CONNOR JAMES GOODWIN v NEW ZEALAND POLICE [2021] NZHC 1526

CONNOR JAMES GOODWIN v NEW ZEALAND POLICE [2021] NZHC 1526 [24 June 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-000024[2021] NZHC 1526BETWEEN CONNOR JAMES GOODWINAppellantAND NEW ZEALAND POLICERespondentHearing: 15 June 2021Appearances: N Bourke for the AppellantG Milne for the RespondentJudgment: 24 June 2021JUDGMENT OF GRICE J(on sentence appeal)Overview[1] Mr Connor Goodwin appeals his sentence of six months' imprisonment fortwo charges:1 possessing an offensive weapon2 and assault with intent to injure.3[2] Mr Goodwin's appeal falls into two main grounds:(a) that the Judge erred in assessing the appropriateness of the proposedaddress for home detention, taking into account extraneous informationrelating to his partner; and1 NZ Police v Goodwin [2021] NZDC 10509.2 Crimes Act 1961, s 202A(4)(b): maximum penalty of three years' imprisonment.3 Section 193: maximum penalty of three years' imprisonment.(b) that the Judge failed to adequately consider and assess whetheralternative non-custodial sentences were appropriate.[3] The central issue is whether I should quash the sentence of imprisonment and,if so, what sentence should be imposed.Background[4] Just after midnight and following a day of heavy drinking, on 1 Januarythis year, the victim arrived at an address to see his sister. Mr Goodwin had beenasleep but woke when the victim knocked on the windows and door. WhenMr Goodwin confronted the victim, he pushed him against a sink and punched him inthe face and head between 10 to 20 times. The victim was unsuccessful in trying tothrow Mr Goodwin off. Mr Goodwin's partner came between the two and separatedthem, getting Mr Goodwin into the bedroom.[5] Mr Bourke's submissions state that Mr Goodwin had mistaken the victim foran intruder. This was not recorded in the summary of facts, which states noexplanation was offered for the offending.[6] As the victim left, Mr Goodwin ran out of the address, holding a knife andshouting he was going to stab him. When the victim was in his car, Mr Goodwinfurther threatened him.[7] Mr Goodwin has accepted these facts and pleaded guilty. I therefore proceedon the basis of the summary of facts.District Court Decision[8] The Judge had sentenced Mr Goodwin to 18 months' intensive supervision justsix weeks before the present offending, for common assault and unlawful taking of amotor vehicle. The Judge had placed Mr Goodwin under judicial monitoring butsubsequently noted "you have not been doing well".[9] The Judge did not impose a sentence of home detention, although thepre-sentence report had recommended such a sentence. The Judge said that therecommended motel address posed safety and welfare concerns as there was a childliving there, and that police had attended eight family violence incidents betweenMr Goodwin and his partner. The Judge also commented on Mr Goodwin's partner,saying she had "a tendency to get into violent relationships".[10] The Judge took a starting point of 12 months and uplifted this to 14 months forthe breach of intensive supervision. Taking into account Mr Goodwin's guilty pleaand his age, the Judge discounted the sentence to six months' imprisonment – inpractical terms Mr Goodwin would serve three months in prison.4[11] The Judge noted his displeasure in having to send young men to prison butconsidered that there was no other option. The comment was made that thethree months would hopefully be "too short a period to really make things muchworse".[12] The Judge also allowed leave to apply for home detention if a suitable addresscould be found.Other Material Before the Court[13] The Judge had before him a pre-sentence report. It noted Mr Goodwin is22 years of age. He had reoffended in a short span of time and the offending hadescalated. Mr Goodwin's risk of reoffending and risk of harm were consideredmoderate. It recommended cancelling the sentence of intensive supervision, and thata sentence of home detention be imposed, with conditions of attending family violencecounselling to continue. The proposed address was technically suitable forelectronic monitoring (at that stage). Remorse was expressed to the report writer.