STAIGER v NEW ZEALAND POLICE [2022] NZHC 3012

STAIGER v NEW ZEALAND POLICE [2022] NZHC 3012 [17 November 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-000044[2022] NZHC 3012BETWEEN JAMEN PAUL STAIGERAppellantAND NEW ZEALAND POLICERespondentHearing: 15 November 2022Appearances: N Palmer for AppellantU Keller for RespondentJudgment: 17 November 2022JUDGMENT OF WYLIE J(Appeal against sentence)This judgment was delivered by Justice WylieOn 17 November 2022 at 10.00 amRegistrar/Deputy RegistrarDate:Solicitors/counsel:Hamilton Legal, HamiltonN Palmer, HamiltonIntroduction[1] On 28 June 2022, the appellant, Jamen Staiger, was sentenced by Judge R L BSpear in the District Court at Te Awamutu to one year and six months' intensivesupervision and 100 hours' community work.1[2] Mr Staiger was before the Court for sentence in relation to a number of charges:breach of a community work order; driving whilst disqualified (x 2); escaping fromPolice custody; failing to remain stopped for a Police officer; resisting the Police; andfailing to answer District Court bail. The driving whilst disqualified charges, theescaping Police custody charge and the charge of resisting the Police attracted thesentence of one year and six months' intensive supervision and the imposition ofspecial conditions recommended by the Department of Corrections. Mr Staiger wasalso disqualified from driving for a period of 15 months in relation to the charges ofdriving whilst disqualified. On the charge of failing to remain stopped, he wasdisqualified for 12 months. He was discharged without penalty on the breach of bailcharge.[3] Relevant to the appeal, Mr Staiger was also charged with breaching acommunity work order contrary to s 71(1) of the Sentencing Act 2002. In December2020, he had been sentenced to 100 hours of community work on a charge of drivingwhilst disqualified. He made very little progress with completing his sentence and, inOctober 2021, his probation officer applied to review the sentence under s 68(1)(a) ofthe Sentencing Act. At that point, Mr Staiger had only completed 4.75 hours ofcommunity work since the sentence was imposed. Judge Spear convicted Mr Staigeron the charge of breaching the sentence of community work and discharged himwithout penalty but with a final warning. The application to review the sentence wasnot opposed and the Judge cancelled the December 2020 sentence and substituted afresh sentence of 100 hours' community work in place of the sentence earlier imposed.[4] At the same time, the Judge dealt with an oral application made on Mr Staiger'sbehalf under s 94 of the Land Transport Act 1998. Mr Staiger sought the imposition1 Police v Staiger [2022] NZDC 12118.of a community-based sentence instead of a further period of disqualification. TheJudge declined this application.[5] Mr Staiger appeals the sentence of 100 hours' community work imposed bythe Judge (the resentence appeal). Although Mr Staiger did not raise it in his notice ofappeal, Ms Palmer, appearing on his behalf, also put in issue the Judge's decisiondeclining his application under s 94 of the Land Transport Act (the s 94 appeal).[6] The Crown opposes the appeal.The appeal[7] The resentence appeal is brought pursuant to s 244 of the Criminal ProcedureAct 2011. Pursuant to s 250 of the Act, Mr Staiger must satisfy this Court that therehas been a material error in the sentence imposed and that a different sentence shouldhave been imposed. In any other case, the appeal must be dismissed.[8] The appellate Court does not start afresh nor simply substitute its own opinionfor that of that of the original sentencer. Rather, it must be shown that there was amaterial error "whether intrinsically, or as a result of additional material submitted"on appeal.2 If there is an error of the requisite character, the appellate Court will thenform its own view of the appropriate sentence.3 The Courts have acknowledged thatsentencing is not a science and that an appellate Court will not ordinarily interfereunless the end sentence was outside the range available to the sentencing Judge.4 Onappeal, the Court focuses on the end result rather than the process by which it wasreached.5[9] The s 94 appeal is a general appeal, by way of rehearing.2 R v Shipton [2007] 2 NZLR 218 (CA) at [139].3 Tutakangahau v R [2014] NZCA 279 at [30].4 Palmer v R [2016] NZCA 541 at [17].5 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau v R, above n 3, at [36].Submissions[10] Ms Palmer submitted that the Judge should have substituted the communitywork sentence with a sentence of intensive supervision. She referred to the two pre-sentence reports received and to a psychological report obtained under s 38 of theCriminal Procedure (Mentally Impaired Persons) Act 2003 (the s 38 report). Sheargued that no or insufficient consideration was given by the Judge to these reportsand to Mr Staiger's personal circumstances. She submitted that in the circumstances,a sentence of 100 hours' community work was manifestly excessive. She also arguedthat the Judge failed to give any or any sufficient weight to Mr Staiger's personalcircumstances in dismissing the s 94 application.