RICHMOND v NEW ZEALAND POLICE REASONS [2019] NZHC 2001

RICHMOND v NEW ZEALAND POLICE REASONS [2019] NZHC 2001 [6 August 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-53[2019] NZHC 2001BETWEEN BRADLEY VINCENT RICHMONDAppellantAND NEW ZEALAND POLICERespondentHearing: 6 August 2019Appearances: B Hall for AppellantE Collis for RespondentResult: 6 August 2019Reasons: 15 August 2019REASONS JUDGMENT OF DUFFY JThis judgment was delivered by me on 15 August 2019 at 2.30 pm.Registrar/ Deputy RegistrarSolicitors:C Tuck, Barrister, TaurangaCrown Solicitor, Tauranga[1] On 29 May 2019 in the Whakatāne District Court, Mr Richmond pleaded guiltyto and was convicted of the following offences:1(a) threatening to kill2(b) dangerous driving3(c) failing to stop for flashing blue and red lights4(d) failing to answer court bail5[2] On the lead offence of threatening to kill he was sentenced to six months'imprisonment with lesser sentences of imprisonment being imposed concurrently forthe remaining offences for which sentences of imprisonment are available.6 He wasalso disqualified from driving for 12 months on the charge of dangerous driving andfor six months (to take effect on the expiry of the 12 months' disqualification) on thecharge of failing to stop for flashing red and blue lights.[3] Mr Richmond appealed against the sentences of imprisonment and the lengthof the disqualification on the dangerous driving charge. Because he was refused bailpending the sentence appeal by the time the appeal was before me for hearing, on 6August 2019, he had served just over two months of the sentence of imprisonment andwas due for release on 29 August 2019.7 Because I was satisfied the appeal should beallowed I delivered a result judgment that day setting aside the sentences ofimprisonment and imposing in their place sentences of 12 months' intensivesupervision and one months' community detention, which took effect on1 New Zealand Police v Richmond [2019] NZDC 10255.2 Crimes Act 1961, s 306.3 Land Transport Act 1998, s 35(1)(b).4 Land Transport Act 1998, s 52A(1)(a)(ii).5 Bail Act 2000, s 24.6 These were the dangerous driving and breach of bail offences. On the failing to stop for flashingred and blue lights offence he was convicted and disqualified from driving for the mandatoryminimum period under s 52A(3) of the Land Transport Act 1998.7 Six months' imprisonment is a short-term sentence of imprisonment under s4(1) of the Parole Act2002, which means that in accordance with s 86(1) of that Act the release date is the date on whichan offender, who is subject to such sentence, has served half of it.Mr Richmond's release from prison.8 I also reduced the 12 months' disqualificationfrom driving to nine months'. My reasons for doing so now follow.[4] The appeal was advanced on three grounds:(a) the starting point reached on the threatening to kill charge was too high(b) the sentence received on the charge of dangerous driving was too highand not commensurate with what the co-offender received(c) home detention was the least restrictive outcome and should have beenimposedLegal framework[5] The right of appeal is available under s 244 Criminal Procedure Act 2011. Thepowers on appeal are set out in s 250. The Court can only allow the appeal if it issatisfied there is an error in the sentence, and that an alternative sentence should beimposed.Background facts[6] Between 18 March 2019 and 25 March 2019 Mr Richmond sent one textmessage and two Facebook messages to the victim, his former partner, with whom hewas engaged in a custody dispute over their children. These messages included thethreats:SLUT MUTT BITCH CANT WAIT UNTIL YOU DIE FUCK I WANTED 2SMOKE YOU AT UR WORK ANY WAY LATERS SLUT EVERY BODYNUKS YOU ARE AN SMUK THE P 2 GOT THE FUCKN CHEEKKunt have fucked me right up in the head bitch you ganna get whats comingto you bitch slut hangi pants whore dead bitch walkingI coming for yah8 Richmond v Police [2019] NZHC 1905 – the two judgments should be read together.[7] On 3 April 2019 Mr Richmond failed to attend the Whakatāne District Courtin breach of his Police bail. Then on 11 April 2019 Mr Richmond was driving hisvehicle east at Rotoma with his friend Mr Ruha. Neither wanted to be stopped byPolice. Mr Richmond was subject to an arrest warrant because he had failed to answerhis bail for the threatening to kill offence and Mr Ruha, who was also on bail, was inbreach of his curfew conditions. The Police wanted to stop the vehicle because it hadno operating rear lights. The Police signalled the vehicle to stop using flashing redand blue lights. Mr Richmond did not stop.[8] There was an hour long chase through rural roads around Rotoma, coveringabout 50 kilometres. Half way through the pursuit, and while the vehicle was stilltravelling at speed, Mr Richmond swapped places with Mr Ruha. The pursuit wasregularly above the speed limits, and the vehicle was often deliberately driven on thewrong side of the road. The headlights were switched off and on. Eventually Mr Ruhacrashed the vehicle into a fallen pine tree which was lying across a forestry track offPikowai Road. The vehicle was severely damaged. Mr Richmond and his companionfled into the forest. The two were located by a Police dog team.Decision on appeal[9] Judge Ingram rejected the submission that the threats to kill were at the lowerend of the scale of this type of offending. He considered the threats were serious andthey should attract a serious sentence.9[10] The Judge considered that the dangerous driving offending, while not injuringanybody else, placed a large number of people in the community at risk.10 Heconsidered Mr Richmond's involvement in this offending was serious because he wasthe owner of the vehicle, he was the one who started the chase and he subsequentlycontinued it.11 The Judge considered this was "about as serious as it gets" in relationto the dangerous driving charge.129 New Zealand Police v Richmond, above n 1, at [9].10 At [12] and [13].11 At [8].12 At [13].