MCLEAN v NEW ZEALAND POLICE [2018] NZHC 102

MCLEAN v NEW ZEALAND POLICE [2018] NZHC 102 [13 February 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-45[2018] NZHC 102BRIAN JOHN PERCY MCLEANvNEW ZEALAND POLICEHearing: 7 February 2018Appearances: W Hawkins for AppellantCC Gullidge for RespondentJudgment: 13 February 2018JUDGMENT OF CHURCHMAN JIntroduction[1] Mr McLean pleaded guilty to one charge of assault with intent to injure.1 On15 November 2017 in the Napier District Court, Judge Rea sentenced Mr McLean to12 months' imprisonment with six months of release conditions.2[2] Mr McLean appeals his sentence on the basis that the sentence of imprisonmentwas manifestly excessive. Mr Hawkins for the appellant submits that Judge Rea failedto give measured consideration to imposing a sentence of home detention because:(a) the Judge wrongly focused on the sentencing principles of denunciation1 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.2 New Zealand Police v McLean [2017] NZDC 25984.and deterrence to the exclusion of other sentencing principles, inparticular the rehabilitation of the appellant; and(b) the sentencing Judge considered that home detention could not serve todenounce and deter the appellant.[3] The Crown opposes the appeal and Mr Gullidge argues that it was open to thesentencing Judge to focus on the principles of denunciation and deterrence as opposedto rehabilitation given that the appellant is aged in his mid-forties and has over 100previous convictions, including several convictions for violence. It is further arguedthat the end sentence of 12 months' imprisonment was the least restrictive sentenceavailable that would sufficiently denounce and deter the appellant given the gratuitousviolence involved in the offending and his lengthy conviction history. Issues that arisein this appeal are whether the Judge erred in focusing solely on deterrence and whethera sentence of home detention adequately serves the principles of denunciation anddeterrence.Factual background[4] The charge of assault with intent to injure arose from an incident on15 September 2017. Mr McLean entered the Maraenui TAB at about 8.30pm andapproached an associate in the gaming room. He was agitated at the time and, shortlyafter speaking quickly to his associate, he left the gaming room, appearing angry.[5] As Mr McLean began to leave the TAB, he looked around and saw the victimlooking at him. He yelled out to the victim, asking, in crude language, what he waslooking at. He then approached the victim, who was sitting down at a bar leaner,drinking a beer at the time. Without warning, Mr McLean hit the victim in the side ofthe head in the region of his temple, once, with a round house punch. This immediatelyknocked the victim unconscious and he fell to the ground, hitting his head on the barleaner rail as he did so. Mr McLean then left the TAB, challenging people who wantedto intercept him.[6] The victim remained unconscious for a number of minutes and was taken byambulance to the hospital where he was treated for concussion and a cut gum due to atooth piercing his cheek. The victim impact statement indicated that the victimsuffered some residual physical effects such as tiredness and slurred speech and somepsychological effects.[7] Mr McLean is 46 years of age. He had over 100 previous convictions from1986-2011, including the following convictions for violence:(a) assaulting Police (2011);(b) common assault (2002, 2001 & 1992);(c) fighting in a public place (1998 & 1995);(d) male assaults female (1993); and(e) robbery by assault (1989).District Court decision[8] In sentencing Mr McLean, Judge Rea commented that Mr McLean had "adisgraceful record over the years" and that his situation was serious.3 He also notedthat Mr McLean was extraordinarily lucky not to be facing a murder or a manslaughtercharge.4 Both of those comments are entirely justified.[9] The Judge adopted a starting point of 16 months' imprisonment, reducing thisby four months (equivalent to 25 per cent) to recognise Mr McLean's guilty plea.Mr Hawkins accepted that no issue could be taken with the 16 months starting point.Home detention was not considered by the Judge to be an option in the present case.Approach to appeal[10] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion. An appeal against sentence3 At [4].4 At [5].must be allowed if the Court is satisfied that, for any reason, there is an intrinsic errorin the sentence imposed and a different sentence should be imposed.5 The focus is onthe final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.6Mr McLean's position[11] Mr Hawkins, on behalf of Mr McLean, argues the sentence was manifestlyexcessive and the Judge erred. He submits a sentence of 6 months' home detentionwas more appropriate in this case.[12] First, he submits that the Judge focused on one principle of sentencing and didnot consider an end sentence of home detention. This was done by placing primaryemphasis on denouncing and deterring the conduct in question. This is encapsulatedin the sentencing notes at [8] as follows:There is no point in putting this off for a home detention report. This sort ofconduct needs to be denounced and deterred and the Courts have aresponsibility to the public to do so. Home detention simply would not be anoption.