L v NEW ZEALAND POLICE [2017] NZHC 1463

L v NEW ZEALAND POLICE [2017] NZHC 1463 [29 June 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2017-463-26[2017] NZHC 1463BETWEEN LAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2017Counsel: G Schweizer for AppellantS Casey for RespondentJudgment: 29 June 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 29 June 2017at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitor, Rotorua[1] L appeals against her sentence on one charge of assaulting a child, her 13 year old daughter.1 She was sentenced to two months' home detention plus six months' post-detention conditions and 160 hours of community work. Judge Hollister-Jones also granted name suppression in the interests of the victim. As suchI suppress L's name throughout this judgment.[2] L claims the sentence was manifestly excessive.Background[3] L had been contacted by the father of her daughter about some behavioural problems he was facing with her. L found her at the local netball courts and punched her to the left side of the head. She then took her home and told her to go outside to the carport area and punched her again in the face, to the left side of the head, and kicked her three times in the buttocks with steel-capped gardening boots. The victim was standing up throughout, so L had to swing her leg three times to connect with her buttocks.[4] The summary of facts records that the victim received bruising to her left eye, bruising to her hip area and tenderness to her lower back. But the plea of guilty had been entered on the basis that there was soreness to the victim but no bruising, and the medical report describes tenderness in these areas rather than bruising.The sentence[5] In fixing sentence, Judge Hollister-Jones noted L had no previous convictions. The Judge set out the frame adopted for his sentence as follows:2In terms of the purposes and principles of sentencing, I need to hold you accountable, to promote the interests of the victim, to denounce and deter family violence, to sentence you in a consistent way and to have regard to the least restrictive outcome.[6] The Judge then identified the following aggravating features of the offending:1 Crimes Act 1961, s 194(a). The maximum penalty is two years' imprisonment.2 Police v L [2017] NZDC 12663 at [7].(a) some premeditation because, as a result of the phone call from thevictim's father, L sought the victim out and then took her home to deal with her;(b) the use of steel-cap boots; and(c) a significant breach of trust.[7] He said there were no mitigating features of the offending, but referred to letters of support which spoke very highly of L, including in particular her contribution over many years to the M Kohanga Reo. He noted the pre-sentence report described L as having limited insight into her offending, but having someremorse. It also stated that physical discipline had been part of L's background andupbringing, and that she had resorted to it on this occasion.[8] The Judge cited the decision of Kawhena v Police3 in which a High Court Judge adopted a start point of six months for offending of a parent against a 13 year- old. The Judge noted that there were a slightly greater number of blows and slightly greater injuries in that case, but that it lacked the premeditation and prolonged nature of the incident present in this matter.[9] The Judge adopted the same starting point, noting that counsel agreed that astarting point of six months' imprisonment would be appropriate. This was reduced by one month for good character. No further discount was given for remorse. Observations made in the restorative justice report were noted, including that L was still insisting that her actions were to discipline her daughter, while also expressing remorse. The Judge concluded, however, that he did not think this was a case of full insight and full remorse. From a starting point of five months, a 25 per cent discount was given for guilty plea, resulting in an adjusted start point of 3.75 months.[10] In discussing the form of sentence, the Judge noted:43 Kawhena v Police [2014] NZHC 908.4 New Zealand Police v L, above n 2, at [15].The pre-sentence report recommends supervision and community work. Your counsel emphasises that approach and suggests that community work is a sufficient punitive response. I do not accept that community work and supervision is an adequate response to premeditated violence on a young person by someone in a position of trust. It resulted in facial bruising and bruising to other parts of the body. Home detention is available. It is a suitable sentence here. You have a low risk of re-offending and I consider home detention meets the principles of deterrence and denunciation.[11] A sentence of two months' home detention plus six months' post-detention conditions and 160 hours of community work was handed down.5Grounds of appeal[12] The key grounds of appeal are:(a) The sentence was wrong in principle:(i) The Judge did not refer to the statutory requirement at ss 8(g), 10A, 15A and 16 of the Sentencing Act 2002 to impose the least restrictive outcome appropriate, and by excluding the possibility of a community based sentence failed to haveregard to it and to L's rehabilitative needs under s 15A(1)(a).(ii) The Judge erroneously relied on Kawhena as a reference point for fixing sentence - unlike Kawhena, there was no alcohol involved and the defendant had a long list of previous (though historical convictions).