ANDERSON v NEW ZEALAND POLICE [2017] NZHC 1566

ANDERSON v NEW ZEALAND POLICE [2017] NZHC 1566 [7 July 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCRI-2017-441-000017[2017] NZHC 1566BETWEEN KIERAN MARK ANDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 7 July 2017 (at Wellington)Counsel: W Hawkins for Appellant (via AVL)C R Stuart for RespondentJudgment: 7 July 2017JUDGMENT OF COLLINS JIntroduction[1] Mr Anderson appeals his sentence of 16 months' imprisonment imposed byJudge Adeane in the Hastings District Court on 4 May 2017.1 The 16-month sentence of imprisonment was a culmination of sentences imposed in relation to one charge of burglary,2 one charge of unlawfully taking a motor vehicle,3 one charge of driving while disqualified,4 one charge of possession of a knife,5 one charge of failing to answer police bail6 and two charges of failing to answer District Court bail.7 Judge Adeane treated the burglary offence as the lead offence and reached an end sentence of 16 months' imprisonment in relation to that matter and the unlawfultaking of a motor vehicle charge. Mr Anderson was convicted and discharged for1 Police v Anderson [2017] NZDC 9288.2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.3 Section 226(1). Maximum penalty seven years' imprisonment.4 Land Transport Act 1998, s 32(1)(a) and 32(3). Maximum penalty three months' imprisonment/6 months' disqualification/$4,500 fine.5 Summary Offences Act 1981, s 13A. Maximum penalty three months' imprisonment/$2,000fine.6 Bail Act 2000, s 24. Maximum penalty three months' imprisonment/$1,000 fine.7 Section 38(a). Maximum penalty one year imprisonment/$2,000 fine.two breaches of supervision8 and one breach of community work.9 All other sentences were imposed concurrently.[2] Mr Anderson's appeal is based on the contention that 16 months'imprisonment was manifestly excessive and that home detention should have been imposed.[3] This judgment explains why I am dismissing Mr Anderson's appeal andupholding the sentences imposed by Judge Adeane.BackgroundUnlawfully taking a motor vehicle[4] At about 9.00 am on 30 October 2016, Mr Anderson stole a Toyota ute. He drove the vehicle to an address in Hastings where he met up with an associate. They then drove to Napier. At about 11am the vehicle was located in Napier and two men were seen leaving the area. Mr Anderson and his associate were located by police a short time later.[5] Mr Anderson admitted the facts to police. In explanation he said he saw a ute with the keys in it, did not think anything of it at the time, hopped in and drove off. He admitted he was a disqualified driver.Burglary[6] At about 8.15pm on 19 February 2017, Mr Anderson was at an address on Huia Street, Hastings to visit Mr Cherry, the victim in this offending. Believing the victim to be away from the address, he entered the garage and took an Avanti pushbike, a laptop and a cell phone. The victim heard noises and found Mr Anderson leaving the address with the stolen property. When confronted, Mr Anderson said "you know who I am" and left the property empty handed. All items were recovered.8 Sentencing Act 2002, s 70(a).9 Section 71(1)(f).[7] Mr Cherry provided a victim impact statement outlined his disappointmentMr Anderson had stolen from him and described the offending as "upsetting".Possession of a knife[8] At about 1.50am on 7 February 2017, Mr Anderson was located on a road in Hastings. He was stopped because an alarm had been activated in the area. His bag was searched and a large carving knife, approximately 25 cm long was located in the front pocket of this bag. Mr Anderson said he had the knife to cut stuff.Breaches of previous sentence[9] Mr Anderson had previously been sentenced to nine months supervision and 180 hours community work in the Napier District Court on 5 August 2016 on charges of theft and breach of community work. The application to cancel and substitute these sentences on 16 December 2016 noted Mr Anderson was unwilling or unable to comply with either sentence. An affidavit of Mr Robinson, a probation officer, recorded:(1) Mr Anderson had failed to report as required to attend addiction counselling as directed in his sentence of supervision.(2) Mr Anderson had failed to report as required or contact the community work centre in terms of his sentence of community work.[10] The application noted the supervision sentence would expire on 4 May 2017and 143.5 hours remained to be completed from Mr Anderson's community worksentence. A substituted sentence was requested.10District Court decision[11] Judge Adeane adopted a starting point of 18 months' imprisonment for theburglary and unlawfully taking a motor vehicle charges. He uplifted that by two10 Sentencing Act 2002, ss 54(1)(a), 54(3)(c), 68(2)(b) and 68(3)(c).months for the driving while disqualified charge and two months for the breach ofsupervision, reaching a starting point of 22 months' imprisonment.[12] After deducting a 25 per cent discount for Mr Anderson's guilty plea, an end result of 16 months' imprisonment was reached. The charges of possession of a knife, driving while disqualified and the breaches of bail each attracted one month'simprisonment, to be served concurrently.Circumstances of the appellant[13] Mr Anderson is 24 years of age. He has previous convictions including for theft, burglary and breaches of community work.[14] Judge Adeane had before him two pre-sentence reports. The first report dated27 March 2017 noted Mr Anderson's non-compliance with community based sentences.11 His attitude towards his offending was described as "somewhat relaxed". The report writer identified contributing factors to Mr Anderson'soffending were his attitude toward authority, inability to comply with court imposed sanctions and his substance use, mainly synthetic cannabis. The reports noted a lack of remorse and also a lack of support for Mr Anderson, whose likelihood of reoffending was assessed as being high.[15] The second pre-sentence report dated 24 April 2017 noted electronic monitoring assessments had been conducted at a proposed address for homedetention and community detention, and that the address was "technically suitable".However, the report writer expressed concerns that:(1) Police checks indicated apprehensions about the address as there have been four family violence incidents at that address since 2015.