WALLACE v NEW ZEALAND POLICE [2016] NZHC 338

WALLACE v NEW ZEALAND POLICE [2016] NZHC 338 [3 March 2016]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFWITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-000005[2016] NZHC 338BETWEEN IKE RUSSELL WALLACEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 February 2016Appearances: W N Dawkins for AppellantM G McClenaghan for CrownJudgment: 3 March 2016JUDGMENT OF DUNNINGHAM J[1] Mr Wallace was convicted of eight charges of supplying cannabis to minors and two charges of offering to supply cannabis. On 3 February 2016, he was sentenced by Judge Farnan to 20 months' imprisonment.[2] The sole ground of appeal is whether the Judge was in error when she declined to exercise her discretion to sentence the appellant to home detention and, in particular, whether she failed to apply s 16(2) of the Sentencing Act 2002 (the Act). Section 16(2) provides that the Court must not impose a sentence of imprisonment unless it has been imposed for the purposes in s 7 and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles of sentencing in s 8.The background facts[3] The appellant was employed by a high school with boarding facilities. He was initially employed as a dormitory supervisor before being appointed hostel manager in 2015. He also had a part-time teaching role at the school. His employment ceased in September 2015 following an investigation into the offending.[4] During his employment the appellant supplied liquor and cannabis to male boarding students aged between 15 and 17 years of age. To facilitate the offending, the appellant disabled security alarms in the boarding house to allow the boys toleave the hostel undetected. The boys would then go to the appellant's flat wherethey would consume alcohol and cannabis. The boys would often stay late and on occasions some of the younger boys would stay the night at the appellant's flat.[5] The supply of cannabis to the victims took place between October 2014 and September 2015. The appellant supplied cannabis to persons under the age of 18 years on 45 occasions and offered cannabis to two boys aged 15 and 16 years on 11 occasions. It is accepted that the appellant made no money from the supply.District Court sentencing[6] No issue is taken with the Judge's calculation of the length of the sentence, nor the factors which were identified as aggravating features of the offending (the premeditation, demonstrated by the disabling of the alarms and security systems, the extent of the offending, and the vulnerability of the victims), or as mitigating features relating to the offender (his previous convictions, remorse, youth and early guilty pleas). What is at issue is whether, having reached an end sentence of 20 months' imprisonment, the Judge appropriately addressed the option of home detention.[7] In considering this issue, the Judge expressly referred to the purposes and principles of sentencing and, in particular, the principles of denunciation and deterrence and the need for protection of the community, balanced against the requirement to impose the least restrictive outcome.[8] In the end, while expressing that the weighing of those factors "greatly troubled" her, she took the view that a sentence of home detention would not meetthe purposes and principles of sentencing. She concluded that she had "no choice but to sentence you to a fulltime sentence of imprisonment", saying "this was serious offending, it was an extremely serious breach of trust where adults had entrustedtheir children to their care and you severely breached that trust".Jurisdiction on appeal[9] The approach to appeals regarding a refusal to grant a sentence of home detention was considered by the Court of Appeal in James v R.1 The Court explained that: an appeal against a refusal to grant home detention does not provide anopportunity to revisit or review the merits. The question is whether [the sentencing judge] erred in exercising [his] sentencing discretion: that is, did [the Judge] apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was [the Judge] plainly wrong?[10] The appeal against the sentence imposed must be allowed if I am satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.2The appellant's submissions[11] The appellant's submissions carefully traversed the sentencing principleswhich apply to home detention, emphasising the conclusions in Osman v R3 (which affirmed the conclusions of William Young P in his dissenting judgment in R v Vhavha) that:4(a) there is nothing in the Act to suggest a presumption for or against a sentence of home detention, either generally or in respect of a particular type of offence;1 James v R [2010] NZCA 206 at [17].2 Criminal Procedure Act, s 250.3 Osman v R [2010] NZCA 199 at [20]-[21].4 R v Vhavha [2009] NZCA 588 at [29] and [43]-[45].(b) when Courts sentence robbers, burglars, and drug dealers, and where the otherwise appropriate sentence is imprisonment for two years or less, they do not operate on the basis of a presumption against home detention, nor do they treat home detention as appropriate only in"rare and exceptional cases";(c) the purposes of accountability, denunciation or deterrence do not logically control a decision whether to impose a sentence of home detention. If an offender is in all respects a good candidate for home detention, the least restrictive outcome principle in s 8(g) of the Act is the primary consideration.[12] In addressing these principles, Mr Dawkins emphasised both that the appellant was a suitable candidate for home detention and that in all thecircumstances, including the appellant's youth, s 8(g) pointed to home detention being the least restrictive outcome that was appropriate in the circumstances.[13] In emphasising the appellant's suitability for home detention, Mr Dawkins referred to the pre-sentence report which recommended home detention given it wasthe appellant's first offending. The report writer emphasised that this would allow the appellant to have access to rehabilitative interventions to address the factors which led to the offending in the first place. Furthermore, the report identified theappellant as at "a low risk of reoffending and moderate risk of harm based on thenature of the current convictions before the Court". The report also noted that he had the support of his family and his ability to comply with a community-based sentencewas assessed as "high".[14] Mr Dawkins also emphasised that at the time of the offending, the appellant was 21 to 22 years old, and that, accordingly, his youth was another factor which made home detention the least restrictive outcome appropriate in the circumstances, particularly given the factors identified in Churchward v R.55 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.[15] Mr Dawkins recognised that the Judge based her decisions on the following grounds:(a) deterrence;(b) protection of the public; and(c) serious offending.[16] However, in response, Mr Dawkins emphasised that a sentence of home detention incorporates the principles of deterrence and denunciation.6 In relation to the concern about the need to protect the public, he emphasised that this should not have been a factor which was relied on to reject home detention given that the appellant had not previously offended and the pre-sentence report did not suggest that he continued to present an ongoing risk of danger to the community. Finally, in respect of the characterisation of the offending as serious, he emphasised that the amounts of cannabis involved were minimal and the offending had no commercial or financial element and, other equally serious cannabis offending had warranted sentences of home detention.Discussion[17] The critical part of the Judge's reasoning is found at [49]-[53] of the Judge'ssentencing decision. It is clear from this that the decision was finely balanced and, unlike the decision in Manikpersadh v R, this was not a case where the Judge focused solely on deterrence and denunciation without also considering the principleof imposing the least restrictive appropriate outcome and the offender's personalcircumstances, including his personal and family background and his rehabilitation.7Instead, she made express reference to the offender's background, his lack ofprevious offending, and the support he had from family and other people who had provided references. She weighed that against the other relevant sentencing principles, including the factors of deterrence and denunciation, and then considered6 Iosefa v R [2008] NZCA 453.7 Manikpersadh v R [2011] NZCA 452.that under the overlay of the requirement to impose the least restrictive outcome that was appropriate in the circumstances.[18] I am therefore satisfied that the Judge made a considered and principled choice between the two forms of sentence and there was no error in the exercise of her discretion. In those circumstances, although acknowledging that it is a case where another sentencing Judge may have come to a different conclusion, I do not consider that the District Court Judge erred in the exercise of her discretion to impose a sentence of imprisonment rather than home detention.[19] Accordingly, the appeal is dismissed.Solicitors:Bill Dawkins Law, InvercargillPreston Russell Law, Invercargill