SMIT v NEW ZEALAND POLICE [2016] NZHC 2518

SMIT v NEW ZEALAND POLICE [2016] NZHC 2518 [20 October 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2016-419-000053[2016] NZHC 2518BETWEEN ADRIAN WILLEM SMITAppellantAND NEW ZEALAND POLICERespondentHearing: 20 October 2016Appearances: L Wilkins for the AppellantT Tran for the RespondentJudgment: 20 October 2016ORAL JUDGMENT OF MUIR JCounsel/Solicitors:L Wilkins,T Tran, Crown Solicitor, HamiltonIntroduction[1] The appellant, Mr Adrian Smit, pleaded guilty in the District Court at Hamilton to one charge of injuring with intent to injure, two charges of male assaults female, two charges of possession of a firearm without a licence and one charge of wilfully ill-treating a child. He was sentenced by Judge Wilson QC on 9 August2016 to a period of 20 months' imprisonment.[2] No issue is taken with the Judge's approach to formulation of that sentenceand counsel responsibly accepts that the term of 20 months was appropriate. The only question on the appeal is whether the Judge erred in refusing to commute MrSmit's sentence to one of home detention.Factual background[3] The charges against Mr Smit are the result of two separate attacks on hisformer partner. The first occurred around 1 September 2012. Mr Smit's partner waseight months pregnant at the time. She had taken issue with Mr Smit being out late at night drinking. He became angry, picked her up and threw her off the bed and on to the floor. He then kicked and punched her at least once causing her to suffer a black eye and a swollen lip.[4] The second assault occurred on 1 November 2015 by which time the victim was separated from Mr Smit. She had dropped their two young children at his home. An argument broke out. She endeavoured to disengage by getting into her car. Mr Smit followed her, remonstrating loudly before grabbing her and throwing her to the ground. He then punched and kicked her a number of times about the face and the head. When she tried to escape, Mr Smit pushed her down and punched her again. At one point, after she had regained her feet, he grabbed her hair and slammed her face first into the ground. He then followed her as she began to crawl away, kicking and punching her to the back and torso. When she attempted to return to her car he removed her keys from the ignition before punching her again in the head. Finally he grabbed her by the throat and threw her on to the ground and then straddled herand punched her further. The victim's younger sister who was 15 years old at thetime was present and, somewhat heroically, attempted to intervene. Mr Smitpunched her in the head, knocking her to the ground. When she managed to get up and attempted to pull him off her sister, he punched her in the face. These assaultswere witnessed by Mr Smit's two young children who were understandablydistressed at the violent assault administered on their mother.[5] As Judge Wilson noted the effect on children of witnessing domestic violence is well recognised and potentially profound and this aspect of the offending led to the charge of wilfully ill-treating a child.[6] In respect of the second offending, the victim suffered heavy bleeding from the nose and a cut lip. She was hospitalised for something over 24 hours and was found to have deep muscular and skeletal bruising to her neck and shoulders. A CT scan revealed a concussion and minor head injury. The victim impact statement also spoke of the long term psychological effects and the pain that she suffered as a result of the assault.[7] There followed a police search of Mr Smit's address which located a .308 calibre rifle and a 12 gauge shotgun. Mr Smit did not have a firearm's licencealthough I note that the District Court Judge accepted the weapons were under lock and key and were not involved in any of the domestic violence charges.Personal circumstances[8] Mr Smit has a series of previous convictions including two for possession of firearms without a licence, one for common assault, and one for threatening to kill or cause grievous bodily harm.[9] The pre-sentence report identified him as presenting a medium risk of re- offending and medium risk of harm to others.[10] However, there were a number of mitigating factors noted by the report writerand recorded in the Judge's sentencing notes. He had expressed remorse and a senseof responsibility for his actions and had supported that with an offer of reparation of $5,000 to each of his victims. By the date of sentencing he had also begun efforts to address his behaviour. He had referred himself to the Hamilton Abuse InterventionProject. Judge Wilson noted that he had attended a number of sessions and that he was also minded to engage in a programme aimed at managing separation and parenting issues. The report noted that there was a suitable address for home detention should that be ordered by the Court. The sentence recommended was that of imprisonment, however.The District Court decision[11] The Judge took the charge of injuring with intent to injure as the lead offending and adopted a starting point of two years imprisonment. This was uplifted to 29 months to recognise the male assaults female charge from 2012, the assault onthe victim's sister and the charge of wilfully mistreating a child. Reductions were then made for the mitigating factors I have already identified and for Mr Smit'sultimate guilty pleas bringing the final sentence to one of 20 months imprisonment. As I have indicated, there is no challenge to that aspect of the sentencing.