[11] Ms Keller, for the Crown, opposed the appeal. She submitted that the sentenceof community work imposed was within the available range, that it was not manifestlyexcessive and that there was no error in the sentence imposed. She also submitted thatthe Judge considered the Provision of Advice to Courts (PAC) reports and the s 38report when determining Mr Staiger's sentence and when declining the s 94application.AnalysisThe resentence appeal[12] The application to review the sentence of community work imposed inDecember 2020 was brought pursuant to s 68 of the Sentencing Act. Section 68outlines when an offender or a probation officer can seek to review a sentence ofcommunity work and sets out when a Judge can vary, cancel or substitute suchsentence. Relevantly, it provides as follows:(1) An offender who is subject to a sentence of community work, or aprobation officer, may apply in accordance with section 72 for anorder under subsection (3) of this section on the grounds that—(a) there has been a change of circumstances since the sentencewas imposed that would justify the variation or cancellationof the sentence; or(3) On an application under subsection (1), the court may, if it issatisfied that the grounds on which the application is based have beenestablished,—(a) vary the sentence by reducing the number of hours of work tobe done; or(b) cancel the sentence; or(c) cancel the sentence and substitute any other sentence(including another sentence of community work) that couldhave been imposed on the offender at the time when theoffender was convicted of the offence for which the sentencewas imposed.(4) When determining a substitute sentence under subsection (3)(c), thecourt must take into account the portion of the original sentence thatremains unserved at the time of the order.[13] The substituted sentence must be one that could have been imposed initiallyand it must be imposed against the background that a sentence of community workwas initially thought to be appropriate.6 The position was succinctly summarised byGrice J in Broderick v Department of Corrections.7 She observed as follows:[24] The statute does not direct the court to impose a sentence insubstitution which should have been imposed on the offender at the time hewas convicted. It requires the imposition of a sentence that could have beenimposed at the time. In my view the re-sentencing court must form its ownview, which may well differ from that of the sentencing court. Nevertheless,the original sentence would be considered as part of the re-sentencing process.But, as I indicated, it is for the re-sentencing Judge to form their own opinion.[14] Driving whilst disqualified is an offence pursuant to s 32(1)(a) of the LandTransport Act. It is punishable by a sentence of imprisonment of up to three monthsor by a fine not exceeding $4,500. In addition, the Court must order that the offenderbe disqualified from holding or obtaining a driver's licence for a period of six monthsor more.[15] I have considered the summary of facts in relation to the offending whichresulted in the December 2020 sentence. Mr Staiger had been disqualified fromdriving for a period of six months as from Wednesday 17 June 2020. On Monday 246 R v Morgan [2008] NZCA 232 at [25].7 Broderick v Department of Corrections [2021] NZHC 1918.August 2020, he was driving a motor vehicle on State Highway 29A at Mt Maunganui.He was subjected to a routine traffic stop. When he was required by the Police toidentify himself, he gave a false first name. Subsequent enquiries revealed that thedetails provided to the Police were false. When he was questioned about driving whilstdisqualified, Mr Staiger stated: "[It's] none of your business".[16] Clearly, a sentence of community work was available to the Court dealing withthe matter in December 2020 and the sentencing Judge then considered that a sentenceof 100 hours' community work was appropriate. Unfortunately, the Court sentencingnotes are not available. Insofar as I am aware, Mr Staiger made no attempt to challengethe decision at the time.[17] When resentencing, the Judge did not set out in any detail why he imposedanother sentence of community work. However, it was clearly a sentence that couldhave been imposed for the offending at the time that Mr Staiger was convicted.[18] It does not necessarily follow that such sentence should have been imposed onresentencing.[19] Mr Staiger told the Judge at resentencing that he faced challenges completingthe original sentence because of the COVID-19 lockdowns. He also told one of thereport writers that there was confusion around when he should attend and whether hecould work alone rather than in a team.[20] While there is no evidence before me, I can take judicial note under s 128 ofthe Evidence Act 2006 of the fact that there were significant periods post December2020 when there were no relevant COVID-19 related restrictions in place, and duringwhich a sentence of community work could have been advanced. Mr Staigercompleted only 4.75 hours' community work from December 2020 to October 2021.Further, any COVID-19 related concerns have now largely dissipated. I also note thatMr Staiger told one of the report writers that, although he breached his sentence ofcommunity work in the past, it was due to his then circumstances (and COVID-19).He advised that his circumstances had changed and that there were no barriers thatwould prevent him from completing any sentence the Court might wish to impose.[21] Mr Staiger also complains that the Judge took no or little account of hispersonal circumstances as outlined in the PAC reports and the s 38 report whenresentencing him.[22] It is common ground that the Court was required to take into account personalfactors under s 68 of the Sentencing Act.