[11] The Judge adopted a starting point of nine months' imprisonment for the leadoffence of threatening to kill. Despite the driving offences and breach of bail offenceoccurring on a different date and being different offences from the lead offence theJudge imposed concurrent sentences of two months' imprisonment for the dangerousdriving and the breach of bail offence. He gave Mr Richmond three months' credit forthe guilty plea, which reduced the sentence on the lead offence to six months'imprisonment. Mr Richmond was also disqualified from holding or obtaining adriver's license for 12 months on the dangerous driving charge, with a further sixmonths' disqualification to follow on the failing to stop for flashing blue and red lightscharge.[12] The sentence of six months' imprisonment meant that Mr Richmond waseligible for a sentence of home detention. However, the Judge said nothing aboutwhether he should impose this sentence rather than imprisonment.SubmissionsAppellant's submissions[13] Mr Richmond submitted that the starting point on the threatening to kill chargewas too high. Given there is no established tariff case for threatening to kill, he thenoutlined comparable cases to support his argument on the level of the starting point.[14] Mr Richmond relied on the remarks of White J in Allan v Police, on factorswhich may be relevant to determining the seriousness of the offence: namely, thedegree of premeditation, apparent willingness to carry out threat, usage of a weapon,level of harm or fear caused and whether the threat was made to the victim.13[15] Mr Richmond referred to McCleary v Police where the defendant threatenedto kill her partner. A starting point of four months' imprisonment was upheld by AsherJ on appeal.1413 Allan v Police HC Dunedin CRI 2011-412-37, 1 December 2011. Approved in Simon v R [2014]NZCA 207 at [22].14 McCleary v Police [2014] NZHC 1581.[16] Mr Richmond also referred to O'Connor v Police where the appellantthreatened to kill a person who was the subject of a protection order against him.15 Heentered her home and abused and threatened her stating "I hate you, I'm going to killyou bitch". He threatened to take her to the river, hang her and then kill himself. Heassaulted her by pushing her onto a couch and lying across her. The High Courtconsidered the appellant might have expected a sentence of 12 months' imprisonmenton the threatening to kill and assault charges.[17] In R v Sykes the appellant threatened to kill his estranged cousin at a tangi atthe appellant's home.16 He yelled at the victim, and smashed items in the house. Healso threatened a family member. Mr Sykes pointed a pistol at the victim's head andsaid "I will fucking kill you". He then walked around the lounge of the housemuttering "I'm going to kill you, I'm going to kill them". As it transpired the pistolhad been loaded with incorrectly sized ammunition. The offending had a significantemotional effect on the victim. The Judge adopted a starting point of 18 months'imprisonment, referring in particular to the usage of a pistol as an aggravating factor.[18] In Blair v New Zealand Police, the appellant threatened to kill his partner.17Following an argument over the phone, he told her that if she called the police hewould shoot her, her mother, her father and her brother in the head and also burn downthe house. He also sent her a text threatening to kill her. He also threatened to kill apolice officer and his family when being arrested. The Court adopted a starting pointof 12 months' imprisonment for the first threat, and 12 months cumulative for thesecond threat.18[19] In Burchell v R the Court of Appeal considered a threat made by the appellantwhen talking to his probation officer.19 The appellant had become angry whenrecounting the details of his experience at the hands of the court system and Police.He said he knew where the Police Officer who he was enraged at lived, and that if hesaw him again, he would kill him. The Court noted that it was significant that the15 O'Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.16 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.17 Blair v New Zealand Police HC Dunedin CRI-2010-412-10, 13 May 2010.18 At [19].19 Burchell v R [2010] NZCA 314.officer was not present at the time. Further, that it was an unparticularised andopportunistic threat which was a spontaneous culmination of an angry, irrational tiradeagainst Police officers and authorities in general. The Court considered that an endsentence of eight months' imprisonment was improper, and so it was replaced with asentence of four months' imprisonment.[20] Mr Richmond submitted that a starting point between four to six months'imprisonment is available. He acknowledged the present offending is more seriousthan Burchell, but argued that it was less serious than in the other cases. He submittedthat the threats were made out of frustration with the victim, with whom he is currentlyinvolved in a custody dispute regarding their children. He also submitted that therewas nothing to suggest he was serious about carrying out the threat, there was noweapon involved, the threats were non-specific, and he has no history of violence.[21] On the dangerous driving charge, Mr Richmond submitted that disqualificationfrom driving for 12 months was manifestly excessive. He also submitted the sentenceimposed of two months' imprisonment places him at the top end of the sentencingrange, as the maximum is three months' imprisonment. In this regard Mr Richmondrelied on Woodford v Police where a sentence of two months' imprisonment on acharge of dangerous driving was reduced to six weeks' imprisonment on appeal.20[22] Mr Richmond accepted that he has previous driving convictions. However,they date back to 2011 and, he submits, the present offending was less serious. Herefers to the fact Mr Ruha was sentenced to 100 hours community work, nine monthssupervision and disqualified from driving on the dangerous driving charge for sixmonths. Mr Richmond submits that his culpability is equal to that of his co-offender.Accordingly, the disqualification period should have been the same for each offender.