AVERILL v NEW ZEALAND POLICE [2016] NZHC 2322

AVERILL v NEW ZEALAND POLICE [2016] NZHC 2322 [29 September 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI-2016-485-69[2016] NZHC 2322BETWEEN ANDREW CLIVE ROCHFORDAVERILLAppellantAND NEW ZEALAND POLICERespondentHearing: 27 September 2016Counsel: L A Scott for appellantH K Goodhew for respondentJudgment: 29 September 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is4 pm on the 29th day of September 2016[1] On 27 May 2016 two women in Blenheim were walking their dogs on leads. They were joined by a third dog which was collarless and unregistered. They made unsuccessful attempts to send the dog away. They also tried tying the dog to a fence but were unable to. They decided that if the dog followed them back to one of their homes then attempts could be made to find the owner.[2] The dog belonged to Mr Averill. He was out in his van searching for it. He came across the two women and saw that his dog was with them. For some reason he formed the conclusion that the two women were encouraging his dog to stay with them. He yelled verbal abused at them. He got out of the van, ignored their protestations that they were trying to send the dog away, and punched one of the women on the left side of her face. The other woman tried to intervene but was punched in the back of the head, causing her to stumble. He then struck the first woman again. She fell to the ground. It is said that she was unconscious.[3] To his credit, Mr Averill then returned immediately to the vineyard where he had been working and asked his employer to call the Police. He subsequently pleaded guilty to one charge of male assaults female and one of common assault. On 22 August he was sentenced to four months' imprisonment.[4] Mr Averill now appeals against sentence on the basis that it was manifestly excessive, was not the least restrictive outcome, and did not sufficiently give weight to mitigating factors.The proceedings in the District Court[5] Ms Scott appeared for Mr Averill in the District Court as duty solicitor. She entered guilty pleas and asked that no conviction be entered. The presiding Judge made a restorative justice order and later ordered a pre-sentence report to canvas sentences of community and home detention.[6] The pre-sentence report was very positive. It spoke of Mr Averill's genuineremorse, anxiety, depression and low risk of further offending. It spoke of the steps he had taken to address the personal issues that appear to have led to his uncharacteristic outburst. The probation service recommended a sentence ofcommunity work. The aim was to enable him to keep his job at a vineyard in Blenheim.[7] Mr Averill also offered a Wellington address for an EM sentence, and suspended his employment to travel to Wellington so the address could be canvassed. He then returned to Blenheim to continue work for 10 days before sentencing.[8] At the sentencing hearing, Ms Scott sought a sentence of community work and reparations for emotional harm. Alternatively she submitted that community detention should be imposed, noting that Mr Averill had a suitable address in Wellington. Apparently the Judge indicated that a sentence of community work was out of the question. Ms Scott said he did not indicate that he was considering a full time custodial sentence or request that counsel address starting point.[9] In the Judge's sentencing notes he recorded that:1(a) the attack had had significant physical and emotional effects on the two women;(b) there had been a direction for restorative justice but that was unable to proceed;2(c) the pre-sentence report "surprisingly" recommended communitywork;(d) Mr Averill was effectively a first offender, as he did not have any convictions since 1988;3(e) Mr Averill had had six sessions with a counsellor, who assessed him as having a pre-existing anxiety disorder and history of depression; and1 Police v Averill [2016] NZDC 16079.2 Because the two women were unwilling to participate.3 Wrongly referred to in the sentencing notes as 1998.(f) he had also ended or suspended his employment so as to be available for community detention.[10] In terms of the purposes and principles of sentencing, the Judge noted the serious violence involved in the attack and that the woman who fell to the ground could have suffered much more serious consequences. The Judge therefore focussed on the need to hold Mr Averill accountable and to deter him and others from engaging in such "vigilante" justice.[11] The Judge said that he was "not satisfied that anything short of a full-time custodial sentence adequately meets the principles and purposes of sentencing". He adopted a starting point of eight months' imprisonment, deducted three for the guilty plea and one for rehabilitative steps, resulting in an end sentence of four months'imprisonment.The appeal[12] Ms Scott immediately filed an appeal on Mr Averill's behalf. Mr Averill alsoapplied for bail pending the appeal, which was granted by the sentencing Judge.4 He was bailed to the Wellington address that was put forward by him for the purposes of an EM sentence. There have been no breaches in the intervening period.