ESPIE v POLICE [2017] NZHC 2741

ESPIE v POLICE [2017] NZHC 2741 [9 November 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000129[2017] NZHC 2741BETWEEN LIAM DAVID ESPIEAppellantAND NEW ZEALAND POLICERespondentHearing: 2 November 2017Appearances: K Paima and C Gentleman for the AppellantC White for the RespondentJudgment: 9 November 2017JUDGMENT OF NATION J[1] On 30 September 2016, Mr Espie was sentenced to one year intensivesupervision for possession of a knife in a public place, shoplifting, being unlawfullyin a building and wilful damage.[2] On 27 June 2017, Mr Espie was charged with breaching the conditions of thatsentence by failing to report between given dates on some 16 occasions and failing toattend an alcohol and drug assessment programme as directed. He pleaded guilty tothat charge on 25 July 2017 and was to be sentenced on 27 September 2017.[3] On 22 September 2017, Mr Espie stole two bottles of wine from Countdownand some meat from Pak'nSave. On 24 September 2017, he stole various other itemscosting $74.83 from Pak'nSave. He appeared in Court on theft charges for thatoffending on 27 September 2017 and pleaded guilty.[4] On 27 September 2017, Mr Espie was sentenced.1 On all charges, including are-sentencing in respect of the matters for which he had been sentenced to intensivesupervision, Mr Espie was sentenced to seven months' imprisonment. He appealsagainst that sentence.Principles on appeal[5] Section 250 of the Criminal Procedure Act 2011 requires that the appeal beallowed if I am satisfied that, for any reason, there is an error in the sentence imposedand a different sentence should be imposed.2 I must dismiss the appeal in any othercase.3 To allow the appeal, I must be satisfied that the sentence imposed wasmanifestly excessive.4 Whether a sentence is manifestly excessive is to be examinedin terms of the sentence given, rather than by the process by which the sentence isreached.5The District Court decision[6] Judge Strettell referred to the PAC report, which recommended imprisonment.The Judge noted that Mr Espie's criminal history and the present charges were suchthat they would ordinarily be met by community-based sentences. However, MrEspie's apparent struggles with alcohol dependency and proven pattern of non-compliance led the Judge to say that "[Mr Espie] frankly is unlikely to be able to meetany community-based sentence".6[7] The Judge noted that previous community-based sentences had been imposedfor rehabilitative purposes. He noted that Mr Espie had not complied with them andconcluded the only option for the Court was to impose a sentence that would hold himaccountable, would be a deterrent, and might cause Mr Espie to readjust his thinking1 Police v Espie [2017] NZDC 21980.2 Criminal Procedure Act 2011, s 250(2).3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.6 Police v Espie, above n 1, at [3].to avoid a continuation of what the Judge described as his previous "rather tragiclifestyle".[8] Having considered that a sentence of imprisonment was the only realisticprospect, the Judge resolved on a starting point of five months' imprisonment on thelead charges of breach of intensive supervision. In respect of the matters for which hewas being re-sentenced, Mr Espie was sentenced to three months' imprisonment, butthis was to be concurrent with the breach sentences. For one of the most recentshoplifting charges, Mr Espie received a cumulative sentence of two months'imprisonment. On the other two shoplifting and theft charges, he was sentenced toimprisonment for two months concurrent. All this resulted in the effective endsentence of seven months' imprisonment.The submissions and discussion[9] For the Crown, Mr White supported in detail the approach taken by thesentencing Judge. He argued this was a case where Mr Espie's non-compliance withcommunity-based sentences meant that a short term of imprisonment was the onlyappropriate method of making Mr Espie appreciate the consequences of non-compliance. He argued that the refusal of an adjournment for home detention to beconsidered could not be a basis for allowing an appeal against sentence where the issueon appeal was whether or not a different sentence should have been imposed. MrWhite emphasised that, on an appeal, the focus of the Court must be on the end resultrather than the means by which that result was reached. On that basis, he argued thesentence was clearly within range and could not be described as manifestly excessive.[10] For Mr Espie, Mr Paima argued the Judge was wrong to conclude that furthercommunity-based sentences were precluded through Mr Espie's non-compliance withearlier sentences. He said Mr Espie had previously completed two sentences ofcommunity work. He argued that community detention, in combination withcommunity work, would have met relevant sentencing purposes/principles. He arguedthis was the appropriate sentence given the importance of imposing the least restrictiveoutcome and for imprisonment to be used as a measure of last resort.[11] Mr Paima argued that Mr Espie's sentence of intensive supervision was almostbound to fail given the family situation in which he was living. At the time of theoffending, Mr Espie was aged 23 and was living with his parents who had significantproblems with alcohol and were, themselves, involved in criminal offending. Hisfather had recently appeared on a 12th drink driving conviction. His mother hadrecently been sentenced to community work following a conviction for assault. Hesaid that the non-compliance with the conditions of intensive supervision and thefurther offending had occurred at times when Mr Espie was homeless. He said theseparticular circumstances were highlighted in the pre-sentence report prepared whenMr Espie was sentenced to intensive supervision in September 2016. He speculatedthat Judge Strettell may not have had the benefit of that earlier report when hesentenced Mr Espie on 27 September 2017.