DUVAL v NEW ZEALAND POLICE [2018] NZHC 393

DUVAL v NEW ZEALAND POLICE [2018] NZHC 393 [13 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000042CRI-2018-404-000043CRI-2018-404-000044[2018] NZHC 393BETWEEN JACOB JAMES DUVALAppellantAND NEW ZEALAND POLICERespondentHearing: 5 March 2018Appearances: Dennis Dow and Susan Giles for the AppellantAnnabel Linterman for the RespondentJudgment: 13 March 2018JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 13 March 2018 at 2:45 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The appellant, Jacob James Duval, aged 21, was sentenced to seven months'imprisonment concurrently imposed on a variety of charges by Judge J Jelas on14 February 2018 at the Waitakere District Court.[2] Her Honour declined to convert that sentence to home detention on the groundsthat given Mr Duval's significant history of non-compliance she had no confidence hewould complete the sentence without incident.[3] Mr Duval appeals on the narrow question of whether the Judge should haveexercised her discretion to order home detention.Background facts[4] In his submissions filed in support of the appeal, Mr Dow, for Mr Duval,helpfully provided a table which I have modified for present purposes. This sets outthe seven charges Mr Duval pleaded guilty to. For convenience the charges may bedivided into three categories defined by the dates of offending; 9 June 2017,18 October 2017 and 24 December 2017.Date Charge MaximumsentenceEndsentence9 June 2017 Common assault 1 year'simprisonment5 months18 October 2017 Driving whilst disqualified (3rdor subsequent)2 years'imprisonment;$6,000 fine7 months18 October 2017 Dangerous driving 3 months'imprisonment;$4,500 fine3 months18 October 2017 Failed to stop for red and bluelights (3rd or subsequent)3 months'imprisonment;$10,000 fine2 months18 October 2017 Breach of community detention 6 months'imprisonment;$1,500 fine2 months24 December2017Escaping Police custody 5 years'imprisonment6 monthsDate Charge MaximumsentenceEndsentence24 December2017Resisting Police 3 months'imprisonment;$2,000 fine1 month[5] The description set out below is drawn from the summaries of fact whichMr Duval accepted as accurate.Assault (9 June 2017)[6] On 9 June 2017 the victim was leaving his home to go to work. As he walkedacross the road Mr Duval, who was waiting with an associate, challenged him saying,"You've been talking shit about me ".1 The victim denied this and threw a punch atMr Duval who responded by running at the victim and tackling him to the ground. Hethen launched a prolonged attack on the victim punching him in the head and faceseveral times while the victim attempted to shield his head in his arms. As a result ofthe attack, the victim was bruised and required treatment by attending ambulance staff.When spoken to by the Police Mr Duval admitted pursuing the victim, tackling himand punching him several times.[7] Mr Duval pleaded guilty to assault on the morning the matter was scheduledfor hearing. He was granted bail. At the time he was a disqualified driver.2Driving charges and breach of community detention (18 October 2017)[8] At about 6:30 pm on 18 October 2017 Mr Duval was seen by the Police drivingin the Westgate area. At the time he was serving a sentence of community detentionwhich required him to be resident at his home between 7:00 pm and 7:00 am.Conscious that he had been spotted by the Police Mr Duval took various evasiveactions as he drove in and around the Westgate shopping area. The Police activated1 Mr Dow advised that Mr Duval lived opposite the victim. The men had known each other forsome years. Mr Duval's partner was the victim's former girlfriend.2 On 11 August 2015 he was convicted and sentenced on various driving charges and wasdisqualified from driving as a result. On 30 August 2016 he was convicted for dangerous driving,failing to stop and driving while disqualified. He received a further disqualification. On 15 August2017 he was convicted for dangerous driving, failing to stop and disqualified for driving. Thedisqualification period was scheduled to end on 14 May 2018.their lights and siren. Mr Duval increased his speed in an attempt to escape. He wasseen to accelerate towards a member of the public outside the Countdown supermarketbefore entering a roundabout in the wrong direction and then accelerating up to120 kilometres per hour and driving through a red light. So concerned were the Policeat Mr Duval's dangerous driving they abandoned the pursuit.[9] Despite this Mr Duval carried on at speed towards his home where he parkedthe car behind the house and covered it with a tarpaulin. He ran inside, pulled thecurtains and hid in a bedroom where the Police later found him.