imprisonment as the appropriate penalty.   This is not a case, like Manikpersadh v R,6   where the Judge focused solely on deterrence and denunciation and which has been held to constitute an error of law.7   Nor is the decision one which could fairly be described as a decision which no reasonable decision-maker would

make or one that  is  outside the permissible boundaries  of the decision-maker’s

discretion.8   Consequently it cannot be said that the decision in this case to impose a sentence of imprisonment could be categorised as “plainly wrong”.

6      Manikpersadh v R [2011] NZCA 452.

7      Fairbrother v R, above n 5 at [29].

8      M.B Rodriguez Ferrere, The Unnecessary Confusion in New Zealand’s Appellate Jurisdictions

(2012) Otago LR 829, 835 and the cases there cited.

[19]     As a third strand of the appeal Ms Goodlet submitted that the District Court Judge had failed to consider the principle in s 8(g) of the Sentencing Act that the Court must impose the least restrictive outcome that is appropriate in the circumstances.

[20]     While I recognise that the Judge did not expressly refer to that principle, I consider that it was implicit in his introductory comments in para [13]9  that the Judge gave consideration to the lesser penalty of home detention.  However, for the reasons  which  he  recited  he  did  not  consider  that  that  lesser  sentence  was appropriate.

Disposition

[21]     Notwithstanding Ms Goodlet’s careful submissions I am unpersuaded that the sentencing Judge erred in any of the respects which would justify this Court on appeal  revisiting  the  exercise  of  the  discretion.     Consequently  the  appeal  is

dismissed.

Brown J

9      At [6] above.