William v Police
[2017] NZHC 816
•28 April 2017
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2017-404-000109
[2017] NZHC 816
IN THE MATTER OF an appeal against sentence BETWEEN
PAPA WILLIAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 April 2017 Counsel:
I M Stewart for the Appellant S R Norrie for the Respondent
Judgment:
28 April 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 28 April 2017 at 10.45 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Ministry of Justice (Public Defence Service), Auckland Kayes Fletcher Walker Limited, Auckland
WILLIAM v POLICE [2017] NZHC 816 [28 April 2017]
Introduction
[1] Mr William pleaded guilty to four drug-related charges, unlawful possession of a pistol, and driving while forbidden. He accepted a sentencing indication, and was sentenced to two years’ imprisonment on 9 March 2017.1
[2] Mr William appeals the sentence on the grounds that the Judge erred in failing to consider time spent on EM bail, failing to provide a discrete discount for rehabilitation, and in determining that imprisonment, rather than home detention, was the least restrictive outcome.
The offending
[3] Following a sentence indication on 13 December 2016,2 Mr William pleaded guilty to the following charges:
(a)Possession of methamphetamine for the purposes of supply;3
(b)Unlawful possession of a pistol;4
(c)Possession of a utensil for the consumption of methamphetamine;5
(d)Driving while forbidden;6
(e)Possession of methamphetamine;7 and
(f)Possession of cannabis.8
1 R v William [2017] NZDC 4925.
2 Police v William Auckland HC CRI-2016-092-009035, 13 December 2016.
3 Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty of life imprisonment .
4 Arms Act 1983, s 50(1)(a); maximum penalty of three years’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(a); maximum penalty of one year’s imprisonment or a $500 fine.
6 Land Transport Act 1998, ss 51 and 113(2)(e); maximum penalty of six months’ imprisonment or a $1,000 fine.
7 Misuse of Drugs Act 1975, s 7; maximum penalty of six months’ imprisonment or a $1,000 fine.
8 Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty of three months’ imprisonment or a $500 fine.
[4] The charges relate to two separate sets of offending. The first set of offending occurred on 1 March 2016. Mr William was found by Police leaning against a vehicle. He unsuccessfully attempted to conceal a brown pill container which fell out of his pocket. It was found to contain four point bags of methamphetamine totalling 0.8 grams. On further search, the Police found 0.22 grams of cannabis wrapped in tinfoil in Mr William’s wallet. Mr William was granted bail, and pleaded guilty to his offending on 29 April 2016.
[5] The second set of offending occurred on 10 August 2016, while Mr William was on bail and awaiting sentencing on the first set of offending. Mr William was stopped by Police in Mangere while driving a vehicle without a licence. He had previously been warned about driving while forbidden.
[6] The Police observed a knife in the driver’s foot well. On a further search, the Police found a cut-down .22 calibre semi-automatic pistol in Mr William’s shoulder bag. The gun was loaded with a magazine containing nine live rounds. A further five grams of methamphetamine was found in a number of bags, together with two sets of electronic scales, and a pipe used to smoke methamphetamine.
[7] Mr William was released on EM bail on 29 August 2016, and remained on bail until sentence on 9 March 2017, a period of approximately six months. The terms of his bail required him to remain at the EM bail address at all times unless attending certain specified appointments. There was full compliance with the terms of EM bail.
Personal circumstances
[8] Mr William was 19 years of age at the time of the first set of offending, and 20 years of age by the time of the second set of offending. Mr William has a job seeker benefit and hopes to secure employment in carpentry.
[9] He and his partner have been together for four years and they have a one year old daughter together. The pre-sentence report records Mr William’s partner as being pro-social and willing to support Mr William.
[10] The pre-sentence report recorded Mr William’s impulsive and senseless behaviour, offending-supportive associates, unhealthy lifestyle balance and affiliation with drugs to be core factors underpinning his offending.
[11] Mr William was described as being “smug and amused” when relaying the circumstances of his offending, and as showing no remorse. This attitude contributed to an assessment of him as being at high risk of future offending, and to the recommendation of imprisonment as the appropriate sentence.
[12] The pre-sentence report also noted that Mr William had completed a course in carpentry and hoped to secure future employment in that field. He also told the report writer that he had begun using cannabis at the age of 16 years and became introduced to methamphetamine in 2016 by his cousins. He used methamphetamine every day when he was with them. The report records Mr William as being motivated to undergo the necessary counselling.
District Court decision
[13] On 13 December 2016, the District Court Judge gave the appellant a sentence indication in respect of all of his charges.
[14] The Judge indicated he would adopt a starting point of two and a half years’ (26 months’) imprisonment, taking the lead charge of possession of methamphetamine for supply. He indicated he would then uplift this by 12 months to account for the possession of the pistol, pipe and the drug offending from March 2016. From this he would apply discounts of four months for youth, three months for lack of previous convictions, and a 25 percent discount if a guilty plea was entered. This would take the end sentence to 26 months.
[15] The Judge said that to get to a community-based sentence, Mr William would need to reduce the sentence down to two years, and the prospect of that happening would depend on the pre-sentence report.
