DWYER v NEW ZEALAND POLICE [2021] NZHC 2563

DWYER v NEW ZEALAND POLICE [2021] NZHC 2563 [28 September 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-36[2021] NZHC 2563CHRISTOPHER NICHOLAS DWYERvNEW ZEALAND POLICEHearing: 28 Septemer 2021Counsel: S Hunt for AppellantJ E Bourke for RespondentJudgment: 28 September 2021JUDGMENT OF CHURCHMAN JIntroduction[1] On 2 September 2021 Mr Dwyer was sentenced by Judge Hikaka in theNew Plymouth District Court to four months' imprisonment (with six months' post-release conditions and reparation) on three charges: one charge or unlawfully taking amotor vehicle, and two charges of breaching home detention.1[2] Mr Dwyer appeals on the grounds that the sentencing Judge erred by notimposing the least restrictive outcome available in the circumstances, and failing tohave proper regard to s 26 of the Sentencing Act 2002.1 Police v Dwyer [2021] NZDC 17585.[3] The primary issue for determination is whether imprisonment was the leastrestrictive outcome appropriate in the circumstances, and whether a combinedsentence of community work and intensive supervision is sufficient to reflect theprinciples and purposes of the Sentencing Act.BackgroundFactual background[4] On 25 February 2021, Mr Dwyer convinced an associate to hire a vehicle fromBudget Rentals New Plymouth. He then convinced his associate to extend the rentalfor a further five days and was provided a different vehicle – a Ford Ranger valued at$50,000. Mr Dwyer took possession of that vehicle, used it for his personal use anddid not return it. He told his associate that he had made arrangements with the rentalcompany, which was false. Mr Dwyer then changed registration of the vehicle intohis name, and when it was not returned the vehicle owners reported it to the police.[5] The vehicle was recovered near Mr Dwyer's address with his personalbelongings inside it. He admitted the facts as outlined and explained that he hadoriginally planned to return the vehicle, but that it had "all got out of hand", and hecould not afford the rental invoice.[6] On 22 March 2021, Mr Dwyer was sentenced to five months' home detentionon charges of assault with intent to injure and wilful damage. A condition imposed aspart of this sentence was that Mr Dwyer was not to associate with or contact the victimof these offences.[7] It is significant that the associate referred to in relation to the theft charge wasin fact the victim in relation to a charge of assault with intent to injure that Mr Dwyerhad been sentenced to home detention on. It was a condition of that sentence that hedoes not associate with her.[8] On 22 June 2021, Community Corrections visited Mr Dwyer's address toverify his new accommodation and discovered that there was a female present.Mr Dwyer introduced this person as "Rosie", but she was identified at a later date asbeing the victim of Mr Dwyer's prior offending.[9] On 26 July 2021, Mr Dwyer left his home address and travelled to TaranakiBase Hospital. When contacted by the electronic-monitoring advisor fromCorrections, he told them that he was having health issues. The advisor instructed himto remain there, but upon contacting the hospital to verify Mr Dwyer's presence there,they were told that no-one of his name had checked into the emergency department.The advisor called Mr Dwyer, who subsequently terminated the call and returned tohis address. Mr Dwyer later admitted that he was in fact transporting the victim tohospital for treatment on her leg.[10] As noted in the sentencing Judge's summary of the facts, throughoutMr Dwyer's home detention sentence between June and August, he had been incontact with the victim without prior approval. When interviewed about it, he admittedthat he had been associating with her for a while, but that he did not think he wouldget "caught out". This formed the basis for the first breach of home detention charge.[11] The second breach of home detention charge was similar to the first. On 17August 2021, Community Corrections carried out an unscheduled visit to Mr Dwyer'saddress. A female answered the door and told them that Mr Dwyer was at work andwould be back at a later time. The female was identified as the victim. Mr Dwyerwas challenged about that being the case but said that she was "a friend". Heeventually acknowledged however, that it was in fact the victim.PAC report[12] The PAC report classified Mr Dwyer as being at a medium risk of offending,as, despite his relatively minimal criminal history, he committed the current offenceswhile on a sentence of home detention. The report noted that Mr Dwyer did notdispute the police summary of facts, and that in relation to the vehicle that he hadleased, he reported that it had been involved in an accident, and that he had panickedupon realising that it was uninsured. Mr Dwyer stated that it was his belief that if hechanged the vehicle into his own name, the issue "would go away", but that itultimately came back to bite him.