[23] On the issue of home detention, Mr Richmond submitted that he is 30 years ofage, with a relatively limited conviction history. He has a suitable home detentionaddress, which is also suitable for electronic monitoring. He submits that a sentenceof home detention sufficiently serves the purposes of the Sentencing Act 2002 by20 Woodford v Police HC Christchurch CRI-2007-409-234, 5 December 2007.holding him to account, denouncing his conduct and providing a sufficient deterrenceto him and to others.Respondent's submissions[24] The respondent submitted that the threatening to kill offending in this case issignificantly more serious than in Burchell. Also, here the threatening messages weresent directly to the victim. The respondent emphasized the premeditated nature of themessages, as there were three sent over the space of a week with an additional call andtext message seeking a response. The respondent submitted that this was not aspontaneous outpouring of frustration, but ongoing offending specifically designed toscare the victim. The respondent also submitted that the references to the victim'sworkplace demonstrate a willingness on the part of Mr Richmond to carry out thethreat. Finally, the respondent referred to the impact of the offending on the victim, itcaused her to feel serious concerns for her safety and wellbeing, and it led her tobelieve her life may have been in danger.[25] The respondent submitted the case falls midway between Burchell andMcCleary v Police on the one hand (which attracted starting points of four months'imprisonment), and on the other O'Connor v Police and Blair v New Zealand Police,which attracted starting points of 12 months.[26] The respondent refuted Mr Richmond's submission he has no history ofviolence because he has a conviction for robbery by assault from 2013.[27] On the driving charges, the respondent referred to s 19 of the Sentencing Act2002, which provides that a sentence of imprisonment cannot be combined withsentences of community work or supervision. Accordingly, the only appropriatesentence which could be imposed on the dangerous driving charge was imprisonmentor a fine. Further, the respondent submitted that two months' imprisonment and a totalof 18 months disqualification was appropriate because of the deliberate, prolongedand dangerous nature of the chase as well as Mr Richmond's previous drivingconvictions.[28] Regarding the decision not to impose a sentence of home detention, therespondent submitted that Judge Ingram correctly considered that home detentionwould not act as an adequate deterrent. It relied on the remarks of the Court of Appealin Polyanszky v R that the introduction of home detention as a discrete sentence hasnot removed a short-term sentence of imprisonment as an appropriate sentencingoption.21 The respondent also referred to the remarks of the High Court in Brittin vPolice that:22When a court is considering sentencing for the purposes of deterrence,accountability, and denunciation, amongst other purposes, it must not imposea sentence of imprisonment unless it is satisfied that those purposes cannot beachieved by a sentence other than imprisonment and no other sentence wouldbe consistent with the application of the principles in s 8 of the Act.[29] The respondent submitted that the serious nature of the offending, as well asthe real risk of harm indicated that imprisonment was a proportionate response. Theyargued that Mr Richmond's criminal offending "does not lend itself to the conclusionthat he would comply with a sentence of home detention", and also referred to the factone of the offences was a failure to answer to Police bail. Further, that Mr Richmondhas convictions involving failure to comply with court orders. Finally, they referredto the remarks in his pre-sentence report, where he was assessed as being a mediumrisk of re-offending, that drug use and relationship difficulties are factors contributingto his offending. The respondent submitted that the principles of rehabilitation andreintegration were best served through a sentence of imprisonment whereMr Richmond can undertake necessary courses.Analysis[30] The key focus of this appeal was whether Mr Richmond should have receiveda sentence of home detention or not. However, that assessment involved a two-stageprocess. A Judge must first decide whether the sentence that is otherwise appropriateis a short-term sentence of imprisonment (stage one) and then whether to commutethat sentence to one of home detention (stage two).23 The assessment also requires the21 Polyanszky v R [2011] NZCA 4 at [13].22 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].23 See R v Vhavha [2009] NZCA 588 at [31].Judge "at stage one to operate on the assumption there is no stage two." 24 Accordingly,it was first necessary for me to review the process by which Judge Ingram arrived atthe term of imprisonment.Threatening to kill[31] There is no tariff case for the offence of threatening to kill. The circumstancesare always decisive.25 There are, however, a number of factors which are generallyrelevant to determining the seriousness of a threat to kill. Those factors include:26(a) the degree of premeditation;(b) the apparent willingness of an offender to carry out the threat;(c) the use of a weapon;(d) the level of harm or fear caused to the victim;(e) whether the threat was made to the victim[32] Judge Ingram adopted a starting point of nine months' imprisonment for thethreatening to kill charge, which he considered to be the lead offence.27[33] I agreed with the respondent that the offending must be categorised as moreserious than that in Burchell and McCleary v Police. An important factor in Burchell,which justified the reduction of the starting point to four months' imprisonment wasthe fact the threat was made to a third party, and in the context of an angry rant. Thespontaneous nature of the threat was also important. Similarly, in McCleary v Policethe threats were made at a time when Ms McCleary was distressed because she wasseparated from her children, the communication was made to a third party, and thethreat was imprecise and lacked specificity.28 These elements were lacking from24 R v Vhavha, above n 23, at [31].25 Burchell v R, above n 19, at [25].26 Allan v Police, above n 13.27 New Zealand Police v Richmond, above n 1, at [20].28 McCleary v Police, above n 14, at [13].Mr Richmond's threats, which were made on three occasions, and directly to thevictim (although through message). The continued nature of those threats showedthey were not spontaneous. Furthermore, due to the electronic nature of the threats,the victim would have had no way to know how serious Mr Richmond was.