(2) Comments from Child, Youth and Family (CYF) noted three reports about Mr Anderson allegedly having engaged in physical violence towards his previous partner while she was pregnant and physical abuse of his daughter.11 This report did not refer to Mr Anderson's burglary charge.[16] A sentence of imprisonment was recommended, with special release conditions.Approach on appeal[17] The appeal against sentence is brought pursuant to s 247(b) of the Criminal Procedure Act 2011 (the Act) and is to be determined in accordance with s 250 of the Act. The Court of Appeal in Tutakangahau v R,12 explained that Mr Anderson must show an error in the sentence imposed and that a different sentence should have been imposed.[18] The proper approach in cases relating to the imposition of imprisonment where the length of sentence means home detention is technically available was explained by the Court of Appeal in Manikpersadh v R.13 The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing on the identification of an error, if any, in the court below.14Submissions on appeal[19] Mr Anderson appeals his sentence on grounds that the District Court Judge erred by not considering an end sentence of home detention and as a result the end sentence was manifestly excessive. Mr Hawkins, counsel for Mr Anderson submitsan appropriate end sentence for this matter would have been eight months' homedetention. Mr Hawkins has referred to Fomai v Police and Namana v Police in support of his submission that a sentence of home detention should be substituted.15[20] The Crown acknowledges Judge Adeane did not explicitly rule out the possibility of home detention as an available sentencing outcome. The Crownsubmits however that the unsuitability of home detention is implicit in the Judge'sdecision and supported by an overwhelming amount of information.12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.13 Manikpersadh v R [2011] NZCA 452 at [11]-[14].14 At [12].15 Fomai v Police [2014] NZHC 377 and Namana v Police [2017] NZHC 66.Analysis[21] Judge Adeane did not refer to the possibility of a sentence of home detention.While he noted Mr Anderson's "predictable breaches of community work and supervision",16 it is difficult to infer on the face of the judgment whether home detention was considered.17[22] In Iwikau v Department of Corrections,18 Dobson J held there will be some situations in which circumstances of conviction for breach of community work warrant consideration of home detention as an alternative to prison.19 A sentencing judge should consider home detention if it is technically available pursuant to s 15A of the Sentencing Act 2002, particularly when counsel has submitted home detention is appropriate, as in this case.20 However, even if Judge Adeane technically erred inhis approach, this is not a case where Mr Anderson's circumstances give rise to analternative sentence from imprisonment.[23] Mr Anderson's final sentence of 16 months' imprisonment was within rangeand not manifestly excessive. In coming to this conclusion, I rely on three factors.[24] First, there were multiple breaches of the sentence of community work and supervision imposed in August 2016. Mr Anderson had only completed 36.5 hours of his community work sentence and had failed to report to his supervisors. Breaches of community work will usually result in imprisonment in the absence of some good excuse or explanation.21 Mr Anderson's breaches of community basedsentences were in the context of previous breaches of community work in 2016 and 2014. He has failed to provide any convincing explanation for his failure to comply with community based sentences.16 Police v Anderson, above n 1, at [4].17 Unlike Ranui v Department of Corrections HC Invercargill CRI-2011-425-40, 27 September 2011, where that inference could be drawn despite the District Court Judge not specifically mentioning home detention.18 Iwikau v Department of Corrections HC Palmerston North CRI-2008-452-42, 26 September 2008.19 At [6].20 Fomai v Police, above n 15, at [18].21 Fahey v Police HC Palmerston North CRI-2008-454-21, 4 June 2008, referred to in Iwikau v Department of Corrections, above n 18.[25] Second, Mr Anderson's pre-sentence report indicates a lack of remorse and a disregard for authority. His relaxed attitude towards his offending makes a sentenceof home detention unrealistic. This is compounded by Mr Anderson's previousconvictions for similar offending and the assessment of his high likelihood of reoffending.[26] Third, there are issues with the proposed home detention address and the occupants may be placed at further risk if a sentence of home detention is imposed. These considerations influenced the recommendation of imprisonment set out in the second pre-sentence report. Mr Hawkins, counsel for Mr Anderson explained his concern that he did not have the opportunity to test the accuracy of the concerns expressed in the pre-sentence report. If there were concerns about the pre-sentence report they needed to be raised in the District Court.[27] The evaluation of whether to impose home detention should give effect to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002.22 To the extent Judge Adeane failed to outline reasons for his decision not to impose home detention, I am satisfied a sentence of imprisonment will:(1) hold Mr Anderson accountable for the harm he has done;23(2) promote in Mr Anderson a sense of responsibility for, and an acknowledgement, of that harm;24(3) denounce the conduct in which Mr Anderson was involved;25(4) deter Mr Anderson or other persons from committing the same or similar offence;26 and22 R v Vhavha [2009] NZCA 588 at [29].23 Sentencing Act 2002, s 7(1)(a).24 Section 7(1)(b).25 Section 7(1)(e).26 Section 7(1)(f).(5) is the least restrictive outcome that is appropriate in the circumstances.27Result[28] The appeal is dismissed. All aspects of the sentences imposed by Judge Adeane are upheld.______________________D B Collins JSolicitors:Public Defence Service, Napier for AppellantCrown Solicitor, Napier for Respondent27 Sentencing Act 2002, s 8(1)(g).