White v Police HC Napier CRI 2010-441-51
[2010] NZHC 2290
•16 December 2010
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2010-441-000051
JOSEPHINE AL-JUNE MAREE WHITE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 14 December 2010
Counsel: M J Phelps for Appellant
J E Rielly for Respondent
Judgment: 16 December 2010 10:00:00
In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10am on the 16th day of December 2010.
RESERVED JUDGMENT OF MACKENZIE J
[1] This is an appeal against a refusal by the District Court to cancel a sentence of imprisonment and substitute a sentence of home detention. The appellant appeals on the grounds that the Judge erred in law by dismissing the application for cancellation and that the Judge was wrong in law and in principle by failing to substitute a sentence of home detention once the requirements of s 80A(2) of the Sentencing Act 2002 had been satisfied.
[2] The appellant was sentenced by Judge Adeane on 10 August 2010 to a sentence of 18 months imprisonment following a plea of guilty to a charge of assault
WHITE V NEW ZEALAND POLICE HC NAP CRI-2010-441-000051 16 December 2010
with intent to injure. The appellant and a co-accused had participated in a severe beating of their flatmate including repeated kicks to the victim’s head. They both pleaded guilty and were remanded for sentence on 20 July 2010. When they appeared on that day, sentencing was adjourned so that the co-accused, who was a first offender, could find a suitable address for a possible sentence of home detention. In a minute issued on that day, the Judge addressed the appellant’s position in these terms:
[3] The maximum penalty is one of three years imprisonment and imprisonment is recommended by the Probation Service for both defendants. There is only one other glaring relevant fact and that is that in the case of Ms White, she was in 2004 convicted of a charge of injuring with an intent to injure and sentenced to 12 months imprisonment. Any recommendation short of a full-time custodial one would be quite inappropriate insofar as she is concerned.
[3] Both offenders were remanded for sentencing on 10 August, the appellant in custody and the co-offender on bail. In sentencing on 10 August 2010, Judge Adeane adopted a starting point of two years imprisonment for both offenders. He allowed a reduction of 50 per cent for the co-offender’s guilty plea and previous good character. She was sentenced to 12 months imprisonment. The Judge, in reaching that sentence, had said that he did not believe that any further adjournment for home detention enquiries would be justified. The appellant was allowed a discount of one third for her guilty plea and was sentenced to 18 months imprisonment. No reference was made to the possibility of home detention.
[4] The co-offender appealed against her sentence on the ground that it was manifestly excessive. On 18 August 2010, Miller J dismissed the appeal, but concluded that she should have an opportunity to seek home detention if she could find a suitable address. He granted leave to apply for cancellation of her sentence and substitution of home detention under s 80K of the Sentencing Act.
[5] The appellant then appealed against her sentence, on the ground that she too ought to have been granted leave to substitute a sentence of home detention. On
7 September 2010, Mallon J allowed the appeal and granted leave pursuant to s 80K. It is apparent that Mallon J did not have before her the Judge’s minute of 20 July, because in her judgment she said ―the file does not record the reasons for the remand
in custody‖. Neither counsel appearing on the appeal had appeared at first instance. Mallon J approached the question of home detention for the appellant in these terms:
[6] Submissions for Ms White, prepared for the sentencing originally scheduled for 20 July 2010, advanced the position that a sentence of home detention was appropriate. Because she had lost the home detention address by the time of sentencing on 10 August 2010 the focus of submissions for her was on the grant of leave to substitute her sentence with one of home detention if a suitable address could be found. Leave was required to be granted if the Judge considered that home detention would have been appropriate but no suitable home detention address was available. The Judge did not discuss the appropriateness of home detention for Ms White and gave no reasons why he was not prepared to grant leave. In the absence of any express consideration of home detention for Ms White and any reasons for rejecting that as appropriate, counsel are agreed that I can consider the matter afresh.
[6] She then analysed and discussed the circumstances and said:
[10] In light of all of these factors I consider that home detention was appropriate. Ms White has rehabilitation prospects and home detention will better serve those prospects, while also serving the need to deter and denounce the offending. I therefore consider that leave should have been granted for Ms White to apply to substitute her sentence to home detention if a suitable address can be found. I grant leave accordingly.