[16] Mr William accepted that sentence indication, and appeared for sentence on 9 March 2017. The Judge noted two developments since the sentencing indication.
First, the Judge acknowledged that he was mistaken in his sentencing indication in saying that Mr William was 21 rather than 20 at the time of the later offending. Second, the Judge referred to the pre-sentence report noting that it described Mr William as “smug and amused” when relaying the circumstances of his offending, and as showing no remorse for his actions.
[17] Nonetheless, the Judge said that he was “prepared to take into account the new material and new information” so as to reduce the end sentence down to 24 months’ imprisonment.9
[18] The Judge then turned his mind to home detention. While noting that this alternative was now available because the sentence was under 24 months’ imprisonment, the Judge considered that home detention did not “satisfactorily deal with holding you accountable for your conduct and to deter you and others from acting this way in the future”.
[19] A sentence of 24 months’ imprisonment was imposed on the lead charge. For the charge of driving while forbidden Mr William was convicted and discharged. The Judge imposed a concurrent sentence of three months for the remainder of the charges.
Approach to appeal
[20] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
9 At [5] the Judge says that this enables him to reduce the starting point to 24 months, however it is clear from the next paragraph that he means to refer to the end sentence.
[21] In any other case, the Court must dismiss the appeal.10 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.11
Grounds of appeal
[22]Mr William appeals the sentence on the grounds that the Judge erred in law by:
(a)Not allowing a discrete discount from the starting point to reflect the time (just over six months) that the appellant spent on restrictive EM bail;
(b)Giving insufficient weight to Mr William’s prospects for rehabilitation; and
(c)Imposing a sentence of imprisonment when the least restrictive outcome appropriate in the circumstances was home detention.
[23]Each of these grounds is considered below.
Failure to take into account EM bail
[24] Mr William submits that the Judge erred by failing to take into account the six months he spent on EM bail as required by s 9(2)(h) of the Sentencing Act 2002. Mr William submits that the following factors weigh in favour of a discount:
(a)Mr William was on EM bail for approximately six months, a significant period for a 20 year old.
(b)The level of restrictiveness in the EM bail conditions was comparable with a sentence of home detention.
(c)By all accounts, Mr William complied with his EM bail conditions. While he spent a short period in custody whilst an alternative EM bail
10 Criminal Procedure Act 2011, s 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
address was found, the Crown accepts that this was not due to a bail breach and Mr William was otherwise compliant.
[25] As the Crown accepts, I consider that time spent on EM bail should have been taken into account in determining the appropriate sentence. The Sentencing Act requires specific consideration of this factor, and the failure to take it into account could lead to a manifestly excessive sentence.
[26] Crown counsel submits that in this case the omission does not render the sentence manifestly excessive as any discount for EM bail would be offset by an uplift greater than the 12 months adopted by the Judge for the balance of the offending, and a further uplift to reflect the fact that Mr William was on bail and awaiting sentence at the time of the August offending.
[27] I do not agree with the Crown that a greater uplift was available for the balance of the offending. The possession of the loaded pistol is a matter of real concern, but the seriousness of that offending was captured in the 12 month uplift applied by the Judge.
[28] I accept that a further uplift was available to reflect the fact that the second set of offending was committed whilst on bail. But, taking into account totality principles, I consider only a small uplift (approximately one month) would have been appropriate.
[29] There is no arithmetical formula by which credit for time spent on EM bail is to be calculated. What is required is an evaluative assessment of all the circumstances. Taking into account the factors raised by Mr William (which are not disputed by the Crown), and the uplift that would otherwise have been available for the offending whilst on bail, I consider a discount of three months for the time spent on EM bail would be appropriate.
[30] Taking the starting point adopted by the Judge (two years, six months), and applying the uplifts (12 months), and discounts (four months for youth, three months for lack of previous convictions, and two months for additional personal mitigating factors) applied by the Judge, and applying a further discount of three months for time
spent on EM bail results in a sentence of 30 months prior to the discount for the guilty plea. Applying the 25 per cent discount for the guilty plea results in an end sentence of 22 months’ imprisonment.
Rehabilitation and remorse
[31] Mr William submits that the Judge erred by not providing a greater discount for the prospects of rehabilitation.
[32] I accept the appellant’s submission that Mr William’s “smug and amused” attitude may well be indicative of Mr William’s relative youth and immaturity. Those remarks rather overshadow the other observations in the pre-sentence report (for example good family support, pro-social partner, and the motivation to attend necessary counselling) which tend to indicate that Mr William has good rehabilitative prospects. Viewed in their proper context, Mr William’s poor attitude may not genuinely reflect his realistic prospects for rehabilitation.
[33] All those factors are relevant to the issue of home detention (considered next). In terms of specific discount for rehabilitation and remorse, however, I do not consider that the Judge erred. The Judge applied a discount of two months from the sentencing indication of 26 months. That appears to have been offered for personal mitigating factors in addition to the youth discount of four months. In my view, that was an adequate discount in all the circumstances.
Home detention
[34] Mr William submits that the Judge erred by failing to commute the sentence of imprisonment to one of home detention.
