MAKEA-CROUTH v POLICE [2019] NZHC 2037

MAKEA-CROUTH v POLICE [2019] NZHC 2037 [20 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000254[2019] NZHC 2037UNDER Sentencing Act 2002 and the CriminalProcedure Act 2011BETWEEN JAMES MAKEA-CROUTHAppellantAND NEW ZEALAND POLICERespondentHearing: 19 August 2019Counsel: HB Leabourn for AppellantTH Stuart for RespondentJudgment: 20 August 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 20 August 2019 at 3.30 pm.Registrar/Deputy RegistrarSolicitors/Counsel:HB Leabourn, Auckland.Crown Solicitor, Auckland.[1] On 30 May 2019, Judge K J Glubb sentenced Mr Makea-Crouth to a term of17 months' imprisonment.1 Mr Makea-Crouth appeals. He contends the Judge erredby not imposing a sentence of home detention. No other issue is raised. The appealmust be allowed if, and only if, the Judge erred and a different sentence should havebeen imposed.2[2] Mr Makea-Crouth pleaded guilty to four charges: burglary; unlawfulinterference with a car; obtaining by deception; and refusing to provide a bloodspecimen.[3] On 20 January 2019 at about 3 am, Mr Makea-Crouth walked onto privateproperty and opened the unlocked door of a car. He searched the glovebox.Mr Makea-Crouth was then subject to a sentence of supervision for receiving stolenproperty and causing loss by deception.[4] On 6 March 2019, Mr Makea-Crouth walked onto private property, entered ashed, and took a lawnmower, two mountain bikes, a weedeater, an electric hedgetrimmer, and a leaf blower. Some were sold later the same day. Mr Makea-Crouthwas then on bail for the 20 January offence.[5] On 31 March 2019, Mr Makea-Crouth was driving. His car broke down.Mr Makea-Crouth's behaviour attracted Police attention. Mr Makea-Crouth refusedto provide a blood specimen. This offending was also committed on bail.[6] Mr Makea-Crouth is 22 years old. Judge Glubb described his history as"troubling".3 Mr Makea-Crouth has eight convictions for theft, two for burglary, twofor receiving stolen property, one for fraud, and one for unlawfully getting into a car.Mr Makea-Crouth has an extensive Youth Court history. Dishonesty is the stand outfeature.[7] Mr Makea-Crouth contends the Judge "failed to take sufficient notice of thepersonal circumstances surrounding the appellant and his family". Mr Makea-Crouth1 Police v Makea-Crouth [2019] NZDC 10426.2 Criminal Procedure Act 2011, s 250(2). See also Manikpersadh v R [2011] NZCA 452.3 Police v Makea-Crouth, above n 1, at [9].has a new partner and a five-month-old child. His partner is here on a visitor's visa.She hopes to remain in New Zealand. It is not clear whether she may do so.Mr Makea-Crouth has a child from a previous relationship "with whom he has regularand consistent contact".4 Mr Makea-Crouth had "significant family support at thetime of his sentencing".5 Mr Makea-Crouth would live with his father if homedetention were imposed.6 His address is considered suitable.[8] Mr Makea-Crouth also invites attention to ss 16 and 17 of the Sentencing Act2002. Both emphasise the desirability of sentences other than imprisonment.7[9] The Department of Corrections recommended a sentence of imprisonment. Itnoted Mr Makea-Crouth had not complied with a sentence of supervision, and said he"shows no signs of desisting from re-offending". Mr Makea-Crouth has previouslyserved home detention—for burglary—without incident. Actuarial assessmentimplies a high risk of re-offending.[10] Mr Makea-Crouth also contends a sentence other than imprisonment wouldpromote his rehabilitation, because meaningful programmes are unavailable toprisoners serving short terms of imprisonment, and a term of intensive supervisionwould provide much-needed counselling.8[11] Judge Glubb considered these factors. He referred to "an impassioned plea"for home detention based on personal circumstances.9 The Judge saidMr Makea-Crouth had been the beneficiary of every possible community-basedsentence aside from community detention, but none had worked. The Judge held asentence of imprisonment was required, and the least restrictive outcome in thecircumstances. The Judge faced a difficult choice. Mr Makea-Crouth's personalcircumstances supported home detention, but other considerations did not, includingthe seriousness of the offending, his history, inability to comply with the most recent4 Appellant's submissions para 15.5 Appellant's submissions para 17.6 Mr Makea-Crouth's father attended the hearing of the appeal. So too Mr Makea-Crouth's partner.7 Section 16(2) precludes a sentence of imprisonment unless sentencing principles and purposescannot be achieved by any other sentence.8 The pre-sentence report is unclear as to what programmes, if any, are available toMr Makea-Crouth in prison or other settings.9 Police v Makea-Crouth, above n 1, at [24].sentence (supervision), and commission of offences while subject to that sentence—and bail.[12] The Court of Appeal's observations in R v D are apposite:10In a case like this, the sentencing Judge is required to form a judgment onwhether imprisonment is necessary or home detention can respond adequatelyto the seriousness of the offending. The closer one gets to the dividing line,the more difficult it becomes to articulate reasons for preferring one approachto the other. In such cases, the view of a sentencing Judge from the jurisdictionin which crimes of the type in issue are frequently tried assumes greaterweight. He or she will be in a much better position than an appellate Court todetermine which type of offending falls on one side of the line or another. Thebroader the base of similar offending a particular Judge sees, the more likelyit is that the chosen sentencing response will be appropriate.[13] Mr Makea-Crouth's arguments amount to a recapitulation of those rejected bythe Judge. The Judge's reasoning discloses no error.[14] The appeal is dismissed...Downs J10 R v D [2008] NZCA 254 at [66].