[13] The grounds of appeal are that the Judge failed:(a) to impose the least restrictive sentence and did not turn his mind to the principle in s 8(g) of the Sentencing Act 2002. No reasons were given why an EM sentence could not be imposed;(b) to give proper weight to the mitigating factors. The factors present were, Ms Scott says:(i) Mr Averill's lack of relevant previous convictions, and good character – his offending was out of the ordinary and can be attributed to his undiagnosed anxiety and depression;4 Mr Averill spent three or four nights in prison during the intervening period.(ii) his low risk of reoffending – as assessed in the pre-sentence report;(iii) his willingness to participate in restorative justice, indicating genuine remorse;(iv) his rehabilitative prospects – he voluntarily and actively engaged in counselling, as he was very concerned about his sudden anger; and(v) his remorse which, Ms Scott said, was demonstrated by the fact that Mr Averill had done everything he could to express and to make amends, including a genuine offer of emotional harm reparation.[14] Ms Scott submitted that if proper consideration had been given to these factors, the Judge would have imposed a community based sentence. On appeal she seeks a substituted sentence of community work, although she acknowledges that that was originally premised on being able to maintain his employment, which he has now lost, together with emotional harm reparations. Alternatively, she said a sentence of community or home detention could be imposed.Discussion[15] This is a difficult case. There is no doubt that this was an unprovoked, violent and very traumatic attack by a man on two women, one of whom sustained nasty injuries. Equally, there can be no doubt that Mr Averill is genuinely remorseful and hugely committed to ensuring that something like this never happens again. It is also significant that he is 56 years old and has never before been to prison.[16] Ms Scott did not, however, seriously contend that the end sentence was not available to the Judge. There are not dissimilar cases that suggest that it was within range for attacks of this kind. It cannot therefore be said that the sentence was manifestly excessive. Rather, it seems to me that the critical question raised by the appeal is whether, given that the sentence was a one of imprisonment for two yearsor less, the Judge should have instead imposed a sentence of home detention. It is well established that such a sentence is to be regarded as a real alternative to imprisonment and one which is capable of fulfilling particular, identified, needs for denunciation and deterrence.5[17] It is not entirely clear from the sentencing notes whether the Judge considered and rejected home detention as an option or whether he did not consider it at all. He certainly does not specifically refer to home detention as an option. It had not, of course, been the sentence recommended by the probation service (the service recommended a much lesser sentence).[18] The authorities make it clear that in cases where the call on home detention is close to the line the appellate courts should accord some deference to the sentencing court.6 Equally, however, it is clear that the statutory requirement to impose the least restrictive sentence means that there is a need to weigh the relevant factors and to make an intelligible choice in that regard.7[19] In the present case a sentence of four months' imprisonment could not becalled close to the dividing line. And in terms of intelligible choice, I do not think itsuffices simply to say that "the principles and purposes of sentencing" dictate the outcome arrived at.[20] Although I accept that denunciation and deterrence were factors that favoured a custodial sentence here, there were also unusually powerful factors pointing against such a sentence. To reiterate, there is Mr Averill's demonstrable remorse, his genuine and ongoing attempts to identify and address the causes of his actions, his age and his lack of criminal history. In light of those factors I consider that a sentence of two months home detention (which is the equivalent of a four month prison term) is the right outcome here.85 R v Iosefa [2008] NZCA 453.6 R v D (CA253/08) [2008] NZCA 254 at [65]-[66].7 Fairbrother v R [2013] NZCA 340 at [31].8 In light of the seriousness of the offending I decline to take into account the time Mr Averill has already spent on bail or the three or four days he spent in prison.[21] The appeal is allowed accordingly. The sentence of imprisonment is quashed and a sentence of two months' home detention is imposed. Mr Averill's present bailaddress in Wellington was confirmed as suitable for the purpose of such a sentence which I direct will take effect from Monday 3 October 2016. Standard conditions are to apply.[22] Mr Averill owes a debt of gratitude to Ms Scott for her committed and cogent assistance in this matter."Rebecca Ellis J"Solicitors: L A Scott, Barrister, for AppellantCrown Solicitor, Wellington, for Respondent