[13] Mr Dwyer also acknowledged that he had associated with the victim of hisoffending throughout his home detention sentence, but that he thought that he wouldnot get caught and that if he did, there would be no "real" consequences" due to thereonly being a "few days left" on his home detention.[14] In light of this information, the report-writer recommended a sentence ofintensive supervision, coupled with community work. A special condition whichstipulated that Mr Dwyer was not to associate with the victim was recommended. Thereport-writer noted an electronically monitored sentence of either communitydetention or home detention was considered but was not recommended because nosuitable address was available and the report-writer was unsure as to whetherMr Dwyer "could maintain the integrity of such a sentence".District Court decision[15] After setting out the relevant factual background, Judge Hikaka summarisedthe PAC report, describing Mr Dwyer as having a sense of entitlement and poorproblem-solving skills and attitudes. The Judge noted that, what had grated withprobation services was that Mr Dwyer was deceitful and had lied to CommunityCorrections over a lengthy period of time in relation to his breaches of the sentence ofhome detention.[16] The Judge noted that the victim who owned the car stolen by Mr Dwyerprovided a schedule of close to $9,500 loss to the company on account of himunlawfully converting it, which had been revised down to $2,900 to cover the cost ofrepair for the vehicle, fuel and unpaid fees with respect to the hireage.[17] Counsel had referred the Judge to several cases including Moka v Police,Turnbull v Police, and R v Rolleston.2 Those cases all included charges of unlawfullytaking a motor vehicle, and the Judge noted that in R v Rolleston, a community-basedsentence was imposed to try and break the cycle of offending, but also Moka v Police,2 Moka v Police HC Auckland CRI-2007-404-268, 11 December 2007; Turnbull v Police [2021]NZHC 828; and R v Rolleston [2018] NZHC 2656.where a nine month sentence of imprisonment on a single charge of unlawfully takinga vehicle was upheld on appeal.[18] The Judge then turned to the mitigating factors for Mr Dwyer and hisoffending. These included his guilty plea (which the Judge held deserved full credit),his remand in custody of some 16 days (which the Judge described as a "wake-upcall"), and also the fact that Mr Dwyer had been suffering from mental health issuessuch as depression, as well as having suicidal ideations leading to him being prescribedmedication. The Judge noted that Mr Dwyer also had the support of his ex-partner,and Prisoners Aid and Rehabilitation Service had indicated to Mr Dwyer's counselthat they were prepared to assist in finding a temporary residential option for him.[19] Counsel for both the police and Mr Dwyer submitted that a sentence ofintensive supervision and community work was the appropriate response, althoughcounsel for the police did express concern about the current charges due toMr Dwyer's deception, and breaking the condition to not associate with the person towhom he had previously been violent.[20] Overall, the Judge concluded that in line with purposes and principles of theSentencing Act, and particularly noting the length of time that Mr Dwyer deliberatelydeceived Corrections, the starting point should be eight months' imprisonment.[21] The aggravating features of the offending included the length of timeMr Dwyer continued the deception, the abuse of trust working with others to securethe rental car in his possession and control, the length of time he kept it in hispossession and control, and the costs incurred by the rental company as a result of hisdeceptive behaviour. The Judge expressed his concern that not only did Mr Dwyerbreach the conditions of his home detention sentence, but that he spent a lengthy periodof time attempting to deceive those who were trying to assist him to properlyrehabilitate back into the community.[22] The Judge expressed the view that he was "not inclined" to grant a community-based end sentence, or for Mr Dwyer's prison sentence to feature leave for him toapply for home detention. The Judge's view was that Mr Dwyer had already shownthrough his disregard of his last sentence that he was not a person who could be trustedon a community-based sentence.[23] The Judge did acknowledge that Mr Dwyer was entitled to the maximumdiscount for a guilty plea, and also for what he described as individual factors. Henoted that while Mr Dwyer was only a few days away from completing the sentenceof home detention, he was several months away from seeing an end to the conditionthat he was not to associate with the victim of his prior offending, which needed to betaken into account.