MAJURY v NEW ZEALAND POLICE [2019] NZHC 3427

MAJURY v NEW ZEALAND POLICE [2019] NZHC 3427 [19 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-374[2019] NZHC 3427BETWEEN CHRISTOPHER MAJURYAppellantAND NEW ZEALAND POLICERespondentHearing: 2 December 2019Appearances: S Kimberley for the AppellantB Charmley for the New Zealand PoliceJudgment: 19 December 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 19 December 2019 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] On 22 July 2019, the appellant, Christopher Majury, was sentenced to22 months' imprisonment in the District Court1 in relation to two charges of breach ofa protection order2 and two charges of breach of conditions of intensive supervision.3[2] Mr Majury now appeals that sentence on the basis that there was an error inthe sentence imposed on conviction, and a different sentence should be imposed, as:(a) the sentence was manifestly excessive because:(i) the starting point was too high, and(ii) leave to apply for home detention was denied; and(b) the sentencing Judge erred in imposing a special release condition thatMr Majury submit to GPS monitoring.[3] It is well established that an appeal of this type must be allowed if the Judge issatisfied that there is an error in the sentence imposed on conviction and that a differentsentence should be imposed.4 In any other case, the appeal must be dismissed.5 Themeasure of error is the sentence be "manifestly excessive", a principle "wellengrained" in the Court's approach to sentence appeals.6 That is to be determined byreference to the final sentence, not the route adopted to reach it.7 How the sentencewas structured is not material.8Background facts[4] Mr Majury is related to the victim.1 Police v Majury [2019] NZDC 14362.2 Domestic Violence Act 1995, ss 19(2)(b), 49(1)(b) and 49(3). Maximum penalty of three years'imprisonment.3 Sentencing Act 2002, s 70A. Maximum penalty of six months' imprisonment or fine of $1,500.4 Criminal Procedure Act 2011, s 250(2).5 Section 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].7 Ripia v R [2011] NZCA 101 at [15].8 Mita v R [2012] NZCA 137.[5] On 12 January 2016, a temporary protection order was issued for the victim,against Mr Majury. A final protection order was made on 13 April 2016.[6] On 9 September 2016, he was convicted of two charges of criminal harassmentagainst the victim from the period 28 May 2015 to 7 January 2016. He was sentencedto 15 months' imprisonment.[7] On 11 December 2018, Mr Majury was found guilty of breach of a protectionorder by messaging the victim shortly after being released from prison (on6 October 2016). He was sentenced to 18 months' intensive supervision, together withjudicial monitoring undertaken by Judge Earwaker.[8] At the time of the current offending, Mr Majury was subject to both theprotection order and the sentence of intensive supervision.[9] On 15 February 2019, Mr Majury breached the protection order. Specifically,while he was driving Mr Majury noticed, ostensibly by chance, the victim inside hercar by the side of the road. He conducted a U-turn, and then drove slowly past her.The victim tried to hide her vehicle behind a tree. Mr Majury put his head out of hiscar window and looked directly at the victim. After she drove off, Mr Majury conductanother U-turn and followed her from behind for a short distance. Later that day,Mr Majury drove slowly past the victim's home address.[10] The next day, on 16 February 2019, Mr Majury again breached the protectionorder. He sent four messages to the victim via social media. One of the messagesstated that he wanted to see the victim to buy her food and added that "that tree wasn'tbig enough for you to hide behind".[11] Furthermore, Mr Majury breached his sentence of intensive supervision on twooccasions. First, between 3 and 17 January 2019, Mr Majury failed to report to aprobation officer as required. Secondly, on 18 February 2019, Mr Majury moved to adifferent residential address without prior written consent from the probation officer.District Court decision[12] On 22 July 2019, Mr Majury appeared before the District Court for sentencing.After first detailing preliminary matters,9 Judge Earwaker sentenced Mr Majury usingthe following methodology:(a) with reference to the decisions in Crean v Police10 and Smart v Police11His Honour calculated a starting point of 18 months' imprisonment forthe two breaches of the protection order (the lead charges);12(b) imposed an uplift of two months for offending while subject to asentence of intensive supervision;13(c) imposed an uplift of three months for Mr Majury's previousconvictions;14(d) imposed a cumulative sentence of six months imprisonment insubstitution for the sentence of 18 months' intensive supervisionimposed for the 8 October 2016 breach of the protection order;15and(e) applied a discount of seven months (around 24 per cent) for an earlyguilty plea.16[13] This resulted in the end sentence of 22 months imprisonment. In additionJudge Earwaker went on to:(a) impose a concurrent sentence of two months' imprisonment for the twobreaches of intensive supervision;179 Police v Majury [2019] NZDC 14362 at [1]–[2] (Introduction), [3]–[14] (Factual background),[15]–[16] (Purposes and principles of sentencing) and [17]–[18] (Relevant factors).10 Crean v Police [2015] NZHC 3203.11 Smart v Police [2016] NZHC 3092.12 Police v Majury [2019] NZDC 14362 at [19].13 At [19].14 At [19].15 At [20].16 At [20].17 At [23].(b) impose special release conditions for a six-month period after releasefrom prison, including GPS monitoring;18 and(c) decline leave for Mr Majury to apply for home detention "given thepersistent nature of [Mr Majury's] offending and [his] refusal to acceptresponsibility".19Issue One - Was the starting point too high?[14] Ms Charmley submitted, on behalf of the Crown, that the 18 month startingpoint imposed by Judge Earwaker was within the available range with reference toGreen v Police,20 albeit submitting that there was a lack of case law involving similaroffending. In particular Ms Charmley submitted that the comparator cases identifiedon behalf of Mr Majury could be distinguished on the basis that the present offendingdid not arise in a domestic setting.[15] In the alternative Ms Charmley noted that although Mr Majury does notchallenge the remainder of Judge Earwaker's methodology to get to an end sentenceof 22 months' imprisonment, the proper focus for the Court is whether the end sentenceimposed was excessive rather than considering the starting point in isolation. Inparticular, the Crown submits that the uplift imposed by Judge Earwaker couldproperly have been higher, with the result that the end sentence was not manifestlyexcessive.Discussion – starting point[16] I note at the outset that the cases referred to by Judge Earwaker in thesentencing notes were not relied on by either counsel in their respective submissions.As Judge Earwaker noted in his sentencing notes, both cases did however summarisethe relevant applicable principles. As Brewer J noted in Crean:2118 At [21]–[22].19 At [20]. Counsel had only sought leave to apply for home detention as there was no suitableaddress as at the date of sentencing.20 Green v Police HC Auckland CRI-2012-404-192, 3 December 2012.21 Crean v New Zealand Police [2015] NZHC 3203 at [16].First, there is no tariff authority for the offence. Sentencing has to follow firstprinciples.Second, the breaching of Court orders, including protection orders, is one ofthe types of offending where prior convictions are integral to the assessmentof the gravity of the index offending. This is because a history of previousbreaches is directly relevant to the assessment of the gravity of the most recentoffending and to the culpability of the offender. But care must be taken toensure there is no double counting of previous convictions when aggravatingpersonal circumstances are assessed at the second stage of the sentencingexercise.Third, the maximum sentence for breaching a protection order, as I havealready noted, was increased by Parliament on 25 September 2013 from twoyears' imprisonment to three years' imprisonment. Sentences imposed beforethen are, therefore, of limited assistance in providing guidance as to anappropriate start point. It follows that I give little weight to the decision inCoory v Police, an authority on which Mr Hamblett relied in his writtensubmissions.(Footnotes omitted.)[17] Likewise, Gendall J noted in Smart "breaches of protection orders varyenormously, both in culpability and in the degree of threat physical or psychologicalharm to the protected person".22[18] It is clear that the present case stands to be considered against these principles,notwithstanding, as Ms Charmley notes, aspects of Mr Majury's offending do not fallneatly within a conventional domestic violence framework. That statutory frameworkmust however be applied given a protection order has been made and there are clearfamilial ties between Mr Majury and the victim.[19] Against that background I have considered the cases referred to by counsel,together with Crean and Smart. Three points in particular emerge:(a) First, the decision in Green relied on by Ms Charmley provides noassistance because although factually somewhat similar it involved twocharges of criminal harassment pursuant to s 8 of the HarassmentAct 1997 This is a totally different statutory framework to that under22 At [15] citing Anderson v R [2016] NZCA at [26], citing Woods v Police [2015] NZHC 305 at [37]and Mam v Department of Corrections HC Christchurch CRI-2011-409-111, 1 December 2011 at[4].the Domestic Violence Act 1995,23 with the offences carrying amaximum penalty of two years' imprisonment upon conviction ratherthan the three years maximum for the breach of the protection orders.(b) Secondly, although the remainder of the cases involve quite dissimilarfactual scenarios, I am satisfied that overall the offending in all of thesecases is substantially more serious than in the present case.