SWINBURNE v THE QUEEN [2017] NZHC 1842

SWINBURNE v THE QUEEN [2017] NZHC 1842 [4 August 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI 2017-463-19[2017] NZHC 1842BETWEEN DAVID BARRY SWINBURNEAppellantAND THE QUEENRespondentHearing: 3 August 2017Counsel: D Hall for AppellantA Gordon for RespondentJudgment: 4 August 2017JUDGMENT OF HEATH JThis judgment was delivered by me on 4 August 2017 at 9.15am pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, RotoruaCounsel:D Hall, RotoruaThe appeal[1] On 23 November 2016, Mr Swinburne was tried in the District Court at Rotorua on one charge of threatening to kill or do grievous bodily harm.1 On 2 and 3 February 2017, he was tried on three charges of assault with a weapon2 and one of obstruction of a police officer.3 Judge Snell presided over both trials, sitting without a jury. Mr Swinburne was found guilty on all five charges.4[2] Mr Swinburne was sentenced, on all offending, on 11 April 2017. Judge Snell imposed an effective term of imprisonment of one year and four months.5 A period of disqualification from holding or obtaining a driver licence was also imposed.[3] Earlier appeals against the convictions entered have been abandoned. Mr Swinburne appeals against sentence. He contends that the sentencing Judge erred in imposing imprisonment, rather than a sentence of home detention.6 No issue arises about the disqualification order.Background(a) The November 2016 trial[4] The threatening to kill (or do grievous bodily harm) charge arose out of an incident that occurred on the morning of 25 May 2015. Mr Swinburne was in dispute with Motor Trade Finance Ltd about moneys he had borrowed to purchase a utility vehicle and a lawnmower. Motor Trade Finance intended to repossess those items for non-payment of the debt.[5] On 25 May 2015, Mr Swinburne telephoned a director of Motor Trade Finance in Rotorua. During the course of that telephone call, he threatened the1 Crimes Act 1961, s 306(1)(a).2 Ibid, s 202C.3 Summary Offences Act 1957, s 23(a).4 New Zealand Police v Swinburne [2016] NZDC 23144, at para [22] and New Zealand Police v Swinburne [2017] NZDC 2759, at para [70]. Bail pending appeal was refused: Swinburne v R[2017] NZDC 8071.5 New Zealand Police v Swinburne [2017] NZDC 7997, at para [49].6 Criminal Procedure Act 2011, s 250.director (to use Judge Snell's words) that he would "come down and knee-cap him that [he] would knock his block off and that [he] could arrange with [his] gangrelated associates for him to be killed".7 The Judge found that those words constituted a threat of the type captured by the charge.8(b) The February 2017 trial[6] The assault with a weapon and obstruction charges arose out of events thatoccurred on 26 April 2016. At that time, police officers went to Mr Swinburne'saddress in Mamaku to execute a warrant to impound a motorcycle. At that stage, Mr Swinburne was not present. The police officers were told by Mr Swinburne'swife and son that the trail bike was not at the property. Mr Swinburne returned the property while the police officers were still present.[7] I summarise relevant findings of fact, on the basis of which Judge Snell found the four charges proved beyond reasonable doubt:(a) When Mr Swinburne arrived at the property he was driving his van, at speed and in an agitated state. As the gate to the property opened, hewas "revving the engine and shouting obscenities". Mr Swinburneaccelerated the van into the driveway in the vicinity of a police officer, who was wheeling the trail bike across the driveway. Mr Swinburne slowed down and began to rev up the vehicle in a threatening way. He then drove the vehicle into the police officer, as he held the trail bike. That left the policeman pinned to the front of the motor vehicle. Those were the facts on which the first charge of assault with a weapon was proved.9(b) Having extricated himself from that position, the police officer returned to the motorbike. Mr Swinburne went back to the front of his van, having previously moved to the back after pinning the sergeant. Mr Swinburne began revving the van while the sergeant7 New Zealand Police v Swinburne [2017] NZDC 7997, at para [3].8 Generally, see R v Meek [1981] 1 NZLR 499 (CA).9 Ibid, at paras [5] and [6].was wheeling the motorbike. On this occasion, Mr Swinburne drove into the police officer, striking the motorbike with some force. It was sufficient for the motorcycle to go under the van. The police officer was left in front of the van, trying to avoid going underneath. He was fearful that he would be run over. Those facts proved the second charge of assault with a weapon.10(c) Mr Swinburne went to the back of the van and got into a wheelchair. Exiting the van, he used the wheelchair to confront another police officer. On this occasion, he rode into the police officer with the wheelchair, while the officer was standing outside the property assisting with the removal of the bike. These facts proved the third charge of assault with a weapon.11(d) Mr Swinburne moved his wheelchair into a position where the police were unable to load the stolen motorcycle into the back of the police van which had been brought to the premises for that purposes. Those facts proved the charge of obstructing a law enforcement officer.12Sentencing in the District Court[8] After describing the factual background to each of the offences, MrSwinburne's lengthy criminal history, the victim impact statements, and the content of the pre-sentence report, Judge Snell considered the