[34] I also considered it significant here that the threats were made in a particularmanner. Mr Richmond knew where the victim works. He referenced her work in thecontext of his threat, albeit a reference to what he had "wanted" to do rather than whathe was planning to. The fact that he wanted to "smoke" her at her work was a clearcommunication to the victim that he knew where she worked, and had a desire to harmher there.[35] The fact the threats were made electronically did not detract from theirseriousness. However, the absence of an immediate ability to effect the threats reducedthe level of harm caused. As was recognised by the Court of Appeal in Faaleaga vR:29The inability to immediately effect a threat reduces the terror it mightotherwise invoke, reducing the extent of harm resulting from the threat andthereby reducing culpability. We do not agree with the sentencing Judge thatthis factor cannot detract from the severity of the offending. Whether it doesor not will turn on the specific facts.[36] Nevertheless, here the reduction of harm was counter-balanced by the repeatednature of the threats, and the victim's knowledge that Mr Richmond knew where sheworked. Further the victim had expressed her fear of Mr Richmond doing somethingto either her or her children. Thus, she no longer feels safe in her home.[37] Whilst I accepted the offending was not as serious as that in Blair, I consideredit was closest to Blair where a starting point of 12 months' imprisonment was adopted.Accordingly, I did not consider a starting point of 9 months' imprisonment wasmanifestly excessive.29 Faaleaga v R [2011] NZCA 495 at [11].Dangerous driving[38] In Woodford v Police, Ms Woodford was sentenced in the District Court tocumulative sentences of two months' imprisonment for dangerous driving, and onemonths' imprisonment for drink driving. On appeal these sentences were reduced toa total sentence of six weeks' imprisonment. 30 She was also disqualified from drivingfor two years. Ms Woodford had been weaving within her lane, and on two separateoccasions swerved, forcing oncoming traffic to stop. She was confronted by fellowmotorists at a red light. She sped off, ramming two cars as she left. She drove througha red light, drove around stationary traffic and drove into the wrong lane.[39] I considered Mr Richmond's offending to be less serious than that ofMs Woodford. While he was driving the vehicle, it did not collide with other vehiclesnor did it damage anything else. Also, the driving did not involve any actual threatenedharm to other vehicles or the occupants, because apart from the pursuing Police vehiclethere were no other vehicles in the vicinity. I accepted, however, there was thepotential for such threats had other vehicles been present.[40] The Judge considered the dangerous driving imperilled the Police officers whowere in pursuit. However, they were able at any time to abandon the pursuit.Moreover, I would expect them to follow usual police procedures regarding chasesand to withdraw from a chase once it became dangerous. Accordingly, I did notconsider they were imperilled by Mr Richmond's driving. Further, Mr Richmond onlydrove the vehicle for part of the time. Whilst, in principle, as owner of the vehicle hehad authority to direct Mr Ruha not to drive in a dangerous manner Mr Ruha also hadreason not to stop for Police that night, and so it was not clear to me that Mr Ruhawould have acted under Mr Richmond's direction.[41] I recognised that Mr Richmond has prior driving convictions.[42] In relation to the sentencing for the driving offending and the breach of bailmy view was that once the Judge had concluded a short sentence of imprisonment wasappropriate for the threatening to kill offence, at stage one of this process the Judge30 Woodford v Police, above n 20, at [16].had no option but to impose a sentence of imprisonment for the dangerous drivingcharge and the breach of bail charge as well. Because those sentences were imposedto run concurrently with the threatening to kill charge they were less onerous than ifthey had been imposed cumulatively. Accordingly, I did not consider the length of theterms of imprisonment on the driving or breach of bail offending to be excessive.There remains the period of disqualification, which I shall address later.Home detention[43] As mentioned earlier, this was where the focus of the appeal lay. I was satisfiedthe Judge had failed to consider a sentence of home detention, which was a sentencingerror that meant this Court was now required to address whether home detentionshould be imposed or not.31 I also considered that at the time of sentencing the relevantfactors weighed in favour of imposing a sentence of home detention. It was onlybecause circumstances had changed by the time the appeal was heard that anothersentence was actually imposed.[44] The final sentence of six month's imprisonment clearly meant thatMr Richmond was eligible for a sentence of home detention. However, the sentencingnotes show that this sentence was not specifically considered by Judge Ingram.Instead, Judge Ingram is relevantly recorded as stating:32[15] I have received a probation report on you which recommends acommunity-based sentence. I regret to say that I do not consider this type ofoffending at this level could ever appropriately dealt with by way of acommunity-based sentence[18] I am satisfied on the basis of the authorities and the statutory factorsthat a sentence of imprisonment is required here and nothing less than asentence of imprisonment could ever be appropriate for the way that you havebehaved here.31 See R v Vhavha, above n 23, at [28]; and Fomai v Police [2014] NZHC 377 at [18].32 New Zealand Police v Richmond, above n 1, at [15] and [18].Relevant principles[45] A sentencing Judge is bound to consider whether home detention should beimposed if it is available; in R v Vhavha William Young P observed: 33[29] Eligibility for home detention depends upon the sentencing judgedeciding that, but for the availability of home detention, the offender wouldotherwise be sentenced to a short-term sentence of imprisonment (ie of twoyears or less): s 15A of the Sentencing Act 2002. In effect, the Court is givena discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act tosuggest a presumption for or against such commutation, either generally or inrespect of particular types of offence. So what is called for is an exercise ofsentencing discretion in a way which gives effect to the purposes andprinciples of sentencing recorded in ss 7 and 8 of the Sentencing Act.Although those observations were made in the context of a minority judgment WilliamYoung P's reasoning in Vhavha was subsequently approved by the Court of Appeal inOsman v R,34 and in Manikpersadh v R,35 and it has been applied in this Court.36Accordingly, the principle is now well established.[46] In Brittin v Police Woodhouse J provides a helpful synthesis of the relevantprinciples:37The following principles, contained in the Sentencing Act and leading cases,are relevant:38(a) Imprisonment is a measure of last resort.39(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.4033 R v Vhavha, above n 23, at [29].34 Osman v R [2010] NZCA 199 at [20].35 Manikpersadh v R [2011] NZCA 452 at [14].36 Fomai v Police, above n 31; Brittin v Police, above n 22; and Tanoa v New Zealand Police [2017]NZHC 2836.37 Brittin v Police, above n 22 at [55].38 This summary is taken in large measure from Fairbrother v R [2013] NZCA 340 at [23]-[29].39 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].40 Sentencing Act 2002, s 16(1).(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.41(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.42(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.43(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.44(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall the purposes of sentencing.45[47] In Brittin v Police Woodhouse J found the sentencing Judge had erroneouslyexercised his discretion because he had failed to give adequate weight to the aboveprinciples. In the present case there was no express consideration given to thoseprinciples. In this respect the present case was analogous to that of Fomai v Policewhere the sentencing Judge had also said nothing about imposing home detention.46[48] In Fomai the sentencing Judge erred by generally referring to and rejectingsubmissions that were made to him for a "community-based sentence".47 A referenceto a community-based sentence is not a reference to a sentence of home detention.48As was recognised in Fomai, a community-based sentence is defined in s 44 of theSentencing Act as a sentence of community work, supervision, intensive supervisionor community detention; it does not include a sentence of home detention. Thesentencing Judge's references to a community-based sentence could not inferentiallybe understood to include home detention as well, even if allowance was made for the41 Sentencing Act 2002, s 16(2).42 R v Iosefa [2008] NZCA 453 at [41].43 Manikpersadh v R, above n 35, at [17]-[19].44 Sentencing Act 2002, s 7(1)(h).45 Fairbrother v R, above n 38, at [30].46 Fomai v Police, above n 31, at [17].47 At [17]48 At [17].circumstances of sentencing in the District Court and the possibility of a busy listCourt where a sentencing Judge cannot be expected to articulate every point that maybe relevant.49 In this regard Woodhouse J went so far as to find that a sentencing Judgeis obliged to consider home detention when it is technically available in terms of s 15Aof the Sentencing Act, even where there was no submissions for a defendant that homedetention should be imposed.50 I agree with this reasoning.[49] The failure of the sentencing Judge in Fomai to specifically address whetherhome detention was an appropriate sentence meant:51 the question of home detention needs to be assessed by this Court. It is notan assessment on appeal of the exercise of a discretion by the sentencingJudge, but an original exercise of discretion by this Court.[50] I take the same view. There is a clear difference between an appeal based onthe failure to exercise a sentencing discretion and an appeal based on an erroneousexercise of this discretion. With the former, once the appellate court is satisfied thediscretion was not exercised it must do so itself. With the latter, the appellate courtmust first determine if the discretion has been exercised erroneously, which is doneaccording to the standard approach for appeals against the exercise of discretion.52This requires an appellant to establish the sentencing judge has applied an incorrectsentencing principle, given insufficient or excessive weight to a particular factor, orwas plainly wrong.53 It is only then that the appellate court can proceed to exercisethe discretion itself.[51] Here the respondent approached the appeal as if it were an appeal based on thewrongful exercise of a discretion, rather than the absence of such exercise.Accordingly, they assumed the wrong approach, which led to an erroneous reliance onthe Court of Appeal's decision in Polyanszky v R, to support its arguments for thisCourt not to interfere with the sentence Judge Ingram imposed.5449 Fomai v Police, above n 31, at [18].50 At [18] and see s 16 of the Sentencing Act 2002.51 Fomai v Police, above n 31, at [18].52 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.53 At [17].54 Polyanszky v R, above n 21, the appeal was approached as an appeal against the exercise of adiscretion and the approach set out in James v R was applied.[52] However, Polyanszky did not involve the failure to consider home detention,rather the appeal was brought on the basis the sentencing judge's assessment hadwrongly led to him deciding against home detention. Thus, it was a standard appealagainst the exercise of the sentencing discretion, albeit one that was finely balanced inthe circumstances. This led the Court of Appeal to state:55when an offender is on the cusp of home detention the Court will ordinarilydefer to the assessment of the sentencing Judge.In such circumstances Ms Polyanszky's appeal failed because she could not show thesentence she received was "wrong in principle or was manifestly excessive.56[53] Further, Polyanszky involved an appellant who was selling cannabiscommercially. She had previous drug convictions. In 2003 she was convicted ofcultivating cannabis and in 2007 she had been found with 520 grams of cannabis. Onthose two earlier occasions she had received non-custodial sentences. The pre-sentence report recommended home detention. The sentencing Judge addressedwhether he should give home detention or not. He concluded that he was bound bythe guideline judgment in R v Terewi where the Court of Appeal had stated that theparamount consideration for commercial drug dealing was deterrence of others.57 Theeffect of R v Terewi is generally understood to exclude non-custodial sentences as arule of thumb.58 The sentencing Judge considered Ms Polyanszky was well aware ofthe risk of imprisonment because she had referred to that risk when selling cannabisto an undercover police officer. Moreover, Ms Polyanszky had advised the pre-sentence report writer that she spent her days living at home on a domestic purposesbenefit watching television and smoking cannabis, which led the sentencing judge toconclude that a sentence of home detention it would have little impact on her by wayof deterrence.[54] Accordingly, I consider that Polyanszky is distinguishable from the presentcase as the circumstances and the nature of the appeal are quite different.55 Polyanszky v R, above n 21, at [13].56 At [16].57 R v Terewi [1999] 3 NZLR 62 (CA) at [15].58 R v Vhavha, above n 23, at [35] where William Young P referred to the expressed rule of thumbin R v Terewi that in cases of commercial drug dealing the power to suspend a prison sentenceshould be exercised only in exceptional circumstances.Should Mr Richmond have been sentenced to home detention?[55] Mr Richmond was not someone who was on the cusp of home detention. Manyof the ss 7 and 8 factors in his case strongly pointed towards a sentence of homedetention.59[56] In R v Rawiri the Court of Appeal recognised imprisonment to be a measure oflast resort, which weighs against this sentence imposed on Mr Richmond.60[57] The Court of Appeal has also observed the closer the appropriate prisonsentence is to the two year maximum the more likely home detention will beinappropriate and the lower the appropriate prison sentence is the more likely homedetention will be appropriate.61 Here the prison sentence the Judge arrived at was onequarter of the two year maximum sentence, which weighed in favour of homedetention.[58] Mr Richmond had a suitable address from which to serve home detention. Hehad successfully completed a sentence of home detention in 2013. He had breached asentence of community work in February 2018, but the penalty imposed was that hewas convicted and discharged, which suggests the breach was not serious. The onlyother non-compliance was his present offence of failure to answer to police bail. Onbalance his previous history supported a sentence of home detention.[59] The threatening to kill offending that led to the prison sentence was the firstoffence of this type, being a threat of violence to a person more vulnerable than himselfand someone with whom he had been in a domestic relationship. He had no historyof family violence. These circumstances weighed in favour of home detention. Whilstthere was a need to deter him from like offending in the future it was not as strong aswould be the case if he had a history of family violence.[60] The offending was accepted by the Judge as having been driven by drugaddiction, which in light of Mr Richmond's criminal history would suggest it was59 Sections 7 and 8 of the Sentencing Act 2002.60 R v Rawiri, above n 39, at [18].61 See R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; and Garnett v R [2010] NZCA 173.otherwise out of character. This also supported a sentence of home detention,particularly if steps were also put in place to address the drug addiction.[61] It is worth reviewing Mr Richmond's personal circumstances and his criminalhistory. He is 30 years old. He is Māori. He has not been to prison before. Forsomeone of his race, age, who is seemingly either an unskilled or semi-skilled worker,has had periods of unemployment and is a drug user, his criminal history is relativelyinsignificant. He has no record of gang involvement. Persons in similar circumstancescan often have a more extensive and serious criminal history. This suggests that withsome assistance he is capable of rehabilitation and reintegration into the community.A sentence of home detention is more likely to achieve this.62[62] Mr Richmond's criminal history began in 2007 when he was 18 years old withthe offences of driving while suspended and driving with an excess breath alcohollevel. For these offences he received community work and was disqualified fromdriving for six months. The following year, in 2008, there was a second excess breathalcohol offence for which he was fined and disqualified from driving for six months.[63] He next offended in 2009 when he received a dangerous driving charge forwhich he received a fine of $600 and was disqualified from driving for six months.[64] He did not offend again until 2011 when he committed the offences of fightingin a public place, for which he received a $200 fine; drove while his licence wassuspended or revoked, for which he received a $200 fine and further disqualificationfrom driving for six months; and shoplifted an item under $500, for which he was tocome up for sentence if called upon within six months.[65] There was no further offending until 2013 when he committed the more seriousoffence of robbery by assault, for which he received ten months' home detention and140 hours community work. These sentences were served without incident.[66] He did not reoffend again until 2017 when between September and Novemberof that year he shoplifted an item under $500, for which he received 40 hours62 See discussion herein at [74] – [78].community work and was disqualified from driving for two months; and stole propertyunder $500, for which he received the same sentence. At this time he would have beenunemployed and on a job seekers benefit.63 While that does not excuse the theftoffences it provides some explanation for them.[67] Then in February 2018 he breached the community work sentence for whichhe was convicted and discharged. Also, later in February 2018, he received propertybetween $500 and $1,000 in value for which he received a sentence of 60 hourscommunity work and was ordered to pay reparation of $130. He complied with thatsentence.[68] This was the sum total of his offending until the present offences werecommitted this year. Apart from the one offence of robbery by assault the remainderof the prior offending lies between minor to moderate. Nothing came close toattracting a sentence of imprisonment. There are periods of time when he has notoffended, which shows he is capable of not offending.[69] The sentence of home detention he received in 2013 for robbery by assault wassuccessful insofar as he served the sentence without problems and he did not re-offenduntil some three years later in 2017, when he committed the two minor theft offencesof items under $500. All of which suggests he responded well to home detention.Indeed by 2017 he would have been unemployed and it is likely that the period ofunemployment coupled with methamphetamine use led to the resumption of offendingin late 2017. Even then nothing too serious was done until the present offending.[70] I am satisfied that Mr Richmond's use of methamphetamine coupled with thedifficulties he was having relating to the custody issues with his former partner led tothe explosive and unacceptable threats. The subsequent driving offences occurredbecause at the time the police saw him driving the vehicle he was in breach of his bailand therefore he tried to avoid them by speeding off in the vehicle. Thus, theconsequences of the earlier offending in March 2019, which led to him being on bail,followed by the breach of bail then influenced the offending in April 2019. It did not63 The pre-sentence report, which was written on 22 May 2019 states his last employment was threeyears ago in Whangarei on the wharf operating machinery.help that Mr Richmond was in his vehicle with Mr Rahu, who also had reason to avoidthe police.[71] I acknowledge deterrence and denunciation of the offending were relevantfactors. However, these can be satisfied by a sentence of home detention.64[72] There are other relevant factors which also need to be considered. As wasnoted by the Court of Appeal in Manikpersadh v R, s 7 of the Sentencing Act includesthe requirement for having regard to an offender's rehabilitation and reintegration intothe community.65 Also in Manikpersadh v R, the Court of Appeal noted therequirement in s 8 for the sentencing Judge to have regard to the least restrictiveoutcome, the offender's personal circumstances including his personal and familybackground and relevant rehabilitation.66[73] There is no presumption in favour of granting home detention.67 Theavailability of a sentence of home detention as a sentence has not removed a short-term sentence of imprisonment as a sentencing option.68 However, like any othersentence of imprisonment a short sentence of imprisonment should only be imposedas a last resort. This is likely to arise when an offender has already shown there to beor there is good reason to believe, he or she cannot satisfactorily complete a sentenceof home detention, or there is no suitable address from which to serve home detention.[74] Moreover, recent research reveals the lack of utility of short sentences ofimprisonment, particularly sentences of six months or less, which is a further reasonfor viewing them as a measure of last resort.[75] The research reveals that an offender is more likely to return to prison afterbeing sentenced to a prison sentence of six months or less than would be the case if analternative sentence were imposed. In "An Overview of Corrections in 2019", theDepartment of Corrections states that persons identified as "very short serving64 R v Iosefa, above n 42, at [41]; and Fairbrother v R, above n 38, at [29].65 Manikpersadh v R, above n 35, at [15].66 At [16].67 R v Vhavha, above n 23.68 Polyanszky v R, above n 21, at [13].prisoners" which are defined as persons serving a sentence of imprisonment of 12months or less present as one of the most challenging groups of prisoners.69 Of thesepersons 36 percent receive a subsequent sentence of imprisonment within 12 monthsof their release from prison. Further, the Department of Corrections Annual report for2017/2018 reveals that for offenders who receive a prison sentence of six months orless, 39.5 per cent are subsequently re-imprisoned.70 This is the highest figure forrecidivism, the risk of which increases considerably when prison sentences are for sixmonths or less.