MCFARLANE v POLICE [2020] NZHC 1866

MCFARLANE v POLICE [2020] NZHC 1866 [29 July 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000012[2020] NZHC 1866BETWEEN ALISTAIR JOHN MCFARLANEAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2020Appearances: A de Jager for the AppellantC J Bernhardt for the RespondentJudgment: 29 July 2020JUDGMENT OF NATION JIntroduction[1] The appellant, Mr McFarlane, pled guilty to charges of driving whiledisqualified, burglary, possession of methamphetamine and possession ofammunition. He was sentenced to 18 months' imprisonment, ordered to pay reparationand disqualified from driving.1 He appeals his sentence on the ground it wasmanifestly excessive and home detention, rather than imprisonment, ought to havebeen imposed.Facts[2] On 15 October 2018, Mr McFarlane was disqualified from driving. On 26 June2019, Mr McFarlane was observed driving a vehicle and performing a U-turn on BurnsStreet, Dunedin to avoid a Police checkpoint. He turned left on to South Road and left1 Police v McFarlane [2020] NZDC 6136.again on to Baker Street where he parked the vehicle. Police located Mr McFarlaneonce he had exited the vehicle. Mr McFarlane denied driving the vehicle. He statedhe did not know how it got there and he was just walking to the shop.[3] At about 1.30 am on 5 October 2019, Mr McFarlane was intoxicated when hearrived at the Green Island Veterinary Clinic. Having looked around the property, MrMcFarlane smashed a window and entered the building. He rummaged through drawsand looked through the back rooms of the clinic, including the drug room. At about1.00 pm, Mr McFarlane handed himself in to the Police, stating he had consumed alarge amount of alcohol and could not remember anything. He was on bail for thedriving charge when this offending occurred.[4] On 3 January 2020, Police attended Mr McFarlane's address in relation toanother matter. Police detected a strong smell of cannabis and invoked a search of thehouse. Police located ammunition on the sofa next to Mr McFarlane and in a vehicleon the property. Mr McFarlane does not hold a firearms license. Police located twobags of methamphetamine weighing a total of 8 g under the sofa Mr McFarlane wassitting on. Mr McFarlane admitted the drug was methamphetamine and claimedownership, saying one was for him and one for a friend.District Court decision[5] Judge Crosbie considered the lead offending to be the charge of burglary andadopted a starting point of 12 months' imprisonment. On the charge of driving whiledisqualified, an uplift of six months was applied; an uplift of three months was appliedon the charge of possession of ammunition; and an uplift of two months for themethamphetamine offending. This brought the starting point to 23 months'imprisonment.[6] The Judge then applied an uplift of three months' imprisonment to reflect thatsome of the offending occurred while on bail. A further uplift of two months'imprisonment was applied to reflect Mr McFarlane's criminal history.[7] In respect of mitigating factors, the Judge applied a discount of three months(10 per cent) for addiction and personal mitigating factors. A discount of five months(20 per cent) for guilty pleas was applied. This brought the overall sentence to 20months' imprisonment.[8] Having regard to the principal of totality, the Judge arrived at an end sentenceof 18 months' imprisonment.[9] In relation to home detention, the Judge considered Mr McFarlane'srehabilitative needs were outweighed by the need for deterrence. His Honourconsidered a sentence of home detention would be inadequate.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.2As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court'sdecision, a "court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".3 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.4[11] Home detention is an alternative to a short-term sentence of imprisonment.5The court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.6[12] An appeal court must focus on the identification of error, having regard to thediscretionary nature of the decision.7 The Court of Appeal in Manikpersadh v R said:82 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Sentencing Act 2002, s 15A(1)(b).6 Section 15A(1)(a).7 Doolan v R [2011] NZCA 542 at [39].8 Manikpersadh v R [2011] NZCA 452.[11] This Court identified the appropriate approach in James v R in thisway:[17] We record that an appeal against a refusal to grant home detentiondoes not provide an opportunity to revisit or review the merits. The questionis whether [the judge] erred in exercising his sentencing discretion: that is,did he apply an incorrect principle, give insufficient or excessive weight to afactor, or was he plainly wrong? Ms Guy Kidd for the Crown properlyaccepts that home detention can satisfy the objectives of deterrence anddenunciation, but to a degree. We are satisfied, in accordance with earlierauthority in this Court, that the decision about whether home detention willmeet those objectives in a particular case is a strictly evaluative exercise. Itis a matter of judgment for the sentencing Judge to determine whether homedetention is an adequate response to the seriousness of the offending.[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing on the identification oferror, if any, in the court below."[13] In Fairbrother v R, the Court of Appeal stated:9[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other"SubmissionsAppellant's submissions[14] On behalf of Mr McFarlane, Mr de Jager submitted the District Court Judgeerred when conducting the assessment of whether to commute the sentence ofimprisonment to one of home detention.