[14] A progress report from the family violence counsellor states that Mr Goodwinengaged well during sessions, applied his experience to the activities and talked aboutthe experiences at home. He applied what he had learnt in the sessions at home.4 Parole Act 2002, s 86(1).Mr Goodwin had completed 10 hours and requested more time, and apart fromtwo occasions of non-compliance and excusal due to work, he had engaged andattended sessions on time. The counsellor said completion of the programme wouldbe very beneficial, and Mr Goodwin seemed motivated and enjoyed the sessions.LawAppeal[15] An appeal against a sentence is an appeal against discretion. Under s 250 ofthe Criminal Procedure Act 2011 (Act), the Court must allow an appeal if satisfiedthat:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[16] Although s 250 does not refer to "manifestly excessive", it is a principle that iswell-established in the Court's approach to sentence appeals.5 The Court cannot"tinker" with an end sentence if it is within range.6[17] Under s 251 of the Act, if the Court allows an appeal, it must;(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, vary any part of the sentence, or vary any conditionof the sentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in paragraph (a) or (b) as specifiedby the first appeal court.[18] The focus is on the sentence imposed and not the process adopted to reach thatend sentence.75 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].6 Ripia v R [2011] NZCA 101, at [15].7 Tutakangahau v R, above n 5, at [36].Sentencing[19] No particular issue is taken with the underlying sentence of six months'imprisonment. It is therefore the issue of whether an alternative/s to imprisonmentshould have been the sentence.[20] Counsel for the appellant emphasises that the focus of the Court in sentencingis to impose the least restrictive outcome appropriate in the circumstances.8[21] In Brittin v Police, Woodhouse J set out several factors relevant to theassessment of whether home detention should be imposed:(a) Imprisonment is a last resort.(b) Home detention is still a severe sentence, second only toimprisonment.9 It still carries in considerable measure the principles ofdeterrence and denunciation.(c) The Court must consider the desirability of keeping offenders in thecommunity as far as practicable and consonant with the safety thecommunity.10(d) Imprisonment should not be imposed unless the Court is satisfied thepurposes of deterrence, accountability and denunciation cannot beachieved by a sentence other than imprisonment, and no other sentencewould be consistent with the application of s 8 of the Sentencing Act2002.11(e) It is an error of law to give deterrence complete priority without regardto the countervailing purposes of sentencing.128 Sentencing Act 2002, s 8(g).9 See the hierarchy of sentences at s 10A of the Sentencing Act 2002.10 See also s 16(1) of the Sentencing Act 2002.11 Section 16(2).12 Manikpersadh v R [2011] NZCA 452 at [17]–[19].(f) A purpose of sentencing is to assist with the offender's rehabilitation.(g) The Judge is making a considered and principled choice betweentwo forms of sentence. The Judge must identify which best qualifies asthe least restrictive to impose when taking into account all purposes ofsentencing.Submissions[22] Counsel for the appellant submitted two grounds of appeal. The first was as tothe suitability of the address. Counsel said that the Judge erred by relying on theconcerns about family violence. This is now a moot issue to the extent the address isno longer available. However, the points raised were:(a) The Judge had presided over a protection order involvingMr Goodwin's partner and her former-partner, and therefore was usingpre-existing knowledge of Mr Goodwin's partner, which did notinvolve him, and base a perception of her vulnerability.(b) After the sentencing, counsel received information from asocial worker, Ms Vaitupu, that is extremely supportive ofMr Goodwin. In particular, the social worker notes the many positivesteps taken. That includes that both Mr Goodwin and his partner haveengaged with Corrections officers, and Oranga Tamariki, they havegained temporary emergency housing, and they both meet with thesocial worker weekly. Mr Goodwin cares for a child and is caring forhis partner who is pregnant with their first child. The drug levels havealso de-escalated in the home, and there is ongoing therapy forMr Goodwin's partner.(c) Counsel also notes that no family violence convictions have beenentered against Mr Goodwin, and therefore none in relation to hispartner. Mr Goodwin has been living on bail with his partner forsix months since his arrest without incident. Oranga Tamariki has beenworking with Mr Goodwin's whānau. It has not raised any concerns.Mr Goodwin's supervising probation officer has not had any issueswith the recommended sentence of home detention. The prosecutingsergeant raised no safety concerns at the hearing. A protection orderhas also been granted as an additional protective factor, whichMr Goodwin has never breached. Ms Vaitupu gave an explanation forthe order,13 which instils confidence in Mr Goodwin's proactiveness inthis regard.