Willoughby v Police

[2021] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000254

[2021] NZHC 1740

BETWEEN

KRISTOPHER OWEN GLEN WILLOUGHBY
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

12 July 2021

Appearances:

J Liu for Appellant

C Purdon for Respondent

Judgment:

12 July 2021

JUDGMENT OF WOOLFORD J

Solicitors:           Public Defence Service (J Liu), Henderson

Meredith Connell (Office of the Crown Solicitor), Auckland

WILLOUGHBY v NEW ZEALAND POLICE [2021] NZHC 1740 [12 July 2021]

[1]                  On 18 May 2021, Kristopher Owen Glen Willoughby was sentenced to a total of 15 months’ imprisonment on the following charges:1

7 October 2020	Breach of release conditions – failing to report within 72 hours of release	Six months’ imprisonment
14 October 2020	Driving while disqualified (3rd or subsequent)	15 months’ imprisonment plus release conditions
4 November 2020	Driving while disqualified (3rd or subsequent)	15 months’ imprisonment plus release conditions
3 December 2020	Failing to answer District Court bail	Six months’ imprisonment
18 November 2020	Unlawfully getting into motor vehicle	15 months’ imprisonment plus release conditions
18 November 2020	Careless use of motor vehicle	Convicted and discharged
18 November 2020	Driving while disqualified (3rd or subsequent)	15 months’ imprisonment plus release conditions
1 March 2021	Unlawfully getting into a motor vehicle	15 months’ imprisonment plus release conditions
8 March 2021	Unlawfully getting into a motor vehicle	15 months’ imprisonment plus release conditions

[2]                  The Judge declined a request from Mr Willoughby to commute the sentences of imprisonment into a sentence of home detention.   The Judge also disqualified   Mr Willoughby from driving for 12 months on each of the disqualified driving charges. Finally, she also remitted Mr Willoughby’s fines.

[3]                  Mr Willoughby now appeals just against the Judge’s refusal to commute the sentences of imprisonment into a sentence of home detention.

District Court decision

[4]                  After setting out the charges to which Mr Willoughby had pleaded guilty, the Judge acknowledged Mr Willoughby’s courage in talking about his traumatic childhood experiences to the Royal Commission of Inquiry. The Judge also acknowledged the submissions made on Mr Willoughby’s behalf that he wanted to live a different life from the one that he had been living and that he had support of a pro- social friend, who had come to Court that day to evidence her support. The Judge

1      NZ Police v Willoughby [2021] NZDC 9464.

noted that she had offered Mr Willoughby an assessment for the Alcohol and Other Drug Treatment Court, which he had declined. The Judge acknowledged, however, that Mr Willoughby planned to deal with the issues himself and wished him the very best of luck because they were very challenging issues.

[5]                  On the other hand, the Judge noted the reason he was back in custody was because he had continued to offend on bail and the most recent of his charges were just weeks old. They were not, therefore, ancient history.

[6]                  Accordingly, the Judge found that a term of imprisonment was warranted. However, the Judge commented that she would give Mr Willoughby generous credit, not only for his guilty pleas but also because of the other matters that had been raised.

[7]                  The Judge took a starting point of 15 months’ imprisonment for the offending on 18 November 2020 with a six-month uplift for all other charges, taking a totality approach which made the revised starting point 21 months’ imprisonment. The Judge then uplifted the starting point by four months for Mr Willoughby’s previous conviction history and  offending  on  bail.  This  led  to  a  final  starting  point  of 25 months’ imprisonment. The Judge then indicated she would give Mr Willoughby 20 per cent for his guilty pleas and a further 20 per cent credit for personal factors such as addiction, which has been a driver of Mr Willoughby’s offending and also for abuse in state care. That reduced the final starting point to a sentence of 15 months’ imprisonment, which the Judge imposed on the unlawfully getting into and driving while  disqualified  matters.  The  Judge  also  imposed  concurrent  sentences  of   six months for breach of bail, failing to appear and breach of release conditions. The Judge convicted and discharged Mr Willoughby on the careless driving charge. Finally, the Judge imposed standard and special release conditions for six months beyond the sentence end date.

[8]                  As to the possibility of commuting the sentence of imprisonment to one of home detention, the Judge stated:2

You asked to be considered for an electronically monitored sentence. I decline today in the circumstances to convert to a bracelet sentence, but it may well

2      NZ Police v Willoughby, above n 1, at [14].

be, from what I have heard, that by the time the credits are applied, that you would soon be released.   That will be a matter for the receiving office,     Mr Willoughby. But whenever that date might be, I would encourage you to report in as per your conditions of release, Mr Willoughby, doing a better job this time than last time, and perhaps following through with what you say your intentions are.

[9]                  The Judge also disqualified Mr Willoughby  from  driving for  a  period of  12 months on the driving while disqualified charges as well as remitting the fines that Mr Willoughby owed in respect of previous convictions.

Appellant’s submissions

[10]              The appellant seeks leave to adduce fresh evidence, being an affidavit of   Kiri Beeston, which he submits is fresh and credible and will materially affect the outcome of the appeal.  Ms  Beeston  has  offered  a  home  detention  address  for Mr Willoughby. In her affidavit sworn on 28 June 2021, she talks about her upbringing and, later, addiction to alcohol and other drugs. She states that she has been sober for six years now and is committed to keep it that way. She also wants to help those who are fighting the same  battles  that  she  did  and  that  is  why  she  wants  to  help  Mr Willoughby. She says she has known Mr Willoughby for eight years and despite his criminal history, deep down she knows he is a good person. He is also great with kids, including her son. She therefore wishes to provide Mr Willoughby with a stable home as she knows what it takes to remain sober. She will personally take him to Narcotics Anonymous meetings and other appointments directed by Community Corrections or the Court. She says she has zero tolerance for any alcohol or drugs being consumed at her home. If Mr Willoughby does not abide by her rules, she will immediately withdraw consent and call the Police to take him back into custody. She acknowledges that she has had Mr Willoughby living with her at the address in the past and that he has left her address in breach of bail. She felt that at that time he was in denial and unwilling to confront his addictions. However, she indicates that that has all changed in her recent dealings with him.

