Walters v Department of Corrections

[2017] NZHC 537

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-17 [2017] NZHC 537

NICKY JOSHUA WALTERS

v

DEPARTMENT OF CORRECTIONS

Hearing:	21 March 2017
Appearances:	C A Morgan for Appellant B Hawes and C Bernhardt for Respondent
Judgment:	23 March 2017

JUDGMENT OF NICHOLAS DAVIDSON J (ON APPEAL AGAINST SENTENCE)

Background to appeal

[1]      On 21 January 2015, Mr Walters was sentenced to 150 hours community work for unpaid fines.  He failed to report for work on 11 occasions despite attempts to have him comply, but he has completed 82 of the 150 hours.

[2]      On  17  January  2017,  he  appeared  for  sentence  in  the  District  Court. The Judge imposed a sentence of six months community detention and an additional

40 hours community work.  Mr Walters appeals against that sentence on the grounds that the imposition of the maximum period of community detention with a further

40 hours of community work is manifestly excessive.

NICKY WALTERS v DEPARTMENT OF CORRECTIONS [2017] NZHC 537 [23 March 2017]

Principles on appeal

[3]      Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1   It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.2

Submissions

For appellant

[4]     Ms Morgan for Mr Walters analysed several sentencings, which she benchmarked to submit that the sentence imposed does not fall within the range available to the learned judge.

The authorities

[5]      In Smith v Police, an appeal was brought against a sentence of eight weeks imprisonment for breach of community work and a breach of a supervision order.3

[6]      Mr Smith had been ordered to undertake 80 hours of community work.  An agency placement was abandoned by him so he was required to report to the community work centre.  He immediately breached, and there were many efforts to contact him.   He was convicted for breach of the community work sentence for which he received a sentence of 12 months supervision, and an instruction to report within 72 hours.  He again failed to report and was then sentenced to eight weeks imprisonment.

[7]      On appeal  Lang  J  quashed the sentence of  imprisonment  and  adopted  a starting point of six months community detention for each charge.  This was reduced

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Ripia v R [2011] NZCA 101 at [15].

3      Smith v Police [2014] NZHC 2896.

to five months community detention on each charge (to take into account time served in prison), to be served concurrently.

[8]      In Mitchell v Police, an appeal was brought against a sentence of two months community detention for one breach of community work, a sentence of 40 hours having been imposed for a fifth conviction for driving while disqualified.4    This was also the fifth conviction for breaching community work and the twelfth conviction for disregarding court orders.  Muir J considered that the failure to contact probation to talk about her difficulties to comply with her sentence was a relevant factor.  The appellant had completed 20 hours of the 40 hours sentence.   A sentence of two months community detention was not considered manifestly excessive.

[9]      In Newton v New Zealand Police, Mr Newton was sentenced to three months community detention for breaching his community work sentence, cumulative on an existing  sentence  of  community detention.5     Asher  J  held  that  was  manifestly excessive, noting that community detention is third in the hierarchy of sentences, and a  heavier  sentence  than  a  community  based  sentence  of  community  work. Community detention involves a considerable infringement on liberty.

[10]     Ms Morgan says that this was Mr Walters’ third breach of community work and that this is a representative charge based on the 11 occasions when he failed to report over a two month period.  He had been convicted for an earlier breach, but Ms Morgan says one distinguishing factor is that he “continued to make some effort to attend”.   She distinguishes Smith because the appellant there made no effort to attend, whereas Mr Walters did complete 82 of 150 hours ordered.  Mr Smith had also been sentenced to a term of supervision.

[11]     As to Mitchell, Ms Morgan submits that sentence was for a fifth breach of community work and Mr Walters for his third; Ms Mitchell had completed half of her 40 hour sentence and Mr Walters just over half of his 150 hour sentence; and this was Ms Mitchell’s 12th conviction for disregarding a court order.  Mr Walters has six

previous breaches of court orders.   Ms Mitchell received her original sentence as a

4      Mitchell v Police [2015] NZHC 2588.

5      Newton v Police HC Rotorua CRI-2011-470-000026, 30 November 2011.

result of ongoing offending, whereas Mr Newton received his original sentence against remittance of unpaid fines.

