Townsend v Police
[2015] NZHC 1722
•27 July 2015
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2015-454-8 [2015] NZHC 1722
BETWEEN SAMUEL MAURUS TOWNSEND
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 July 2015 Counsel:
P L Murray for Appellant
D R Davies for RespondentJudgment:
27 July 2015
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
3.30 pm on the 27th day of July 2015
Solicitors: P L Murray, Barrister & Solicitor, Palmerston North, for Appellant
Crown Solicitor, Palmerston North, for Respondent
TOWNSEND v NEW ZEALAND POLICE [2015] NZHC 1722 [27 July 2015]
[1] The appellant pleaded guilty to one count of assaulting a Police officer with a weapon. He was sentenced by Judge Bouchier in the District Court at Palmerston North on 9 June 2015 to 11 months imprisonment.1
[2] He appeals against his sentence. He submits that the end sentence of imprisonment was manifestly excessive because:
(a) the starting point of 15 months adopted by the Judge was excessive;
(b)no credit was given for personal mitigating features apart from the guilty plea.
(c) the Judge erred in not imposing a sentence of home detention.
[3] The appellant was intoxicated at home and became involved in an argument with his partner. A neighbour approached the couple and the appellant yelled “[h]ave you called the Cops? I’m going to waste all of them when they get there.” The Police were called. The appellant emerged from a shed at the back of the carport holding two red plastic petrol containers. He poured liquid from them in front of him and along a fence line. He said that he was going to “blow the place up”. A Police dog handler and other officers arrived shortly thereafter.
[4] The appellant told the constable to “get away” and “keep back”. He knelt down and retrieved a clear glass bottle with a paper wick extending from it. He threatened to light the paper with a lighter in his hand, gestured that he would throw it at the constable, and did not lower it when told to do so. On at least one occasion, he lit the wick but it was then extinguished either by the appellant blowing on it, or by the wind. The constable believed the bottle to be a Molotov cocktail. He pepper sprayed the appellant to little effect. At one point the appellant drew the bottle back as though he was about to throw it. The wick was not lit. A dog was deployed. When it engaged with the appellant, the bottle was dislodged from his hand and hit
the corner of a trailer behind which the constable was seeking cover. The appellant
1 Police v Townsend [2015] NZDC 10781.
received dog bites on his arm and leg. A scene examination did not establish the presence of petrol.
[5] In fixing a starting point for the offending, the Judge identified the aggravating factors in these terms:2
[22] In terms of the aggravating features, looking at the well known case of R v Taueki [2005] 3 NZLR 372, I identify the aggravating features of the offending as follows. First of all, there were sustained threats to the police, they were early threats to the neighbours. He was seen with petrol containers and filling them up. Whilst it has been found that they were not with petrol, those viewing this behaviour did not know that. Then there was having a clear glass container with a wick on it, and on at least one occasion, lighting that wick paper, as is clearly shown in the photographs that have been supplied. There were repeated threats to the police when they arrived and in my view, this equals serious premeditation.
[23] Secondly, the use of a potentially lethal or serious weapon, a Molotov cocktail. Thirdly, the attack on a police officer, a law enforcement officer who was merely doing his duty. Although this is an essential ingredient of the case and I take care not to double count it, it is a Taueki aggravating feature.
[6] The Judge adopted a 15 month starting point which she considered “lenient in
the circumstances”.
[7] In submitting that this starting point was excessive, Mr Murray for the appellant notes that there are a limited number of cases for sentencing for aggravated assaults against Police officers that are not subsumed by more serious offending. He refers to a number of those cases, Kumar v Police,3 R v Taurere,4 Watt v Police,5
Taylor v R,6 Whichman v Police7 and R v Tuiletufuga.8
[8] Those cases show considerable variation in the starting points adopted. They range from four months in Kumar to two years and 11 months in Tuiletufuga. As Wylie J in Taurere and Brown J in Kumar noted, the sentences are undoubtedly
coloured by the circumstances and the context in which the offending took place.
2 Police v Townsend, above n 1.
3 Kumar v Police [2014] NZHC 1659.
4 R v Taurere HC Whangarei CRI 2011-488-30, 7 July 2011.
5 Watt v Police [2014] NZHC 3055.
6 Taylor v R [2013] NZCA 417.
7 Whichman v Police [2012] NZHC 2697.
8 R v Tuiletufuga CA205/03, 25 September 2003.
Because the fixing of the starting point must be focused on the circumstances of this case, I do not lengthen this judgment by describing the different circumstances of those cases. Rather, I make an assessment of the seriousness of this offending.
