SCANLAN v POLICE [2021] NZHC 2071

SCANLAN v POLICE [2021] NZHC 2071 [11 August 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-092-011140[2021] NZHC 2071BETWEEN DEAN SCANLANAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2021Counsel: I Stewart for AppellantA Al-Janabi for RespondentJudgment: 11 August 2021JUDGMENT OF WHATA JThis judgment was delivered by me on 11 August 2021 at 11.00 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Kayes Fletcher Walker, Manukau[1] Mr Scanlan pleaded guilty to one charge of injuring with intent to injure1 andwas sentenced to seven months and two weeks' home detention.2 He now appeals thissentence as manifestly excessive and wrong insofar as a sentence of communitydetention and supervision should have been imposed.Offending[2] Mr Scanlan was charged and sentenced alongside a co-defendant, Caleb Tema.The Crown summary of facts outlines the offending as follows. At about 1.00 am onSaturday, 19 October 2019, Mr Scanlan and Mr Tema were sitting in a car parked in aresidential driveway in Flatbush, along with two others. The group was playing loudmusic from the car.[3] The complainant, unknown to the defendants, crossed the road and told themto turn the music down, leaning into the car and shaking Mr Tema by the neck andchest, yelling. Mr Tema got out of the car and began swinging punches towards thecomplainant's head. The complainant tried to punch back. Mr Scanlan then got outof the car. He punched the complainant several times to the head and also kicked hima couple of times to the legs. The complainant was knocked to the ground, at whichpoint Mr Scanlan punched him a couple of times. The complainant was repeatedlykicked, but it is unclear who by. The complainant managed to get up. Mr Temaattempted to continue punching him, but the complainant was able to block thepunches.[4] Mr Tema picked up a wooden stake supporting a nearby tree and struck thecomplainant in the head, causing a large open wound. Mr Tema attempted to strikehim again, but the complainant blocked it. Mr Scanlan then pulled Mr Tema away andtried to leave. As they drove away, Mr Tema threw three bottles at the complainant.They did not hit him, but Mr Tema yelled that he would come back and kill thecomplainant.1 Crimes Act 1961, s 189(2). Maximum penalty five years' imprisonment.2 R v Scanlan [2021] NZDC 8236 [District Court decision].[5] The complainant suffered fractures to his cheekbone, nose and eye socket, anda large laceration to his head where he was struck with the stake, opening an artery.He also suffered multiple rib fractures, and bruising and pain in several areas.[6] Mr Scanlan was charged with injuring with intent to injure and, relevantly,Mr Tema was charged with wounding with intent to injure, which carries a highermaximum penalty.3District Court sentence[7] Judge D J Harvey descried the key facts as follows:4[2] The circumstances of the offending were that you were both in a carlistening to music that was on a very high volume. [The complainant] wasdisturbed by this and approached you and he expressed his desire for you toturn the music down. You Mr Tema, got out of the car and started to swingpunches at him and a few moments later, you Mr Scanlan, got out and joinedhim. You punched the victim multiple times to the head, kicked him in thelegs and he fell to the ground. You Mr Scanlan, punched him while he was onthe ground and you Mr Tema, hit him with a stake.[8] The Judge also said:[3] I accept what Ms Stewart has to say that you Mr Scanlan, were notinvolved in that particular part of the activity and that it was a foray on thepart of Mr Tema himself and that you Mr Scanlan, attempted to get him toleave immediately after.[9] The Judge then identified a number of aggravating factors, namely:5(a) The attack was a prolonged one.(b) You targeted the head.(c) It was in the nature of a group attack.(d) It involved serious injury and you have heard the victim impactstatements that have been read out. You have heard how your actionshave destroyed the quality of life and enjoyment of life that [thecomplainant] is entitled to have. He is unable to pursue his sportinginterests. His family were devasted, horrified, when news of thisincident came to them.3 Crimes Act, s 188(2). Maximum penalty seven years' imprisonment.4 District Court decision, above n 2.5 At [4].[10] In fixing Mr Tema's sentence, the Judge adopted a starting point of three and ahalf years' imprisonment.6 After applying discounts for guilty plea, previous goodcharacter and youth, he arrived at an end sentence of one and three-quarter years,commuted to 11 months' home detention.7 In relation to Mr Scanlan, he consideredthat a sentence of imprisonment for one and a quarter years reflected the severity ofthe offending but commuted this to a sentence of seven months and two weeks' homedetention.Mr Scanlan's appeal[11] Ms Stewart, on behalf of Mr Scanlan, submits that the Judge erred in threerespects, namely:(a) The Judge wrongly sentenced to Mr Scanlan on the same charge asfaced by Mr Tema, namely the charge of wounding with intent to injure.Mr Scanlan was in fact charged with, and pleaded guilty to, injuringwith intent to injure. This, Ms Stewart submits, led the Judge to adopta starting point of three years, six months' imprisonment instead of astarting point more appropriately in the region of two between two andtwo years, six months' imprisonment.