[35] In R v Hill, the Court of Appeal made a number of points in relation to the sentence of home detention for methamphetamine related offending.12 One of those points was the importance of not overlooking the presumption of imprisonment for
12 R v Hill [2008] 2 NZLR 381, (2008) 23 CRNZ 744 (CA).
cases involving Class A offending in s 6(4) of the Misuse of Drugs Act 1975.13 I do not overlook that presumption in this case.
[36] The Court went on to note that rehabilitative considerations were important in determining whether to sentence to home detention.14 The Court said:
Cases involving the supply of methamphetamine vary greatly – from sophisticated, large-scale commercial operations undertaken by persons whose motivation is financial, to cases involving addicts who deal in a small way to friends or acquaintances essentially as a by-product of their own use and involvement in the drug sub-culture. End sentences that meet the definition of “short-term sentence” for the purpose of s 15A are only likely to be imposed in cases at the lower end of the spectrum. (The same is true for the purposes of s 57.) In this type of case, we consider that a sentencing judge may properly give significant, even decisive, weight to the prospects for rehabilitation. This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.
[37] The rehabilitative prospects of the defendant persuaded Dobson J to impose a sentence of home detention in R v Matiaha-Smith.15 In that case, the defendant had a prior criminal history and the pre-sentence report recorded him as having a moderate motivation to lead an offence free lifestyle. However, a drug and alcohol assessment put that drug offending in context, and the Court had reference to the defendant’s employment, positive relationship with a grandparent, and compliance with a previous home detention sentence, in deciding to impose a sentence of home detention.
[38] In R v Peacock, the defendant’s comparative youth, supportive family and friends, remorse, a “developing insight” into offending related behaviours and a willingness to take steps to free himself of an addiction to methamphetamine lead to a sentence of home detention.16
[39] The Judge’s sentencing notes in this case do not refer to Mr William’s rehabilitative prospects or his personal circumstances in considering whether to impose a sentence of home detention. Rather, the Judge focused on accountability and
13 At [26] and [38].
14 At [37] and [39]–[40].
15 R v Matiaha-Smith HC Wellington CRI-2008-035-1764, 27 March 2009 at [22].
16 R v Peacock HC Tauranga CRI-2007-070-008286, 12 March 2008 at [13].
deterrence. That narrow focus led the Judge into error in my view, and a fresh look at whether home detention is an appropriate sentence is required.
[40] I accept that the pre-sentence report remarks about Mr William’s poor attitude tend to suggest low prospects of rehabilitation. No doubt this is why imprisonment was recommended as an appropriate sentence. Such an attitude is concerning, but, as I have already observed, viewed in the context of a young, first time offender, his remarks may be reflective of a boastful immaturity, rather than any true indicator of rehabilitative prospects.
[41] Other features of Mr William’s personal circumstances paint a more positive picture. These include Mr William’s:
(a)young age (19 years at the time of the first offending);
(b)relatively recent and short term involvement with methamphetamine;
(c)acknowledgement that he only used the drug when with his cousins, which reveals a degree of insight into his offending;
(d)lack of prior convictions and previous good character;
(e)pro-social support, including from his partner and family;
(f)employment prospects, given the completion of his carpentry certificate, and his desire to work in that field;
(g)stated motivation to undertake the necessary counselling;
(h)compliance with EM bail for a period of 6 months.
[42] In my view, all of those factors taken together point towards home detention as being the least restrictive sentence. Such a sentence extends a real opportunity to Mr William to get his life back on track, to break his addiction, and to engage in a meaningful way in society.
[43] The pre-sentence report noted that the proposed home detention address was suitable for electronic monitoring, and the occupants were also assessed as being suitable. It is the same address to which Mr William was EM bailed.
[44] Taking into account the discount for time spent on EM bail, the end sentence I have reached is 22 months’ imprisonment. That would equate to a home detention sentence of 11 months. However, Mr William has been in custody since 9 March 2017 (approximately seven weeks). Adjusting for that factor, I consider a sentence of 10 months’ home detention would be appropriate in all the circumstances.
[45] The sentence I intend to impose will be subject to strict conditions which will underscore the rehabilitative purpose behind the home detention sentence.
Result
[46] The appeal is allowed. The sentence of 24 months’ imprisonment is quashed and replaced with a sentence of 10 months’ home detention.
[47] Mr William is to serve his home detention sentence at the address specified in the pre-sentence report. The standard conditions shall apply, together with the following special conditions:
(a)Mr William shall submit to electronic monitoring and on release from custody travel by the most direct route to the address specified in the pre-sentence report and there await the arrival of the probation officer and a representative of the electronic monitoring company.
(b)Mr William shall not possess, consume or use any alcohol or drugs.
(c)Mr William shall attend an assessment for a drug/alcohol programme as directed by a probation officer.
(d)Mr William shall attend and complete any counselling, treatment or programme recommended by a probation officer to the satisfaction of a probation officer.
(e)Mr William shall notify a probation officer prior to commencing, terminating or varying any employment or voluntary work.
Edwards J
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