Warren v Police HC Greymouth CRI-2011-418-000007

[2011] NZHC 1828

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-000007

CRI-2011-418-000149

LEROY ROBERT WARREN

v

POLICE

Hearing:         17 November 2011 (Heard at Christchurch)

Appearances: E Bradley for Appellant

N M Robson for Respondent

Judgment:      17 November 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      Following pleas of guilty, the appellant, Mr Leroy Warren, was convicted and sentenced in the District Court on two charges: one of aggravated burglary and the other, Crimes Act 1961 assault.

[2]      He was sentenced to a term of imprisonment of 18 months.

Facts of the offending

[3]      In the early hours of 15 April 2011 Mr Warren went to the victim’s home address with five associates.   Mr Warren believed that the victim had stolen his cannabis.   Two females in the group knocked on the door and were let in by the

victim.  After talking to him, the two women left, leaving the door to the victim’s

WARREN V POLICE HC GRY CRI-2011-418-000007 17 November 2011

bedroom open.  Almost immediately, Mr Warren entered the room with his brother. He then started shouting abuse and threats.

[4]      There was, as  the Judge described it, an  exercise in abusing the victim, knocking him around and searching his room.   The victim was unable to defend himself, being trapped beneath the bedclothes.  Mr Warren dragged the victim from the bed and then picked up one of the drawers that had been pulled out in the process of the search.   Mr Warren hit the victim over the head with the drawer with such force that the drawer broke into its component parts.  Undaunted, Mr Warren then picked up a second drawer and used it to hit the victim again.  This was described in the summary as a solid blow across the victim’s upraised defensive arm.  Mr Warren attempted to strike the victim a third time, but fortunately was restrained by his brother.

[5]      As a result of the assault, the victim suffered abrasions and bruising to his head, arms, neck and legs.  He was said to be extremely sore.  He was assessed and treated at the local hospital and then discharged later that same morning.

The sentencing in the District Court

[6]      The  information  before  the  District  Court  Judge  included  a  pre-sentence report.  The report told the Judge that Mr Warren is 20 years of age with 12 previous convictions, most of which had alcohol as their genesis.  The previous convictions included two involving violence.

[7]      On the positive side, the report stated Mr Warren was employed, expressing motivation to address his alcohol issues and enjoyed the support of his family.

[8]      The report concluded by saying that, should the Court find itself able to fall short of imposing a term of imprisonment, a sentence of community detention was recommended purely because it would enable Mr Warren to retain his employment. A sentence of community work was also recommended.

[9]      In addition to the pre-sentence report, the Judge was provided with a number of references. These spoke highly of Mr Warren.

[10]     In his sentencing notes, the Judge said he was struggling to reconcile the positive references with the appellant’s conduct and record.  At [13], the Judge said he was mindful of the desirability of keeping Mr Warren in employment and of his being a productive member of the community, but went on to say that he was also obliged  to  uphold  the  fundamental  standards  of  our  community,  which  is  “that people should be able to sleep in their own beds at night without getting beaten up by unwanted visitors”.

[11]     The Judge identified the appropriate starting point as being one of two years’ imprisonment.   He then adjusted that upwards by three months on account of the previous convictions, reducing it to 18 months on account of the early guilty plea and the fact that Mr Warren had been subject to restrictive terms of bail for some six months.

[12]     I pause here to note that the Judge has made an arithmetical error in Mr Warren’s favour.  He said he was giving a 25 per cent discount for the guilty plea, but that would have resulted in a 19-month sentence, not an 18-month sentence.

[13]     Also in Mr Warren’s favour was that the Judge did not take into account what I consider to be a significant aggravating factor, namely that these offences were committed while Mr Warren was undergoing a supervision sentence.

[14]     Because the Judge had arrived at a term of imprisonment under two years, that rendered Mr Warren eligible to be considered for home detention.  However, in the Judge’s view, the offending was too serious, and the obvious signs of not having heeded previous sentences all too apparent.  The Judge therefore concluded that the most appropriate sentence was a custodial one.

Grounds of appeal

[15]     On appeal, counsel, Mr Bradley, accepts that the end sentence of 18 months’ imprisonment was not manifestly excessive.  The focus of the appeal has therefore been solely on the issue of whether the Judge should have imposed a sentence of home detention rather than a term of imprisonment.

[16]     The decision whether or not to impose home detention is well established to involve the exercise of a discretion.  Mr Bradley responsibly acknowledged that and submitted that  there were,  however,  errors of  principle.   He identified  these as follows:

(i)The Judge failed to have regard to his obligation under s 8 of the  Sentencing  Act  2002  to  impose  the  least  restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders.

(ii)      The Judge failed to have regard to Mr Warren’s rehabilitative

needs.

(iii)     The Judge failed to have regard to Mr Warren’s age.

(iv)The Judge failed to have regard to the fact that Mr Warren had made an offer of amends.

Discussion

[17]     I have carefully considered those submissions.

[18]     I accept that the Judge has not overtly or expressly articulated some of the factors  identified  by  Mr  Bradley.     However,  in  my  assessment,  reading  the sentencing notes in their entirety, it is implicit that the Judge was mindful of those factors and did take them into account.  There are constant references to Mr Warren’s being young and his age, references to the alcohol problem and steps that were being taken to address it, references to the need to keep him in employment if that were appropriate.

[19]     It  is  clear,  reading  the  sentencing  notes  as  a  whole,  that  the Judge  was mindful of these other considerations, but in his view on these facts they were simply outweighed by considerations of denunciation, deterrence and accountability, given the seriousness of the offending and Mr Warren’s criminal history.  In my view, that was an approach that was clearly open to the Judge.  Indeed, if I were required to

consider this matter afresh I would have come to exactly the same conclusion.  This was serious offending and as I have said, it involved what I consider to be another significant aggravating factor, and that is that it occurred while Mr Warren was under a sentence of supervision for earlier offending.

[20]     I am satisfied that appellate intervention is not warranted.   The appeal is accordingly dismissed and the sentence confirmed.

Solicitors:

E Bradley, Greymouth

Crown Solicitor’s Office, Christchurch