(b) The sentence was manifestly excessive.Threshold[13] This is an appeal pursuant to s 250(2) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that:5 The conditions as set out in the pre-sentence report were to undertake and complete an anger management programme and to attend and complete an appropriate programme, counselling or treatment to the satisfaction of the probation officer.(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[14] It is now settled that a sentence may be set aside as manifestly excessive. Whether a sentence is manifestly excessive is to be determined in terms of the sentence given, rather than the process by which the sentence is reached.6Assessment[15] The Judge did not refer expressly to the statutory duty to impose the least restrictive outcome or L's rehabilitative needs when identifying the principles to beapplied in sentencing.7 Indeed, there is no mention anywhere in the sentence of rehabilitative needs. Conversely, the Judge expressly referred to the principles favouring incarceration, including accountability, the interests of the victim, denunciation and deterrence. He refers to the nature of the violence and the principles of deterrence and denunciation again when settling on home detention.[16] Given this, I agree that, on the face of the record, the Judge did not haveregard to a mandatory relevant consideration, namely L's rehabilitative needs, whileemphasising public interest considerations in deterrence and denunciation. In simple terms it appears the Judge failed to have regard to mandatory relevant consideration.[17] The significance of rehabilitation has also been emphasised in a numerous authorities8 and the apparent failure to have regard to it is not immaterial, particularly in this case, involving a first time offender of otherwise very goodcharacter. While I doubt the Judge closed his mind to L's rehabilitative needs (it wasraised by counsel during the sentencing hearing)9, I am prepared to take a closer look at the sentence, having regard to this important factor.6 Ripia v R [2011] NZCA 101 at [15] and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].7 He did however comment that he did not consider community work and supervision was an adequate response to such premeditated violence, and that he considered home detention was available and suitable.8 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18]-[22].9 At the request of counsel for the appellant a copy of the transcript of sentencing was provided to[18] A start point of a short term of imprisonment, in the order of five to nine months for multiple violent attacks on a child, including with steel cap boots, is clearly within range. In this regard, I disagree with Ms Schweizer that the offending in Kawhena was not sufficiently analogous to provide guidance in this case. InKawhena, a 13-year-old victim was struck to the head about five times and then kicked a number of times to the upper leg. This left her with bruising and a blackened eye. While arguably this offending was worse than the offending in this case, it was sufficiently comparable so that the start point adopted by Moore J in that case provided useful guidance to the Judge in this case.10 L's personal circumstanceshowever equally clearly make imprisonment inappropriate. As the Judge observed she is of low risk to the community and this was one-off offending.Is home detention excessive?[19] As Ms Schweizer submits, a sentencing judge is obliged to impose the leastrestrictive sentence available. But with respect to her careful submissions, while L'sgood character and good prospect of rehabilitation are strong factors in her favour, it cannot be said that home detention is wrong in principle. While it was available to the Judge to impose a sentence lower in the hierarchy (for example community work), it was well within his discretion to place considerable weight on factors such as denunciation and deterrence in a context involving violence to children.[20] I was invited by Ms Schweizer to closely scrutinise the cases where home detention had been imposed. It was suggested that common to most of those cases the defendant had aggravating personal factors.11 But even so, it cannot be seriously suggested that home detention is always going to be excessive in case involving child abuse and a person of otherwise good character. It is essentially a discretionary matter for the sentencing judge in light of all the background facts. In this case there is no suggestion that the judge did not consider them and, in any event, a short period of home detention is not excessive.me. Rehabilitation, within the context of a discussion about appropriate sentence, was mentioned twice by counsel.10 Kawhena v Police, above n 3, at [19]. See also Hendry v Police [2012] NZHC 3581.11 I observe that in Kawhena v Police, above n 3, in imposing a sentence of nine weeks' homedetention on appeal Moore J did not actually uplift for Mr Kawhena's long list of previousconvictions.[21] Mr Casey however agreed that the combination of home detention (a significant sentence) and community work was excessive. To that extent only I am prepared to allow the appeal.Outcome[22] The appeal is allowed only to the extent that the community work component is set aside, as Mr Casey accepted was appropriate.