(c) It is also apparent that the starting point adopted in one of the casesreferred to by Ms Kimberley included an uplift for previous breachesof protection orders.24 In this case the starting point identified byJudge Earwaker did not on the face of it include uplift for those earlierbreaches as this was calculated separately in the uplift given forprevious convictions, which clearly included the previous convictionsfor breach of the protection order against the victim in this case.25[20] Taking these matters together, and assessing Mr Majury's overall culpabilityin order to determine the appropriate sentence for the totality of the offending, I amsatisfied that the starting point adopted, coupled with the uplift for previousconvictions (which logically reflected Mr Majury's history of breaching protectionorders and harassment against the current victim) was too high and has led to a totalsentence that is manifestly excessive.[21] Instead I consider a starting point of 10 months is appropriate for the offendingitself which, together with the uplifts for breach of the intensive supervision sentenceand for previous convictions, result in a notional end sentence on the lead charges of15 months' imprisonment. To this is added the cumulative sentence of six months'imprisonment in substitution for the intensive supervision sentence less a 24 per centdiscount for the guilty plea,26 giving an end sentence of 16 months' imprisonment forMr Majury.23 Now replaced, since 1 July 2019, by the Family Violence Act 2018.24 Narayan v Police [2014] NZHC 1241.25 See Edwards v Police [2017] NZHC 2834.26 As Ms Kimberley accepted the 24 per cent represents a pro rata of the guilty plea given byJudge Earwaker based on the starting point actually adopted.Issue Two - leave to apply for home detention[22] Ms Kimberley submitted for Mr Majury, that Judge Earwaker erred indeclining to grant Mr Majury leave to apply for home detention under s 80I of theSentencing Act 2002.[23] Ms Kimberley accepted that there is no presumption in favour of grantinghome detention.27 She nonetheless submitted that imprisonment should be a last resortand that Mr Majury has previously been sentenced to community work and appears tohave complied with the terms of that sentence. She further submitted that thesentencing Judge gave excessive weight to the purpose of deterrence and denunciationwithout regard to the purpose of rehabilitation and reintegration. Ms Kimberley statedthat access to rehabilitative programmes or counselling is limited while a person is incustody and submitted the negative effects of short sentences of imprisonment weredetailed by this Court in Richmond v Police.28Discussion – leave to apply for home detention[24] In this case the current offending occurred while Mr Majury was on a sentenceof intensive supervision, and this coupled with his previous convictions, means thatdeterrence and denunciation are particularly relevant in this case. Nevertheless, as theCourt of Appeal commented in Fairbrother v R, a court is still required to undertake:29 a considered and principled choice between the two forms of sentence,recognising that both serve the principles of denunciation and deterrence, andidentifying which of them better qualifies as the least restrictive sentence toimpose taking into account all the purposes of sentencing.[25] As the Court of Appeal noted in Palmer v R:30This change of approach is unlikely to make a difference in the result, becauseit is frequently difficult for an appellant to identify an error in a refusal tocommute a short sentence of imprisonment to an equivalent term of homedetention and any material error would normally have justified interventionunder the former approach. As William Young P pointed out in R v Vhavha,there is nothing in the Sentencing Act 2002 to suggest a presumption for or27 Richmond v Police [2019] NZHC 2001 at [73]; Manikpersadh v R [2011] NZCA 452; and R vVhavha [2009] NZCA 588.28 Richmond v Police [2019] NZHC 2001 at [75] and [76].29 Fairbrother v R [2013] NZCA 240 at [30].30 Palmer v R [2016] NZCA 541 at [19].against commutation, either generally or for particular types of offence. Thedecision calls for the case by case exercise of judgment against the statutoryprinciples and purposes of sentencing. Those principles and purposessometimes point, as here, in opposing directions, meaning that the sentencingjudge is called upon to assess whether home detention can respond adequatelyto the seriousness of the offending. As the Court explained in R v D(CA253/2008), it can be very difficult in a marginal case to articulate reasonsfor preferring one approach to another. In consequence, the margin ofappreciation extended to sentencing judges is usually significant.(Footnotes omitted.)[26] Under s 15A of the Sentencing Act 2002, a sentence of home detention may beimposed only if the court is satisfied that the sentencing purpose cannot be achievedby any less restrictive sentence or combination of sentences, and the court wouldotherwise have imposed a short-term sentence of imprisonment. This accords with thegeneral principle of sentencing in s 8(g), which requires the court to impose the leastrestrictive outcome that is appropriate in the circumstances.