nature and duration of the sentence to be imposed. In doing so, the Judge recorded an observation from the pre-sentence report writer that "electronic monitoring in either form of home detention or community detention is inappropriate".13 The Judge, in discussing that, said:[14] This [opinion] is based on reports of a flesh-eating disease which affects your leg. It would not be appropriate to apply the required equipmentto your ankle. Infections in your leg are consistent with doctors' informationreported to the report writer. In addition, Mr Swinburne, you disclosed to them that you would likely require hospitalisation in the near future and also10 Ibid, at para [6].11 Ibid, at para [7].12 Ibid.13 Ibid, at para [14].there is the frequency of your medical appointments, meaning that you would constantly be leaving home and therefore the imposition of either sentence, that being home detention or community detention, is not available.[9] Judge Snell was not prepared to act uncritically on that view. He indicatedthat he had made inquiries of his own because he "would have thought [home detention] was [a sentence] that was appropriate for [Mr Swinburne] in thecircumstances".14 In referring to R v Te Rangi,15 Judge Snell continued:[15] In that decision, the defendant had an issue with his legs which he had swelling of his ankles such that he would not be able to wear a bracelet, but it was found that he could wear a bracelet around his wrist and that was what was eventually ordered. That was a decision of Justice Randerson. However, in that case, the defendant was compliant, was willing to undergo home detention, was pro-social and the environment that he was involved in was pro-social towards the probation service and a sentence of home detention. That is entirely the opposite to your position. Your environment is one that is not pro-social. As your counsel has gone into great lengths today in his submissions, you are antiauthority in your views. You are prone, as he has said in his submissions for you, to feeling persecuted. That is a mental attitude that you have developed since 2009 and as your counsel has said, you will confront any person in authority, not necessarily attack them, but you will confront them.[16] In all of the circumstances, over and above the reasons that the probation service have put forward for an electronically monitored sentence as being inappropriate, your attitude, which I am told is a disposition that you have been left with as a consequence of your brain injury and your medical conditions and personal involvement with incidents with the police, have resulted in you being a person who is totally inappropriate to have any form of electronic monitoring because it would simply be untenable for the probation service to have to be involved with you, given your attitude of confrontation and antiauthoritarian views where you would confront them if you were challenged in any way.[10] I read those parts of Judge Snell's sentencing notes as reflecting his conclusion that it was not Mr Swinburne's medical condition that excluded the possibility of imposing home detention as the most appropriate sentence. TheJudge's primary concern was Mr Swinburne's behavioural traits, and the distinctpossibility that a probation officer monitoring a home detention sentence might be put in personal jeopardy.14 Ibid, at para [15]. The Judge referred to this theme again, at para [38] of his sentencing remarks, reproduced at para [15] below.15 R v Te Rangi HC Auckland CRI-2007-055-779, 29 April 2008 (Randerson J).[11] Those observations were probably enough to dispose of the home detention point, certainly on the legal approach taken by the Judge. But, he returned to the topic later. Before doing that, the Judge considered the sentence of imprisonment that would otherwise be imposed. That was the correct approach, as a sentence of home detention is only available if a prison sentence of two years or less would otherwise be imposed.16[12] After explaining the purposes and principles of sentencing on which he relied, the Judge determined that a starting point of 20 months imprisonment was appropriate on the assault with a weapon charges with an uplift of three months for the threatening to kill or do grievous bodily harm. A further month was added to reflect personal aggravating factors, in the form of previous convictions. That made the starting point for sentence one of two years imprisonment.17[13] In assessing credits for personal mitigating factors, the Judge was mindful ofthe need to take account of Mr Swinburne's mental health and physical disabilities.The Judge balanced against that the number of occasions on which, as he put it, Mr Swinburne had come before the Court "for anti-social behaviour on a veryregular basis over the past six or seven years".18[14] The Judge was satisfied that Mr Swinburne's disabilities were such that a sentence of imprisonment would be much harder for him to serve than an able bodied person. As a result, he applied a credit of 33%, an effective reduction of eight months' imprisonment. Although the Judge did not refer expressly to the provision, he was plainly basing that aspect of his sentencing decision on s 8(h) of the Sentencing Act 2002 (the Act).19 That left an end sentence of one year and four months imprisonment.