[23] There were three reports before the Court. I summarise each below.[24] In a PAC report prepared on 9 May 2022, Mr Staiger was assessed aspresenting a low risk of re-offending. Mr Staiger told the report writer that he did notthink about the consequences when he drove (and also that the Police had told himpreviously that he was able to drive). He also told the report writer he had escapedfrom Police custody and failed to remain stopped because he did not want to riskleaving his motor vehicle at the side of the road. Regarding the breach of communitywork charge, Mr Staiger said that he was confused about when he could attend andwhether he should work alone during the COVID-19 lockdown period. The reportwriter requested that the Court should cancel Mr Staiger's current sentence ofcommunity work as only 4.75 hours had been completed since December 2020. Therecommended sentence was supervision with counselling in a driving-relatedprogramme together with a Departmental Programme to help Mr Staiger understandhis offending pathway. The report writer recorded there were no health issues forMr Staiger that would preclude him from successfully completing a community-basedsentence.[25] A further PAC report was prepared on 2 June 2022. Again, Mr Staiger wasassessed as presenting a low risk of reoffending. The report writer considered thatMr Staiger's attitudes and sense of entitlement could be adequately addressed by acommunity-based sentence. An electronically-monitored sentence was notrecommended as it would likely put significant pressure on Mr Staiger's mental health.Instead, the report writer also recommended a sentence of supervision withcounselling, attendance at a driving-related programme and a DepartmentalProgramme to assist Mr Staiger in his thinking around his offending behaviour.Alternatively, the report writer recommended intensive supervision with specialconditions.[26] The s 38 report was prepared by a clinical psychologist, Mr Nick Lascelles.He met with Mr Staiger on 5 May 2022. He noted that Mr Staiger was diagnosed withKlinefelter's Syndrome at the age of 24. Klinefelter's Syndrome occurs when malesare born with an extra chromosome. Mr Lascelles said that it is apparent Mr Staigerhas learning difficulties and that elements of his executive functioning (capacity toplan, self-monitor, self-control, and flexible thinking) are markedly impaired. Hedescribed Mr Staiger as presenting as very immature, disruptive, socially unskilled,and as having difficulties with learning. He said at least some of those issues are likelyto be attributable to Klinefelter's syndrome. It was noted that Mr Staiger has also beendiagnosed with ADHD. He has periods of mood dysregulation and elevated mood.Further, he was kidnapped and assaulted in 2020 on his birthday, leading to symptomsof post-traumatic stress response. Mr Lascelles assessed Mr Staiger as presenting ahigh risk of further general offending, most likely involving the breach of trafficregulations. He stated that Mr Staiger could be managed successfully under acommunity-based sentence such as intensive supervision. He noted that Mr Staigerplaces an extremely high value on driving as a means of independence and that hefinds restrictions resulting from suspension or disqualification difficult to abide by.Mr Lascelles considered that Mr Staiger will need to be supported by his probationofficer to problem solve this issue.[27] It is noteworthy that notwithstanding the mental health difficulties documentedin the s 38 report, the recommendation made in relation to sentence emphasised theimportance of structure and oversight by the Department of Corrections. The viewwas taken that Mr Staiger could be managed successfully under a community-basedsentence such as intensive supervision.[28] Community work is lower in the sentencing hierarchy than imprisonment andintensive supervision8 and it is unusual for a defendant to challenge a sentence on thebasis that a sentence higher in the sentencing hierarchy should have been imposed.8 Sentencing Act 2002, s 10A(2).The explanation for this course is the assertion made in submissions that intensivesupervision is likely to provide more opportunities for rehabilitation than a sentenceof community work.[29] This is not necessarily the case. Community work is community-based. Itoffers an element of rehabilitation, in addition to punitive and deterrence elements.Placements in community work programmes take into account the personalcircumstances, needs and skills of an offender.[30] Taking into account Mr Staiger's circumstances, I am not persuaded that thevarious factors identified in the reports meant that a sentence of community work wasinappropriate. As already noted, Mr Staiger advised the author of the 9 May 2022PAC report that he could then see no barrier to him completing whatever sentence theCourt imposed. There do not appear to be any other direct health concerns. Mr Staigermay be resistant to a sentence of community work but sentencing is not a multi-choiceexercise. Moreover, the Judge tailored Mr Staiger's sentence to his circumstances. Hesentenced Mr Staiger to one year and six months' intensive supervision on the othercharges he faced. Community work and intensive supervision are sentences whichcan be imposed together and the combination of sentences imposed by the Judgesatisfied not only the sentencing principles of rehabilitation and punishment but alsorecognised the importance of a community-based sentence as suggested by the PACand s 38 reports.