[15] Counsel submitted there was an identifiable error in the Judge's reasoning. TheJudge had referred to Mr McFarlane's offending history since 2008, a sentence ofimprisonment of two years and eight months, and further offending since then. TheJudge then said:9 Fairbrother v R [2013] NZCA 340.Since that period of incarceration you have had all of the non-custodialsentences possible, including: community work; community detention andintensive supervision as recently as 2017. Intensive supervision was imposedagain alongside community work in 2018 and a breach of community work in2019.[16] Mr de Jager submitted the Judge had failed to note that Mr McFarlane had notpreviously been sentenced to home detention.[17] It is submitted the District Court Judge placed too great a weight on MrMcFarlane's criminal history and the fact he had served a term of imprisonment, andfocussed too strongly on the principles of denunciation and deterrence.[18] In support of Mr McFarlane's sentence being commuted to home detention,Mr de Jager noted:(a) Mr McFarlane plead guilty to all the charges at the earliest opportunity,save for the driving whilst disqualified charge;(b) the burglary charge was Mr McFarlane's first offence of its kind and hedid not steal any property from the premises;(c) Mr McFarlane has expressed remorse and a willingness to participate inrestorative justice;(d) the pre-sentence report has assessed Mr McFarlane as at mediumlikelihood of reoffending, was in full-time employment and was motivatedto address his substance abuse;(e) the offending was not premeditated; and(f) Mr McFarlane has an appropriate home detention address.[19] Mr de Jager took no issue with the notional end point reached but suggestedcommuting the sentence to one of home detention is appropriate on the basis it is theleast restrictive sentence.[20] Mr de Jager submitted the Judge erred in calculating the cumulative sentences.In his submission, the total months imprisonment equates to 20 months', rather than18 months' imprisonment.[21] Given Mr McFarlane has served three months' in custody, Mr de Jagersubmitted an effective sentence to be commuted would be 17 months' imprisonmentand the sentence of home detention that should be imposed would be eight months andtwo weeks.Respondent's submissions[22] On behalf of the Crown, Mr Bernhardt submitted the District Court Judge'sdecision to not impose home detention was not an identifiable error and was notmanifestly excessive.[23] Mr Bernhardt stated the sentencing remarks disclosed several minor errors,however, it is submitted they are incorrect wording rather than errors of substance.Firstly, the starting point and uplifts applied by the Judge add up to 20 months'imprisonment, rather than 18 months. Mr Bernhardt submitted the Judge had clearlyarticulated an intention to apply an end sentence of 18 months' imprisonment.Furthermore, if the calculation had been relevant, it would be in Mr McFarlane'sfavour.[24] Secondly, when the Judge stated, "all of the non-custodial sentences possible,including: community work; community detention and intensive supervision". MrBernhardt submitted the Judge intended to or should have said "all of the community-based sentences available". Mr Bernhardt did not accept Mr de Jager's submissionthat the comment implied the Judge had misunderstood Mr McFarlane's criminalhistory. In Mr Bernhardt's submission, had the Judge also mentioned home detentionat that point, it would have been unquestionable that the Judge misunderstood MrMcFarlane's sentence history.[25] Mr Bernhardt referred the Court to the comments of Heath J in Awarau v Policewhere it was considered the sentencing judge, in referring to home detention as a"community-based" sentence, did not do so in a technical sense.10 Home detentionwas considered a "hybrid sentence".[26] Mr Bernhardt submitted a sentence of imprisonment rather than one of homedetention was appropriate in the circumstances of this case. The burglary chargecarries a maximum sentence of 10 years' imprisonment. Mr McFarlane has asignificant history for dishonesty offending. The driving while disqualified convictionwas Mr McFarlane's tenth conviction of this nature. Mr McFarlane has 10 previousconvictions for breaching sentences or parole conditions, the most recent being in2019.[27] Counsel submitted a sentence of imprisonment has a higher denouncing anddeterring effect than a sentence of home detention and this was appropriate in thecircumstances of Mr McFarlane's offending and criminal history.Analysis[28] In considering this appeal, I focus on whether the District Court Judge, inexercising his sentencing discretion, applied an incorrect principle of law or gaveinsufficient or excessive weight to a relevant factor. As previously noted, determiningwhether to commute a sentence of imprisonment to one of home detention is a strictlyevaluative exercise.[29] I accept that it appears the Judge made a calculation error when setting out themanner in which the sentence was to be imposed.11 However, his Honour clearlystated the end sentence was to be one of 18 months' imprisonment, reflecting thetotality of the offending. Having set out the sentence for each of the charges to beserved cumulatively, the Judge stated it brought the sentence "to 18 months".12 In myview, it is clear the Judge intended the end sentence to be 18 months' imprisonment.While his Honour could have clarified his methodology, I do not consider thisconstitutes a material error.10 Awarau v Police [2017] NZHC 1603 at [21].11 Police v McFarlane, above n 1, at [23].12 At [23(c)].