[15] The Judge then returned to consider expressly the possibility of commuting that sentence to home detention or community detention. He said:16 Sentencing Act 2002, s 15A(1)(b), read in the context of the definition of "short-term sentence of imprisonment" set out in s 4(1) of the Sentencing Act 2002 and s 4(1) of the Parole Act 2002.17 New Zealand Police v Swinburne [2017] NZDC 7997, at paras [29]–[31].18 Ibid, at para [32].19 Ibid, at para [33]. See, generally, R v Verschaffelt [2002] 3 NZLR 772 (CA).[38] I turn to the issue of whether I could commute the sentence of imprisonment down to one of home detention or community detention. When I started this sentencing exercise, I would have hoped that I could have sentenced you to home detention. That is what I consider would have been an appropriate sentence, but given the pre-sentence report and the reasons outlined why those sentences are unsuitable, I cannot impose those sentences. I also do not think that you are an appropriate person to have a community-based sentence such as home detention or community detention, because it would be totally inappropriate to place the probation service into a position of jeopardy which you would present to a person in authority, given the difficulties that you face and your attitude to authority.[39] In those circumstances, I consider that the only option that I am left with is to impose the sentence of 16 months imprisonment on you. That is imposed on each of the assaults with a weapon charges that relate to Sergeant Hamilton. There will be a sentence of one month imprisonment in relation to the other assault with a weapon charge in relation to the assault involving the wheelchair. There will be a sentence of two months imprisonment on the threat to kill matter and you will be convicted and discharged of the disorderly behaviour matter. All sentences are to be served concurrently, meaning a total end sentence of 16 months imprisonment. That is the sentence of the Court.Legal principles[16] In determining whether home detention or imprisonment should be ordered, the starting point is s 16 of the Act. In general terms, s 16(1) enjoins a sentencing Court to have regard to the desirability of keeping offenders in the community, while s 16(2) requires an assessment of whether a sentence of imprisonment is necessary to meet relevant sentencing goals. Section 16 provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other than imprisonment; and(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case..[17] The sentencing goals to which s 16(2)(a) refers are set out in s 7. They are:7 Purposes of sentencing or otherwise dealing with offenders(1) The purposes for which a court may sentence or otherwise deal with an offender are—(a) to hold the offender accountable for harm done to the victim and the community by the offending; or(b) to promote in the offender a sense of responsibility for, and an acknowledgement of, that harm; or(c) to provide for the interests of the victim of the offence; or(e) to denounce the conduct in which the offender was involved; or(f) to deter the offender or other persons from committing the same or a similar offence; or(g) to protect the community from the offender; or.[18] Home detention is neither a custodial sentence, nor community based. It is not listed among the community-based sentences set out in s 44 of the Act. On the other hand, s 80A(5) makes it clear that an offender who is sentenced to home detention is not in custody while that sentence is served. In the hierarchy of sentences, home detention is the second most restrictive sentence, after imprisonment.20 One of the principles of sentencing is that the least restrictive sentence that is appropriate in the circumstances should be imposed.21[19] Section 80A(2) and (2A) of the Act set out the circumstances in which a home detention sentence may be imposed, and the information that must be considered. Those provisions state:80A Sentence of home detention(2) A court may sentence an offender to home detention under subsection (1) if—20 Sentencing Act 2002, s 10A(2)(e) and (f).21 Ibid, s 7(g).(a) the court is satisfied that—(i) the proposed home detention residence is suitable; and(ii) the relevant occupants (as defined in section 26A(4)) of the proposed home detention residence—(A) understand the conditions of home detention that will apply to the offender; and(B) consent to the offender serving the sentence in the residence in accordance with those conditions; and(C) have been informed that they may withdraw their consent to the offender serving the sentence in the residence at any time; and(iii) the offender has been made aware of and understands the conditions that will apply during home detention, and he or she agrees to comply with them; and(b) the proposed home detention residence is in an area in which a home detention scheme is operated by the chief executive of the Department of Corrections.(2A) Before imposing a sentence of home detention on an offender, a court must consider the pre-sentence report prepared by a probation officer in accordance with section 26A..[20] A pre-sentence report prepared under s 26A of the Act is one specifically addressed to the question whether home detention is an appropriate sentence. The particular issues to be addressed under s 26A are only the subject of a report if a probation officer intends to recommend a sentence of either community detention or home detention.22 Section 26A(2) provides:26A Pre-sentence reports when considering sentence of community detention or home detention(2) A pre-sentence report to which subsection (1) or (1A) applies may include any of the matters outlined in section 26(2), and must include—22 Ibid, s 26A(1A).