[24] The Judge ultimately imposed an end sentence of four months' imprisonment,without leave to apply for home detention and six months' post-release conditions,namely:(a) attend any assessment for any programme or counselling that isrecommended and follow up with any treatment that the assessmentdiscloses would be appropriate;(b) non-association with the victim of his earlier offending without writtenapproval of the probation officer; and(c) undertaking employment, voluntary work or training as approved byhis probation officer.[25] Finally, the Judge made an order that the remaining post-detention conditionsend on that day, and made a reparation order for $2,900 to the victim in the unlawfultaking charge (in payments of $10 per week upon release).Position of the partiesMr Dwyer[26] On the first ground of appeal (that the sentencing judge erred by not imposingthe least restrictive outcome appropriate in the circumstances) counsel submitted thatMr Dwyer's imprisonment in this case was disproportionately severe. While notruling out a starting point of imprisonment, counsel stressed that the end sentenceought to have been a community-based sentence, as this was the least restrictivesentence available in line with s 8(g) of the Sentencing Act. Counsel referred to R vRawiri, where the Court of Appeal observed:3[17] These changes are consistent with a discernible legislative policy ofkeeping offenders within the community wherever appropriate. Parliament'sintention was plainly to increase the range of sentencing alternatives availableto a Judge other than home detention or imprisonment. Significantly, thelegislature placed community-based sentences well up the hierarchy,immediately below home detention.[18] The statutory hierarchy of sentencing options is a blunt affirmationthat prison is a measure of last resort.[27] It was submitted that instead of following the approach required under s 8(g),the judge had imposed the most restrictive sentence for Mr Dwyer's first dishonestyconviction. This was despite Mr Dwyer's near "blemish free" criminal record (withonly two prior convictions and no recorded breaches of bail or Court orders), and thefact that Corrections (via the PAC report) and police (whose counsel had suggestedthe sentence of intensive supervision and community work). Judge Grieg, who hadheard Mr Dwyer's application for bail on 18 August 2021 had also expressed a viewthat this might be the ultimate outcome.[28] While counsel acknowledged that the Judge was not bound to follow any ofthese views, they provided evidence that a sentence of imprisonment was not the leastrestrictive one in the circumstances. Counsel again referred to R v Rolleston,4 wherethe Court dealt with a 21-year-old recidivist offender, who was sentenced to acombination of supervision and community work to "break the cycle of offending",and submitted that the same approach should be taken here.[29] Also, in assessing the two breaches of Mr Dwyer's home detention, counselsubmitted that alone, they did not warrant a prison sentence. They did not involvecircumstances where the integrity of a home detention sentence had beencompromised. Mr Dwyer's liberty was still severely constrained; he did not cut offhis bracelet, leave his address for a sustained length of time, or commit further offences3 R v Rawiri [2011] NZCA 244.4 R v Rolleston [2018] NZHC 2656.whilst on sentence. When viewed in isolation, a first and second breach of this kindcould have attracted a convict and discharge or to come up if called upon sentence,with further breaches climbing the hierarchy of sentences.[30] Turning to the second ground (that the sentencing judge failed to have properregard to s 16 of the Sentencing Act) counsel noted that s 16 confirms that whenconsidering the imposition of a period of imprisonment for a particular offence, theCourt must have regard to the desirability of keeping an offender in the community sofar as that is practicable and consonant with the community's safety. Under s 16(2), aCourt cannot impose a sentence of imprisonment unless it is satisfied that:(a) the sentence is being imposed for a statutory purpose or purposes – thatis: to hold the offender accountable; or to induce in him or her a senseof responsibility; or to serve the interests of any victim; or to denouncethe offending; or to deter; or protect the community; and(b) that those purposes cannot be achieved by a sentence other thanimprisonment; and(c) that no other sentence would be consistent with the statutory principlesas applied to the particular case.[31] It was counsel's position that the Judge did not adequately address s 16(1) orgive appropriate weight to the s 16(2) factors. In particular, the Judge did notexplicitly discuss which purposes and principles of the Sentencing Act were guidinghis decision, or note the s 16 factors, before settling on a starting point of eight months'imprisonment. There was little expansion of the Judge's reasoning for imposing aprison sentence or declining leave for home detention (except for several referencesto Mr Dwyer's deception).