(d) Counsel also responded to the Judge's comments that "you have notbeen doing well" on judicial monitoring by pointing to thememorandum and judicial monitoring report. The report deemedcompliance was satisfactory. Counsel also points to the notes of thecounsellor, which I have canvassed above.14(e) Mr Goodwin has no other recorded breaches of his sentence. He hadcompleted eight sessions of the Stopping Violence Programme,according to the probation officer.(f) Mr Goodwin has also found new employment in the forestry industry,which requires abstinence from drugs and alcohol.(g) In addition, he has said he is willing and able to engage in alcohol anddrug counselling. This has not yet recommenced.(h) In relation to the motel accommodation, counsel notes this should nothave been a factor that counted against the granting of home detention,given the address was technically suitable. It was also a result ofincreased emergency housing, which the Ministry of SocialDevelopment has noted has become more necessary for13 Ms Vaitupu notes that Mr Goodwin agreed to have a protection order taken out against him, whenone was also sought against his partner's ex-partner, "as a proactive measure to ensure that hispartner always felt safe and had power and control in the relationship for her to learn that he is notthe same person as the ex-partner". No breaches have come from this protection order.14 See above at [14]Error! Reference source not found..lower-to-middle income households that have been pushed into thehousing market as a result of the COVID-19 pandemic.15(i) Finally, Mr Goodwin's counsel notes that the issue of safety was notraised in the bail application, nor did the offending involve familyviolence. Imprisonment would impact employment and progress inMr Goodwin's counselling sessions. After three months, Mr Goodwinwould still be released to live back with his partner.[23] The second ground is the failure to impose the least restrictive outcome.Counsel says:(a) The Court of Appeal in R v Rawiri16 noted that the Sentencing Act madeclear the legislative policy was to keep offenders within the communitywherever appropriate, with the requirements of the Sentencing Act.This supports imprisonment being a last resort.(b) In Lopeti v Police,17 the High Court reduced a sentence fromfour months' imprisonment to three months' community detention,recognising also Mr Lopeti's time served in custody. The offendinginvolved punching the victim once in the head, and as the victim fell,trying to punch the victim, which did not connect, raising a singlecharge of assault with intent to injure. The Judge also noted that the10–month starting point was "at the upper end of the available range,[and] should not be displaced".18 I note that the present offending ismore serious.(c) In Nortje v Police,19 Mr Nortje approached the victim, his partner'sformer partner, from behind, punching him numerous times at the backof the head, and continued to punch him when the victim was on the15 Ministry of Social Development Briefing to the Incoming Minister 2020 at 26.16 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [17].17 Lopeti v Police [2015] NZHC 3209.18 At [20].19 Nortje v Police [2019] NZHC 334.floor. He then shoulder-charged the victim and kicked him repeatedlywhen on the ground. The end sentence imposed was two months'community detention.(d) In Police v Filipo,20 Mr Filipo and his brother attacked two men andtwo women, punching the first victim who fell to the ground, beforestomping on his head. He shoved the second victim in the throat andstruck the third victim on the chin, causing them both to fall down. Hethen punched the fourth victim in the head. This gave rise to chargesof injuring with reckless disregard, assault with intent to injure andtwo charges of male assaults female. An end sentence of six months'supervision was imposed.(e) In White v Police,21 on two separate incidents when Mr White and thevictim were driving their children to school, Mr White had grabbed thevictim, with whom he had been in an on-and-off relationship, forcefullyby the ear and headbutted the dashboard, causing damage to the airbagand glovebox, before ripping off the side sun-visor and breaking therear-view mirror. On the second occasion, while on bail awaitingsentencing for the first set of offending, Mr White hit the victim withan open palm, and also bit her nose after they had exited the vehicle.On a third occasion at a counselling session, Mr White yanked herfingers back, one at a time, after a comment the victim made aboutMr White's friends. This offending led to charges of assault with intentto injure, assault on a person in a family relationship and wilful damage.The appeal was allowed, with an end sentence of nine months' homedetention.