MACDONALD v POLICE [2020] NZHC 2742

MACDONALD v POLICE [2020] NZHC 2742 [16 October 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000135[2020] NZHC 2742BETWEEN ANAHERA PONO MACDONALDAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2020Appearances: M Starling for the AppellantP Norman for the RespondentJudgment: 16 October 2020JUDGMENT OF NATION J[1] Anahera MacDonald pleaded guilty to one charge of making a false statementand two charges of wilful damage. On 24 July 2020, she was sentenced to 13 months'imprisonment.1 On 9 September 2020, Judge Couch declined Ms MacDonald'sapplication to substitute a sentence of home detention.2 On 11 September 2020, MsMacDonald lodged an appeal against that refusal.[2] On the hearing of the appeal, it became apparent Ms MacDonald needed toappeal against the sentence imposed on 24 July 2020.1 Police v MacDonald [2020] NZDC 14545 [24 July decision].2 Police v MacDonald DC Christchurch CRI-2019-042-391, 8 September 2020 (8 Septemberdecision).Facts[3] On 21 October 2018, Ms MacDonald made a statement to the Police that herpartner, Mr Metuamate, had assaulted her earlier that day. He was arrested andremanded in custody. On 8 December 2018, Ms MacDonald made a second statementin which she said the first statement was incorrect. Mr Metuamate was released.[4] On 12 April 2020, Ms MacDonald entered into a verbal argument with MrMetuamate while on a city street. She threw a handful of stones at him. The stonesmissed Mr Metuamate but shattered a store window.[5] On 16 April 2020, following another verbal argument, Ms MacDonald chasedMr Metuamate down the road and, again, threw rocks at him. One of the rockssmashed the rear window of a parked car.Procedural history[6] On 25 February 2019, Ms MacDonald was charged with making a falsestatement.[7] On 1 July 2019, Judge Cameron gave a sentence indication of a starting pointof 12 to 15 months' imprisonment, with an end sentence of four months' homedetention, on the false statement charge and another charge of breaching communitywork. On 8 July 2019, Ms MacDonald accepted that sentence indication, pleadedguilty and the sentencing was set down for 4 October 2019. Ms MacDonald waspregnant, with her child due in September 2019, hence the delay.[8] Ms MacDonald's sentencing was rescheduled on multiple occasions either toallow a suitable home detention address to be found or because she was too late forcourt for the sentencing to proceed on the day.[9] On 6 March 2020, Judge Couch permitted Ms MacDonald to vacate her pleaof guilty to the false statement charge. She was remanded on bail to 20 March 2020.It appears the remand to 20 March 2020 was to give her the opportunity to find anaddress for a sentence of home detention.[10] On 20 March 2020, Ms MacDonald appeared before Judge Couch and re-entered a guilty plea on the false statement charge. No home detention address wasavailable at the time, so Judge Couch sentenced her to 10 months' supervision on thecharge of breaching community work, but postponed sentencing for the false statementcharge. The sentencing was set down for 7 May 2020 to allow Ms MacDonald to finda suitable home detention address and obtain an updated pre-sentence report. TheJudge directed that the report was to address the possibility of home detention.[11] The 7 May 2020 date was vacated due to the COVID-19 level 4 lockdown.[12] On 24 July 2020, Judge Couch sentenced Ms MacDonald to 13 months'imprisonment on the false statement charge and one month concurrent for the twocharges of wilful damage that had since arisen (the 24 July decision).District Court decisionsThe 24 July decision[13] Judge Couch considered the charge of making a false declaration to be the mostserious. He considered the gravity of Ms MacDonald's conduct to be serious andpremeditated. The Judge stated "very real harm was done to [Mr Metuamate] in theform of his being unjustly imprisoned for two months".3 Further, the offendinginvolved a significant waste of resources.[14] The Judge said this type of conduct strikes at the heart of the justice systemand requires a stern response. The Judge placed weight on the principles ofdenunciation and deterrence.[15] A starting point of 16 months' imprisonment was adopted. On the two chargesof wilful damage, an uplift of one month was applied. The Judge applied a four month(25 per cent) discount in respect of guilty pleas. This brought the end sentence to 13months' imprisonment.3 24 July decision, above n 1, at [4].[16] Having noted this was a sentence of short duration, the Judge stated, "the needto strongly denounce conduct of this nature requires a sentence of imprisonment noless restrictive sentence would achieve the purposes of the Sentencing Act 2002."4 Healso said Ms MacDonald had multiple opportunities to find a suitable place for homedetention but had been unable to do so. The Judge accordingly sentenced her to 13months' imprisonment.The 8 September decision[17] Ms MacDonald subsequently applied to have her sentence commuted to homedetention. On 8 September 2020, Judge Couch issued the following direction:5Application declined. When sentencing Ms MacDonald I said that no sentenceless than imprisonment was appropriate. That was the reason I did not grantleave to apply for substitution of sentence. Please send a copy of my notes onsentencing to Mr Starling & note last sentence of paragraph [7].