LEEF v NEW ZEALAND POLICE [2019] NZHC 3372

LEEF v NEW ZEALAND POLICE [2019] NZHC 3372 [18 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-490[2019] NZHC 3372BETWEEN EDWARD LEEFAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Appearances: H Croucher for AppellantM Beattie for RespondentJudgment: 18 December 2019JUDGMENT OF WALKER JThis judgment was delivered by me on 18 December 2019 at 10.30 amPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] Edward Leef pleaded guilty and was sentenced to 18 months' imprisonment forthe following charges:1(a) male assaults female;2(b) assault with intent to injure;3(c) unlawfully taking a motor vehicle;4 and(d) theft (between $500 and $1,000).5[2] The only issue on appeal is whether Judge Skellern in the Manukau DistrictCourt was wrong not to convert the sentence to one of home detention.Facts[3] The majority of the offending concerns violence by the appellant against hisex-partner of two-and-a-half years.Male assaults female[4] On 16 May 2018, the appellant and the victim were at home and got into adispute. While she was holding their baby, the appellant held her tightly and bit heron the nose for about 20 seconds. The victim was not injured, but she had two smallred marks at the top of her nose. The appellant initially denied the allegations and toldPolice the victim was suffering from a mental health episode. After this incident, the19-month-old baby was removed from the care of the victim and the appellant.1 Police v Leef [2019] NZDC 217232 Crimes Act 1961, s 194(b). Maximum penalty is two years' imprisonment.3 Section 193. Maximum penalty is three years' imprisonment.4 Section 226(1). Maximum penalty is seven years' imprisonment.5 Section 219 and 223(c). Maximum penalty is one year imprisonment.Assault with intent to injure[5] On 2 June 2018, the appellant and the victim had been drinking and were againinvolved in an argument.[6] The appellant snapped a mop he was holding and used the handle to hit thevictim on the right-side of her head behind her ear. He continued to strike herrepeatedly with the mop handle several times, connecting with her head, neck, backand shoulder. The appellant grabbed the victim's hair in one hand and forced her tothe ground. He dragged her by her hair and punched, kicked and kneed her multipletimes to the head and body. The victim was close to losing consciousness and suffereddeep bruising.Unlawfully taking a motor vehicle and theft from a car[7] In June 2019, the appellant was employed at Delta Civil Limited. On 30 June,the appellant took a vehicle transport trailer and six batteries (worth $100 each) froma work site based at his home address.District Court Decision[8] The appellant was sentenced by Judge Skellern on 30 October 2019, taking thefollowing approach:(a) A starting point of 20 months' imprisonment.(b) An uplift of six months for the other offending.(c) A further three-month uplift for the appellant's previous convictions andone month for offending while on bail.(d) A discount of 20 per cent for the appellant's s 27 report.(e) A discount of 25 per cent for plea.[9] This left an end sentence of 18 months' imprisonment.[10] The Judge noted that the appellant has 39 previous convictions, seven beingbreaches of protection orders and three being family violence assaults. She referredto the victim impact statement of the appellant's ex-partner, in which the appellant wasdescribed wearing the victim down mentally and emotionally. She noted that in thepre-sentence reports, the appellant said he did not know the victim was bi-polar andhad a lot of insecurities "until it was too late". The Judge described the appellant'sattitude in the reports as showing "a real ambivalence as to who was at fault here".The Judge noted the pre-sentence report recommended home detention. The Judgealso discussed in detail the appellant's s 27 report.[11] On the issue of home detention, the Judge acknowledged the submission fromthe defence counsel it would enable the appellant to continue to work, and wouldsufficiently serve the purposes of deterrence and denunciation. One-on-onecounselling was proposed to meet the appellant's "victim blaming" comments in thepre-sentence report.[12] However, the Judge concluded that home detention would not satisfy thepurposes and principles of sentencing. She described the assaults as "brutal, meanattacks" and stated:You yourself have identified a particular vulnerability with your victim. Thereis no reason whatsoever that she should be blamed in this regard. Theseriousness of the attack, the protracted nature of it, and the harm done to her,is not sufficiently addressed at all by an electronically-monitored sentence.Approach to Appeal[13] The Criminal Procedure Act 2011 sets out that a first appeal court must allowan appeal if satisfied that:6(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[14] This court must point to an error "of the requisite character" made by theDistrict Court, either in the Judge's reasoning or shown by additional material6 Criminal Procedure Act 2011, s 250.considered on appeal.7 The sentence does not have to be 'manifestly excessive', butthis is a helpful concept when considering the seriousness of the error.8[15] There is no presumption in the Sentencing Act for or against commutation ofimprisonment to home detention, so the decision must be made on a case by casebasis.9 As it can be difficult for sentencing judges to articulate reasons for preferringone approach to another, the margin of appreciation extended to judges is usuallysignificant.10 A sentencing Judge may be in a better position than an appellate courtto assess the seriousness of offending for the purposes of determining whether homedetention is appropriate.11SubmissionsAppellant submissions[16] Ms Croucher, for the appellant, submits that the District Court Judge's errorlies in placing too much weight on denunciation and deterrence, at the expense ofrehabilitation and reintegration.12 Ms Croucher also emphasizes that home detentionis not a light sentence, relying on the Court of Appeal in Fairbrother v R:13[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of lawThe other is where the purpose ofdeterrence has been given complete priority without regard to any of thecountervailing purposes of sentence.[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto account all the purposes of sentencing.