[9] There was no actual application of force to the constable. The offending involved making a threat which the appellant caused the constable to believe that he had the present ability to carry out. The seriousness of the offending lies in what the appellant caused the constable to believe, rather than in what he actually did. His pretending to use petrol and to make and threaten to use a Molotov cocktail, when coupled with the threats which he made, were sufficient to cause, and did cause, the constable serious concern for his safety. One of the reasons why an assault (which includes a threatened assault) on a Police officer is treated so seriously is that a Police officer cannot readily remove him or herself from harm’s way. The constable had to face the threat, which he reasonably saw the appellant as presenting to the safety of himself and others. The fact that the appellant did not have petrol and was not able to carry out his threats did not lessen the seriousness of his offending.
[10] Mr Murray submits that the Judge was wrong to describe premeditation as an aggravating feature. He submits that the offending was not seriously pre-meditated but was fuelled by alcohol and bravado and was largely impulsive and reactive, and despite the threats made there was no real planning involved. That is so, but the repeated threats, and the actions over an extended period of time, were an aggravating feature, however one describes them.
[11] When the offending is assessed in this way, I consider that it is considerably more serious than that in Kumar and Watt. It is not directly comparable with the other cases in which starting points of two years or more were adopted. On that analysis, I consider that the starting point of 15 months was within the available range.
[12] The next issue is whether some credit should have been given for personal mitigating circumstances, apart from the four months (approximately 25 per cent) deduction given for the guilty plea.
[13] Mr Murray submits that the Judge erred by not giving the appellant credit for the following matters:
(a) His genuine remorse, demonstrated by an offer to participate in restorative justice (which was refused by the victim).
(b)The appellant’s physical and mental health at the time of the offending. He has suffered multiple head injuries, the last in 2011, and suffers from a brain injury. He has had two operations for cancer on his lip and was worried about his health and mortality and the effect that this would have on his family. He was suffering from depression and since his arrest has taken anti-depressants. Counsel submits that this goes some way to explaining the stressors on the appellant and why he acted in the way he did.
(c) The appellant’s self-referral and engagement with Te Manawa Services for support. Following the offending between June and September 2014 he attended nine sessions in the Men Living Free from Violence group programme and has attended alcohol and drugs counselling.
[14] Counsel for the respondent submits that remorse and efforts in rehabilitation do not appear to be completely present in that, despite the appellant’s expressed desire to attend restorative justice, the pre-sentence report did not find him to be remorseful, and that while he had made progress at counselling, he had not been fully committed. Counsel submits that the most significant factor was the brain injury, as to which there was no supporting evidence. Counsel submits that the Judge did not err in declining to give a discount in that she acknowledged all of the matters raised by counsel for the appellant and expressly took personal circumstances into account in reaching that decision.
[15] The Judge, having mentioned all of the factors now relied upon, did not view those as mitigating factors justifying a discount. That was a view properly open to her in the circumstances. The pre-sentence report writer said that the appellant spoke
about his offending with no remorse and attempted to shift blame to others, such as his partner or Police. He minimised the offending and showed no insight into the effect his violence and alcohol use has had on his children. The report writer describes his attendance at the domestic violence programme as sporadic though he engaged well when he was present. There was no evidence of the nature of the appellant’s brain injury or the effect which it might have had on his offending in a way which might mitigate it.
[16] I do not consider that the Judge’s assessment of the appellant’s personal circumstances as not justifying a discount can be said to be in error. The most that can be said is that another Judge might have made some allowance.
[17] In the end, what is required is an assessment of whether the end sentence of
11 months was within the available range, having regard to all of the relevant circumstances. I conclude that it was.
[18] The final issue is whether home detention should have been imposed. Mr Murray submits that the Judge erred in finding the offending could not be met by a sentence of home detention and that, in refusing it, the Judge gave deterrence complete priority. He submits that she failed to have regard to the fact that home detention is a significant sentence in its own right and carries a considerable measure of denunciation and deterrence. He also submits that she did not give weight to the appellant’s personal circumstances and to his rehabilitation and re-integration, or the need to impose the least restrictive outcome, as required by ss 7 and 8 of the Sentencing Act 2002. Counsel refers to:
(a) the appellant’s remorse and acceptance of responsibility and the guilty
plea;
(b) the appellant’s engagement with counselling and abstinence from
alcohol in the three months before his sentencing; (c) the physical and psychological health issues;
(d) the support from his family and the Brain Injury Trust;
(e) his family circumstances in that he and his partner raise four children, aged between six and 17, the oldest with special needs – he submits the appellant is ordinarily a good father;
(f) the appellant’s modest criminal history, with 11 previous convictions for minor offending since 2000; he has not served any electronically monitored sentence before and has never been sentenced to imprisonment;
(g)the behaviour was out of character and a function, in large part, of his life circumstances at the time.
