DAVIDSON v DEPARTMENT OF CORRECTIONS [2019] NZHC 1379

DAVIDSON v DEPARTMENT OF CORRECTIONS [2019] NZHC 1379 [18 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000206[2019] NZHC 1379IN THE MATTER OF an appeal against sentenceBETWEEN KRYSTLE LILLIAN MELLISADAVIDSONAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 17 June 2019Counsel: T M Cooper and A Wei for the AppellantL L Lim for the RespondentJudgment: 18 June 2019JUDGMENT OF EDWARDS JThis judgment was delivered by me on 18 June 2019 at 3.00 pm.Registrar/Deputy RegistrarCounsel: T M Cooper, AucklandA Wei, AucklandSolicitors: Meredith Connell (Office of the Crown Solicitor), Auckland[1] On 23 May 2019, Ms Davidson was sentenced to a term of imprisonment offour months at the North Shore District Court for breach of an intensive supervisionorder.1 Post-release conditions apply for a period of six months after the sentenceexpiry date. These include a requirement that Ms Davidson attend and complete analcohol and drug programme, and any other nominated programme, to the satisfactionof the probation officer. Ms Davidson appeals that sentence.Personal circumstances[2] Ms Davidson is 34 years old. She has two children aged 11 and nine years oldrespectively. Immediately prior to her imprisonment, she resided with both herparents. Ms Davidson was heavily involved in caring for her ill mother, which allowedher father to work to support the family. Prior to her incarceration, Ms Davidson alsocared for her children on Monday and Tuesday after school until their father, her ex-partner, finished work. They were then in her sole care from Wednesday to Saturdayeach week.[3] It is apparent from the material before the Court that Ms Davidson struggleswith a methamphetamine addiction.The offending[4] On 3 December 2015, Ms Davidson was sentenced to intensive supervision forpossession of methamphetamine and utensils.[5] On 14 February 2018, Ms Davidson was sentenced to 18 months' intensivesupervision for breaching her 2015 sentence of intensive supervision. The 2015sentence was cancelled. Ms Davidson was required to report to a probation officer assoon as practicable and no later than 72 hours after the substituted sentence wasimposed. She failed to do so.[6] Community Correction Services attempted to contact Ms Davidson by her lastknown contact number and left a number of messages. They conducted anunscheduled home visit to her last known address on 14 May 2018. Ms Davidson was1 Department of Corrections v Davidson [2019] NZDC 9690.present and told the probation officer she was unable to comply with the requirementsof intensive supervision as she was unable to travel to the reporting centre.[7] Ms Davidson also explained that she had told her lawyer on the day ofsentencing that she could not comply with a sentence of intensive supervision as shewas unable to report to the probation officer.[8] On 13 August 2018, the Department of Corrections filed an application tocancel Ms Davidson's sentence of intensive supervision and substitute a new sentence.Ms Davidson entered a guilty plea to this charge on 24 September 2018.[9] Pre-sentence reports were completed on 31 October 2018, 4 March 2019, and15 May 2019. The first of these reports recommended imprisonment as the proposedaddress for an electronically monitored sentence could not be checked. It appears thatMs Davidson had failed to meet Corrections officers at the appointed time.Subsequently, the address was checked and was assessed as technically suitable. Thatwas recorded in the 4 March 2019 report.[10] The final report, on 15 May 2019, recorded that Ms Davidson had reported toCommunity Corrections twice (on 6 and 13 May 2019) since her last appearance on13 March 2019.[11] Ms Davidson was sentenced on 23 May 2019.Approach on appeal[12] An appeal court must allow an appeal against sentence if it is satisfied that, forany reason, there is an error in the sentence imposed on conviction and that a differentsentence should have been imposed.2 Whether a sentence is manifestly excessive isto be examined in terms of the end sentence given, rather than the process by whichthe sentence was reached.2 Criminal Procedure Act 2011, s 250.Was the end-sentence manifestly excessive?[13] In her written submissions in support of the appeal, Ms Cooper, counsel forMs Davidson, identified several errors in the Judge's approach which, she said,resulted in a manifestly excessive sentence. An order quashing the sentence ofimprisonment and imposing an electronically monitored sentence of home detentionwas sought on appeal.[14] However, Ms Cooper was subsequently provided with a copy of Latham-Johnstone v Department of Corrections.3 In that case, a sentence of two months'imprisonment for breach of an intensive supervision order was imposed in theDistrict Court. On appeal, Gendall J noted that given the history of non-compliancein that case, a short term of imprisonment was the only appropriate method of sheetinghome the consequences of non-compliance and the appeal was subsequentlydismissed.4 On the back of that case, Ms Cooper now submits that the appeal shouldbe allowed, the sentence quashed, and replaced by a sentence of two months'imprisonment.[15] In terms of the first limb of s 250 of the Criminal Procedure Act 2011, I amsatisfied that there were several errors in the Judge's sentencing approach in this case.The Judge appears to have jumped straight to imprisonment as the only availableoption and did not engage with the reasons for Ms Davidson's non-compliance, herpersonal circumstances, nor her rehabilitation and reintegration needs. The failure toconsider whether home detention might meet the purposes and principles ofsentencing was also in error in my view. And, even if a term of imprisonment wastheoretically available, then on the basis of Latham-Johnstone v Department ofCorrections, it is plain that the four-month term was manifestly excessive in all thecircumstances. That was not disputed by the Department of Corrections whichadopted a neutral stance on the length of the term imposed.3 Latham- Johnstone v Department of Corrections [2014] NZHC 2451.4 At [15].[16] It follows that there were errors in the Judge's approach leading to a manifestlyexcessive sentence in the circumstances. The appeal must be allowed on thosegrounds.What sentence should now be imposed?[17] The next question is what sentence should be imposed. As Ms Davidson hasnow served nearly one month of her sentence of imprisonment, she will be eligible forparole if a two-month term is imposed. There is no challenge to the post-releaseconditions which will remain in place for a period of six months. Those conditionsrequire Ms Davidson to be assessed for drug and alcohol programmes and to attendand complete such programmes as the probation officer may nominate. Thoseconditions are directed towards Ms Davidson's rehabilitative and reintegrative needs.[18] There is merit in Ms Cooper's submission that a short sentence of homedetention on top of the one-month imprisonment already served may bedisproportionately severe in the circumstances. Home detention is the second-mostrestrictive sentence in the hierarchy of sentences and it must be served in full. Further,it appears that Ms Davidson's rehabilitative and reintegrative needs will not be met ifa short sentence of home detention is imposed at this stage. As matters currently stand,and given the time already served, I do not consider a home detention sentence wouldbe in accordance with the principles and purposes of the Sentencing Act 2002.[19] For these reasons, I consider the appeal should be allowed, the sentence of fourmonths' imprisonment quashed, and substituted with a sentence of two months'imprisonment subject to the same post-release conditions imposed in theDistrict Court. Orders accordingly are set out at the end of this judgment.Result[20] The appeal is allowed.[21] The sentence of four months' imprisonment is quashed and replaced with asentence of two months' imprisonment. The release conditions imposed in theDistrict Court shall continue to apply. For the avoidance of doubt, those conditionsapply for a period of six months after the sentence expiry date and are as follows:(a) Ms Davidson shall attend an assessment for alcohol and drugprogrammes;(b) Ms Davidson shall attend any programme that may be nominated,completing those to the satisfaction of the probation officer and serviceprovider;(c) Ms Davidson is not to possess or consume alcohol or non-prescriptiondrugs.___________________Edwards J