WILLOUGHBY v NEW ZEALAND POLICE [2021] NZHC 1740

WILLOUGHBY v NEW ZEALAND POLICE [2021] NZHC 1740 [12 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000254[2021] NZHC 1740BETWEEN KRISTOPHER OWEN GLENWILLOUGHBYAppellantAND NEW ZEALAND POLICERespondentHearing: 12 July 2021Appearances: J Liu for AppellantC Purdon for RespondentJudgment: 12 July 2021JUDGMENT OF WOOLFORD JSolicitors: Public Defence Service (J Liu), HendersonMeredith Connell (Office of the Crown Solicitor), Auckland[1] On 18 May 2021, Kristopher Owen Glen Willoughby was sentenced to a totalof 15 months' imprisonment on the following charges:17 October 2020 Breach of release conditions –failing to report within 72 hoursof releaseSix months' imprisonment14 October 2020 Driving while disqualified (3rdor subsequent)15 months' imprisonmentplus release conditions4 November 2020 Driving while disqualified (3rdor subsequent)15 months' imprisonmentplus release conditions3 December 2020 Failing to answer District CourtbailSix months' imprisonment18 November 2020 Unlawfully getting into motorvehicle15 months' imprisonmentplus release conditions18 November 2020 Careless use of motor vehicle Convicted and discharged18 November 2020 Driving while disqualified (3rdor subsequent)15 months' imprisonmentplus release conditions1 March 2021 Unlawfully getting into a motorvehicle15 months' imprisonmentplus release conditions8 March 2021 Unlawfully getting into a motorvehicle15 months' imprisonmentplus release conditions[2] The Judge declined a request from Mr Willoughby to commute the sentencesof imprisonment into a sentence of home detention. The Judge also disqualifiedMr Willoughby from driving for 12 months on each of the disqualified drivingcharges. Finally, she also remitted Mr Willoughby's fines.[3] Mr Willoughby now appeals just against the Judge's refusal to commute thesentences of imprisonment into a sentence of home detention.District Court decision[4] After setting out the charges to which Mr Willoughby had pleaded guilty, theJudge acknowledged Mr Willoughby's courage in talking about his traumaticchildhood experiences to the Royal Commission of Inquiry. The Judge alsoacknowledged the submissions made on Mr Willoughby's behalf that he wanted to livea different life from the one that he had been living and that he had support of a pro-social friend, who had come to Court that day to evidence her support. The Judge1 NZ Police v Willoughby [2021] NZDC 9464.noted that she had offered Mr Willoughby an assessment for the Alcohol and OtherDrug Treatment Court, which he had declined. The Judge acknowledged, however,that Mr Willoughby planned to deal with the issues himself and wished him the verybest of luck because they were very challenging issues.[5] On the other hand, the Judge noted the reason he was back in custody wasbecause he had continued to offend on bail and the most recent of his charges werejust weeks old. They were not, therefore, ancient history.[6] Accordingly, the Judge found that a term of imprisonment was warranted.However, the Judge commented that she would give Mr Willoughby generous credit,not only for his guilty pleas but also because of the other matters that had been raised.[7] The Judge took a starting point of 15 months' imprisonment for the offendingon 18 November 2020 with a six-month uplift for all other charges, taking a totalityapproach which made the revised starting point 21 months' imprisonment. The Judgethen uplifted the starting point by four months for Mr Willoughby's previousconviction history and offending on bail. This led to a final starting point of25 months' imprisonment. The Judge then indicated she would give Mr Willoughby20 per cent for his guilty pleas and a further 20 per cent credit for personal factors suchas addiction, which has been a driver of Mr Willoughby's offending and also for abusein state care. That reduced the final starting point to a sentence of 15 months'imprisonment, which the Judge imposed on the unlawfully getting into and drivingwhile disqualified matters. The Judge also imposed concurrent sentences ofsix months for breach of bail, failing to appear and breach of release conditions. TheJudge convicted and discharged Mr Willoughby on the careless driving charge.Finally, the Judge imposed standard and special release conditions for six monthsbeyond the sentence end date.[8] As to the possibility of commuting the sentence of imprisonment to one ofhome detention, the Judge stated:2You asked to be considered for an electronically monitored sentence. I declinetoday in the circumstances to convert to a bracelet sentence, but it may well2 NZ Police v Willoughby, above n 1, at [14].be, from what I have heard, that by the time the credits are applied, that youwould soon be released. That will be a matter for the receiving office,Mr Willoughby. But whenever that date might be, I would encourage you toreport in as per your conditions of release, Mr Willoughby, doing a better jobthis time than last time, and perhaps following through with what you say yourintentions are.[9] The Judge also disqualified Mr Willoughby from driving for a period of12 months on the driving while disqualified charges as well as remitting the fines thatMr Willoughby owed in respect of previous convictions.Appellant's submissions[10] The appellant seeks leave to adduce fresh evidence, being an affidavit ofKiri Beeston, which he submits is fresh and credible and will materially affect theoutcome of the appeal. Ms Beeston has offered a home detention address forMr Willoughby. In her affidavit sworn on 28 June 2021, she talks about her upbringingand, later, addiction to alcohol and other drugs. She states that she has been sober forsix years now and is committed to keep it that way. She also wants to help those whoare fighting the same battles that she did and that is why she wants to helpMr Willoughby. She says she has known Mr Willoughby for eight years and despitehis criminal history, deep down she knows he is a good person. He is also great withkids, including her son. She therefore wishes to provide Mr Willoughby with a stablehome as she knows what it takes to remain sober. She will personally take him toNarcotics Anonymous meetings and other appointments directed by CommunityCorrections or the Court. She says she has zero tolerance for any alcohol or drugsbeing consumed at her home. If Mr Willoughby does not abide by her rules, she willimmediately withdraw consent and call the Police to take him back into custody. Sheacknowledges that she has had Mr Willoughby living with her at the address in thepast and that he has left her address in breach of bail. She felt that at that time he wasin denial and unwilling to confront his addictions. However, she indicates that thathas all changed in her recent dealings with him.