[32] Under s 16(1), counsel submitted that Mr Dwyer's risk of re-offending wasassessed as moderate, but counsel submitted that he was still relatively young and witha limited previous conviction history and mental health issues, suggesting that it wasunlikely that he fully understood the severity and consequences of his actions.Furthermore, there were also community supports in place to ensure his smoothtransition back into the community.[33] It was submitted that under s 16(2), a community work sentence adequatelydenounces and deters Mr Dwyer and holds him accountable for his behaviour, whileintensive supervision, with the special conditions, serve the interests of the victim,protect the community, and promote the rehabilitation of the appellant.[34] For these reasons, counsel submitted that the sentence imposed was manifestlyexcessive, and therefore in error.The police[35] Counsel for the police stresses that the charge relating to converting the motorvehicle occurred while the appellant was subject to bail conditions and a sentence ofhome detention. It was also submitted that the breaches of the home detentionsentence were not fleeting or careless breaches but were prolonged and premeditated.[36] It was submitted that the imposition of a sentence of home detention, in thecontext of domestic violence offending, served multiple purposes: deterrence,denunciation, and also offered an opportunity for rehabilitation by way of such coursesas may be directed.[37] It was noted that the victims of domestic violence may, on occasions, wish toremain in a relationship with a defendant and, in those circumstances it was the dutyof the Court to protect those who could not protect themselves.[38] It was not acknowledged that Judge Hikaka did not explicitly refer to s 16 orthe hierarchy of sentences but was submitted that this was "clearly at the forefront ofthe Judge's mind" when he noted that Mr Dwyer was "not a person who can be trustedon a community-based sentence".[39] Counsel emphasised that the offending showed a disregard for sanctionsimposed by the Court and referred to the approach of the Courts imposing sternresponses when offenders deliberately fail to abide by Court-imposed conditions. Itwas submitted that any lesser sentence than imprisonment would not meet thepurposes of sentencing, in particular deterring others from deliberating flouting Court-imposed conditions.Approach to appeal[40] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.5 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.6Relevant law and analysis[41] The focus for a sentencing Court is to impose the least restrictiveoutcome appropriate in the circumstances, in accordance with the hierarchyof sentences set out in s 10A of the Sentencing Act.7[42] If an offender is convicted of an offence punishable by imprisonment,8 andthe end sentence reached is a short-term sentence (meaning a sentence ofimprisonment of up to 24 months),9 home detention becomes available as asentencing option. However, whether or not it is appropriate to impose this sentence,in the circumstances of a particular case, is a matter for the discretion of the sentencingJudge. There is no presumption in favour of home detention being imposed.10[43] The Court of Appeal in R v Thomas11 noted that where there was a realdispute as to whether a community-based sentence was appropriate, it wasnecessary for a sentencing Judge to refer to the ascending scale of sentences5 Tutakangahau v R [2014] NZCA 279.6 Ripia v R [2011] NZCA 101 at [15].7 Sentencing Act 2002, s 8(g).8 Sentencing Act 2002, s 80A(1)(a).9 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).10 At [21].11 R v Thomas CA138/05 6 July 2005.set out in ss 11 to 18 of the Sentencing Act 2002, and also to specify thepurpose of the sentence.[44] In the present case, Judge Hikaka followed a course different to thatrecommended in the PAC report and contrary to the submissions of counselfor both the prosecution and defendant. In those circumstances, it wasnecessary for him to articulate why he had reached that view and the basisupon which he was satisfied that the requirements of s 16(2) were met.[45] It is therefore necessary for me to consider both the hierarchy ofsentences and orders set out in s 10A and to consider whether therequirements of s 16(2) are met.[46] In terms of the hierarchy, the most restrictive sentences are:(a) sentence of imprisonment;(b) sentence of home detention;(c) community-based sentences of intensive supervision andcommunity detention;(d) community-based sentences of community work andsupervision;(e) sentences of a fine and reparation; and(f) discharge or order to come up for sentence if called upon.[47] I accept, as noted by the Court of Appeal in R v Rawiri that thestatutory hierarchy of sentencing options is an affirmation that prison is ameasure of last resort and that a sentence of community service can be a realand effective alternative to imprisonment and should not be regarded by thepublic as a minor or insignificant response.12[48] I accept that a sentence of community work is designed to achieve theprinciples of accountability, deterrence and denunciation traditionallyassociated with imprisonment while avoiding the default option inherent inthat sentence, as well as promoting a sense of community participation andawareness.