[30] In assessing the series of sentences Mr McFarlane had served, the Judge notedMr McFarlane had "all of the non-custodial sentences possible, including: communitywork; community detention and intensive supervision as recently as 2017."13 Homedetention can be considered as a type of custodial sentence. The Judge's commentwas also made in the context of Corrections having recommended in the pre-sentencereport a sentence of intensive supervision, reparation and community detention. In theDistrict Court, that was the sentence which Mr McFarlane's counsel had also askedfor. His Honour canvassed Mr McFarlane's history in detail. Given this carefulcanvassing, I consider his Honour would have been aware of the fact Mr McFarlanehad not served a sentence of home-detention.[31] Even if the Judge had failed to note Mr McFarlane had not previously beensentenced to home detention, given the reasoning in his sentencing decision, thatwould not have been a material error. The Judge was mindful of the possibility ofhome detention. He referred to an updated pre-sentence report that had said an addressfor home detention was technically available. He said a sentence of home detentionor any less would be an inadequate deterrent sentence for Mr McFarlane.[32] Mr McFarlane had been convicted of six charges of driving while disqualified.He has 12 convictions associated with breaches of community work, breach of paroleconditions, breach of community detention, and escapes from custody. He hasconsistently failed to comply with community-based sentences. In light of this, I donot consider the Judge placed excessive weight on the criminal history. Nor do Iconsider his Honour misunderstood Mr McFarlane's criminal history. His Honoursimply weighed this history within the factual matrix of the case.[33] The assessment of whether home detention is appropriate is a nuancedevaluation that must be based on the individual circumstances of the offender. Iconsider the Judge based his decision on Mr McFarlane's personal circumstances andthe offending. The Judge was mindful of Mr McFarlane's struggle with substanceabuse and the trauma he suffered following the death of his baby and father, bothoccurring within a month of each other.13 At [12].[34] The Judge considered the sentencing purposes of holding Mr McFarlaneaccountable and promoting a sense of responsibility to be important.14 The Judge wasmindful of Mr McFarlane's age (29), which is relevant to both the prospects ofrehabilitation and the need for deterrence.[35] The Judge clearly articulated he was aware there was a need for Mr McFarlaneto receive rehabilitative treatment. However, considering the repeated offending thatshowed no sign of abating, the need to deter Mr McFarlane from continued offendingoutweighed the rehabilitative considerations.[36] Mr McFarlane had written a letter to the Court. In that letter, he explained howhis use of methamphetamine had caused considerable grief to his partner, siblings andfather. He said he was honestly ready to change. The short term of imprisonmentimposed should ensure there is a complete break from illicit drug use. On his release,he will be subject to release conditions that should ensure he has continuing supportand supervision from Corrections to assist in his rehabilitation. He will have theopportunity to prove he can change in the way he says he wants to.[37] I do not consider the Judge erred in determining that a short-term ofimprisonment was the least restrictive sentence in this case. Nevertheless, it appearsthere have been slips in the Judge's sentencing remarks which should be corrected toavoid an unintended injustice.[38] The Judge clearly intended and expressly stated that, having regard to totality,the end sentence was to be 18 months' imprisonment. Having said that, the sentencesimposed on a cumulative basis were:(a) for burglary – 12 months' imprisonment;(b) driving while disqualified – six months' imprisonment;(c) possession of explosives (ammunition) – two months' imprisonment,which the Judge said was "cumulative bringing me to 18 months".14 At [12] and [13].[39] In fact, cumulatively, that brought the total period of imprisonment to 20months, which was not what the Judge intended.[40] In his summary of sentences, the Judge also said Mr McFarlane "will bedisqualified for a period of 18 months commencing from today" but then also he "willbe disqualified for a period of 12 months commencing from [his] date of release".15[41] The Judge clearly did not intend to impose two sentences of disqualification.I infer he intended Mr McFarlane to be subject to effective disqualification for a periodof approximately 12 months from his release from the sentence of imprisonment thatwas being imposed. For that reason, the Judge was sentencing Mr McFarlane todisqualification for a period of 18 months from the date of his sentencing to avoid anyuncertainty as to when the disqualification would begin.[42] To correct these errors, I allow the appeal but only to the extent that thesentence of two months' imprisonment on the charge of possession of explosives is tobe concurrent with other sentences. The sentence of disqualification for a period of12 months beginning from the date of Mr McFarlane's release is quashed. He remainssubject to disqualification for a period of 18 months from the date he was sentenced,that is 7 April 2020.[43] In all other respects, the sentence imposed in the District Court is confirmed.Solicitors:Public Defence Service, DunedinCrown Solicitor's Office, Dunedin.15 At [23].