MCALISTER v POLICE [2017] NZHC 2881

MCALISTER v POLICE [2017] NZHC 2881 [22 November 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECRI 2017-485-50[2017] NZHC 2881BETWEEN DANIEL MCALISTERAppellantAND NEW ZEALAND POLICERespondentHearing: 21 November 2017Counsel: S Thistoll and Z Meehan for AppellantJ M OʼSullivan and H Savage for RespondentJudgment: 22 November 2017JUDGMENT OF SIMON FRANCE J[1] Mr McAlister was sentenced to 20 months' imprisonment for a series of carrelated offences.1 He appeals the refusal to substitute a sentence of home detention.Offending and sentence[2] Mr McAlister committed a series of offences between May and September thisyear. In May, he unlawfully entered a vehicle and caused damage inside to the keyignition area. In June, he stole a mag wheel off a car so he could use it on hisgirlfriend's car which had a flat tyre. In August, a car was taken from outside HuttHospital; it was found in the same suburb three days later. DNA from the manycigarette butts left inside proved Mr McAlister had been in the car.1 New Zealand Police v McAlister [2017] NZDC 22770.[3] Finally, on 1 September a car was taken from a car park. Police observedMr McAlister driving it. He refused to pull over and a chase ensued. Mr McAlisterdrove at up to 100 kph in a 50 kph area, drove on the wrong side of the road and forcedother motorists to take evasive action. It was discovered subsequently that prior to thechase the car had been in a collision. This was caused by Mr McAlister deliberatelyputting the car into a drift slide but losing control.[4] Mr McAlister pleaded guilty to all offending. The end sentence was20 months' imprisonment, 18 months' disqualification from driving and six months ofpost sentence release conditions.Past offending and general circumstances[5] Mr McAlister is 22 years of age. He was first sentenced to jail when 18 yearsof age in relation to a raft of offences commit over a two month period. The mainoffending appears to have been theft and then use of a credit card, but there were alsotwo charges of assaulting police and a disqualified driving offence. The sentence wasfive months' imprisonment.[6] Four months later, obviously having been released, there was a furtherappearance for breach of release conditions and shop lifting, none of which resultedin a sanction. There was then a year before another appearance for theft from a carwhich resulted in community work.[7] In January 2016, so nearly two years after his first jail sentences, Mr McAlisterwas sentenced to two months' imprisonment for theft from a car. Then in July 2016,an eight month sentence was imposed for similar offending as well as taking cars, andreceiving. A similar sentence for the same thing was imposed in February 2017, andthen the current offending occurred shortly after his release.[8] It follows that all the current offending was committed while subject to releaseconditions, and the offending after June 2017 was also committed while on bail.Concerning that bail, Mr McAlister had indicated a wish to take part in a LimitedService Volunteer Course. That is a programme run by the New Zealand DefenceForce on behalf of Work and Income. Its aim is to build confidence and increase jobprospects.[9] Concerning this proposal the pre-sentence report notes:Mr McAlister has expressed a willingness to comply and desire to makepositive changes within his life in order to remain offence free. Mr McAlisterwas accepted onto the Limited Service Volunteer Course (LSV), this wouldenable him to gain necessary and essential skills to assist him to obtainemployment upon completion. However this was postponed pending hisCourt outcome as there was no perceived value in allowing him to take part inthe Course if a sentence of imprisonment was a strong possibility.[10] I observe that this is a real shame, and the reasoning is flawed. It is importantthat decision makers recognise the self-fulfilling nature of such decisions. Deprivedof the opportunity to actually demonstrate the commitment to change, offenders areplaced in a much worse position. Their commitment can appear superficial as it hasbeen assessed here. The options open to a court are diminished correspondingly, andoften prison will occur, and the cycle perpetuates.[11] As it happens Mr McAlister did then reoffend, committing the later offencesfor which he was sentenced. The sentencing Judge, who happened to have been thebail Judge, understandably took a dim view. Home detention was rejected despite itbeing the pre-sentence report recommendation because it was considered, given thepast offending and the current offending on bail, that the constraints of electronicallymonitored home detention would be insufficient to dissuade Mr McAlister fromreoffending.[12] A notable feature of this case is that there is little insight into whyMr McAlister continues to offend in this way. He himself says he does not want tobut cannot help himself. There does not seem to have been any expert assessment ofhim. A previous request to see a psychologist had not been processed – "due toMr McAlister having active charges a referral could not be made."[13] There seems a reasonably constant pattern of Mr McAlister expressing what isassessed as a genuine desire for change, but not matching that with his actions. It isnot clear what assistance he has had, but I acknowledge that post release conditionswill have been directed at that. No doubt the bulk of responsibility for missedopportunities lies with Mr McAlister.[14] Another interesting aspect of the case is that Mr McAlister has never beensubject to an electronically monitored sentence. I am advised this is because he hasnever been able to proffer a suitable address. The pattern of short sentences imposedhere on a young man tends to support that proposition. However, there is now asuitable address. The occupant is a mature woman whom Mr McAlister seems torespect. It is a situation that proffers some hope that the opportunity for change maybe taken.[15] The pre-sentence report recommended the following single special condition:1. Attend a psychological assessment with a departmental psychologistas directed by a Probation Officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction ofa Probation Officer.[16] It is an unambitious list as these types of conditions go, but no doubt reflectsthe reality that presently there is limited understanding of what is going here and why.I am concerned at the obvious pattern emerging with Mr McAlister. The progressionof sentences of greater length is clear and he has an alarming number of short prisonsentences for a person of his age. There are 16 sentences of five months' or less thathave been imposed in circumstances where that is the longest sentence. There are thenseveral more of this length but they are attached to a longer sentence of eight months'imprisonment.[17] None of this is to criticise past sentencing decisions but to recognise that at22 years of age a crossroads appears to have been reached. The availability of anelectronically monitored sentence, followed by a year of post detention conditionspresents an opportunity I consider should be taken.Decision[18] The appeal is allowed. The sentence imposed by the sentencing Judge was inerror and home detention is appropriate in this case.2 All sentences of imprisonmentare quashed and in their place I impose the following:(a) nine months' home detention – unlawful taking of a motor vehicle(CRN 4004);(b) four months' home detention – unlawfully interfering with a car(CRN 4186 and 2627);(c) one month home detention – driving in a dangerous manner(CRN 4003), theft from a car (CRN 2626), and failing to stop(CRN 4001).[19] All terms are concurrent.[20] The special condition at [15] above is imposed. There will be the standard postrelease conditions, and the same special condition will apply post release. All postdetention conditions are for 12 months.[21] The non-imprisonment sentences are unchanged.[22] This judgment will take effect once the electronic monitoring is organised andthe sentence of home detention can commence. Until then the existing warrant ofimprisonment authorises continued detention.____________________________Simon France J2 Criminal Procedure Act 2011, s 250(2).