[27] Home detention has been recognised as a sentence carrying a considerablemeasure of denunciation and deterrence, sufficient to supplant a short-term sentenceof imprisonment.31 However, even in cases where home detention is available, thesentencing purposes of denunciation and deterrence can sometimes be met by nothingless than a sentence of imprisonment.32 Indeed, when determining whether a sentenceof home detention is appropriate, the offender's personal characteristics, demonstratedefforts towards rehabilitation and the likelihood of rehabilitative success are importantconsiderations.33 Ultimately, the Court is required to undertake an evaluative exercise.[28] Against that background, in my view, the sentencing Judge did not err indeclining to grant leave to apply for home detention. Judge Earwaker expresslyconsidered the request for leave to apply for home detention,34 but concluded that asentence of imprisonment was appropriate "given the persistent nature of [the]offending and [Mr Majury's] refusal to accept responsibility".35 This was not31 R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].32 See, for example, R v Taiepa [2009] NZCA 120 (receiving a stolen vehicle where thecircumstances of the offending and the history and attitude of the offender afforded no realisticalternative).33 R v Ford [2008] NZCA 64; R v Hill [2008] 2 NZLR 381 (CA); and R v Hall [2008] NZCA 207.34 At [20].35 Police v Majury [2019] NZDC 14362 at [20].therefore a case where the Judge failed to consider or give adequate reasons for hisdecision not to allow leave to apply for home detention.[29] As the Crown submits, Mr Majury's repeated, persistent and targeted historyof harassment and offending against the victim over the past four years is particularlyconcerning. Taken together with his other prior convictions of a similar nature againstother victims, his apparent lack of remorse or responsibility for his offending, hisproven inability to comply with court-imposed sanctions and his failure to engage inrehabilitation opportunities previously available to him mean that a sentence ofimprisonment is appropriate. Despite Ms Kimberley's submissions that insufficientweight was given to the purpose of rehabilitation, Judge Earwaker, who had beendirectly involved in the judicial monitoring of Mr Majury prior to the currentoffending, explicitly noted that Mr Majury had "not engaged in any treatment despite[earlier] recommendations and previous sentences".36[30] This ground of appeal therefore fails.Issue Three – was a GPS monitoring condition appropriate?[31] Ms Kimberley initially challenged the reasonableness of the GPS monitoringcondition imposed by Judge Earwaker, but following discussion at the hearing, athreshold issue was also identified as to whether a sufficient foundation existed interms of the statutory framework. In particular, s 93(3A) of the Sentencing Act 2002provides that "the court must not impose an electronic monitoring condition unless ithas had regard to the opinion of the chief executive of the Department of Correctionsin a pre-sentence report provided under s 26".[32] Section 26(2)(i) of the Sentencing Act then provides:(i) in the case of a proposed sentence of intensive supervision or possiblerelease conditions for a proposed sentence of imprisonment for 24months or less, the opinion of the chief executive of the Departmentof Corrections as to whether—i. a condition that prohibits the offender from entering orremaining in specified places or areas at specified times or atall times (a whereabouts condition in this paragraph) would36 At [14].facilitate or promote the objective of reducing the risk of theoffender reoffending while subject to the sentence or releaseconditions; andii. a whereabouts condition would facilitate or promote theobjective of rehabilitating and reintegrating the offender; andiii. a further condition requiring the offender to submit toelectronic monitoring of his or her compliance with awhereabouts condition is warranted, having regard to thelikelihood of non-compliance with the whereaboutscondition.(Emphasis in original.)[33] There is no dispute that the report writer of a pre-sentence (or PAC report) isoperating under the delegated authority of the Chief Executive of the Department ofCorrections, however the question arises as to whether in this case:(a) the recommendation in Mr Majury's PAC report adequately addressedthe matters set out in s 26(2)(i) of the Sentencing Act; and(b) whether, in imposing the electronic monitoring condition,Judge Earwaker had regards to the opinion in the pre-sentence reportprovided under s 26, as required by s 93(3A) of the Sentencing Act.The position of the Crown[34] In her supplementary submissions Ms Charmley submitted that the PAC reportwas adequate to meet the purposes of s 26(2)(i) of the Sentencing Act and sufficientregard was paid to that opinion by Judge Earwaker. In particular Ms Charmleysubmitted:The report recommends electronic