[24] Counsel had initially suggested that a sentence of community detentioncoupled with intensive supervision, or a sentence of intensive supervision, coupledwith community work, would be the least restrictive sentence.20 Police v Filipo [2016] NZHC 2620.21 White v Police [2020] NZHC 684.[25] The police had adopted a relatively neutral position. They said the sentencewas "possibly" within range, and that it was open for the Judge to determine that acustodial sentence was the least restrictive sentence, as was the case inCarson v Police.22 The police however acknowledge the sentence was "stern" whilenoting that the offending occurred less than two months after previous offending forcommon assault. That could be an aggravating factor, although the majority ofMr Goodwin's previous offending was for motor vehicle offending. The police alsoacknowledge there is no history of violent offending and that the pre-sentence reportraised no concerns about a community-based sentence.[26] The police point to Carson v Police, where Mr Carson struck his formeremployer with the former employer's crutches 13 times and returned later in the daywith a swiss army knife intending to confront the first victim, when a second victimapproached. Mr Carson threatened to slit the throats of both victims. This offendingled to charges of assault with intent to injure and threatening to cause grievous bodilyharm. At the time of the offending, Mr Carson was subject to come up for sentence ifcalled upon, following a common assault conviction 11 months earlier. TheHigh Court Judge held that he was not satisfied home detention was appropriate, inline with the District Court which had imposed a sentence of 10 months'imprisonment. However, due to mental hardship arising from events following theDistrict Court sentencing, the sentence was quashed and substituted with a sentenceof five months' home detention.Discussion[27] There is an error in the sentence imposed, and a new sentence ought to beimposed. It is manifestly excessive, in light of the factors stated by counsel, and theinformation made available following the District Court sentencing.[28] In short, there was not enough material to support the conclusion thatMr Goodwin posed a safety risk of being at the proposed address for home detention.A sentence of home detention would have held him accountable and denounced hisactions.22 Carson v Police [2015] NZHC 2603.[29] A sentence of home detention would have allowed him to continue hiscounselling arrangements, as well as support his partner during her pregnancy withtheir child, and the child for whom he has taken responsibility. Mr Goodwin also hasemployment, which is an important factor to keep him motivated and engaged in thecommunity. I also take judicial notice of the fact that short sentences of imprisonment"have proved to be the least successful in achieving sentencing principles, includingbecause of the anti-social environment the offender is placed in".23[30] Mr Goodwin's previous convictions were mostly vehicle-related, with theexception of the current offending, and the charge of common assault. This is anincrease in the seriousness of his offending. But the circumstances surrounding thepresent offending do not support a sentence of imprisonment. Instead, they suggesteven greater support and intervention are needed, especially given Mr Goodwin's ageand responsiveness to the interventions.[31] In relation to the suitability of motel housing there are already factors weighingagainst low-income households from low, and now middle-income households, due tothe pandemic, from being able to find suitable accommodation. This has put a barrierin the way of home detention.[32] However, those matters are now academic. Just before the hearing of thisapplication counsel received advice from the emergency housing motel, in whichMr Goodwin was residing with his partner and child, that it was no longer going to beaccepting long-term emergency housing residents. Therefore, it withdrew the consentfor the address to be used as an electronically-monitored address.[33] Nevertheless, I am satisfied imprisonment is not appropriate and that asentence other than imprisonment and home detention is appropriate in thecircumstances.[34] The current offending is more serious than that in Lopeti v Police, andcomparable, although less serious, than in Nortje v Police. The current offending is23 White v Police, above n 21, at [17]; citing the analysis of Duffy J in Richmond v New ZealandPolice [2019] NZHC 2001 at [73]–[79].less serious than Police v Filipo and White v Police, given the scale of the attack in theformer and the ongoing nature of the family violence in the latter. The offending inCarson is also more serious, given the fact Mr Carson returned later to threaten thevictim and reflected in the nature of the charges.[35] Based on those cases, and the factors identified in relation to Mr Goodwin'srehabilitation needs such as retaining his employment, continuing the familycounselling and engaging in the drug and alcohol programme, a sentence ofcommunity detention and/or intensive supervision, coupled with community work,would be the least restrictive sentence available.[36] Counsel for Mr Goodwin referred to the case of R v Royal.24 Ms Royal wassentenced to 18 months' intensive supervision and 350 hours community work on acharge of being a party to kidnapping. Ms Royal played a limited but, nonetheless,active role. In that case electronic monitoring for home detention was not an optionbecause of the defendant's accommodation circumstances.[37] Here, the home detention option is no longer available. Mr Bourke said as amatter of stark reality it was unlikely there would be any other suitable address evenif time were given to search. He said the real problem was there was just no housingavailable in the area. Therefore, he urged me to consider other options.[38] However, Ms Milne pointed out that the report on the intensive monitoringcondition had not been good. The judicial monitoring report from the Department ofCorrections was dated 22 February 2021. Progress was recorded as:(a) Compliance with the sentence deemed satisfactory.(b) Further active charges were a cause for concern that he had re-offendedwithin a relatively short timeframe of being sentenced for the previousoffending (common assault, (Crimes Act 1961) and unlawfully takinga motor vehicle).24 R v Royal [2020] NZHC 1321.(c) Mr Goodwin had completed his alcohol and drug assessment, butCorrections were informed that he appeared to be under the influencewhile attending his appointments and due to his lack of engagement hewas exited from the programme.(d) He would be re-entered for alcohol and/or drug counselling once hewas willing and motivated to address the substance use.(e) He had started his sessions with a Family Works family violencecounsellor however, he had only just commenced, and it was unclear asto how it was going at that point.[39] Based on that report the Judge, in his judicial monitoring minute dated1 March 2021, expressed his disappointment that Mr Goodwin faced further charges.He requested that Mr Goodwin be advised how serious the charges were and that if hewere found guilty or pleaded guilty to the charges and was reported to be doing badlyon intensive supervision, then he risked a much more severe sentence.[40] However, as Mr Bourke submitted, since that report Mr Goodwin hadresponded positively. He had:(a) attended 10 family violence sessions;(b) done well in counselling, according to the report from the familyviolence counsellor;(c) sought more counselling sessions with his partner; and(d) obtained a job as a forestry contractor. A report from his employer saidhe was very punctual and hard-working. He had been given theopportunity to sit his Level 3 thinning tickets while working at the sametime. Upon completion he was going to be moved to his Level 4tree-felling tickets and a possible apprenticeship. He had already satthe first two units and had his chainsaw handling tickets. The employerexpressed concern to lose Mr Goodwin as he had a lot of optionsavailable at present which would be lost if he went to prison.[41] An up to date report from Mr Goodwin's employer was received the day beforethe hearing. It indicated:Connor has still been very punctual and hardworking despite the tough timeshas been going through. Since he was released, Connor has sat his Level 3Chainsaw Handling and Maintenance tickets through our company. he willalso have Level 3 planting module available for him to complete if he is giventhe chance to do so. and then his Level 4 Felling. Our funding & tutorsare only available to us all now. So, if Connor is not given the chance, thenI'm afraid these opportunities will not still be here for him when he is releasednext time. it would be a shame to lose Connor as he has a lot of potential andopportunities to further himself available right now. I feel working out innature with some good male role models would really help Connor grow andshape into the man and Father his child will need in the coming years. Hereat [the forestry company] we [are] hoping to be able to do this for Connor.