[49] There are cases where an offence of unlawfully taking a motor vehicleunder s 226(1) of the Crime Act in relation to a defendant being suppliedwith a courtesy car from a garage and not giving it back for over two weeks,was held to justify a sentence of six months' imprisonment. 13 But there havealso been cases where defendants facing a charge of unlawfully taking amotor vehicle and other dishonesty offences have not been sentenced toimprisonment.[50] In particular, the appellant relies on the decision of R v Rollestonwhere Fitzgerald J sentenced a defendant facing a lead charge of unlawfullytaking a motor vehicle, as well as other dishonesty offences, to nine months'supervision and 100 hours community work.14 The youth of the defendantand the need to address a pattern of offending appear to have been theprincipal factors relied upon by the Judge in that case. There was also anissue of relativity with a co-offender who had been sentenced to homedetention.[51] The respondent submits that what is likely to have been at the forefrontof the Judge's mind in this case is that Mr Dwyer was not a person who couldbe trusted on a community-based sentence. There is some force in thatobservation.12 R v Rawiri, above n 3, at [18].13 See Peka-Hazel v Police [2016] NZHC 2696.14 R v Rolleston [2018] NZHC 2656.[52] The most relevant purposes of the Sentencing Act in this case wouldappear to be:(a) s 7(1)(c) to provide for the interests of the victim;(b) s 7(1)(e) to denounce the conduct in which the offender wasinvolved;(c) s 7(1)(f) to deter the offender or other persons from committingthe same or similar offence; and(d) s 7(1)(g) to protect the community from the offender.[53] A particularly relevant feature of this offending is that the person whowas the victim of the original assault with intent to injure charge whichresulted in the sentence of home detention was the same person that MrDwyer manipulated into obtaining the vehicle from the rental car company.He deceived and lied to her about what he had done with the vehicle.[54] In imposing the sentence of home detention, the Court felt it necessaryto impose a non-association condition between Mr Dwyer and the victim.The Court would not have done that unless it believed such a condition wasnecessary for the protection of the victim. Mr Dwyer systematically ignoredthat condition and persisted in associating with the victim throughout thehome detention even to the point of having her reside at his residence. Hecompounded this breach of the conditions by repeatedly attempting todeceive the Department of Corrections on a number of occasions. This wasnot spontaneous offending but a calculated and sustained contempt of thedirections given to Mr Dwyer by the Court. The fact that the victim wouldappear to have acquiesced in Mr Dwyer's conduct does not excuse or mitigateit. She is clearly one of those people whom the Court needs to protect froman offender.[55] The offending in relation to the motor vehicle can also not bedescribed as spontaneous. It involved significant elements of premeditationincluding the manipulation of the victim of the assault charge to obtain arental vehicle and attempts to avoid detection including the registration ofthe vehicle into his own name.[56] The PAC report described Mr Dwyer as someone with a medium riskof harming others, particularly in a domestic setting. That observation seemsjustified.[57] As to an explanation for his breaching the conditions of homedetention, the PAC report lists Mr Dwyer as saying he thought that therewould be no real consequences. It needs to be demonstrated to bothMr Dwyer and others who might be considering breaching home detentionconditions that there are real consequences for such action.[58] Having considered the various purposes set out in s 7, in particular thepurposes set out in s 7(c), (e), (f) and (g) set out above, I have come to theconclusion that a term of imprisonment was the least restrictive outcomeavailable and that the requirements of s 16(2) are met, and that the purposesof s 7(1) of the Act cannot be achieved by a sentence other thanimprisonment, and that no other sentence would be consistent with theapplication of the principles of s 8.[59] Mr Dwyer, and those who would follow his example, need tounderstand that there are consequences for breaching an order of homedetention, particularly where breaches are accompanied by repeated attemptsto deceive those charged with enforcing such a sentence.[60] On the facts of this case, the protection of the community fromMr Dwyer and, in particular the protection of the victim from his ongoingmanipulation of her strongly favour a custodial sentence.Result[61] Appeal dismissed.Churchman JSolicitors:Nicholsons Lawyers, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent