Whakaara v The Queen
[2012] NZHC 784
•24 April 2012
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2012-441-0007 [2012] NZHC 784
ANTHONY LEE TE WHAKAARA
Appellant
v
THE QUEEN
Respondent
Hearing: 24 April 2012
Counsel: RD Stone for Appellant
CR Walker for Respondent
Judgment: 24 April 2012
ORAL JUDGMENT OF TOOGOOD J
Solicitors:
RD Stone, Souness Stone Law Partnership, Hastings: [email protected]
CR Walker, Elvidge & Partners, Napier: [email protected]
TE WHAKAARA V R HC NAP CRI-2012-441-0007 [24 April 2012]
[1] Anthony Lee TeWhakaara has appealed against a sentence of 18 months’
imprisonment imposed upon him by Judge Adeane in the District Court at Napier on
9 February 2012, after pleading guilty to a charge of injuring with intent to cause grievous bodily harm. He was sentenced at the same time, to one month’s imprisonment, for breaching a community work order.
[2] The appeal was filed late but there has been no objection by the Crown to his being granted leave to appeal out of time.
Background
[3] The Judge described the facts as follows:[1]
[2] The facts of the matter are that the complainant is a doorman at a local bar. He is, in the course of his work, vulnerable accordingly. He had no prior association with the defendant. On the night in question, back in October [2011], Mr Te Whakaara was out drinking with his mates. He now tells the probation service that he had also consumed some P. They drove to Hastings. The defendant walked towards the bar. The complainant stopped him because of his unsatisfactory dress and told him that he could not come in. The defendant at that stage was wearing a singlet, apparently, but also steel-capped boots. He threatened the victim when he was barred entry, lunged at him, punched him to the head causing him to fall and punched him against after he had lost his balance. The defendant was pulled away by bystanders. He then stripped off his jacket and returned to the fray and stomped on the victim’s head. This result in abrasions to the man’s face, lacerations to his eye lid and bruising and also carried with it, obviously, the risk of more serious harm.
[1] R v Te Whakaara DC Napier, CRI-2011-020-3639, 9 February 2012, at [2]..
[4] As he was required to do by s 86B of the Sentencing Act 2002 (“the Act”), the Judge administered the first warning when he entered the appellant’s conviction of the Stage-1 offence of injuring with intent to cause grievous bodily harm.[2]
The District Court’s approach to the sentencing
[2] Sentencing Act 2002, s 86A
[5] In discussing the factors leading to his assessment of the appropriate sentence, the Judge noted that the appellant had no relevant previous convictions for violence and that he was “only” 25 years old. The Judge noted that it had been
recorded by the Probation Service that the appellant wished to make reparation and improve himself and that Mr TeWhakaara was remorseful.
[6] The Judge went on to say, however, that the appellant had two previous convictions for non-compliance with community-based sentences and that there was
$12,000 worth of reparation outstanding for which no arrangement for payment had been made. The Judge expressed the view that most sentencing judges in such circumstances would consider the appellant’s past actions would speak louder than his present words. He said:[3]
[6] You may well have some motivation at the moment to make the right noises and perhaps look like you are going to take yourself in hand and get some counselling, but as I say, your previous history had contradicted that.
[3] R v Te Whakaara DC Napier, CRI-2011-020-3639, 9 February 2012, at [6].
[7] These remarks were a reference to the contents of a favourable pre-sentence report which noted that the appellant had attempted to engage in a restorative justice programme (which was frustrated by the inability of the Probation Service to locate the victim); referred to the appellant’s alcohol dependence and voluntary engagement in alcohol abuse counselling; and recorded the view of the probation officer that the appellant presented as being “very remorseful”. The probation officer recommended home detention as an alternative to a custodial sentence and the accompanying reports noted that suitable arrangements for home detention were available. I shall return to these matters shortly.
[8] The Judge took a much less benign view than that of the probation officer. He said:[4]
[4] R v Te Whakaara DC Napier, CRI-2011-020-3639, 9 February 2012, at [7] and [8].
[7] This was a piece of street thuggery. The victim was vulnerable by virtue of his employment. It was a prolonged attack. You were dragged off by your own mates once and then went back in and did the worst of the assault with your boots to this man’s head and had to be dragged off again. In my view cases of this kind are not suitable for home detention, generally speaking, unless there are extraordinary circumstances; there are none in your case. Likewise, in my view, the circumstances will be rare where after administering a three-strike warning, the Court then goes on to impose a non-custodial sentence. That would be sending a message entirely contradictory to the one which had just previously been delivered.