[11] As to any concerns that Oranga Tamariki may have, she states that she hasnever been contacted by Oranga Tamariki and all she can say is that Mr Willoughbyis great with her son. She trusts Mr Willoughby around her children, who get on withhim very well.[12] The grounds of appeal set out by counsel are:(a) There is a suitable address available with a pro-social occupant wantingto support Mr Willoughby's rehabilitation;(b) Case law suggests that imprisonment is not a foregone conclusion forthis type of offending and the principles and purposes of the SentencingAct support a sentence of home detention; and(c) In circumstances where Mr Willoughby has a real motivation to engagein rehabilitation and there is support in the community to supervise hisrehabilitation, home detention should be the preferred outcome.[13] Counsel submits that assessing matters afresh, this Court should allow theappeal and commute the remainder of Mr Willoughby's sentence of imprisonment tohome detention.[14] Counsel submits that a sentence of home detention is capable of serving theprinciples and purposes of the Sentencing Act and therefore the Court cannot besatisfied that a sentence of imprisonment should be imposed. A sentence of homedetention is a significant limitation to liberty, capable of serving the punitive purposesof the Sentencing Act.3[15] Counsel further submits that a sentence of home detention is in thecircumstances of the offences to which Mr Willoughby has pleaded guilty, sufficientto hold him accountable for his actions, promote in him a sense of responsibility,denounce his conduct and deter him and any other persons from committing the sameor similar offence. It is also the least restrictive outcome appropriate in thecircumstances and assists in his rehabilitation and reintegration. Mr Willoughby hasinstructed counsel that he has put in place strong and positive influences around himto ensure his successful rehabilitation. This includes his support person, Ms Beeston,and the Narcotics Anonymous meetings that he plans on attending when beingreleased. He also wants to become a better father and role model for his children.3 Fairbrother v R [2013] NZCA 340.Discussion[16] Mr Willoughby is, however, unable to show any error on the part of the Judgein refusing to commute the sentences of imprisonment into a sentence of homedetention. First, the pre-sentence report assesses the proposed EM bail address and itsoccupants as unsuitable on the basis that:(a) Oranga Tamariki have concerns for the safety of Ms Beeston's twochildren and are opposed to Mr Willoughby serving a sentence of homedetention at the address given his lengthy conviction history for druguse, violence, firearms offences and other anti-social behaviours; and(b) The Police are also opposed to Mr Willoughby serving a sentence ofhome detention at the address given Mr Willoughby has previously leftthe address in breach of bail due to his offending behaviour and thePolice's opinion that Ms Beeston has little influence overMr Willoughby's decision-making and risk of reoffending.[17] I do note Mr Willoughby's response to the concerns articulated in the pre-sentence report and acknowledge those, but I cannot dismiss the concerns out of hand.[18] Further, the pre-sentence report assesses Mr Willoughby as posing a high riskof harm and reoffending and as having a low ability to comply with community-basedsentences, including home detention. In that regard, it is noted that Mr Willoughbyhas:(a) 137 previous convictions, including convictions for violence, drugs,dishonesty and driving offending;(b) Seven convictions for breach of Court release conditions;(c) One conviction for escaping custody; and(d) 14 convictions for breaching community-based sentences.[19] Mr Willoughby has also breached electronically monitored sentences on fouroccasions, including most recently on 27 May 2020, when he cut off his EM braceletand absconded from the address at which he was serving a sentence of home detention.The pre-sentence report records Mr Willoughby's behaviour on his current release onconditions order involve consistent non-compliance, rejection of supervision andrefusal to adhere to special conditions.[20] Mr Willoughby's breach of bail history runs to a total of 21 pages and recordsnumerous charges for offending committed while on bail.[21] The pre-sentence report also notes Mr Willoughby's substance abuse and thefact that he is yet to undertake any meaningful steps to reduce his risk of reoffending.In that regard, I treat with caution the assertion by Ms Beeston, that Mr Willoughby isdetermined to engage in alcohol and drug rehabilitation. The Police submit that itappears that only now, when faced with the prospect of a further sentence ofimprisonment, has Mr Willoughby indicated in an ostensible willingness to seek helpand change his behaviour.[22] Mr Willoughby's most recent history does not inspire confidence in his abilityto comply with the restrictive nature of EM bail.[23] He was released from prison in October 2020. He committed an offence withina week of release. He continued to offend regularly – on 14 October 2020,4 November 2020, 18 November 2020, 3 December 2020, 1 March 2021 and 8 March2021, following which he was remanded in custody.[24] In those circumstances, I am of the view that denunciation, deterrence andprotecting the community from Mr Willoughby and his offending are the mostimportant purposes to be considered in respect of his sentencing. I am of the view thatno sentence other than imprisonment can adequately achieve those purposes in thepresent circumstances. While not disregarding the purpose of assistingMr Willoughby's rehabilitation and reintegration, the Court would need to be satisfiedthat a restrictive residential facility, such as Odyssey House, was available as a placewhere he could serve a sentence of home detention, in which case more weight couldbe given to his professed motivation to address the causes of his offending.[25] In all the circumstances, the appeal is dismissed.____________________________Woolford J