[12] Having arrived at a sentence which could be commuted to home detention his Honour addressed that issue in the following terms:[17] The question for me is whether the least restrictive penalty that I can impose on you is a sentence of imprisonment of whether that can be a home detention sentence. It is recognised that home detention is in itself a serious restriction on personal freedom. The principles of sentencing require an element of deterrence here. After giving it anxious consideration I do not consider that a home detention sentence would adequately reflect the deterrence and denunciation as required in a case like this.Approach on appeal[13] The appeal is governed by s 250(2) of the Criminal Procedure Act 2011, which states that the Court must allow the appeal if satisfied that:(a) For any reason, there is an error in the sentence imposed on conviction; and(b) A different sentence should be imposed.[14] In any other case the Court must dismiss the appeal.1[15] An appeal against a refusal to grant home detention is an appeal against discretion. The approach to be taken was reviewed by the Court of Appeal in James v R where the Court held that:2[17] an appeal against a refusal to grant home detention does not providean opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?[16] A Judge's discretion in this respect is not, however, unfettered. Whether to grant home detention is an evaluative exercise to be conducted with regard to all of the relevant purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.3 There is no presumption that either imprisonment or home detention is to be preferred,4 and it is well established that a sentence of home detention is a real alternative to imprisonment carrying with it significant elements of denunciation and deterrence in itself.5[17] An appellate court will, however, rarely interfere with the exercise of a discretion provided it is satisfied that it was exercised having regard to the relevant purposes and principles in the Act.Discussion[18] It has been accepted in a number of cases in respect of home detention that the purpose of deterrence cannot eclipse other relevant purposes and principles in the context of this assessment. As Lang J very recently observed in the decision ofAnderson v R:6[12] Any other approach would risk creating a hierarchy of sentencing purposes and principles. There is nothing in the Sentencing Act 2002 to suggest that such an approach is either appropriate or authorised.1 Criminal Procedural Act 2011, s 250(3).2 James v R [2010] NZCA 206.3 Manikpersadh v R [2011] NZCA 452 at [15]-[16].4 R v Vhayha [2009] NZCA 588.5 R v Iosefa [2008] NZCA 453 at [41].6 Anderson v R [2016] NZHC 2386.[19] That case had many similar features to the present one. It likewise involved offending against a relative, being the son of the appellant's sister who had at age 9 come to live with the appellant and her partner, after his mother had died of cancer.[20] In that case Judge Snell having acknowledged his discretion in respect of home detention, stated:This offending needs a strong deterrent sentence and in my view home detention would not send the appropriate message for this type of offending.[21] He recorded he was deeply concerned about the fate of the appellant'schildren if she was sent to prison and that he had wrestled with what he described as a "very difficult situation" but that, in the end, he was not granting home detentionbecause of the need "for a significant and strong deterrent message to be sent to the community".[22] Lang J held that he regarded the District Court Judge's remarks as addressing general deterrence but that the Judge's earlier reference in his sentencing notes to allthe relevant sentencing purposes and principles clearly informed his overall assessment. He held that the Judge was entitled to take a wider view and to exercise his discretion in a way that gave effect to principles of general deterrence. For thatreason he declined to interfere with exercise of the Judge's discretion.[23] In this case Mr Wilkins pursues a similar argument to that advanced by Ms Anderson to the extent he says the Judge focused solely on the issues of denunciation and deterrence and in doing so erred by giving excessive weight to those factors at the expense of the other mandatory considerations.