(a) information regarding the suitability of the proposed curfew address or home detention residence, including the safety and welfare of the occupants of the proposed curfew address or home detention residence; and(b) in the case of a sentence of community detention, confirmation that the offender consents to the conditions of the sentence and the proposed curfew period; and(c) in the case of a sentence of home detention, confirmation that the offender consents to the standard detention conditions and any special conditions recommended by the probation officer or that the court has indicated it is considering imposing..[21] In the present case, a probation officer recommended imprisonment, so no report was prepared in accordance with s 26A(2). Nor was such a report obtained for the purposes of the appeal. In that situation, if I were to consider that homedetention was the most appropriate sentence to mark Mr Swinburne's offending, Icould do no more than add to the sentences given by Judge Snell, leave for Mr Swinburne to apply for cancellation of the sentence of imprisonment and substitution of home detention, under s 80I of the Act.[22] The nature of the home detention sentence was discussed fully by the Court of Appeal in R v Hill.23 Delivering the judgment of the Court, Arnold J emphasisedthat creation of the sentence reflected "a perception that society's interests are betterserved in some cases by the imposition of restrictions on liberty through homedetention rather than through imprisonment".24 Reference was made to"acknowledged advantages" set out in the Explanatory Note to the Bill that introduced the sentence; which included "low rates of reconviction and re- imprisonment, high compliance rates, and positive support for offenders' reintegration and rehabilitation".25 In short, Hill made it clear that "home detention should be treated as a real alternative to imprisonment".2623 R v Hill [2008] 2 NZLR 381 (CA).24 Ibid, at para [33].25 Ibid.26 R v D(CA253/2008) [2008] NZCA 254 at para [60].[23] In Doolan v R27 the Court of Appeal considered the approach that should be taken to appeals against decisions to impose either imprisonment or home detention. In explaining the nature of the sentencing decision and relevant principles of appellate review, the Court of Appeal said:28[38] In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.[39] In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.[24] In an earlier decision, R v D(CA253/2008),29 the Court of Appeal had made some observations about the difficulties inherent in a sentencing Judge's choice ofimprisonment or home detention. The Court said:[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.Analysis[25] My inquiry is into whether Judge Snell erred in determining that imprisonment was necessary. If his decision was one that could properly be regarded as close to the dividing line,30 the appellate review approach favoured in Doolanwould operate to uphold the sentence he imposed.27 Doolan v R [2011] NZCA 542.28 Ibid, at paras [38] and [39]. This approach is consistent with the need to identify "error", set outin s 250(2)(a) of the Criminal Procedure Act 2011.29 Ibid.30 R v D(CA253/2008) [2008] NZCA 254, at para [66], set out at para [24] above.[26] It is clear that the sentencing Judge had a preference to impose home detention, if possible.31 He declined to do so because of reasons given in the pre- sentence report. Contrary to the position Mr Hall, for Mr Swinburne, took on appeal, in my view Judge Snell was not referring to medical reasons in reaching that conclusion. Rather, his decision not to impose home detention was related specifically to his conclusion that Mr Swinburne was an unsuitable person to serve such a sentence. In particular, the Judge said that "it would be totally inappropriateto place the Probation Service into a position of jeopardy which [Mr Swinburne] would present to a person in authority, given the difficulties that [he faces] and [his]attitude to authority".32[27] There is ample support for the Judge's conclusion that Mr Swinburne has ananti-authoritarian approach to life in the findings of fact that he made after hearing evidence at the two trials. The finance company manager whom Mr Swinburne threatened can be seen as a person in authority for the purpose of that description. So too, were the police officers involved in the events of 26 April 2016, during which Mr Swinburne assaulted them with a weapon on no less than three occasions. The obstruction charge arose out of an over-reaction to lawful police conduct.[28] More broadly Mr Swinburne's previous criminal history supports the conclusion. As Judge Snell observed, he has "well over 100 convictions", mostly fordishonesty but, since 2010, offences reflecting an escalation of the type of anti-social behaviour that draws the sanctions of the criminal law.33[29] Mr Swinburne's behaviour is explicable by reference to medical conditions.Relevantly, for present purposes, they include "severe chronic pain disorder and theconsequences of brain surgery," which have left him as "a patient of a neuro-psychiatrist since 2010". That is the time at which the type of seriousness of his offending changed.34 Mr Swinburne's right leg had been amputated above the knee in 2005, due to an accident. His "left leg has suffered from recurrent infections which have plagued [him] in [his] rehabilitation". In addition, Mr Swinburne suffers31 New Zealand Police v Swinburne [2017] NZDC 7997, at para [38], set out at para [15] above.32 Ibid, at para [38], set out at para [15] above.33 Ibid, at para [8].34 See para [28] above.from depression and anxiety, both of which at times have been severe. Non- compliance with a strict medical regime can cause verbal and behavioural outbursts.35[30] I have no doubt that much of Mr Swinburne's criminal conduct has arisen outof an intense sense of frustration that he feels when confronted by authority, due to those physical and mental health disabilities. It is not hard to understand why a person in the position of Mr Swinburne might react in that way. However, allowance was made for that in the credit of 33% given to recognise his medical condition.36That reflects the need to characterise his disabilities as mitigating factors, not as conditions which justify or excuse the criminal offending of which he was found guilty.[31] In my view, this appeal turns on the interplay among ss 16, 26A and 80A of the Act.37 There is no doubt that, in the absence of a sentence of home detention, the term of imprisonment imposed was within the range available to the Judge to mark the offending. It is also clear that the Judge regarded home detention as the preferable outcome, if possible. That reduces the appeal point to a consideration of whether it was appropriate for the Court to impose imprisonment, having regard to s 16(2) of the Act.[32] In determining whether to impose home detention, the Judge is entitled to take into account the factors on which a probation officer is required to report under s 26A. They include information about the suitability of the proposed home detention address, and confirmation that the offender consents to standard detention conditions and any special conditions recommended by the probation officer, or indicated previously by the Court. Neither s 26A(2) nor s 80A(2) refers expressly to the suitability of the offender for home detention, but they do require relevant occupants to understand the intended conditions of home detention, and to consent to service of the sentence in accordance with those conditions.3835 Ibid, at para [12].36 Ibid, at para [33].37 Section 16 is set out at para [16] above, s 26A is set out at para [20] above and s 80A is set out at para [19] above.38 Sentencing Act 2002, s 80A(2)(a)(ii)(B).[33] In my view, if an offender exhibits behavioural characteristics that render him or her unsuitable to serve a sentence of home detention, it may be open to a sentencing Judge to conclude that the nature of the traits are such that, to impose home detention would not meet relevant sentencing goals set out in s 7(1) of the Act.39 Some illustrations of circumstances in which that conclusion might be justified follow.[34] The relevant purposes of sentencing include the need to hold the offender accountable for harm done to the victim and the community,40 to promote in the offender a sense of responsibility for harm done by him,41 to provide for the interests of the victim42 and to protect the community from the offender.43 If a sentencing Judge has a sufficient evidential foundation to find that a proposed detainee were likely to be disruptive, to flee from a home detention address, or to threaten the safety of a person involved in managing the sentence, all or any of those sentencing goals may not be met.44 Depending on the nature of the evidence in a particular case, it may be open for a Judge to conclude that the relevant purposes of sentence cannot be achieved by a sentence short of imprisonment.45[35] In such circumstances, commuting imprisonment to home detention may not promote a sense of responsibility on the part of the offender for harm caused by him or her, provide for the interests of a victim, or protect the community adequately. In the context of this case, a probation officer who is required to monitor compliance with a sentence is just as much a member of the community as anyone else. Therefore, anti-authoritarian behaviour of the type to which Judge Snell referred is relevant to the decision whether to order home detention, and in some cases will amount to disqualifying conduct.[36] As the Court of Appeal said in Doolan, an appellate court must focus "on theidentification of error, having regard to the discretionary nature of the decision"39 See para [17] above.40 Sentencing Act 2002, s 7(1)(a), set out at para [17] above.41 Ibid, s 7(1)(b).42 Ibid, s 7(1)(c).43 Ibid, s 7(1)(g).44 Ibid, s 16(2)(a), set out at para [16] above.45 Ibid, s 16(2)(b).under appeal.46 In cases where the decision to subject the offender to home detention is close to the dividing line, an appellate court will generally regard a sentencing Judge as in a better position to determine which sentence should be imposed.47[37] This case was close to the line. Judge Snell had the advantage of hearingevidence relevant to Mr Swinburne's offending at the two trials over which he presided. The Judge was well placed to consider whether the extent of MrSwinburne's anti-authoritarian behaviour was sufficient to exclude the possibility of commuting a sentence of imprisonment to home detention. In those circumstances, Iam not prepared to interfere with the District Court Judge's decision.Result[38] For those reasons, the appeal is dismissed.___________________________________P R Heath JDelivered at 9.15am on 4 August 201746 Doolan v R [2011] NZCA 542, at para [39], set out at para [23] above.47 R v D(CA253/2008) [2008] NZCA 254, at para [66], set out at para [24] above.