DICKSON v NEW ZEALAND POLICE [2017] NZHC 2815

DICKSON v NEW ZEALAND POLICE [2017] NZHC 2815 [16 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2017-404-319CRI 2017-404-320[2017] NZHC 2815BETWEEN AMANDA ANNE DICKSONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 November 2017Counsel: J Griffin for the AppellantH Benson-Pope & S Murphy for RespondentJudgment: 16 November 2017JUDGMENT OF DUFFY JThis judgment was delivered by me on 16 November 2017 at 3.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Crown Solicitor, ManukauPublic Defence Service, ManukauIntroduction[1] The appellant, Ms Dickson, was sentenced in the Manukau District Court to21 months' imprisonment on 13 charges involving dishonesty and drug-relatedoffending.1 These were one charge each of: burglary, unlawfully taking a motorvehicle, cultivation of cannabis, possession of cannabis, possession ofmethamphetamine, theft (over $500) and driving under the influence of a drug; alongwith two counts each of possessing methamphetamine utensils, theft (under $500) andbreaching a sentence of supervision.[2] Ms Dickson appeals her sentence. She does not take issue with its length. Hersole contention is that the sentence should have included leave to apply for homedetention.The offending[3] The 13 offences occurred between December 2015 and May 2017. Theburglary occurred in December 2015 when Ms Dickson broke into her neighbour'shouse and stole property. Police traced the offending to Ms Dickson through herfingerprints. On 26 February 2016, the police executed a search warrant, findingcannabis seedlings and seeds. That same day, Ms Dickson stole petrol from a stationin Green Bay. Another theft of petrol occurred on 4 March 2017, in Mt Eden.[4] On 15 May 2017, Ms Dickson stole a van that was unattended, along withpersonal items. She later removed and sold its wheels. The wheels were replaced andwhen stopped by police in the van on 20 May she failed a compulsory impairment test.She was found to be under the influence of methamphetamine. Just under half a gramof methamphetamine was found in her possession, along with pipes and syringes usedfor consumption.[5] Ms Dickson pleaded guilty to all charges.1 Police v Dickson [2017] NZDC 18886.Judgment under appeal[6] Judge Thomas took the charge of burglary as the lead charge and adopted astarting point of 18 months' imprisonment. He then assessed the remainder of thecharges together and uplifted the starting point to 24 months' imprisonment.2[7] Allowance was made for both aggravating and mitigating factors relevant toMs Dickson. Judge Thomas took account of Ms Dickson's previous convictions, andthe fact much of the offending had occurred whilst she was on bail as well as whenshe was sentenced to a non-custodial sentence. This led to the Judge uplifting thestarting point to 28 months' imprisonment.3 The sentence was then reduced to takeaccount of Ms Dickson's guilty pleas. The Judge found these warranted a 20 per centdiscount, which the Judge then increased to 25 per cent to reflect what he consideredto be Ms Dickson's genuine remorse.4[8] On the issue of whether imprisonment or some alternative should be imposed,the Judge said:[15] Imprisonment is the least restrictive outcome given the difficult issuesyou will have with compliance until you have been able to cure yourself ofyour methamphetamine addiction.[9] Accordingly, the Judge sentenced Ms Dickson to one year and nine months'imprisonment on the burglary and unlawful taking charges.5 On the other charges shewas sentenced to three months' imprisonment, to be served concurrently. Specialconditions together with standard conditions were attached to the sentences ofimprisonment.The competing arguments[10] Ms Dickson contends the correct sentence should have included leave to applyfor home detention at a later date rather than solely a custodial sentence. Threegrounds are advanced to support this contention. First, an electronically-monitored2 At [12].3 At [13].4 At [14].5 At [16].sentence would provide flexibility to complete rehabilitative courses. Secondly, anelectronically-monitored sentence would alleviate concerns with non-compliance.Finally, Ms Dickson contends that the Judge failed to consider this alternative sentenceand so failed to have proper regard to the requirements of the Sentencing Act 2002.