monitoring "in order to monitor [theappellant's] compliance with any conditions(s) relating to your whereabouts"(recommended condition 1). The report writer also notes the appellant's highrisk of reoffending and his "continual re victimisation (sic) of the currentvictim", and opines that "imprisonment is considered appropriate withRelease Conditions to enable Mr Majury to address his offending relatedneeds". In the respondent's submission, it is clear the chief executive'sdelegate considered that the GPS condition – coupled with other conditionsincluding conditions not to associate with the victim or enter East Auckland –is necessary for the reasons set out at s 26(2)(i) of the Sentencing Act. This isespecially so in the context of the sentencing of an offender who was beingsentenced for his failure to comply with a sentence of intensive supervision.(Footnote omitted.)[35] Ms Charmley went on to observe Judge Earwaker had specifically adopted theGPS monitoring condition and, in particular, concluded that this was necessary giventhe lack of engagement by Mr Majury with the community probation service in thepast and his lack of remorse and failure to engage with rehabilitative treatment.Discussion – GPS monitoring[36] Section 26(2)(i)(iii) of the Sentencing Act makes it clear that more is requiredfrom the probation officer than simply proposing an electronic monitoring condition.Specifically, the probation officer must provide an opinion as to whether an electronicmonitoring condition is warranted "having regard to the likelihood of non-compliancewith the whereabouts condition".[37] In this case, as indeed Ms Charmley noted in the submissions set out above,apart from the recommended condition there is otherwise no specific reasoningprovided as to why the condition is necessary. The best that can be said, asMs Charmley effectively does, is that the need for such a condition is implicit fromthe PAC report overall. That is not sufficient for the purposes of s 26(2)(i)(iii), asreasoning is explicitly required by the wording of the section and in this case theprobation officer has clearly not provided any form of opinion on "the likelihood ofnon-compliance with the whereabouts condition".[38] As a result, even though it is clear that Judge Earwaker had had regard to therecommendation contained in the PAC report, the threshold condition was not satisfiedand, pursuant to s 93(3A) the GPS monitoring condition could not be imposed.[39] Even if I am wrong in that assessment I nevertheless conclude that in this casea GPS monitoring condition was not warranted.[40] In Patterson v R, the Court of Appeal affirmed that there must be a rationalnexus between the special release conditions and the purposes prescribed in s 93(3).37The conditions must also be reasonably necessary and proportional to the risk posed37 Patterson v R [2017] NZCA 66.by the offender.38 Furthermore, as an element of the sentence, any release conditionmust be consistent with the purposes and principles of sentencing set out in ss 7 and 8of the Sentencing Act: they must be directed towards the precise nature of theoffender's criminality, be the least restrictive outcome appropriate and be tailored tothe offender so that the sentence is not disproportionately severe.39[41] Mr Majury has displayed what the sentencing Judge described as an "obsessivenature"40 and has demonstrated an unwillingness (or inability) to comply with court-ordered conditions. However, the GPS monitoring only reveals Mr Majury's location,not that of the victim. I consider there is force to Ms Kimberley's submission that, inthe present circumstances, Mr Majury did not intentionally seek out an initialencounter with the victim; he ran into her by chance. Moreover, the bulk ofMr Majury's breaches were by way of electronic communication, which GPSmonitoring cannot effectively prevent. Although knowing an offender's location alonedoes reduce the risk of reoffending to some extent, and also enables any breach of thewhereabouts condition to be identified, in the present circumstances, it is difficult tosee how a further condition requiring Mr Majury to submit to GPS monitoring willreduce his specific risk of reoffending.41 Taken together I am not satisfied the GPSmonitoring condition meets the requirements of s 93(3) in this case. Nor am I satisfiedthe GPS monitoring condition is a justified limitation on Mr Majury's personalfreedoms as required under s 5 of the New Zealand Bill of Rights Act 1990.Decision[42] The appeal is allowed in part:(a) a sentence of 16 months' imprisonment is substituted for the originalsentence of 22 months' imprisonment; and(b) the special release condition of GPS monitoring is set aside.38 At [6] and [18].39 R v Janssen [2007] NZCA 450 at [14]–[17].40 Police v Majury [2019] NZDC 14362 at [18].41 Sentencing Act 2002, s 93(3)(a). The section is concerned with reducing the risk of reoffending"by the offender".[43] The remainder of the sentence, including special release conditions isotherwise confirmed._______________________________Powell J