[11]              As to any concerns that Oranga Tamariki may have, she states that she has never been contacted by Oranga Tamariki and all she can say is that Mr Willoughby is great with her son. She trusts Mr Willoughby around her children, who get on with him very well.

[12]The grounds of appeal set out by counsel are:

(a)There is a suitable address available with a pro-social occupant wanting to support Mr Willoughby’s rehabilitation;

(b)Case law suggests that imprisonment is not a foregone conclusion for this type of offending and the principles and purposes of the Sentencing Act support a sentence of home detention; and

(c)In circumstances where Mr Willoughby has a real motivation to engage in rehabilitation and there is support in the community to supervise his rehabilitation, home detention should be the preferred outcome.

[13]              Counsel submits that assessing matters afresh, this Court should allow the appeal and commute the remainder of Mr Willoughby’s sentence of imprisonment to home detention.

[14]              Counsel submits that a sentence of home detention is capable of serving the principles and purposes of the Sentencing Act and therefore the Court cannot be satisfied that a sentence of imprisonment should be imposed. A sentence of home detention is a significant limitation to liberty, capable of serving the punitive purposes of the Sentencing Act.3

[15]              Counsel further submits that a sentence of home detention is in the circumstances of the offences to which Mr Willoughby has pleaded guilty, sufficient to hold him accountable for his actions, promote in him a sense of responsibility, denounce his conduct and deter him and any other persons from committing the same or similar offence. It is also the least restrictive outcome appropriate in the circumstances and assists in his rehabilitation and reintegration. Mr Willoughby has instructed counsel that he has put in place strong and positive influences around him to ensure his successful rehabilitation. This includes his support person, Ms Beeston, and the Narcotics Anonymous meetings that he plans on attending when being released. He also wants to become a better father and role model for his children.

3      Fairbrother v R [2013] NZCA 340.

Discussion

[16]              Mr Willoughby is, however, unable to show any error on the part of the Judge in refusing to commute the sentences of imprisonment into a sentence of home detention. First, the pre-sentence report assesses the proposed EM bail address and its occupants as unsuitable on the basis that:

(a)Oranga Tamariki have concerns for the safety of Ms Beeston’s two children and are opposed to Mr Willoughby serving a sentence of home detention at the address given his lengthy conviction history for drug use, violence, firearms offences and other anti-social behaviours; and

(b)The Police are also opposed to Mr Willoughby serving a sentence of home detention at the address given Mr Willoughby has previously left the address in breach of bail due to his offending behaviour and the Police’s  opinion   that   Ms   Beeston   has   little   influence   over   Mr Willoughby’s decision-making and risk of reoffending.

[17]              I do note Mr Willoughby’s response to the concerns articulated in the pre- sentence report and acknowledge those, but I cannot dismiss the concerns out of hand.

[18]              Further, the pre-sentence report assesses Mr Willoughby as posing a high risk of harm and reoffending and as having a low ability to comply with community-based sentences, including home detention. In that regard, it is noted that Mr Willoughby has:

(a)137 previous convictions, including convictions for violence, drugs, dishonesty and driving offending;

(b)Seven convictions for breach of Court release conditions;

(c)One conviction for escaping custody; and

(d)14 convictions for breaching community-based sentences.

[19]              Mr Willoughby has also breached electronically monitored sentences on four occasions, including most recently on 27 May 2020, when he cut off his EM bracelet and absconded from the address at which he was serving a sentence of home detention. The pre-sentence report records Mr Willoughby’s behaviour on his current release on conditions order involve consistent non-compliance, rejection of supervision and refusal to adhere to special conditions.

[20]              Mr Willoughby’s breach of bail history runs to a total of 21 pages and records numerous charges for offending committed while on bail.

[21]              The pre-sentence report also notes Mr Willoughby’s substance abuse and the fact that he is yet to undertake any meaningful steps to reduce his risk of reoffending. In that regard, I treat with caution the assertion by Ms Beeston, that Mr Willoughby is determined to engage in alcohol and drug rehabilitation. The Police submit that it appears that only now, when faced with the prospect of a further sentence of imprisonment, has Mr Willoughby indicated in an ostensible willingness to seek help and change his behaviour.

[22]              Mr Willoughby’s most recent history does not inspire confidence in his ability to comply with the restrictive nature of EM bail.

[23]              He was released from prison in October 2020. He committed an offence within a  week  of  release.   He  continued  to  offend  regularly  –  on  14  October  2020,  4 November 2020, 18 November 2020, 3 December 2020, 1 March 2021 and 8 March 2021, following which he was remanded in custody.

[24]              In those circumstances, I am of the view that denunciation, deterrence and protecting the community from Mr Willoughby and his offending are the most important purposes to be considered in respect of his sentencing. I am of the view that no sentence other than imprisonment can adequately achieve those purposes in the present   circumstances.   While   not   disregarding   the   purpose   of   assisting    Mr Willoughby’s rehabilitation and reintegration, the Court would need to be satisfied that a restrictive residential facility, such as Odyssey House, was available as a place

where he could serve a sentence of home detention, in which case more weight could be given to his professed motivation to address the causes of his offending.

[25]In all the circumstances, the appeal is dismissed.

Woolford J