SAUNDERS v NEW ZEALAND POLICE [2017] NZHC 1433

SAUNDERS v NEW ZEALAND POLICE [2017] NZHC 1433 [26 June 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-5[2017] NZHC 1433BETWEEN ANGELA MAREE SAUNDERSAppellantAND NEW ZEALAND POLICERespondentHearing: 19 June 2017Appearances: K L Chalmers and P N Allan (via AVL) for AppellantM A Mika for RespondentJudgment: 26 June 2017JUDGMENT OF NICHOLAS DAVIDSON JThis appeal[1] The appellant pleaded guilty to charges of: theft under $500, theft over $1000, possession for supply of morphine, making a false statement, and fabricating evidence.[2] She was sentenced by Her Honour Judge Cook in the District Court on 19 December 2016 to two years imprisonment in total on all charges.1[3] The appeal is mounted on the ground the sentence is manifestly excessive in itself, and against the refusal to impose home detention.1 Police v Saunders [2016] NZDC 26076.Principles on appeal[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and determined in accordance with s 250 of that Act. This Court may only allow the appeal if it is satisfied that there has been an error in the imposition of the sentence, and if so that a different sentence should be imposed.2 Toogood J put this position (citing Ripia v R3) in Larkin v Ministry of Development:4[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5the Court of Appeal held that:6the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.[6] The discretion whether to impose home detention is not unfettered,7 but as the decision not to do so was in the exercise of discretion,8 an appeal should be allowed only if the Judge made an error of law or principle, took into account irrelevant considerations or failed to take into account relevant considerations, or was plainly wrong.9 The Notice of Appeal pleads all of these alleged errors.District Court sentencingOffending[7] The most serious and thus lead offending was making a false statement and fabricating evidence.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Ripia v R [2011] NZCA 101 at [15].4 Larkin v Ministry of Development [2015] NZHC 680.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 At [36].7 Manikpersadh v R [2011] NZCA 452 at [12].8 Wong v R [2009] NZSC 64.9 Dodds v R [2011] NZCA 490 at [27]; Herera v R [2011] NZCA 491.[8] The appellant made a formal complaint against a partner with whom she had a relationship saying he sent threatening text messages directed at her, her ex-husband and their unborn child. She said she was fearful of being on her own, as she believed the complainant was capable of carrying out the threats that she had fabricated on her mobile phone. The man concerned was arrested and charged with breach of a protection order and threatening to kill the appellant. The appellant made a statement that she received further text messages from the man concerned that he was watching her home. He was remanded in custody. The appellant was later hospitalised with self-inflicted wounds, but said a man had entered her house and stabbed and cut her with a boning knife before raping her. The appellant falsified complaints to the Police in respect of both men.[9] The theft charges arose after a rest home reported that six residents lost rings and chains from their rooms. For a period between May 2014 and February 2016 the appellant worked at that rest home. On the first occasion she entered the room of an 87 year old male resident and took a fob chain with his wedding band attached. On the second occasion she entered the room of a 91 year old woman, who was wearing gloves to prevent her scratching herself. She put her hand in her glove and removed three rings from her fingers. On the third occasion, she sold 11 rings and a chain at a local pawn shop which she had stolen, the property of persons unknown.[10] The drug charge arose from text data which showed she was in possession of and offered to supply controlled drugs. It showed she was in possession of a Class B Controlled Drug, namely Morphine, and that she had offered to supply the drug on 2 March 2016.[11] The Judge considered the three "sets" of offending to determine cumulative starting points for each:(i) theft charges (14 months);(ii) morphine charge (six months);(iii) fabricating evidence and false statement charges (24 months).[12] From the total of 44 months, the Judge considered the sentence in its totality and settled on an adjusted starting point of 40 months.[13] A 25 per cent discount for guilty pleas was allowed. The Judge thought there was some limited evidence of remorse, but it did not warrant a discount. Theappellant's age did not warrant discount as the appellant was 23 and "clearly should be fully responsible and cognisant of what [she had] done". This was the appellant'sfirst offending, and there was evidence of previous good character, so a 10 per cent discount was allowed for that. The Judge gave a further five per cent discount to reflect her "life adversity", given previous abusive relationships and the recent death of her father, although the Judge had reservations about the real causes of the offending.[14] An end sentence of 24 months imprisonment was reached. The Judge turned to home detention and stated her concerns:[47] I have real concerns about allowing a sentence of home detention to occur. My concerns are, firstly, those which are set out in the pre-sentence report in regard to (Ms Saunders), the nature of the offending in regard to it being able to be perpetrated from home, and also the aspect of the sale of the morphine. In addition, I need to deter and denounce this offending by you.[15] The Judge was mindful of the appellant's family situation, with two children, and she was (then) pregnant. She acknowledged that there were some matters which she did not know about in detail, including the care arrangements for the children, given the involvement of CYFS, and the appellant's employment. The cruxof the Judge's difficult decision was expressed as follows:[49] I am really very reluctant, in terms of the least restrictive option, to impose a sentence of imprisonment. But I must step back and consider the severity of this offending, what you have done, and the effect of what you have done on other people, on [the victims].[50] This has not just been a one-off occasion. This has been premeditated offending over a lengthy period of time. From that perspective, where I come to in respect of the offending would be to an end point of 24months' imprisonment. I decline leave to apply for home detention.Grounds of appeal[16] The appellant, through Ms Chalmers of counsel, with Mr Allan, submits that the Judge had defence submissions before her regarding the appellant's familysituation, with two children and her pregnancy, and employment status, but did not consider these other than by reference to a lack of information. Her Honour did not want to impose a sentence of imprisonment, but refused to grant leave to apply for home detention for reasons given.First Ground of Appeal[17] Ms Chalmers accepts that the starting points for the drug-related offending, and the false statement and fabrication charges, were stern but within range. The starting point for the theft charges is challenged, and with no tariff sentencing judgments, the gravity of the offending must be measured to establish the starting point.[18] The Judge said that there was premeditation in the thefts. Ms Chalmers challenges this and says this factor should not have been brought to account. She submits Her Honour herself was not sure of this, and there was no factual foundation for it. Premeditation is well established as a relevant sentencing consideration, because the degree of planning and preparation reflects criminality, and spontaneous offending is, or may be, distinguishable.[19] Ms Chalmers submits these thefts were "sporadic and opportune", and notone large scale theft in a short space of time, but simply committed within theappellant's work routine.Second Ground of Appeal[20] The second ground of appeal is that home detention was the appropriate sentence and leave to apply as should have been granted (if otherwise unavailable), as the Judge was reluctant to impose imprisonment, as stated above. The appellant says the judgment in this respect is wrong.[21] A sentencing Judge must take into account circumstances of the offending which may make an otherwise appropriate sentence disproportionately severe. The appellant was pregnant with her third child and has two children. She faced a prolonged forced absence from her children. She had no previous convictions. She had two premature births and a lot of ill health.[22] Ms Chalmers submits that there was a failure to bring to account the rehabilitative needs of the appellant, and the Judge gave too much consideration to a limited and "ill-informed" pre-sentence report, which said that there were no rehabilitative needs identified, so home detention would serve a be punitive purpose only.[23] A report by a forensic psychologist Mr Metoui, said that the appellant required on-going health inputs and oversight for her mood difficulties, and that would be best achieved in the community through her current treatment providers. She would benefit from specific intervention. That would include psychological counselling by a departmental psychologist and a further assessment for substance abuse. The appellant was willing to engage with these, so the report said, and this was also advanced on appeal.Submissions for respondent[24] Mr Mika says there was no error in the exercise of discretion not to impose a sentence of home detention, as the purposes and principles of the Sentencing Act 2002 were properly brought to account. The Judge brought to account that the offending was perpetrated from her home and there was a need to denounce and deter. The Judge also recognised that the appellant had two children, and was pregnant, so those important circumstances were not overlooked.Analysis[25] There is inevitable caution about a sentence of imprisonment for two years in respect of a young mother, pregnant, who has not previously appeared before the Court. The Judge's reluctance to imprison the appellant was, understandably, made very clear.[26] Against that caution, there is the nature of this offending: diverse, and serious. While Ms Chalmers says the morphine-related offending should be treated less seriously, the sentence imposed was well within the range available. The same applies to the lead offending, and there is no real issue taken with this on appeal.[27] Focus first falls on the starting point of 14 months imprisonment for theft, and in particular that the Judge regarded this as premeditated offending. While I do not consider this as planned offending in the sense it is devised and then undertaken, the concept of premeditation does not require planning. Her offending is repeat offending, and one of the charges is representative. It is also mean spirited, in breach of trust, preying on the old and vulnerable. Her position required utmost trust and solicitude for residents and patients, yet in that position she committed serious thefts. The Judge's perspective of premeditation is more accurately in my view the recognition that the appellant could get away with this repeated criminal activity. I regard the 14 months end starting point (before adjustment for totality) as within range.[28] As to the 40 months sentence in totality before discounting, I remind myself that these are three sets of very different offending, and I have no quibble with it. For myself, I would have adjusted to 36 months, but I consider that too fine an intervention on appeal.[29] The Judge's allowances for discounting factors are orthodox and there is no reason to allow the appeal, on this ground, so the end sentence of 24 months imprisonment should on the face of it stand.Home detention[30] The reservation I hold, as did the Judge, is whether the least restrictive sentence (of home detention) should have application for this still young woman, now with three children, and with a history of abuse and personal disturbance.[31] The Judge was aware of all the mitigating factors relating to the appellant and her circumstances, and the end sentence was just short enough to allow consideration of home detention. The appellant's circumstances, including pregnancy and thepotential care of children were relevant, and they were clearly in the Judge'scontemplation. They had to be balanced against what was serious and long-term offending, and where there was a clear need to denounce and deter. The pre-sentence report recommended imprisonment over home detention, noting that the nature of the offending was such that it might be continued from a home location. From the point of view of rehabilitation, there was nothing especially to be gained from homedetention and so it "would only serve as a punitive aspect to sentencing".[32] Mr Metoui's report, however, indicates the need for rehabilitative measures, and I agree that in general these are best undertaken in the community.[33] I looked for some way in which the principles of the least restrictive sentence, being home detention, might be achieved. I decided that it would be better to explore this possibility and hence have done so, but only to find out whether there was information which allowed a finding that the exercise of discretion was wrong, by the orthodox approach to that question.[34] The commuting of a sentence of short-term imprisonment into one of home detention does not occur automatically, nor is there a presumption that home detention, if available, will be substituted for imprisonment. In all cases, a balancing of the purposes and principles in ss 7 and 8 of the Sentencing Act 2002 is required.10[35] Where the proposed sentence is close to the threshold beyond which home detention would be unavailable, an appellate court should be less ready to interferewith the sentencing Judge's assessment and decision.11 The end point reached by the Judge in this case was 24 months, right on the threshold.[36] As with the sentencing Judge, I have looked on appeal for a basis upon which home detention might be ordered. There is probably a suitable address. However, from that address the appellant would still be able to offend despite conditions imposed, and the charges are of a kind and so serious that her response to a sentence of home detention is most uncertain. There is not the will evident to undergo the10 R v Vhavha [2009] NZCA 588 at [29].11 R v D (CA253/2008) [2008] NZCA 254 at [66].necessary counselling and treatment. She poses a very real risk of further offending, notwithstanding her previous clean record. The range of offending and its gravity are discouraging factors. There is overall a cynicism and a degree of cunning in her behaviour which bodes ill for the appellant and the community.[37] Nevertheless, the Probation Officer promptly provided a report at the Court'srequest, as to the options for the appellant to address substance abuse.[38] Drug and Alcohol Specialist Services ("DASS") provide a specialistassessment treatment and recovery plan with a waitlist of up to six months. The Salvation Army provides individual counselling from a holistic approach. The waitlist can be up to three months.[39] The Nga Kete Matauranga Pounamu Charitable Trust provides individual counselling and group education including art therapy, and the waitlist can be up to six weeks. Ms Saunders is currently waitlisted to attend Kowhiritanga, to address her alcohol and drugs as a rehabilitation need and a health issue, offence related problem thinking and feelings, criminal associates, poor self control, impulsivity, self management and problem solving skills, along with other offending related factors. She is also waitlisted for alcohol intermediate support programmes.[40] The Probation Officer did not have contact details to make enquiries as to a suitable address which was previously available as of 4 October 2016. The indication is that there may be.Conclusion[41] The judgment of Judge Cook was thorough and principled, and it demonstrates that she was acutely aware of the considerations relevant to home detention. The seriousness of the offending, in its scope and nature, give me real concerns about a community-based sentence. The sentencing called for the careful exercise of discretion and there is nothing to suggest that anything other than that occurred. In these circumstances, there are no grounds for this Court to interfere with the exercise of discretion. Ms Saunders needs rehabilitative help and that is in train.Formal Disposition[42] The appeal is dismissed..Nicholas Davidson JSolicitors:Preston Russell Law, InvercargillPhillip Allan Barrister, Christchurch