[42] It appears that alcohol is a factor in Mr Goodwin's offending. Mr Bourkeplayed this down and indicated there had only been one alcohol-related offence, beingthe New Year's Eve offending, for which he is before this Court. However, given thecomments by the alcohol counsellor and the violent reaction by Mr Goodwin whichled to the New Year incident, it appears that he has a problem with alcohol which hehas not yet addressed satisfactorily.[43] Mr Goodwin and his partner were present at the hearing of the sentence appeal.He indicated to Mr Bourke that he had taken onboard the warnings from the Judge andsince then he had done all he could to meet the requirements to stay out of jail.Mr Goodwin had not been able to get back on the alcohol and drug courses, as therewas a waiting list, but he fully intended to do so and would refrain from alcohol anddrugs.[44] Ms Milne had accepted that realistically an appropriate alternative to a term ofimprisonment would have been home detention. However, without the addressavailable she indicated the options were few. She had been discussing possibilitieswith Mr Bourke and they agreed the remaining option other than imprisonment was afurther sentence of intensive supervision coupled with appropriate conditions.Ms Milne did not agree that this was appropriate.[45] I note the following positive progress made here:(a) The family violence counselling was successful and there is to be aself-sought continuation of that.(b) Mr Goodwin had obtained work and a positive reference from hisemployer.(c) Mr Goodwin performed well at work and training and has been offeredfurther training opportunities that will be forfeited if he goes to jail.(d) Mr Goodwin has a positive intention to re-engage with alcohol anddrug rehabilitation.(e) Mr Goodwin has undertaken to cease drinking.[46] Mr Goodwin is supporting his partner, his partner's child and they areexpecting another child. His partner is also supporting him in the counsellinginitiatives.[47] I am of the view that the appropriate sentence is a term of intensive supervision,together with community work. The sentence of intensive supervision is likely toreduce the likelihood of further offending through rehabilitation and reintegration ofMr Goodwin. He has shown progress toward those ends since the last formalsupervision report[48] I am satisfied that with Mr Goodwin's history, a period of more than12 months' intensive supervision is required to ensure that the conditions concerningrehabilitation and integration are met and an alcohol and drugfree lifestyle isachieved.2525 Sentencing Act 2002, s 54C.[49] An overlay to emphasise the importance of the engagement in rehabilitationand continue the progress shown to date will be the imposition of judicial monitoring.This provides a further incentive for Mr Goodwin to meet the conditions. I will bereceiving a report on his progress in approximately three months and, thereafter, atsix-monthly intervals. His response will dictate whether lesser conditions or furthermeasures will be required, as I may modify the sentence to reflect progress.[50] In the circumstances I therefore:(a) Quash the sentence of six months' imprisonment.(b) Impose a period of 18 months' intensive supervision with the specialconditions:(i) Not to possess, consume or use any alcohol or drugs notprescribed.(ii) To attend an assessment for substance use counselling asdirected by a probation officer. To attend and complete anycounselling, treatment or programme as recommended by theassessment as directed by, and to the satisfaction of, aprobation officer.(iii) To continue to attend family violence counselling withFamily Works or other appropriate provider.(iv) To attend any other counselling, programme or treatmentidentified to reduce the risk of re-offending.(v) Judicial supervision as follows.[51] A written report on progress by the supervising probation officer must beprovided to the Court within three months, and thereafter at six-monthly intervals,until completion of the period of intensive supervision.[52] The intensive supervision is to run concurrently with the remaining period ofthe current intensive supervision order._____________________Grice JSolicitors:Crown Solicitor, New Plymouth for the Respondent.