[13] Mr Gullidge for the Crown acknowledges that the Judge was in error in sayingthere was no point in putting the matter off for a home detention report as the pre-sentence report had addressed the issue of home detention. The appellant argues thatthe error is that this assessment focuses only on one sentencing principle to theexclusion of other principles or purposes such as the need to rehabilitate7 and toimpose the least restrictive outcome.8 It was also argued that this reasoningdemonstrated that the Judge did not consider that home detention could serve todenounce and deter the appellant which is an error.9[14] The appellant must show that the error has led to a sentence that is manifestlyexcessive. The appellant submits that in this instance the error of focusing on5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.6 Ripia v R [2011] NZCA 101 at [15].7 Sentencing Act 2002, s 7(1)(h).8 Sentencing Act 2002, s 8(g).9 Manikpersadh v R [2011] NZCA 452 at [24].deterrence appears to have eclipsed all other sentencing considerations, including thepersonal circumstances of the appellant.[15] The pre-sentence report of 10 November 2017 was largely favourable to theappellant in promoting a community based sentence, placing some emphasis on therehabilitative needs of the appellant. It noted that Mr McLean was remorseful andwilling to participate in restorative justice. These matters do not appear to have beengiven any weight by the sentencing Judge.[16] Mr McLean also had employment unloading commercial fishing vessels atvarious ports throughout the North Island. A reference from the appellant's employerwas provided to the District Court for sentencing. No weight appears to have beengiven to this factor.[17] I acknowledge that the issue of employment was not straightforward with theappellant having been off work with a back problem at the time of the sentencing andsome of the work requiring the appellant to be away from Hawkes Bay overnight.[18] The appellant submits that when considering the above personal circumstancesand the need to impose the least restrictive outcome and the need to promoterehabilitation, a sentence less than a term of imprisonment should have been properlyconsidered. The pre-sentence report confirmed that Mr McLean, if sentenced tosupervision, would have special conditions to attend counselling and attend anassessment with a Departmental Psychologist. These conditions could have beenimposed as part of a sentence of home detention or forming part of post detentionconditions. It was submitted that this approach is not only consonant with well-established sentencing principles and policy, but is also in the interests of Mr McLeanand the community. A sentence of home detention would also serve to denounce anddeter the appellant's offending and deter others in the community also. Counselsubmits that when measured consideration is given to all the relevant principles andpurposes of sentencing, a different sentence would have been imposed, namely homedetention.[19] It is submitted that the end sentence of 12 months' imprisonment withoutmeasured consideration of home detention was manifestly excessive. It is thereforesubmitted that the appeal should be allowed and the Court impose a sentence of homedetention of approximately three months, allowing for the fact that Mr McLean hasbeen in custody since November 2017.Crown's position[20] The respondent submits that the end sentence was not substantially orsignificantly more severe than it ought to have been having regard to the seriousnessof the offending, the culpability of the appellant, and his personal circumstances.First ground – inappropriate focus on denunciation and deterrence[21] The Crown accepts that the sentencing Judge only referred to the principles ofdenunciation and deterrence and that it was open to the Judge to consider othersentencing principles.[22] Given the nature of the offending, the following sentencing principles under s7 of the Sentencing Act 2002 were relevant:(a) holding the offender accountable for harm done to the victim and thecommunity by the offending;(b) promoting in the offender a sense of responsibility for, and anacknowledgement of, that harm; and(c) protecting the community from the offender.[23] In sentencing Mr McLean, the Crown submits that little weight could beattributed to the principle of rehabilitation. The appellant had over 100 previousconvictions from 1986 – 2011, including several convictions for violence. While it isaccepted that the appellant had no previous convictions more recent than 2011, thesheer quantity of convictions over such a long period suggests the appellant lacks goodprospects for rehabilitation.[24] In Manikpersadh v R, a sentence of four months' imprisonment was commutedto four months' home detention on appeal.10 In that case, the appellant was aged19 years when the offending occurred, he had no previous convictions, he pleadedguilty immediately and was clearly remorseful, he paid $9000 by way of fullreparation, and he had a supportive family who recognised his alcohol problem. TheCourt of Appeal found the appellant's personal circumstances and his rehabilitationand reintegration into society all pointed strongly toward a sentence of homedetention.[25] In Moa v Police, a sentence of 12 months' imprisonment was commuted tosix months' home detention with a further reduction of three months for time served.11The appellant was aged 21 years and had a limited criminal history. Moa cited severalother decisions that involved similar offending for which sentences of imprisonmenthad been commuted to home detention. These cases all involved youthful offenders(the eldest being 25 years) with limited or non-existent conviction histories.[26] While the appellant did plead guilty at an early stage and the pre-sentencereport noted he seemed genuinely remorseful, Mr McLean lacks the youth and thelimited or unblemished record of appellants in Manikpersadh and Moa and the casescited therein.[27] The end sentence of 12 months' imprisonment was the least restrictive sentenceavailable that would sufficiently denounce and deter the appellant given the gratuitousviolence involved in the offending and his lengthy conviction history.