[7] The appellant then obtained a suitable address and applied for the substitution of a sentence of home detention. That application was heard by Judge Adeane on
19 November 2010. The Judge outlined the history of the two applications by the appellant and the co-offender. He noted the comments of Mallon J to which I have referred and said:
[7] Regrettably, perhaps because neither counsel appearing on Ms White’s appeal had appeared at first instance, Her Honour was not informed that certain reasons had been stated at the time Ms White was remanded in custody. Those reasons were equally applicable to the question of bail and also to the ultimate question of home detention.
[8] The Judge then said:
[11] At that time it must have been tolerably clear to Ms White from what she was told, in contrast with Ms Brown for whose benefit sentencing was adjourned, that a full-time custodial sentence was inevitable in her case and that anything less would be considered
inappropriate by reason of her previous violence convictions and the propensity thereby shown.
[12] Those views, coupled with the statutory requirement in s 13 of the Sentencing Act led to the revocation of bail and her remand in custody pending the imposition of what appeared to be the only proper sentence.
[13] I am conscious of what appear to be obiter comments of Her Honour concerning the merits and demerits of home detention for Ms White but it seems to me that that was not the focus of the enquiry before the High Court in Ms White’s appeal. The enquiry was concerned, in my view, only with leave and that enquiry had begun on the basis of a mistaken conclusion that such matters had not received the expressed consideration of this Court.
[9] The Judge noted counsel for the appellant’s submission that once matters had reached the stage where leave to seek home detention had been reserved that the applicant thereafter need only satisfy the mechanical requirements of the sentence and that the Court no longer enjoys the discretion which it had at the sentencing to consider whether in all the broad circumstances of the offending home detention is appropriate or otherwise. He said:
[18] I am conscious of certain views expressed in the High Court but I do not consider myself entitled to abrogate my own responsibilities concerning sentencing in these circumstances. It may be that Ms White has expressed some preliminary willingness to address her alcohol and anger issues but those are commonplace pre-sentence sentiments which experience teaches can soon evaporate.
[19] Ms White’s sincerity, in my view, stands to be tested against her
2004 sentence of imprisonment for serious violence and her subsequent conviction for assault – both followed by her
involvement in this vicious attack on the complainant.
[20] Juxtaposing her interests with the safety of the community, which in my view I remain obliged to do, leads to a result where conclusively the decision must go against Ms White. I am not prepared to grant home detention to her given the whole of the circumstances of her offending and including her personal circumstances.
[10] The appellant’s submission is that, leave to apply to substitute a sentence having been granted under s 80I, the Judge was obliged to substitute a sentence of home detention if the pre-conditions in s 80A(2) were satisfied. The appellant submits that the Judge considering the application for substitution did not have the discretion to consider afresh whether imprisonment or home detention is the more appropriate sentence.
[11] Section 80I provides:
Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1) This section applies if—
(a) a court has sentenced an offender to a short-term sentence of imprisonment; and
(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[12] Section 80K provides:
Application for cancellation of sentence of imprisonment and substitution of sentence of home detention
(1) An offender who is subject to a short-term sentence of imprisonment and who has leave to apply for cancellation of a sentence of imprisonment and substitution of a sentence of home detention under section 80I may apply to the court at any time.
(2) An application must be served as soon as practicable on the chief executive of the Department of Corrections.
(3) An application must be accompanied by a pre-sentence report updated in accordance with section 80L.
(4) On application under subsection (1), the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention.
(5) A sentence of home detention substituted under subsection (4) may be for any period the court thinks fit, but must not be less than 14 days or more than 12 months.
(6) When substituting a sentence of home detention, the court must take into account the portion of the original sentence that remains unserved at the time of the order.
(7) If the court does not substitute a sentence of home detention, the court—
(a) must reconsider the issue of leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention; and
(b) may make a further order granting the offender leave to apply to the court at any time for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.
(8) A sentence of imprisonment that is cancelled under this section is a custodial sentence for the purposes of any other enactment.