[11] The Crown contends that Ms Dickson's last ground is the only ground thatidentifies an error of law; rather, the first two grounds merely question the merits ofthe District Court Judge's decision. The Crown supports the Judge's decision. In itssubmission Ms Dickson has failed to identify that type of error that would permit thisCourt to interfere with the sentence imposed.The legal framework[12] As this is a first appeal, the appellant must satisfy the Court that there was, forany reason, an error in the sentence imposed and that a different sentence should beimposed.6 The decision whether to impose home detention or imprisonment is (likeall sentencing decisions) discretionary, so the appellant must do more than simplyrevisit the merits of the Judge's decision.7[13] The Sentencing Act 2002 requires judges to impose on an offender "the leastrestrictive outcome that is appropriate in the circumstances, in accordance with thehierarchy of sentences" in the Act.8 A sentence of imprisonment is the most restrictivesentence available under the Act and a sentence of home detention is the second-mostrestrictive.9 As summarised by the Court of Appeal in Fairbrother v R, whereimprisonment is not a presumptive or mandatory sentence, s 16(2) of the Act prohibitsa sentence of imprisonment, unless a judge is satisfied as to three things:10First, the purpose for which imprisonment is to be imposed must be to holdthe offender accountable, or to induce in him or her a sense of responsibility,or to serve the interests of any victim, or to denounce the offending, or to deter,or protect the community. Secondly, any such purpose must not be able to beachieved by any lesser sentence. Thirdly, there must be no other sentence thatwould be consistent with such of the 10 s 8 principles of sentencing as apply.6 Criminal Procedure Act 2011, s 250(2).7 James v R [2010] NZCA 206 at [17].8 Sentencing Act 2002, s 8(g).9 Section 10A(2).10 Fairbrother v R [2013] NZCA 340 at [26].(Footnotes omitted)[14] Where the term of imprisonment is 24 months or less, the judge must decidewhether a sentence of home detention would be appropriate.11 That involvesmaking:12 a considered and principled choice between the two forms of sentence,recognising that both serve the principles of denunciation and deterrence, andidentifying which of them better qualifies as the least restrictive sentence toimpose taking into account all the purposes of sentencing.Discussion[15] I agree with the respondent's submission that the first two grounds raised inthe appeal do not identify errors of law. The submissions, namely that the availabilityof an electronically-monitored sentence would provide flexibility for the appellant'srehabilitation and would alleviate non-compliance, both appear to be attempts to re-argue the merits of an alternative sentence. They do not point to an error in the DistrictCourt's decision. What these grounds must show is that the Judge erred in failingappropriately to consider rehabilitation or was mistaken in his view of non-compliance.[16] Neither of these grounds reach that point. The Judge addressed the appellant'srehabilitative needs but was not required to treat that purpose of sentencing asdeterminative.13 Further, as the Crown points out, the Judge attached specialconditions to the sentence which require the appellant to be assessed by CommunityProbation for several rehabilitative courses, and require her to complete anyprogrammes recommended for her.14 And while non-compliance may be addressedby home detention (and the conditions that may attach to it), the Judge made no errorin weighing the risk of non-compliance in favour of a sentence of imprisonment. Theoffences on which the appellant was sentenced included breach of a communitysentence and were in part committed whilst on bail. Though she has no otherconvictions for breaching court orders, the appellant does have a history of non-11 Sentencing Act 2002, s 15A(1)(b).12 Fairbrother v R, above n 10, at [30].13 Sentencing Act 2002, s 7(1)(h).14 Police v Dickson, above n 1, at [19].compliance. I am not satisfied the Judge erred in his assessment of issues ofcompliance.[17] The third ground advanced by the appellant is that the Judge made an error oflaw by failing to adequately consider leave to apply for home detention and failing toconsider the availability of home detention under the Sentencing Act. It is submittedthat Judge Thomas merely concluded imprisonment was the least restrictive outcomewithout articulating any reasons for that conclusion.