[28] While the Crown accepts the sentencing Judge did not explicitly refer to theprinciple of rehabilitation, it is submitted that it was open to the sentencing Judge toattach minimal, if any, weight to this principle given the limited prospects forrehabilitation shown by the appellant's lengthy criminal history. The Judge did,however, consider home detention as an option and was emphatic in his rejection ofit.10 Manikpersadh, above n 9.11 Moa v Police [2017] NZHC 223.Second ground – home detention could not denounce and deter the appellant[29] The Crown accepts as a general principle that a sentence of home detentioncan satisfy the principles of deterrence and denunciation.[30] Given the appellant had previously received sentences of imprisonment foroffending and non-custodial sentences for violent offending, the Crown submits that asentence of home detention would not have sufficiently deterred the appellant nordenounced his conduct.Relevant LawSentencing purposes and principles[31] Sections 7 of the Sentencing Act 2002 sets out the purposes of sentencing:7 Purposes of sentencing or otherwise dealing with offenders(1) The purposes for which a court may sentence or otherwise deal withan offender are—(a) to hold the offender accountable for harm done to the victimand the community by the offending; or(b) to promote in the offender a sense of responsibility for, and anacknowledgment of, that harm; or(c) to provide for the interests of the victim of the offence; or(d) to provide reparation for harm done by the offending; or(e) to denounce the conduct in which the offender was involved;or(f) to deter the offender or other persons from committing thesame or a similar offence; or(g) to protect the community from the offender; or(h) to assist in the offender's rehabilitation and reintegration; or(i) a combination of 2 or more of the purposes in paragraphs (a)to (h).(2) To avoid doubt, nothing about the order in which the purposes appearin this section implies that any purpose referred to must be givengreater weight than any other purpose referred to.[32] In this case, the sentencing Judge appears to have focussed solely on thepurposes of denouncing the conduct (s 7(1)(e)) and deterring the conduct (s 7(1)(f)).The Judge appears to have afforded no weight to the defendant's expressed remorsefor the crime, despite s 7(1)(b) speaking of promoting in the offender a sense ofresponsibility for the crime. As s 7(2) notes, no purpose is to be given greater weightthan any other purposes referred to.[33] Section 8 of the Sentencing Act sets out the principles of sentencing:8 Principles of sentencing or otherwise dealing with offendersIn sentencing or otherwise dealing with an offender the court—(a) must take into account the gravity of the offending in the particularcase, including the degree of culpability of the offender; and(b) must take into account the seriousness of the type of offence incomparison with other types of offences, as indicated by themaximum penalties prescribed for the offences; and(c) must impose the maximum penalty prescribed for the offence if theoffending is within the most serious of cases for which that penalty isprescribed, unless circumstances relating to the offender make thatinappropriate; and(d) must impose a penalty near to the maximum prescribed for the offenceif the offending is near to the most serious of cases for which thatpenalty is prescribed, unless circumstances relating to the offendermake that inappropriate; and(e) must take into account the general desirability of consistency withappropriate sentencing levels and other means of dealing withoffenders in respect of similar offenders committing similar offencesin similar circumstances; and(f) must take into account any information provided to the courtconcerning the effect of the offending on the victim; and(g) must impose the least restrictive outcome that is appropriate in thecircumstances, in accordance with the hierarchy of sentences andorders set out in section 10A; and(h) must take into account any particular circumstances of the offenderthat mean that a sentence or other means of dealing with the offenderthat would otherwise be appropriate would, in the particular instance,be disproportionately severe; and(i) must take into account the offender's personal, family, whanau,community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or whollyrehabilitative purpose; and(j) must take into account any outcomes of restorative justice processesthat have occurred, or that the court is satisfied are likely to occur, inrelation to the particular case (including, without limitation, anythingreferred to in section 10).[34] The sentencing Judge has not referred at all to a number of these principles ofsentencing. While the defendant does have over 100 previous convictions, some ofwhich were for violent offending, the most recent of these was in 2011. The strikingfeature of this is that, after a sustained period of regular and prolific offending theappellant appears to have made a significant and, up until this incident, successfulattempt to turn his life around. While the appellant cannot claim the benefit of youthand absence of a prior record such as the defendant in Manikpersadh, he can claimcredit for his sustained efforts at rehabilitating himself since 2011. This would indicatethat rehabilitation is realistic in this case and is a factor which should have been givencareful consideration.[35] The pre-sentencing report recommended a community based sentence whichwould allow for the rehabilitative needs of Mr McLean. These were the sort ofconsiderations that the sentencing Judge needed to take into account.