[10] The breach of detention charge relates to Mr Duval's curfew violation, i.e. notbeing at his home after 7:00 pm.Resisting Police and escaping Police custody (24 December 2017)[11] The two final charges arise out of events on 24 December 2017. Mr Duval hadbeen granted EM-bail. The Police arrived at his EM-bail address after neighbours hadheard arguing. They placed Mr Duval under arrest. Mr Duval struggled violently inan unsuccessful attempt to prevent the Police from handcuffing him. He was escortedto the Henderson Police Station but later complained of a sore wrist. He was taken toWaitakere Hospital for an examination but as he was being discharged he escaped. Inthe darkness he ran about 100 metres before striking an obstacle and falling.District Court decision[12] Judge Jelas bundled Mr Duval's offending into the three categories as set outabove. For the assault charge she fixed a starting point of five months' imprisonment.She regarded as aggravating factors the level of premeditation, lack of provocationand the fact that the offending involved the delivery of multiple blows to the head andface area of the victim.[13] Next she addressed the 18 October 2017 driving charges. She found thatMr Duval had driven in a persistently dangerous manner placing members of thepublic at risk. She considered Mr Duval's significant history of driving offendingincluding two prior convictions for dangerous driving, convictions for recklessdriving, two convictions for driving while disqualified and three for failing to stop.[14] In this context she observed:"[24] You have in effect three prior sets of convictions relating to drivingmatters. On each occasion you have failed to stop, you never comply withpolice red and blue flashing lights, and you drive in a manner that is eitherdangerous or reckless. On the more recent occasions you have always beendisqualified. It would appear from your ongoing offending of that nature since2015 that no matter what restrictions are put in place you continue to driveand drive poorly.[25] I also note and emphasise as I have already mentioned that thisoffending reflects substantially the same offending you were sentenced for inAugust last year. The present offending occurred while you were serving thatsentence of supervision and community detention. I am told today that youhave not completed any programmes under your supervision sentence, but thatwas because none were offered to you."[15] The Judge considered a further aggravating factor was that the driving offencesoccurred while Mr Duval was on bail for the assault. Combining these matters herHonour considered that an appropriate starting point was six months' imprisonment.[16] She then turned to consider the resisting Police, escaping Police custody andbreach of community detention charges. She uplifted the sentence by one month inrecognition of that offending, bringing the global starting point to 12 months'imprisonment.[17] Judge Jelas accepted Mr Duval was entitled to a credit for youth and for hispleas of guilty. Despite the recidivist nature of his driving offences the Judge applieda two and a half month discount on account of youth and gave a global two and a halfmonth discount for the guilty pleas, acknowledging that the plea to the assault chargehad come late.[18] Applying these discounts the Judge arrived at an end sentence of seven months'imprisonment. It was at this point she considered whether to convert the sentence toone of home detention. The Judge acknowledged the need to impose the leastrestrictive outcome appropriate in the circumstances3 and whether the purposes andprinciples of sentencing could be met by Mr Duval serving a sentence of homedetention. She considered they could not, primarily by reason of Mr Duval'ssignificant history of non-compliance. On this topic she said:"[32] I have no faith that if home detention was imposed that you wouldcomply with it. I repeat again that this offending occurred while you wereserving an electronically based sentence and further you have breached yourelectronically monitored bail conditions.[33] I believe that if you were given a community-based sentence youwould continue to drive which would only place the public at further risk."[19] The Judge noted that even after participating in the Right Track programmeMr Duval had continued to re-offend on two separate occasions. She thus concludeda term of imprisonment was the only sentence which could hold Mr Duval to accountand denounce his offending.Grounds of appeal[20] As previously noted Mr Duval advances only one ground of appeal; that theJudge erred by not commuting the sentence of imprisonment to one of home detention.Specifically Mr Dow, for Mr Duval, submits that the Judge erred by:(a) sentencing Mr Duval on the wrong facts in relation to the commonassault charge;(b) not imposing the least restrictive outcome appropriate in thecircumstances;(c) failing to take into account a relevant consideration, being the pre-sentence report writer's recommendation of a sentence other thanimprisonment (over emphasis on deterrence and denunciation); and3 Sentencing Act 2002, s 8(g).(d) taking into account an irrelevant consideration, by considering earlierpre-sentence reports without giving counsel for Mr Duval theopportunity to address them.Jurisdiction[21] This is a first appeal against sentence. The appeal must be allowed if the Courtis satisfied that for any reason there is an error in the sentence imposed, and a differentsentence should be imposed.4 The touchstone is whether the sentence imposed ismanifestly excessive.5 The focus is on the sentence imposed, rather than the processby which it was reached.6[22] The Court of Appeal has specifically addressed the approach to appeals againstrefusal to grant home detention:7"We record that an appeal against a refusal to grant home detention does notprovide an opportunity to revisit or review the merits. The question is whether[the Judge] erred in exercising his sentencing discretion: that is, did he applyan incorrect principle, give insufficient or excessive weight to a particularfactor, or was he plainly wrong?"Analysis[23] I shall deal with each of the grounds advanced in turn.Did the Judge err in her analysis of the facts?