[31] Mr Staiger places a high value on driving a motor vehicle as a means ofindependence and he finds any disqualification difficult to abide by. It was suggestedin the reports that Mr Staiger requires support from his probation officer to solve thisissue. To this end, the Judge imposed special conditions as recommended in the PACreport of 2 June 2022. He required Mr Staiger to attend and complete an appropriate"One for the Road Programme" or "The Right Track Programme" and to undertakeand complete a Departmental Short Motivational Programme.[32] In addition, on a totality basis, the overall sentence imposed was appropriate.The Judge convicted and discharged Mr Staiger for breaching community work unders 71 of the Sentencing Act and provided him with a final warning. He also convictedand discharged Mr Staiger for breaching bail. The end sentence imposed for all of theoffending, 100 hours' community work with a final warning and 18 months' intensivesupervision, was well within range.The s 94 appeal[33] I now turn to s 94 of the Land Transport Act. Relevantly, it provides as follows:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; and(b) the court, having regard to—(i) the circumstances of the case and of the offender; and(ii) the effectiveness or otherwise of a previous order ofdisqualification made in respect of the offender; and(iii) the likely effect on the offender of a further order ofdisqualification; and(iv) the interests of the public,—considers that it would be inappropriate to order that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.(2) Despite any provision of this Act that requires a court (in the absenceof special reasons relating to the offence) to order a person convictedof an offence to be disqualified from holding or obtaining a driverlicence, the court may instead make an order referred to in subsection(3) if this section applies.(3) If the court sentencing an offender determines under this section notto make an order of disqualification,—(a) the court must impose a community-based sentence on theoffender; and(b) the imposition of such a sentence does not limit or affect thepower of the court to impose any other sentence for theoffence that, in accordance with the provisions ofthe Sentencing Act 2002, it may impose in addition to thecommunity-based sentence; and(c) in determining the appropriate sentence to be imposed on theoffender in respect of the offence, the court must take intoaccount the gravity of the offence and the fact that theoffender would otherwise have been liable to disqualificationfrom holding or obtaining a driver licence.(3A) For the purposes of subsection (3)(a), the court may impose a sentenceof supervision or intensive supervision as a community-basedsentence if—(a) that sentence is appropriate; and(b) a suitable programme is available; and(c) the offender attends a suitable programme.[34] Differing views have emerged in this Court on the application of s 94. InWilson v Police, Doogue J stated that s 94 only justifies a variation from the normwhere the personal circumstances of the offender, and in particular the offender'srehabilitative prospects, justify affording the offender an opportunity to break the cycleof circumstances contributing to the recidivist offending.9 Davison J was willing toexercise the discretion under s 94 where he considered that the offender was trappedin a cycle of offending and that the purposes of sentencing were best achieved byimposing a different sentence.10[35] Having regard to the directions made by the Court requiring that Mr Staigerundertake various driving related courses, it seems to me clear that the Judge didconsider the impact of the order for disqualification and the previous order when heconsidered the s 94 application. The Judge expressly noted that he was not satisfiedthat a s 94 application was appropriate in the circumstances of Mr Staiger's offending.[36] In my view, the Judge was entitled to decline to use the discretion conferred bythe section to substitute disqualification for a community-based sentence, particularlyin circumstances where Mr Staiger had recently failed to complete a Court ordered9 Wilson v Police [2014] NZHC 3028 at [12].10 Poona v Police [2018] NZHC 791 at [21].community-based sentence. I cannot see that there was any error in declining the s 94application.Section 68(4)[37] The Judge did not expressly refer to s 68(4) of the Sentencing Act and there isnothing in his sentencing notes to suggest that he took into account the portion of MrStaiger's original sentence that remained unserved at the time of substituting the newsentence. The obligation imposed by s 68(4) is mandatory. Although the matter wasnot raised in argument, in my view, the Judge should have allowed for the fact that MrStaiger had completed 4.75 hours of the sentence of community work imposed inDecember 2020. The substituted sentence should have been for a sentence ofcommunity work for 95.25 hours.11[38] Although the error has not resulted in a sentence which is manifestly excessive,there was a material error in the sentence imposed and a different sentence should havebeen imposed. Accordingly, the appeal is allowed to this limited extent.Result[39] For the various reasons I have set out, I allow the appeal, but only to the extentof amending the substitute sentence to one of 95.25 hours of community work. In allother respects, the appeal is dismissed.___________________________Wylie J11 Hough v Police [2017] NZHC 93.