[13] Section 80A(2) provides:
A court may sentence an offender to home detention under subsection (1)
if—
(a) the court is satisfied that—
(i) the proposed home detention residence is suitable; and
(ii) the relevant occupants (as defined in section 26A(4)) of the proposed home detention residence—
(A) understand the conditions of home detention that will apply to the offender; and
(B) consent to the offender serving the sentence in the residence in accordance with those conditions; and
(C) have been informed that they may withdraw their consent to the offender serving the sentence in the residence at any time; and
(iii) the offender has been made aware of and understands the conditions that will apply during home detention, and he or she agrees to comply with them; and
(b) the proposed home detention residence is in an area in which a home detention scheme is operated by the chief executive of the Department of Corrections.
[14] It is clear that the Court, in granting leave to apply under s 80I, must have reached the point that a sentence of home detention would have been imposed in preference to a short period of imprisonment, if a suitable residence had been available.
[15] That decision is to be made by the original sentencing Court. In this case, that decision was made by Mallon J in her decision on the appeal against the original sentence. Her grant of leave necessarily means that she had accepted that home detention was the appropriate sentence for the appellant, rather than a short term
sentence of imprisonment. Para [10] of Mallon J’s decision makes it clear that that
was the approach that she adopted.
[16] Under s 80K(4) the Court may, if satisfied of the matters in s 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention. I consider that the use of the word ―may‖ does not indicate that the Judge considering the application should exercise afresh a sentencing discretion, so that the Judge has power, where the Judge is satisfied of the matters in s 80A(2), nevertheless to decline to substitute a sentence of home detention. The sentencing decision as to whether home detention is, in principle, the proper sentence is made by the Judge who grants leave under s 80I. The task of the Judge dealing with an application under s 80K is to determine whether the matters in s 80A(2) are satisfied. If they are not satisfied, then the sentence will not be substituted. If those matters are satisfied, then the statutory scheme is such that the decision as to home detention made by the sentencing Judge under s 80I must be given effect. The question whether home detention is in principle the appropriate sentence, decided at the s 80I stage, is not, under the statutory scheme, to be reconsidered at the s 80K stage.
[17] That statement of principle would ordinarily be sufficient to determine this appeal. In this case, however, a further question arises. That is whether the fact that the minute of 20 July had not been available to Mallon J means that the ordinary position, which I have just described, does not apply.
[18] It is clear from Mallon J’s judgment that, with the agreement of counsel, she approached the sentencing exercise afresh. Whether she would have done so had she been aware of the terms of the minute of 20 July could be a matter only of speculation. Her decision must be given effect. The correctness of that decision could be challenged only by a further appeal, or by an application to the Judge to recall her decision. The fact that Mallon J may not have been fully aware of Judge Adeane’s original reasons for considering that a sentence of home detention was not an available sentencing option does not invalidate her decision, reached after considering the matter afresh, that home detention was appropriate. Nor does that fact extend the extent of the discretion available to the Judge in considering the application under s 80K. Mallon J’s decision was binding on Judge Adeane. Her
conclusions in [10] were not obiter dicta. The position is as set out in paragraph 13 of the submissions of counsel for the respondent:
If the Court finds that Her Honour Justice Mallon in coming to her decision on appeal against sentence on 7 September 2010 conducted a rehearing in respect of sentencing and imposed an alternative sentence on the appellant that was only provisional on the District Court assessing the considerations of s 80A(2) Sentencing Act 2002 (which were clearly on any assessment met), this appeal should be allowed and a substituted sentence of home detention should be imposed. The term of such a sentence should be as submitted by counsel for the appellant.
[19] A Home Detention Resentencing Report dated 15 November 2010 had been obtained. On the basis of that report, the matters in s 80A(2) are satisfied. That makes that outcome suggested by counsel for the respondent, in the light of my findings, appropriate.
[20] The result is that the appeal is allowed. A sentence of home detention is substituted, for a term of four months, upon the conditions set out in the Home Detention Resentencing Report dated 15 November 2010. The standard post detention conditions, and the special conditions set out in that report shall also apply, for a period of six months from the detention end date.
“A D MacKenzie J”
Solicitors: A J S Snell, Barrister, Hastings, for Appellant
Elvidge & Partners, Napier, for Respondent
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