[24] Mr Dow's principal criticism is that Judge Jelas' analysis of the facts differedmaterially from the agreed summary of facts. In particular, he says that there was nofactual foundation to support the Judge's conclusion that the offending waspremeditated or that Mr Duval threw the first punch. Mr Dow says that there is nothingin the summary of facts which would support the Judge's conclusion that Mr Duvalwas waiting for the victim.4 Criminal Procedure Act 2011, s 250(2).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].6 At [36].7 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].[25] As Mr Dow points out the summary of facts refers to the defendant "waitingwith an associate by a vehicle" as the victim left his home and walked across the road.Given those circumstances it is understandable that Judge Jelas described theoffending as premeditated. Other than Mr Duval's claim to the author of the pre-sentence report that this was a chance encounter and that the victim had just turned upat his house, it was open to the Judge to draw this inference although for reasons whichfollow I do not regard the resolution of this issue as significant in terms of assessingthe totality of the offending.[26] However, Mr Dow is correct, and Ms Linterman, for the Police properlyaccepts, that the Judge was wrong to state Mr Duval threw the first punch. Thesummary explicitly states that it was, in fact, the victim who took this first action. But,again, viewed in the broader context of Mr Duval's attack; the pursuit, the tackling,the multiple punches when the victim was on the ground and the injuries sustained,any factual errors of the sort complained of assume only modest prominence in theassessment of overall culpability.[27] Moreover, the assault charge does not feature in Judge Jelas' assessment of theappropriateness of home detention. Her concern was plainly with Mr Duval's historyof non-compliance. That being the case, the errors complained of did not affect theassessment which is in focus in this appeal.[28] It is for these reasons I do not accept Mr Dow's submission that these errors offact and what he describes as the excessive emphasis placed on them coloured theJudge's decision on the appropriateness of home detention.Did the Judge err in not imposing the least restrictive outcome appropriate in thecircumstances?[29] Section 16 of the Sentencing Act 2002 ("the Act") governs the imposition of asentence of imprisonment. It requires the Court to have regard to the desirability ofkeeping offenders in the community as far as is practicable and consonant with thesafety of the community.8 It goes on to provide that the Court cannot impose asentence of imprisonment unless it is satisfied that:9"(a) a sentence is being imposed for all or any of the purposes in section7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application of theprinciples in section 8 to the particular case."[30] Sentences of home detention meanwhile are available under s 15A. They mayonly be imposed if:10"(a) the court is satisfied that the purpose or purposes for which sentenceis being imposed cannot be achieved by any less restrictive sentenceor combination of sentences; and(b) the court would otherwise sentence the offender to a short-termsentence of imprisonment."[31] A two-step process governs the imposition of sentences of home detention.11To be an available option, at the first stage the Judge must have decided that thesentence which would otherwise be appropriate is a sentence of two years'imprisonment or less.12 At the second stage, the Judge considers whether to commutethat sentence to one of home detention. That exercise involves:13" a considered and principled choice between the two forms of sentence,recognising that both serve the principles of denunciation and deterrence, andidentifying which of them better qualifies as the least restrictive sentence toimpose taking into account all of the purposes of sentencing."[32] This acknowledges that home detention is a significant sentence in its ownright.14 But the introduction of home detention as a discrete sentence has not removeda short-term sentence of imprisonment as an appropriate sentencing option.158 Sentencing Act 2002, s 16(1).9 Section 16(2).10 Section 15A(1).11 R v Vhavha [2009] NZCA 588 at [31], per William Young P.12 There is no dispute that that stage is engaged in Mr Duval's appeal.13 Fairbrother v R [2013] NZCA 340 at [30].14 At [28]. See also R v Iosefa [2008] NZCA 453 at [41].15 Polyanszky v R [2011] NZCA 4 at [13].[33] The Court in Fairbrother v R went on to state:16"Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing Judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence."[34] The Court concluded as follows:17"Sometimes, as this Court said in R v D CA 253/2008 that can prove a verydifficult exercise of judgement; and 'the closer one gets to the dividing line,the more difficult it becomes to articulate reasons for preferring one approachto the other'. Even in those cases, however, the choice must be intelligible.The factors that really count must be identified and weighed."[35] One factor which will assume significance in appropriate cases is a history offailure to comply with Court orders in similar circumstances.18 Mr Dow submits theJudge also erred in this assessment. He submits that if the Judge had undertaken aproper and careful analysis of Mr Duval's non-compliance the result would have beendifferent. Mr Dow points out that Mr Duval spent three months on electronically-monitored bail with a 24 hour curfew. There is no evidence he drove or was otherwisein breach of his conditions during that time. He points out that while the drivingoffences were committed when Mr Duval was the subject of community detention, thedangerous driving was not committed during his curfew hours. He says that the onlybreach of curfew occurred on 24 December 2017 when Mr Duval was involved in adomestic dispute with his partner. However, no charges were laid in respect of thatincident. In summary, Mr Dow submits that Mr Duval has no previous convictionsfor non-compliance with Court-imposed sentences, but accepts he has contravenedvarious Court and official orders.[36] Applying those principles it is plain that Judge Jelas approached her taskcorrectly. She expressly considered the principle of the least restrictive outcome andwhether or not the purposes and principles of sentencing could properly be met byMr Duval serving a community sentence in the form of home detention. Her Honourstated that she reached the view that imprisonment was the only outcome that could16 Fairbrother v R, above n 13, at [29].17 Fairbrother v R, above n 13 at [31].18 Hampton v Police [2014] NZHC 2423 at [28]-[29].properly be imposed and in doing so took into account Mr Duval's criminal historyand, in particular, his significant history of non-compliance, giving weight to the factthat some of the offending occurred while Mr Duval was serving an electronically-monitored sentence. She also took into account that Mr Duval had had the benefit ofattending a rehabilitative programme but had continued to re-offend.[37] Mr Dow is correct that on the authority of Fairbrother the principle ofdeterrence should not be given complete priority without regard to any of the othercountervailing purposes and principles of sentence. But that is not what Judge Jelasdid and a reading of her sentencing remarks as a whole reveals that. The otherprinciples implicit in the Judge's decision not to grant home detention includedholding Mr Duval accountable, promoting in him a sense of responsibility and theneed to reflect the harm done to the victim; principles which could not be fulfilledother than by a short sentence of imprisonment.[38] The Judge reached her conclusion that only a term of imprisonment wouldsuffice after a reasoned and principled assessment of the competing factors. While itmight be said that her analysis focused primarily on the risks of non-compliance, I donot consider she failed to weigh other relevant factors such as Mr Duval's prospectsof rehabilitation. Indeed she observed that shortly after participating in a rehabilitativeprogramme, he continued to re-offend on two separate occasions. She was plainlyconscious of the countervailing considerations, but concluded there was little optionbut to impose a short term sentence of imprisonment.19[39] In my view that was the correct conclusion to reach. The harms associatedwith incarcerating young offenders are well documented,20 and Mr Duval's relativeyouth is not a trifling consideration. But by the time of sentencing he had been offeredvarious opportunities to demonstrate his ability to comply with Court orders. He gavethe Court few grounds for confidence as to his ability to comply with a further orderin the form of home detention. It is significant that each of the charges for whichMr Duval was being sentenced related to offending committed while he was subjectto a Court order. He was serving a sentence of supervision and community detention19 I return to this below at [44] and the paragraphs that follow.20 See, for example, Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.when he committed an assault. He was then released on bail, during which time thedriving offences occurred. At the time he was a disqualified driver. He was thenreleased on EM bail. While subject to electronic monitoring, and still on communitydetention, the Police were called to a domestic dispute involving his partner. Heresisted arrest, and then escaped from their custody.[40] In those circumstances I agree with Judge Jelas that she had little option but tosentence Mr Duval to a short term of imprisonment. To do otherwise would be toattract the inevitable; further episodes of anti-social and risky conduct likely toendanger the health and safety of the public.