[24] In particular he submits that the Judge erred in not taking into account the mitigating features which he had earlier identified in his judgment as relevant to the term of imprisonment, namely the appellant's rehabilitative efforts and his remorse as demonstrated by his offers of reparation. Mr Wilkins submits that having regard to those efforts, his personal family circumstances and the obligation to impose the least restrictive outcome appropriate, the sentence of imprisonment ought to be quashed and home detention substituted.[25] He refers me to the decision of Wills v Police in which the Court allowed an appeal against a refusal to grant home detention following what he says is broadly similar offending.7 Like Mr Smit, Mr Willis had seriously assaulted his former partner repeatedly hitting her in the head with closed fists and had attacked a third party attempting to intervene. I note, however, that in that case there was expert evidence before the Court regarding the offender's mental health and a previoustraumatic brain injury, which could not be effectively treated in the prison context. For that reason I find the case of relatively limited assistance.[26] The central question I must address is whether taking Judge Wilson'ssentencing notes as a whole, he became inappropriately focused on denunciation and deterrence to the exclusion of other relevant considerations and that in so doing he fell into what has been recognised as appealable error.[27] At least in respect of the s 8(g) requirement that the court must impose "the least restrictive outcome appropriate in the circumstances" it is clear that his Honourwas mindful of the wider context necessary. That is obvious from the introduction to the paragraph I have quoted.[28] As in the case before Lang J, his sentencing notes also carefully and thoroughly consider, at an earlier point in the analysis, all relevant ss 7 and 8 factors such as the gravity and seriousness of the offending, the defendant's culpability and mitigating factors such as remorse and rehabilitation. Then when he addressed the issue of home detention his Honour referred to having given it "anxious consideration". Against that background he said that he did not consider home detention would adequately reflect the level of deterrence and denunciation required in a case such as this.[29] I would not want it to be thought that the phrase "anxious consideration" ofitself and in all cases substitutes for reference to relevant considerations in a home detention context. However, reading his Honour's decision in full, I am satisfied that what he was invoking, in his use of that phrase, was his consideration of all of the relevant matters in a s 7 and s 8.7 Willis v Police [2015] NZHC 2818.[30] Because of the gravity of the offending and the fact that it occurred in a domestic context, denunciation and deterrence, if his exclusive focus, would have pointed inexorably to declining home detention. That he gave "anxious consideration" to whether that remained an appropriate outcome satisfies me that he turned his attention to such other relevant considerations. A counsel of perfection would have sentencing judges review in the context of their home detention analysis all of the ss 7 and 8 matters they were bringing to account. But I do not consider that necessary in every case. What this Court must be satisfied of is that there has been no inappropriate focus on one consideration to the exclusion of others. I do not consider that to be an error into which Judge Wilson fell.[31] Moreover I accept that deterrence8 and denunciation were highly relevant considerations in the context of this very serious offending.[32] The courts have consistently recognised the "scourge" which is domestic violence in this country and in the recent decision of Kohu v Police 9 it was held that sentences towards the upper end of the available range for domestic violence offending would not generally be interfered with. That reflects the extent to which deterrence is appropriately reflected in any ultimate sentence.[33] This is a case therefore where, even if I had been persuaded that his Honour did not adequately take into account all of the relevant considerations (and I was therefore required to re-sentence Mr Smit), I would likewise not have commuted his sentence to home detention. Weighing his acknowledged rehabilitative efforts and his expression of remorse against the necessity for general deterrence in respect of crimes as serious as this I would have considered the scales tilted in favour of a sentence with a strongly deterrent focus which I would not have considered adequately reflected in a sentence of home detention.8 Like Lang J I infer that his Honour's remarks were directed to general deterrence.9 Kohu v Police [2013] NZHC 944.Result[34] For the foregoing reasons I dismiss the appeal.__________________________Muir J