[8] You are entitled to a substantial discount for your early guilty plea. In my view, the correct starting point for this offence could not be less than two years’ imprisonment. It is not home detention-suitable. Your sentence is deducted by six months to recognise your guilty plea and a sentence of
18 months’ imprisonment is imposed accordingly.
The submissions for the appellant
[9] Mr Stone argued for the appellant that the Judge erred in exercising his discretion whether to impose a sentence of home detention. He argued that the Judge did not make any reference to the appropriate purposes and principles of sentencing set out in ss 7 and 8 of the Act and, in particular, the Judge made no reference to the requirement in s 7(h) to consider assisting in rehabilitation of an offender, nor to s 8(g) which refers to the imposition of the least penalty appropriate in the circumstances. He submitted that, accordingly, the Judge had failed to follow
the approach required by the Court of Appeal in Manikpersadh v R.[5] In that case the
[5] Manikpersadh v R [2011] NZCA 452.
Court said:[6]
[6] At [14]-[16].
[14] We endorse the observations of William Young J in Vhavha[7]that in exercising the discretion whether to commute a sentence of imprisonment to home detention, those ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing judge.
[15] Section 7 deals with the purposes of sentencing. It includes deterrence, denunciation, accountability, promoting a sense of responsibility, providing for the interests of the victim and the protection of the community. However, it also includes assistance to an offender’s rehabilitation and reintegration.
[16] Section 8 of the Act requires the Court in sentencing to take into account those matters set out in subss (a) to (j). Those factors will be relevant in deciding whether a sentence of imprisonment initially is appropriate. They are also relevant in deciding whether or not, in a particular case, a sentence of home detention might be imposed. The s 8 factors include the gravity of the offending and culpability of the offender, the seriousness of the offence and victim impact. But s 8 also requires the Court to have regard to the least restrictive appropriate outcome, the offender’s personal circumstances including his personal and family background and relevant rehabilitation.
[7] R v Vhavha [2009] NZCA 588
[10] Mr Stone placed considerable emphasis on the evidence supporting the
appellant’s motivation to change, making particular reference to the view of the
addiction counsellor that the appellant appeared “really motivated to address his drinking” and that he seemed to be more aware of the effect of alcohol upon him and mature enough to do something about it. In the view of the counsellor, formed after the meeting with the appellant, the appellant’s attitude to change and motivation appeared really high. The probation officer reported that the appellant had been proactive in approaching his landlord about electronic monitoring and that, when this was declined, he made an application to Work and Income for work in Tokoroa as a second option for electronic monitoring.
[11] Mr Stone has confirmed today that the favourable arrangements for home detention set out in the pre-sentence report remain available, notwithstanding the passage of time.
[12] A matter not referred to by the District Court Judge was the support for the appellant provided by his employer who was in a position to assess the appellant as being “a reliable ... [hard-working] trustworthy, cheerful young gentleman.” Acknowledging that the appellant had done wrong, the employer expressed the hope that the appellant could continue his employment and look back on his mistake as a warning. It was suggested in the employer’s letter that imprisonment would be a backward step for the appellant and that he deserved leniency.
[13] Mr Stone referred me to the assessment of the probation officer that despite previous convictions for minor violence, dishonesty and breaching community based sentences, the appellant is not regarded as presenting a high risk of re-offending. However, I accept that, as Mr Walker pointed out, the assessment of the risk of re- offending as low was accompanied by the proviso that the appellant needed to address his alcohol issues and moderate his drinking, or preferably abstain altogether from consuming alcohol.
This Court’s approach on appeal
[14] The general approach to appeals against sentence is to treat them as an appeal against a discretion. It has been said that sentencing should not be approached afresh
on appeal and the orthodox and time-honoured approach to appeals against discretionary decisions remains in tact:[8]
[T]he Supreme Court intended to exclude appeals against the exercise of discretions from the approach enunciated in [Austin Nichols & Co Inc v Stichting Lodestar].[9] In those circumstances, the orthodox and time- honoured approach to appeals against discretionary decisions remains intact.
[8] D v Police [2008] BCL 954 at [39].
[9] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
[15] But as was said in R v Kingi:[10]
In the end ... it may not make much difference how the approach is characterised; an appellate court will interfere if satisfied that the lower court has erred in its approach and produced an outcome which falls outside the range of sentences, or the type of sentence, which was properly available.
[10] R v Kingi HC Auckland CRI-2011-404-255, 17 October 2011.
[16] Relevantly to this case, it was said in Manikpersadh (regarding appeals involving home detention) that:[11]
[11] At [12].