(b) The Judge gave an insufficient allowance for Mr Scanlan's lesser roleand culpability, estimating that the Judge only allowed a discount—asan adjustment to the starting point of three years, six months'imprisonment—in the order of 15 per cent.(c) The Judge gave insufficient discounts of 25 per cent total for personalfactors, including his previous good record, background, youth andremorse.(d) A sentence of community detention and supervision better meets thepurposes and principles of sentencing, having particular regard to thelow level of Mr Scanlan's culpability and his capacity for rehabilitation.6 District Court decision, above n 2, at [5].7 At [6]-[7].[12] Ms Al-Janabi, for the respondent submits that the sentence handed down toMr Scanlan was well within range, noting that the Judge appears to have adopted astarting point in the order of two years, six months and applied a 50 per cent discountfor guilty plea and personal circumstances, including Mr Scanlan's youth and remorse.Assessment[13] While Judge Harvey did not provide a breakdown of his sentence, I agree withMs Al-Janabi that in order to arrive at a notional sentence of imprisonment of one year,three months' imprisonment, the sentence corresponds to a starting point in the orderof two years, six months and a discount of 50 per cent for guilty plea and personalcircumstances. I also agree with Counsel that the starting point is well within range.8[14] The remaining issue is whether a more substantial discount should have beengiven for personal circumstances and a non-custodial sentence imposed. There is nodispute that the guilty plea attracted a discount of 25 per cent. Ms Stewart submitshowever that a 25 per cent discount for personal circumstances was manifestlyinadequate. She says that a discount of 25 per cent for youth and remorse alone ismandated and that a further discount of 20 per cent for previous good character andbackground is warranted. She says this could be reduced to a collective 35 per cent toavoid double-counting. On this analysis, the notional sentence of imprisonmentshould have been in the order of 12 months. From this she submits a non-custodialsentence was the least restrictive outcome, particularly given Mr Scanlan's strongrehabilitative prospects: he has strong whānau support and had, until sentencing, a jobas a builder he is passionate about.[15] I accept that a greater discount, in the order of 35 per cent could have beenafforded to Mr Scanlan having regard to his combination of personal factors identifiedby Ms Stewart. Mr Scanlan was 18 at the time of the offending and has no previousconvictions. He also suffered recent family trauma with his father's passing. In recentyears he has gravitated toward a "Siren" music group, where he' found support andbelonging. He has worked as a builder since the age of 16 and continued to do so untilthe sentencing. He was with members of his friends in from his Siren group, as the8 For example, O'Doherty v Police [2014] NZHC 2312.sober driver, at the time of the offending. He is clearly remorseful. But this does nottake the 15-month notional sentence of imprisonment out of range given the seriousnature of the offending. This was a group attack causing serious injury. Furthermore,most significantly, the sentence was commuted to home detention and the differencein terms of end sentence is a about one and half months' home detention. Given theseriousness of the offending, the period of home detention imposed by the Judge is notmanifestly excessive.[16] The more difficult issue is whether the sentence should have been commutedto one of community detention and supervision as suggested by Ms Stewart, which Iaccept was available to the Judge. This was the sentence recommended in theCorrections' pre-sentence report. But I am not satisfied that the Judge erred in takingthe approach he did and it was an assessment that deserves a fair margin ofappreciation.9 In this regard, I consider a sentence of home detention adequatelyserves the purposes and principles of sentencing in Mr Scanlan's case. First, as I havenoted the offending is serious offending that caused significant long-term harm to thevictim. While I accept that Mr Scanlan's culpability is markedly less than Mr Tema's,a clear deterrent sentence is nevertheless warranted. A sentence of home detentionachieves this. Second, home detention provides a full opportunity for rehabilitationwithin a supportive family environment. Ms Stewart submitted that the strictures ofhome detention meant that retaining employment was difficult. But there was noevidence from an employer to this effect.[17] Overall, and with respect to Ms Stewart's careful submissions on this issue, asentence of home detention is appropriate. Furthermore, given the seriousness of theoffending, the period of home detention imposed by the Judge is not manifestlyexcessive.[18] The appeal is dismissed.9 See Palmer v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159] and [162].