[18] Ms MacDonald's counsel, Mr Starling, filed written submissions in support ofthe appeal against the 8 September decision.[19] Ms Norman, for the Police, submitted Ms MacDonald should properly beappealing the 24 July decision rather than the 8 September decision. Under s 80ISentencing Act 2002, leave to apply for cancellation of a short sentence ofimprisonment and substitution of a sentence of home detention may only be grantedif, at the time of sentencing, the court would have sentenced the offender to homedetention if a suitable address had been available. An offender cannot apply for leaveafter the sentence has been imposed.6 Ms Norman submitted Ms MacDonald thereforeneeded to appeal the 24 July decision not to grant leave at sentencing.[20] At the commencement of the appeal hearing, Ms MacDonald's counsel askedthe Court to deal with the appeal on the basis it was an appeal against the 24 Julysentence. Ms Norman, for the Police, agreed to the appeal proceeding on that basis.4 At [7].5 8 September decision, above n 2.6 Dalton v Police [2014] NZHC 1335.[21] I granted leave extending the time for the bringing of such an appeal and dealwith it accordingly.Principles on appeal[22] Home detention is an alternative to a short-term sentence of imprisonment.7The court should impose home detention if it would be the least restrictive sentenceavailable that would satisfy the purposes for which the sentence is being imposed.8On an appeal against the refusal to grant home detention, the appeal court must focuson the identification of an error in the court below, having regard to the discretionarynature of the decision.9 On an appeal against the length of a prison sentence, it is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.10Submissions[23] Mr Starling, for Ms MacDonald, submitted that in refusing to grant homedetention Judge Couch failed to consider Ms MacDonald's views, cultural factors inthe pre-sentence report and personal factors relating to Ms MacDonald. Mr Starlingnoted the sentence imposed by Judge Couch was significantly higher than the sentenceindication given by Judge Cameron. He argued that 13 months' imprisonment wasmanifestly excessive.[24] Mr Starling initially submitted the High Court should substitute the sentenceof imprisonment with one of home detention, consistent with Judge Cameron'ssentence indication and "the time given to her prior to sentencing on 24 July 2020 tofind an address". In oral submissions before me he said, although a member of herwhanau had in September come forward offering an address that might be suitable forhome detention, Corrections had not made any assessment as to the suitability of theaddress for home detention. He acknowledged he ought to have lodged an appeal7 Sentencing Act 2002, s 15A(1)(b).8 Section 15A(1)(a).9 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].10 Ripia v R [2011] NZCA 101 at [15].against the sentence earlier imposed and accepted responsibility for the delay thatoccurred[25] Given the Crown's response to the appeal, Mr Starling argued there was anerror in the length of the sentence. He submitted the sentence was too long, given thesentence indication had originally been for a sentence of four months' home detentionand because of matters personal to the defendant, as accepted by counsel for the Police.Mr Starling urged the Court to reduce Ms MacDonald's term of imprisonment to alevel consistent with the sentence indication, taking into account the supervisionsentence already given.[26] In her written submissions and again before me, Ms Norman confirmed that, ifthe appeal was against the 24 July decision, then the Crown accepted there was anerror. If a sentence of imprisonment was to be imposed, it should be for a period lessthan 13 months. Her reasons for that submission are reflected in the analysis below.[27] As submitted by Ms Norman, it is clear from the background to this matterthat, at the time the Court gave its sentence indication, it was anticipated MsMacDonald would be sentenced to home detention. Even after it became apparent thata suitable address might not be available, it was still anticipated she could be sentencedto home detention if such an address did become available. As it happened, there wasno suitable address at the time of sentencing. It would however have been consistentwith the earlier indication for the Judge, on sentencing, to grant her leave to apply forcancellation of the sentence of imprisonment and substitution of a sentence of homedetention if a suitable address did become available.[28] Various pre-sentence reports have been prepared for Ms MacDonald, eachoutlining her troubled upbringing and turbulent lifestyle. Ms MacDonald is 24 yearsold. She was put into care at six years of age, left school at 16, and is the mother offour children. It appears at least three of those children have been removed from hercare. The reports record that Ms MacDonald has struggled with substance abuse anda propensity for violence, as well as an "unstructured and chaotic lifestyle". However,the reports of 2 December 2019, 25 February 2020 and 21 July 2020 all assess her riskof reoffending as low.