[41] I have considered whether by analogy attention should be drawn to EM baildecisions where the Court has stated that a history of offending on general bail is nota helpful indicator of risk of re-offending while on EM bail.21 That is, in my view, theessence of Mr Dow's submission: that home detention is more restrictive thancommunity detention, and other types of Court orders. I do not consider such ananalogy should be drawn. The grant of bail turns on the assessment of various risks,one of which is the risk of offending while on bail. It is in that context that the natureof constraints placed on defendants carries particular weight. By contrast atsentencing the governing considerations are those contained in the Act, namely atss 15A and 16 and the purposes and principles in ss 7 and 8. For the reasons stated Iconsider the Judge arrived at her conclusion guided by those considerations. In doingso she did not err.Did the Judge err in failing to take into account the pre-sentence report author'srecommendation of a sentence other than imprisonment (over emphasis on deterrenceand denunciation)?[42] Judge Jelas made no explicit reference to the pre-sentence report whichrecommended a sentence of home detention. Mr Dow accepts that her Honour wouldhave read the report. He also accepts that the Judge's failure to mention the report isnot in itself a ground for challenge. However, his submission is more nuanced. Hesays that where a Judge elects to impose a sentence which is starkly different to thatrecommended there is an obligation to make explicit reference not only to the report21 See, for example, Mulitalto v Police [2017] NZHC 2591 at [26].but also the reasons why the recommendation has not been followed. He submits thatin this case such an approach is particularly important given that Mr Duval has noprevious convictions for non-compliance with Court sentences. He submits the Judgeerred in placing emphasis on deterrence and denunciation to the detriment of otherrelevant considerations, including the principles of imposing the least restrictivesentence appropriate and the desirability of keeping offenders in the community.[43] Ms Linterman, in response, observes that the probation officer'srecommendation of home detention is just that, a recommendation. She also pointsout that the pre-sentence report makes reference to factors tending to operate againstthe imposition of a sentence of home detention.[44] It is in that context that the observations of the Court of Appeal in James areapposite.22 There the Court observed that an appeal against a refusal to grant homedetention does not provide an opportunity to re-visit or review the merits. Thequestion is whether the Judge erred in exercising his or her sentencing discretion. InJames the Court determined that the decision as to whether home detention will meetthe objectives of deterrence and denunciation in a particular case is a strictly evaluativeexercise.23 It is a matter of judgement for the sentencing Judge to determine whetherthat sentence is an adequate response to the seriousness of the offending.[45] The Court went on to state that that does not mean that a short term ofimprisonment must always be commuted to a sentence of home detention, noting thatthat would equally amount to an error of law. As stated above, what it requires is forthe Judge to make a considered and principled choice between the two forms ofsentence recognising that both serve the principles of denunciation and deterrence andidentifying which of them better qualifies as the least restrictive sentence to imposetaking into account all the purposes of sentencing.22 James v R, above n 7.23 At [17].[46] For the reasons stated I do not consider the Judge erred in determining homedetention was not an adequate response to the offending, after weighing the relevantpurposes and principles. Having properly carried ouit that exercise, she did not err bynot explicitly referring to the Probation officer's observations about home detention.Did the Judge err by considering earlier pre-sentence reports without giving counselthe opportunity to address them?[47] A further ground of appeal advanced by Mr Dow relates to earlier pre-sentencereports. These appear to have been prepared for unrelated sentencings in August 2015,July 2017 and August 2017. It is not clear how or why these reports came to be on thefile.[48] According to Mr Dow he only became aware of the existence of these reportsafter the appeal had been filed and the contents of the Court file reviewed. He acceptsthere is no evidence that the Judge considered these reports.[49] For these reasons it is difficult to see how the reports may have compromisedMr Duval's position at sentencing even if they had been read by Judge Jelas. Shemade no reference to them in her sentencing remarks and it is plain, in my view, thatthey had no influence on her decision not to order home detention.[50] Furthermore, that a sentencing Judge elects not to adopt a recommendationcontained in a PAC report cannot be elevated to a claim that the Judge erred inprinciple. It is the Judge's task to assess the totality of the offending and the extent ofthe criminality involved.Conclusion[51] For these reasons I am not satisfied that Judge Jelas erred in not converting thesentence of imprisonment to one of home detention.Result[52] The appeal is dismissed.Moore JSolicitors/Counsel:Public Defence Service, AucklandCrown Solicitor, Auckland