[76] In a paper dated 29 March 2018 titled "Using Evidence to Build A BetterJustice System: The Challenge of Rising Prison Costs", Dr Peter Gluckman in his roleof the Prime Minister's chief science advisor described the effect of prisons in thisway:714. The strong evidence base related to what fuels the prison 'pipeline'suggests that prisons are extremely expensive training grounds for furtheroffending, building offenders' criminal careers by teaching them criminalskills, damaging their employment, accommodation and family prospects, andcompounding mental health and substance use issues. On release, even aftera short period of imprisonment, for example on remand, offenders have beenfound to reintegrate poorly to the community. Furthermore, this does nothingto reassure victims that the risk of harm is being effectively managed by thejustice system.5. It is now well understood that prisons act as recruitment centres forgangs (especially for young offenders) and underpin the illegal drug trade.Imprisonment leaves those incarcerated with high rates of undiagnosed anduntreated alcohol/drug addictions and mental illness. They have a negativeimpact on the next generation, given that a high percentage of people in prisonare parents. These issues disproportionately affect Māori.[77] Mr Richmond readily fell within the above description given by Dr Gluckman.He is Tūwharetoa, and he is seriously addicted to methamphetamine. The act ofplacing him in a prison environment should only have been of last resort.69 Department of Corrections An Overview of Corrections in 2019 (Department of Corrections,2019).70 Department of Corrections Annual Report 1 July 2017- 30 June 2018 (Department of Corrections,8 October 2018) at 165.71 Professor Sir Peter Gluckman Using Evidence to Build A Better Justice System: The Challenge ofRising Prison Costs (Office of the Prime Minister's Chief Science Advisor, Wellington, 29 March2018) at 4.[78] The community-based sentences Mr Richmond had received to date haveadequately penalised him for his offending without putting him at risk of becoming arecidivist offender. This is demonstrated by his criminal history. For a 30 year oldman who has a methamphetamine addiction and been unemployed for the last threeyears, he has done well not to have committed more offences and offences of a seriouscharacter. Accordingly, I considered there were multiple relevant factors thatsupported him receiving a sentence of home detention. These outweighed anyconsiderations for imprisonment, particularly when a short term of imprisonment waslikely to adversely impact on Mr Richmond's prospects for rehabilitation and indeed,brought with it the greater likelihood of his returning to prison in the near futurewhereas home detention is not seen to carry such risk.[79] There will be occasions when the Court has no alternative but to impose a shortsentence of imprisonment. However where, as was the case here, home detention is asuitable sentence and it has been shown to be successful in the past, I consider therewas every reason to avoid imposing a short sentence of imprisonment. In my view anappropriate sentence would have been one of six months' home detention. The lengthof a sentence of home detention is generally half of the length of a prison sentence,which reflects the fact that for a short term sentence of imprisonment the release dateis half that sentence. However, on occasion more than half the length of the prisonsentence may be warranted.72 Here the general approach would have led to threemonths' home detention, which I consider would have been insufficient to meet therequirements of denunciation and deterrence.The sentence imposed[80] Mr Richmond had been denied bail pending the determination of his appeal.The Parole Act 2002 provides that for short sentences of imprisonment a sentencedprisoner only serves half the sentence imposed.73 By the time the appeal was heardMr Richmond had served just over two months of the sentence of imprisonment andwas due for release on 29 August 2019. In such circumstances it would have beenwrong to impose a sentence of six months' home detention. For these reasons I72 See Brittin v Police, above n 22, at [59].73 Parole Act 2002, s 86(1).considered a community based sentence was more appropriate. It offered the bestopportunity to provide for Mr Richmond to overcome his drug addiction, whichseemed to me also to be the most effective way to achieve his rehabilitation andreintegration into the community, as well as ameliorating the adverse effects of histime in prison.[81] I considered that in terms of sentencing principles the experience of twomonths' imprisonment could count towards and satisfy the need for denunciation anddeterrence, despite the statistical data to the contrary. What was then needed was asentence that could aid in Mr Richmond's rehabilitation and reintegration into thecommunity and impose the least further restriction on his liberty.[82] Mr Richmond recognises that he has a serious methamphetamine addiction. Inthe pre-sentence report he described himself as being a heavy user ofmethamphetamine by intravenous injection. The pre-sentence report hadrecommended a sentence of supervision and community work. Given his limitedresources Mr Richmond is not someone who could obtain help for his drug addictionprivately. I considered in the circumstances the sentence which would best assist withhis rehabilitation and reintegration, as well as being most likely to avoid furtheroffending, was to impose a combined community-based sentence of 12 months'intensive supervision and one month community detention. Attendant on the intensivesupervision were special conditions relating to him being assessed for andparticipating in programmes for drug treatment and for family violence issues. Thespecific conditions imposed on the intensive supervision sentence are set out in theresult judgment.74[83] Regarding the period of disqualification for the dangerous driving offending,the co-offender received a six months' disqualification. He did not start this drivingepisode and he did not own the vehicle, but other than that his driving seems to havebeen no different from Mr Richmond's. I considered there was too great a disparitybetween the disqualification Mr Richmond received and that which Mr Ruha received.Accordingly, I reduced the disqualification to nine months. The difference in length74 Richmond v Police, above n 8.was to reflect the fact Mr Richmond as owner of the vehicle had some measure ofcontrol over how it was driven and because he initiated the attempt to escape thePolice.Duffy J