[29] Ms MacDonald's five year relationship with Mr Metuamate resulted in 46family harm events, according to the pre-sentence report dated July this year. MsMacDonald was the victim, perpetrator and mutual participant in various of thoseevents. In December 2019, Ms MacDonald told the report writer that Mr Metuamatehad been violent towards her many times, but that she had fabricated the assault forwhich he was arrested due to anger at his infidelity. However, she told a later reportwriter that the assault did occur and she withdrew the allegation under duress after MrMetuamate threatened her.[30] The sentence indication of four months' home detention was given in respectof the charge of making a false statement to the Police and of breaching communitywork. At the time she was sentenced for making a false statement, Ms MacDonald nolonger had to be sentenced for breaching community work. A sentence of supervisionhad been imposed for that offence.[31] On 24 July 2020, Ms MacDonald however had to be sentenced for the twofurther offences of wilful damage committed in the interim. In both instances, thesummary of facts indicated Ms MacDonald had thrown a rock at her partner, hadmissed and had damaged in one instance a store window and, in another, the rearwindow of a car. It would seem her actions in damaging the windows were recklessrather than wilful.[32] Those offences were not of such seriousness to require a sentence ofimprisonment. The Judge dealt with that offending through an uplift of only onemonth on the starting point he had arrived at for the false statement offence. Had homedetention been available, that offending could thus have been recognised appropriatelythrough a short addition to what would have been an appropriate home detentionsentence of four months, consistent with the earlier indication.[33] There is merit in Mr Starling's submission that the sentence of 13 months'imprisonment was manifestly excessive. The maximum penalty for the charge ofmaking a false statement is three years' imprisonment.11 I have found only two HighCourt cases where a person was sentenced for making a false statement about domestic11 Crimes Act 1961, s 111.abuse; in the first, McLeavey v Police, the Court upheld an order to come up forsentence if called upon;12 in the second, Almarzouqi v Police, the Court upheld aconviction and discharge.13[34] Judge Cameron indicated a starting point of 12 to 15 months' imprisonment forMs MacDonald's charges of making a false statement and breaching community work.Judge Couch, having already imposed supervision for the breaching charge, adopteda starting point of 16 months' imprisonment for the false statement charge alone. Heuplifted that by one month for the charges of wilful damage. The Judge appropriatelyrecognised the seriousness of the false statement offending and that Ms MacDonald'sfalse statement caused her partner significant harm in that, as a result, he was held incustody for two months. It is however relevant that Ms MacDonald was in arelationship where, at times, there was domestic violence and she was the victim. Iconsider an appropriate starting point sentence on the false statement charge wouldhave been 12 months' imprisonment, on which there could properly have been anuplift of one month for the wilful damage offending.[35] Ms MacDonald should then have been entitled to discounts for her youth,background and guilty plea. Ms Norman seemed to accept this in her submissions,stating that no consideration was made as to Ms MacDonald's personal circumstances,and emphasising the importance of rehabilitation for young offenders.14 A five monthdiscount would have been appropriate to take these factors into account. That equatesto a full 25 per cent guilty plea discount and another 13 per cent for Ms MacDonald'sbackground and youth.[36] The end sentence I have reached is eight months' imprisonment, which broadlyequates to the same sentence indicated by Judge Cameron of four months' homedetention. I consider 13 months' imprisonment was manifestly excessive and theJudge erred in not granting leave to apply for home detention. I do not howeverconsider it appropriate to reserve leave to Ms MacDonald to apply for home detentionnow. With a shortened prison sentence, she will soon have to be released on parole.12 McLeavey v Police HC Wellington AP107/01, 6 June 2001.13 Almarzouqi v Police [2020] NZHC 734.14 Citing Woodstock v R [2020] NZCA 472 at [31].[37] I accordingly allow Ms MacDonald's appeal. The sentence of 13 months'imprisonment is quashed. On the charge of making a false statement to the Police, sheis sentenced to eight months' imprisonment. On the two charges of wilful damage,she is sentenced to one month imprisonment, concurrent with each other and with theeight months sentence on the false statement charge.[38] As on the original sentence, Ms MacDonald is to be subject to standard releaseconditions until six months after the sentence expiry date and the following specialrelease conditions until six months after sentence expiry date:(a) to attend and complete an appropriate alcohol and drug intervention to thesatisfaction of the probation officer;(b) to attend an assessment for a departmental programme and attend anyprogramme/counselling as directed; and(c) to attend and complete any other treatment/counselling as may be directedby and to the satisfaction of the probation officer.Solicitors:M Starling, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.