We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.
Discussion of case for imprisonment
[17] Quite properly, Mr Stone did not argue that the starting point of two years’ imprisonment adopted by the District Court Judge was inappropriate. This was a serious assault which, as the Judge observed, could have had far more serious consequences than those which actually followed. Because the victim could not be located, no victim impact statement was available to the District Court Judge and the injuries described were relatively minor.
[18] However, Mr Walker produced today a victim impact statement dated
24 April 2012 which appears to have become available when the victim was located after the sentence was imposed in the District Court. I am obliged to refer to it and
take into accounts its contents on appeal. The report indicates that the consequences
for the complainant were, in fact, significantly more serious than the District Court
Judge had appreciated on the basis of the information which was then before him.
[19] The victim says that he is currently on ACC as a result of the injury he received in the appellant’s assault, and it is not known when he will return to work. He is receiving ongoing treatment from a specialist and will continue to see him on a three monthly basis. He says that his physical condition has continued to deteriorate and it was discovered some two-and-a-half months after the assault that he had in fact suffered a crushed disc in his neck or back and this led to pressure being put on his spinal cord. He was required to have immediate spinal surgery in Wellington Hospital and was in hospital for four days. He is still suffering physical effects from the damage to his spine which occurred. The victim goes on to say that he went from being a capable, confident and physical person to being dependent on others and unable to undertake even simple physical tasks. He has also suffered a degree of depression. He talks about having an uncertain future and the fact that he is now receiving only 80 percent of his previous income with considerable disruption to his family.
[20] Taking into account those considerations I agree with the Judge’s view that a term of 18 months’ imprisonment was available to the Court, after taking account of the guilty plea and giving appropriate credit for it.
Home detention
[21] Section 15A of the Sentencing Act 2002 permits the court to impose a sentence of home detention not exceeding 12 months where two statutory criteria are met. First,
(a) the Court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and second
(b)the Court would otherwise sentence the offender to a short-term sentence of imprisonment (two years or less).
[22] Once the administrative criteria in s 80A(2)(a) of the Sentencing Act 2002 are met, there is a discretion whether to impose home detention. That discretion must be exercised in accordance with the principles in ss 7, 8 and 9 of the Sentencing Act.
[23] R v Hill[12] is an example of a successful appeal against the refusal to grant home detention. That case, which predated Manikpersadh, involved a charge of possession of methamphetamine for supply. The sentence of two years three months’ was quashed and replaced with a sentence of 12 months’ home detention and 200 hours community work.
[12] R v Hill [2008] NZCA 41.
[24] The relevant principles emerging from Hill regarding home detention are:
(a) home detention is intended to be a mechanism to reduce the number of people sentenced to imprisonment (at [32]);
(b)home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than imprisonment; for example, low rates of re-conviction and re-imprisonment, high compliance rates, positive support for offender’s reintegration and rehabilitation (at [33]);
(c) home detention must be imposed in a way consistent with the purposes and principles of the Sentencing Act (at [34]);
(d) sentences should not be “tailored” to enable offenders to have the
benefit of the home detention option (at [35]);
(e) in determining whether there is jurisdiction to impose home detention under s15A(1)(b) (that is, whether the judge would otherwise impose a “short-term sentence”) the relevant figure is the end sentence rather
than the starting point (at [36]); and
(f) most significantly in this case, there is the proposition that home detention should be considered where an offender is motivated to change and where there is a realistic prospect that he or she will be able to change (at [37]).
Submissions on behalf of the Crown
[25] For the Crown, Mr Walker argued that the offending amounted to an appalling piece of alcohol-fuelled thuggery. He submitted it is the type of offence which requires a stern response from the courts with deterrence and denunciation to the fore. So far as the appellant’s personal circumstances are concerned, he submitted that Mr Te Whakaara is not youthful and pointed to his list of previous convictions. He particularly referred to the fact that there was no evidence before the Court of his having made any progress towards rehabilitation, and he reinforced in his oral submissions his support for the Judge’s view, in effect, that Mr Te Whakaara had merely expressed an interest in reforming – particularly so far as his drinking was concerned – because he was facing sentence by the Court on a very serious charge.
Discussion
[26] Notwithstanding Mr Walker’s submissions, I am satisfied that the Judge erred in his approach to sentencing in this case.