[12]     As to Newton, Ms Morgan submits that Mr Newton had 48 hours left to complete and Mr Walters 68 hours.   Mr Newton received 3 months community detention.   On appeal that was reduced to 6 weeks community detention, which reflected time served.

[13]     Ms Morgan submits that given his history of offending, it is relevant that since 2010 Mr Walters has received only a fine for speeding, and a conviction for his first breach of the community work sentence.   She notes that it is not common practice for the Department of Corrections to file a charge for each weekly failure to attend a community work sentence.

[14]     Ms Morgan accepts that a sentence of community detention was available to His Honour.  What is in dispute is the length sentence imposed and the further hours. Six  months  community  detention  is  the  maximum  available.    The  addition  of

40 hours community work, cumulative with the outstanding 68 hours, was said by His Honour to be punitive, but justified as a means of reminding Mr Walters there is punishment for failure to comply.  Community detention is accepted as carrying with it deterrence and denunciation.  A rehabilitative need for Mr Walters was identified in the pre-sentence report but not reflected in the sentence.   Mr Walters has taken steps to address his use of opiods in August 2016. It is Ms Morgan’s submission that the entire sentence is punitive.   On that basis, it is submitted that six months community detention is manifestly excessive, and more so with 40 cumulative hours of community work.

[15]     Ms  Morgan  submitted  that  the  imposition  of  a  sentence  of  community detention more in line with Mitchell and Newton, without the additional 40 hours community work, would still meet the requirement to denounce and deter further breaches of the remaining community work hours.

Crown submissions

[16]     As in Smith, Mr Walters’ offending is submitted to be serious.  He failed to report on 11 occasions, received phone calls and warning letters, and failed to attend a non-compliance interview.   The six months community detention aspect of the sentence is submitted within range.  He has a significant history of breaching court orders (noted by the Judge at sentencing).  Although he had completed 82 of the original  150  hours  community  work,  this  is  Mr  Walters’ second  breach  of  the sentence imposed, and his third conviction for breach of community work.

Analysis

[17]     The  sentence  imposed  on  the  appellant  was  higher  than  similar  cases. Although a starting point of six months community detention was adopted in Smith, Smith also involved a breach of supervision, and on this basis is distinguished.

[18]     Mitchell involved a defendant with a similar history of breaching community work and disregarding court orders, who had completed 20 of her 40 hour sentence. The appellant completed 82 of the 150 hours ordered, which shows he put some effort  into  completing  it  before  breaching.  However,  the  appellant  has  been previously sentenced for breaching this same sentence of community work. This aggravating factor puts the present case at a more serious level than Mitchell.

[19]     Newton is not particularly applicable to the present case as the main factor justifying a lower sentence of community detention was the defendant’s ill health. He was unable to finish his remaining 48 hours of community work and a sentence of community detention was imposed, effectively to replace it. The sentencing principles relevant in the present case were therefore not at play in Newton.

[20]     The key sentencing principles in this case are the need to impress upon the defendant the seriousness of his actions, to denounce and deter future breaches, by the appellant and others, and to assist in his rehabilitation. The Court must impose a sentence consistent with other cases and impose the least restrictive outcome appropriate in the circumstances. A sentence of three months community detention and   30   hours   community   work   adequately   provides   for   the   deterrent   and

denunciation elements of the sentencing principles and is more in line with other cases in this area.  The reduction to 30 hours is to reflect the community detention component  and  to  encourage  compliance.    Mr  Walters  should  not  expect  such latitude should he further breach.

Disposition

[21]     The appeal is allowed.  The sentence of six months community detention and

40 hours community work is reduced to three months community detention and

30 hours community work.

[22]     Mr Walters is to present at the Probation Office within 48 hours of receipt of this judgment.

………………………………………….

Nicholas Davidson J

Solicitors:

Carol Morgan, Barrister, Christchurch

Raymond Donnelly & Co, Christchurch