[17] Ms Croucher further submits that the deterrent effect of imprisonment isincreasingly recognised as being limited, and refers specifically to the high7 Tutakangahau v R [2014] NZCA 279 at [30].8 At [35].9 Twomey v R [2018] NZCA 206 at [12] (footnotes omitted).10 At [13].11 R v D [2008] NZCA 254 at [66].12 McLean v Police [2018] NZHC 102 and Manikpersadh [2011] NZCA 452 at [8].13 Fairbrother v R [2013] NZCA 340.reimprisonment rates of Māori: after two years, 41.3 per cent of released Māoriprisoners are re-imprisoned, while only 30.5 per cent of released non-Māori prisonersare re-imprisoned after two years. 14[18] As for the importance of rehabilitation and reintegration, counsel refers toMcLean v Police where the appellant was in his forties (like Mr Leef) and had over100 convictions:15 the Judge was in error in seeming to focus exclusively on the principle ofdeterrence and denunciation, in not acknowledging that a sentence of homedetention can have that effect and in not having regard to the sustainedrehabilitative efforts Mr McLean had made, his remorse and the prospect ofhis future rehabilitation.[19] Ms Croucher also submits the Judge placed too much weight on Mr Leef'sattitude in the pre-sentence report, noting it was based on a brief telephone interview.[20] Ms Croucher suggests it is more desirable to keep offenders in the communityas far as practicable and consonant with public safety.16 Mr Leef was employed, andhis employer hopes to have him back at work. Prior to going into custody, he wasengaged in a stopping violence programme at Friendship House and alcohol and drugcounselling through a previous employer. Before the dishonesty offending, hisprogress at this programme was being monitored in the Manukau Family Violencecourt. It came to light that he was having difficulty because of his inability to readand write. Ms Croucher submits that his literacy can be addressed in programmes onhome detention. Lastly, Ms Croucher notes that both the pre-sentence report and thes 27 report support Mr Leef receiving community-based sentences.Crown submissions[21] Mr Beattie, for the Crown, submits that the Judge did not err in imposingimprisonment as opposed to home detention. He refers to Dennis v New ZealandPolice, where Whata J noted that the requirement to deter applies to all personsengaged in repeated, serious domestic violence, although not every case of serious14 Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending (Wai2540, 2017) at 8; cited in Solicitor-General v Heta [2019] 2 NZLR 241 at [35].15 McLean v Police [2018] NZHC 102.16 Sentencing Act 2002, s 15.domestic violence should attract a sentence of imprisonment.17 The respondentsubmits it is relevant that Mr Leef seemed to suggest in the pre-sentence report thatthe offending had something to do with him choosing "the wrong woman" to be with,or the fact that she suffered from bipolar disorder.[22] Mr Leef has also received a number of sentences aimed at addressing hisrehabilitative needs. He received a sentence of supervision in 2008 and 2003 forearlier family violence offending and he has previously received an electronically-monitored sentence of community detention.[23] Home detention is only capable of meeting deterrence to a degree. Mr Beattiesubmits that it was open to the Judge to emphasise denunciation and deterrence,considering the seriousness of the offending, his criminal history and more recenthistory of breaching court orders, his continued offending while on bail, and hisattitude in the pre-sentence report. He says that the Judge did not elevate theseprinciples above all others but was also clearly mindful of the need to considerrehabilitative prospects. He advocates a restrained approach on appeal.Discussion[24] Mr Leef may well benefit from reintegration and steady employment. He hasa supportive employer. He has progressed despite limited reading and writing skills.As written by his s 27 report writer, he "needs to continue working and feeling proudabout what he is doing." He has a suitable address. He wishes to be available to hisdaughter, who is sick, and to be with his whānau.[25] The s 27 report also discloses that the appellant has a significant history ofhardship, as well as discussing the broader marginalization of Māori in New Zealand,which has led to the overrepresentation of Māori in prisons. The report is compelling,and I readily acknowledge all these factors are weighty. They were considered inassessing the appropriate sentence discounts and play a part in the assessment of theleast restrictive outcome.17 Dennis v New Zealand Police [2018] NZHC 886 at [26]-[27].[26] I do not accept however that Judge Skellern made denunciation and deterrencea complete priority to the other sentencing purposes. She said:In respect of the purposes of sentencing, in my consideration, the matters Ineed to consider today particularly are accountability for you, denunciationand deterrence. I must impose the least restrictive outcome that is appropriatein the circumstances while taking account of the gravity of the offending, andthe comparative seriousness of the type of offence.[27] The Judge acknowledged that the report writers had concluded that homedetention would offer oversight of Mr Leef's rehabilitation and a deterrent to furtheroffending. She also, rightly with respect, looked at the effect the offending had on thevictim both physically and psychologically. She considered the pre-sentence reportwas evidence of Mr Leef's dismissive attitude and unwillingness to take responsibilityfor his actions.Result[28] The Judge posed the question as whether the purposes and principles of theSentencing Act 2002 would be satisfied short of a sentence of imprisonment andwhether home detention would be appropriate when considering the gravity of theoffending, the degree of culpability, the desirability of consistency in sentencing andthe least restrictive outcome. While there was no express reference in this passage torehabilitation, it would be unduly narrow to read this as a failure to considerrehabilitation prospects, particularly since this was part of her assessments of both thepre-sentence and s 27 reports. I am influenced by the necessary 'margin ofappreciation' to be accorded to sentencing judges.[29] Notwithstanding the full and helpful submissions made by Ms Croucher onbehalf of the appellant, I have therefore concluded that the Judge's reasoning does notdisclose any error.[30] Accordingly, the appeal is dismissed.Walker J