[18] The Crown contends that, while the Judge did not explicitly provide reasonsfor every applicable factor, he did have regard to: the seriousness of the offending asa whole;15 the gravity of the lead offending and its impact on the victims;16 theseriousness of reoffending while on bail and subject to another sentence;17 therequirement to impose the least restrictive outcome;18 and the offender's personalcircumstances (such as rehabilitation).19[19] I acknowledge that in a general way the Judge addressed the factors therespondent identifies in its submission. However, nowhere in the judgment is thereany reference to the possibility of granting leave to apply for home detention. I knowthe issue was raised before the Judge because Ms Dickson submits her counsel raisedit at sentencing, and the respondent has responsibly brought to my attention a notemade by the police officer who appeared for the respondent at the sentencing whichrecords that leave to apply for home detention was not given. Against that backgroundI consider the Judge was required to address that topic in the sentencing notes.[20] Leave to apply for a sentence of home detention is quite different fromimposing a sentence of home detention. When Ms Dickson was before Judge Thomasfor sentence she had no fixed abode. This in itself would disqualify her from receivinga sentence of home detention.15 Sentencing Act 2002, s 8(a).16 Sections 7(a), (b) and (c); and 8(a), (b) and (f).17 Sections 7(f) and 8(a).18 Section 8(g).19 Sections 7(h), 8(a) and (i).[21] Judge Thomas referred to Ms Dickson's drug problem and the likelihood shewould continue to offend while the problem remained. Accordingly, he was alive tothe fact that something needed to be done to address her drug use. Indeed, he soughtto achieve that end by the imposition of special conditions following her release fromprison. However, in his reasoning the Judge never said why he thought imprisonmentwas the only option for Ms Dickson. In the result part of the sentencing notes, theJudge said that imprisonment was the "least restrictive outcome given the difficultissues you will have with compliance until you have been able to cure yourself of yourmethamphetamine addiction." But he does not say why that is so.[22] It is open to question whether the Judge formed that view because Ms Thomaswas of no fixed abode and for that reason as well as her drug addiction she could notcomply with a sentence of home detention, or whether it was because her drugaddiction excluded any other sentence but imprisonment. I note that Ms Dickson hasnever served a sentence of home detention before. This means that how she wouldperform in that context is unknown. In the right circumstances the electronicmonitoring the sentence entails may well be enough to ensure compliance.[23] Had the question of leave to apply for home detention not been raised beforethe Judge, I would have concluded that his sentencing remarks, whilst mainlyconclusory, do not reveal any error that would permit this Court on appeal to interferewith the sentence. However, once Ms Dickson raised the prospect of leave to applyfor home detention I consider the Judge was obliged to specifically address that issueas part of the s 16(2) assessment, and then to determine whether leave should begranted or not. Ms Dickson was entitled to that much. It is not good enough to expecther and others to attempt inferentially to reach an understanding on what the Judgethought in this regard. I consider that to this extent only the Judge has erred in a waythat enables this Court to consider the question afresh.[24] Ms Dickson's counsel provided me with material that showed a place wasavailable for Ms Dickson to serve a sentence of home detention from an address underthe management of the Grace Foundation. However, that material reveals Ms Dicksonwould not be under supervision all the time. Given her drug addiction I consider suchsupervision is essential to the success of any sentence of home detention for MsDickson. Accordingly, the suggested address is not suitable for Ms Dickson to servea sentence of home detention.[25] Nonetheless, provided Ms Dickson's issues with drug addiction andcompliance can be overcome, I consider a sentence of home detention would besuitable for her. If she were able to find a place which provided full-time supervisedresidential care and treatment for her drug addiction, I consider that in terms of s 16(2)a sentence of home detention to be served at such facility would qualify as anappropriate sentence for her. Whether such a place is available to her is a separatequestion.[26] Accordingly, I am prepared to allow the appeal to the extent that in addition tothe sentence of one year nine months' imprisonment, I also grant leave to Ms Dicksonto apply for a sentence of home detention. However, any such sentence would needto be on the terms set out at [25] herein.Result[27] The appeal is allowed to the extent leave is granted to Ms Dickson to apply fora sentence of home detention should she find a facility from which it is suitable forher to serve such sentence.Duffy J