[19] Mr Murray accordingly submits that the principles and purposes of sentencing can and should be met by a sentence of home detention.
[20] Counsel for the respondent submits that the seriousness of the offending outweighs the personal circumstances and rehabilitative prospects of the appellant. Counsel notes the recommendation in the pre-sentence report for home detention, despite saying the appellant was not remorseful, but submits that the Judge did not err in declining home detention.
[21] When the appellant was first before the Court for sentence in March 2015, he declined to be assessed for electronically monitored sentences. The sentencing was adjourned and a further report was obtained in which electronic monitoring was canvassed. It was assessed as appropriate, and a sentence of home detention was recommended. The recommendation was accompanied by an observation that it should proceed with caution, given the history of family violence between the appellant and his partner, a number of family violence incidents having been recorded.
[22] The Judge addressed the possibility of home detention quite briefly. She said:9
[26] I am of the view that it is absolutely not capable of being met with a sentence of home detention. I reject that submission as being inappropriate. It can, in my view, only be met with a term of imprisonment. …
[23] As Mr Murray notes, the proper approach on an appeal against a refusal to impose home detention is set out in Manikpersadh v R:10
[11] This Court identified the appropriate approach in James v R in this way:
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.
[24] The issue for consideration here is whether the Judge erred in one of the two ways identified by the Court of Appeal in Fairbrother v R:11
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
9 Police v Townsend, above n 1.
10 Manikpersadh v R [2011] NZCA 452 (footnotes omitted).
11 Fairbrother v R [2013] NZCA 340 (footnotes omitted).
[25] The Judge’s comments in refusing home detention, set out above, were brief and forthright. They do not, on my reading of them, indicate an assumption that the offence category lies beyond a sentence of home detention. The comments appear to be focused on the gravity of the offending and the need for the sentence to reflect that. That is an appropriate consideration, so long as deterrence is not given complete priority without regard to any of the countervailing purposes of sentence.
[26] The Judge had discussed the purposes and principles of sentencing, in considering the starting point, in these terms:12
[21] In terms of the factors which the Court needs to consider under the Sentencing Act, the purposes and principles of sentence, denunciation and deterrence are factors which I take the strongest account of because in my view, attacks or threatened attacks on police officers are matters which the Court needs to take considerably seriously. I looked at the culpability of the defendant involved and the culpability is high. I looked at the interests of the victim and the impact on the victim as from the victim impact statement that I have read out. I also take into account the need for rehabilitation and reintegration and the defendant’s own personal circumstances.
[27] In the light of that, I do not interpret the Judge’s brief comments when she addressed home detention as having ignored those other purposes and principles of sentencing. Accordingly, I do not consider that the Judge’s approach was in error, applying the approach in Manikpersadh.
[28] In making a considered and principled choice between home detention and imprisonment, I am not able to say that the choice of imprisonment as better serving all the relevant purposes of sentencing was wrong. The offending was sustained and serious and justified a high weighting to denunciation and deterrence. Factors favouring a rehabilitative purpose were not so strong as to point clearly to home detention as the appropriate sentence. There are the concerns as to the family situation raised by the report writer, and the limited remorse and engagement with rehabilitative efforts, which do not weigh heavily in favour of home detention.
[29] As to the least restrictive outcome, it is relevant that the appellant has not previously served a sentence of either imprisonment or home detention. That tends to
favour a community based sentence. The need to impose the least restrictive
12 Police v Townsend, above n 1.
outcome does not mean that an offender should work up through the hierarchy of sentences: the sentence must be appropriate to the offending.
[30] For these reasons I am not satisfied that there is a demonstrable error in the Judge’s reasons for rejecting home detention. In any event, considering the matter afresh in terms of s 250(2) of the Criminal Procedure Act 2011, I am not satisfied that a different sentence should be imposed.
[31] The appeal is accordingly dismissed.
“A D MacKenzie J”
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