[36] Under s 15A of the Sentencing Act 2002, the Court has a discretion to imposea sentence of home detention. That section provides:15A Sentence of home detention(1) If a court is lawfully entitled under this or any other enactment toimpose a sentence of home detention, it may impose a sentence ofhome detention only if—(a) the court is satisfied that the purpose or purposes for whichsentence is being imposed cannot be achieved by any lessrestrictive sentence or combination of sentences; and(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.(2) This section is subject to any provision in this or any other enactmentthat—(a) provides a presumption in favour of or against imposing asentence of home detention in relation to a particular offence;or(b) requires a court to impose a sentence of imprisonment inrelation to a particular offence.[37] In Fairbrother v R, the Court of Appeal stated:12[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence.[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.[38] This approach followed another Court of Appeal decision of Manikpersadh vR where the Court held:13We are satisfied the Judge in the District Court was in error when he focussedsolely on deterrence when considering whether he could impose a sentence ofhome detention instead of imprisonment. We are also satisfied the Judge inthe High Court was in error when she failed to recognise that the DistrictCourt's narrow focus was an error that needed correction on appeal.[39] Section 16 of the Sentencing Act 2002 mandates that the Court must notimpose a term of imprisonment unless it is satisfied that the principles and purposesof sentencing cannot be achieved by a sentence other than imprisonment. It issubmitted that this is a high threshold and that a sentence of imprisonment is oftenreferred to as the sentence of "last resort".14[40] The Judge declined to impose home detention in this case, stating that it wasnot an option. The Judge commented that such conduct as Mr McLean's needed to bedenounced and deterred and the Courts have a responsibility to do so.12 Faribrother v R [2013] NZCA 340 at [29]–[30].13 Manikpersadh v R, above n 9, at [8].14 R v Rawiri [2011] NZCA 244 at [18].[41] However, I do not believe the Judge could be satisfied that the purposes ofdenunciation, deterrence and rehabilitation could only be achieved by a sentence ofimprisonment.15 The Judge failed to consider rehabilitation and whether the purposesof sentencing could still be met by a sentence other than imprisonment. In Fairbrotherv R, the Court of Appeal confirmed that the failure to take into account all the purposesof sentencing when considering home detention is an error of law.16 In that case, incomparing the sentences of home detention and imprisonment, and the task of thesentencing judge, the court said:17 the judge must make a considered and principled choice between the twoforms of sentence, recognising that both serve the principles of denunciationand deterrence and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.[42] Undertaking such a principled analysis in the present case would involveconsidering whether a sentence of home detention and community supervision wouldallow Mr McLean to continue the rehabilitative efforts that he had embarked upon.[43] The offence Mr McLean has committed is serious. However, a sentence ofhome detention can still denounce this conduct, promote a sense of responsibility forthe harm he has caused, and protect the community while also assisting in his ongoingrehabilitation to address the underlying causes of his offending.[44] In my view, the Judge was in error in seeming to focus exclusively on theprinciple of deterrence and denunciation, in not acknowledging that a sentence ofhome detention can have that effect and in not having regard to the sustainedrehabilitative efforts Mr McLean had made, his remorse and the prospect of his futurerehabilitation. As the Court said in R vRawiri:18 Judges will generally strive to avoid a custodial sentence where there is agenuine prospect of rehabilitation, unless other sentencing principles orpurposes operate to rule out that option.15 Sentencing Act 2002, s 7(1).16 Fairbrother v R [2013] NZCA 340 at [29]–[30].17 At [30].18 R v Rawiri, above n 14, at [22].[45] The sentence of 12 months' imprisonment should therefore be substituted witha sentence of home detention. This would normally mean a sentence of six months'home detention. However, this needs to be reduced further to take into account thetime Mr McLean has spent in custody.[46] The objective of rehabilitation also requires the imposition of some specialconditions. These are that Mr McLean:(1) Attend a psychological assessment with a departmental psychologist asdirected by a Probation Officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction of aProbation Officer.(2) Attend and complete an appropriate substance use programme and/orcounselling to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme shall be determined by aProbation Officer.Conclusion[47] I therefore allow the appeal on the ground that the Judge erred in only takinginto account the purposes of deterrence and denunciation, and in failing to properlyconsider home detention as an option or take into account the relevant considerationsunder s 15A of the Sentencing Act in declining home detention.[48] The sentence of 12 months' imprisonment should be quashed and substitutedwith a sentence of four and a half months' home detention, which takes into accounttime already spent in custody.[49] Mr McLean should serve this sentence at the address in Napier, which hasalready been approved by Corrections as suitable.[50] The sentence of home detention is subject to the special conditions set out inpara [46] of this decision.[51] The varied sentence will commence on 13 February 2018 in order to give theNapier Probation Service the necessary time to implement the necessary logisticalarrangements._____________________________Churchman JSolicitors:Public Defence Service, Hawke's Bay for AppellantCrown Solicitor, Napier for Respondent