[27] First, I do not agree with the Judge’s proposition, quoted above at [8], that “the circumstances will be rare where after administering a three-strike warning, the Court then goes on to impose a non-custodial sentence.” While it may be true that, on statistical analysis in hindsight, a low proportion of offences which require a first warning because of their seriousness would result in home detention, the suggestion that conviction of a strike-eligible offence in itself counts against home detention is inconsistent with the legislative scheme. While a warning will be required following a first strike offence, the sentencing process for the offence is to be conducted in the usual manner, by reference particularly to the principles in ss 7 and 8 of the Act. This may be compared with the approach when the offender is sentenced for a
second or third strike offence where the Act requires that the full sentence must be served and that maximum sentences must be imposed, respectively.
[28] The fact that the offence was one which engaged the three-strike regime did not itself count against consideration of home detention as a proper outcome. The seriousness of the offence in comparison with other offences was one principle which the Court was required to take into account under s 8(b) of the Act, but it is the maximum penalty of ten years’ imprisonment for injuring with intent to cause grievous bodily harm which is the relevant feature, rather than the mere fact that the offence is included in the three-strikes regime.
[29] Second, the requirement to issue a three-strikes warning does not help the Court to assess the seriousness of the offence in relation to other offending of that kind; that is, in assessing the gravity of the offending in the particular case as required by s 8(a). The adoption of a two-year starting point by the Judge, for an offence which attracts a maximum penalty of ten years’ imprisonment, reflects that this was offending which would not be placed towards the high end of the grievous bodily harm spectrum. It is that assessment of the starting point which indicates the relative seriousness of the offending.
[30] As the cases refer to demonstrate, when deciding whether the Court’s discretion should be exercised in favour of home detention, a Judge is required to consider all of the circumstances of the offender and the offending, and all of the applicable purposes and principles contained in the Act. By focusing almost exclusively on the seriousness of the offending and the appellant’s record of failing to comply with community-based sentences, the Judge erred in his approach.
[31] Bearing in mind the considerations discussed in relation to R v Hill, the following matters weigh in favour of an order for home detention in this case:
(a) this was the appellant’s first conviction for serious violence; (b) the appellant had not offended since 2007;
(c) the appellant’s non-compliance with community-based sentences dated from 2007;
(d)although some $12,000 in reparation payments remained unsatisfied, the appellant had reduced the amount outstanding by some $3,000;
(e) at 25 years of age, the appellant was still a relatively young man;
(f) the appellant was assessed as presenting a low risk of reoffending; and
(g)the appellant had succeeded in obtaining employment and impressing his employer as someone worthy of leniency and encouragement in rehabilitation.
[32] Importantly, I take a less sceptical view than that of the District Court Judge as to the appellant’s expressions of remorse and motivation for change. It is reasonable to assume that the taste of imprisonment which the appellant has had pending the hearing of his appeal will reinforce the appellant’s motivation to address his problems with alcohol and to rehabilitate himself. I do not think a continuing period of imprisonment will encourage him in that; on the contrary, it is likely to have a negative effect on his prospects.
[33] I am satisfied that the interests of justice will be served by substituting the sentence of imprisonment for one of home detention. A period of nine months home detention is the rough equivalent of the 18-month sentence of imprisonment imposed by the District Court, and it is necessary to take into account also that the appellant has served two-and-a-half months of his sentence.
Decision
[34] The appellant is granted leave to appeal out of time.
[35] The appeal is allowed and the sentence of imprisonment on the charge of injuring with intent to cause grievous bodily harm is quashed.
[36] On that charge, the appellant is sentenced to home detention, to commence on
Monday 30 April 2012, for a period of six months.
[37] The appellant will be subject to the following special conditions:
(a) He is to reside at 2 Marlborough Place, Tokoroa and not to move from that address without the prior written approval of the probation officer.
(b)He is to undertake and complete an appropriate addiction programme to the satisfaction of his probation officer and programme provider. Details of the programme are to be determined by the probation officer.
(c) The appellant is to abstain from the consumption and possession of alcohol and illicit drugs for the duration of his sentence of home detention.
[38] There will also be a post-detention condition that the appellant shall undertake and complete an appropriate addiction programme to the satisfaction of his probation officer and programme provider, details of the programme to be determined by the probation officer.
Note
[39] The appellant is encouraged to see this result for what it is; namely, the expression by the Court of its confidence that the supportive views of his former employer, his addiction counsellor and his probation officer are not misplaced and that he is genuinely motivated to use his conviction on this serious offending as a turning point in his life. The appellant is plainly someone who has the ability to make something of his life and he is now encouraged to do so. If the confidence
shown in the appellant is proved to be mistaken, by re-offending, he cannot expect any further leniency from the courts.
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Toogood J
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