[12] I do not accept that there could have been an error with the sentencing throughthe Judge being unaware of the way in which Mr Espie's living situation was a factorin his offending.[13] The PAC report prepared for the 27 September 2017 sentencing stated thatattitudes, alcohol and drugs were the contributing factors to Mr Espie's previous andcurrent offending, and noted that he had been abusing alcohol and drugs for a numberof years. The report advised that Mr Espie blamed his addiction on his familyenvironment and reported that his parents also drank heavily and that he was exposedto a harmful drinking culture and violence within the family. This later report alsoreferred to the integrated safety response team's concerns, with regard to a potentialEM sentence, that there had been previous serious family violence incidents at hisparents' address. It also appears, from the material made available to the High Courtfor the appeal, that Judge Strettell did have the earlier report at the time he sentencedMr Espie.[14] I do not consider the Judge could realistically have considered a community-based sentence would have been a viable option on the basis that a major factor in theprevious offending was the family environment in which Mr Espie was living. ThePAC report of 22 September 2017 indicated that Mr Espie was then proposing that hewould live at his parents' address. He was in fact wanting to be subjected to an EMsentence at that address.[15] There was also no information before the Judge on which he could haveconcluded that Mr Espie would have been likely to comply with the terms of a furthercommunity-based sentence. Alcohol and drugs had been a contributing factor to hisoffending but one of the charges he was being sentenced for related to his failure toattend an alcohol and drug programme. The PAC report said several attempts weremade to motivate Mr Espie to engage in that programme but he had rejected thesupport offered. The report said that he was unwilling to comply with any of theconditions of his sentence. It also stated that the Alcohol, Smoking and SubstanceInvolvement Test had been administered and indicated that Mr Espie was at high riskof harm from alcohol and drugs.[16] A previous PAC report, prepared on 29 September 2016, referred to Mr Espiethen as being "only marginally suitable for Community Work as a result of the erraticreporting which was evident during a recently completed eighty hour sentence". Thesummary of facts for the breach of intensive supervision, involving non-attendance ata drug and alcohol programme, also referred to the Corrections Department beingadvised by Odyssey on 24 April 2017 that Mr Espie had been discharged from theirprogramme given his non-compliance. The summary for the other breach of intensivesupervision charge referred to his failing to report on 16 different occasions between12 December 2016 and 30 May 2017, and his failure to report at all after 28 April 2017despite promising to re-engage with his sentence and to provide an address. He failedto do either.[17] The Judge said that Mr Espie's offending was of the sort that would notnormally attract a sentence of imprisonment. It is clear from his remarks that heimposed that sentence of imprisonment as a last resort, demonstrating the caution thatis appropriate when an offender is receiving a first sentence of imprisonment and asrequired by s 16 Sentencing Act 2002.77 See Tarrant v Police HC Palmerston North CRI-2007-454-10, 14 May 2007; R v Earle CA 414/91,9 March 1992.[18] In R v Morgan, the Court of Appeal was considering an eight month sentenceof imprisonment for offending for which the appellant had originally been sentencedto 150 hours' community work.8 The appellant completed only four hours of that workbefore the completion date for his sentence. The Court of Appeal allowed an appealwith regard to the length of the sentence but, in doing so, commented:9In the present case, the appellant's failure to make any real effort to complywith the community work sentence meant that a community based sentencewas unsupportable and a sentence of imprisonment inevitable.[19] In my view, that was also the situation here, where Mr Espie had so seriouslyfailed to comply with the conditions of intensive supervision and also committedfurther offences.[20] Next, Mr Paima submitted there was an error with the sentencing in the refusalof the Judge to allow an adjournment to give Mr Espie an opportunity to find anaddress which might have been appropriate for a sentence of home detention.[21] In his submissions, Mr Paima said, on 27 September 2017, he asked that MrEspie have the opportunity for his grandmother's residence in West Melton to beassessed for community/home detention. He submitted the refusal of an adjournmentresulted in an error in that, in all the circumstances, home detention could have beenan appropriate sentence.[22] In his submissions, Mr Paima recorded the Judge as having specificallydeclined leave to apply for home detention under s 80I of the Sentencing Act 2002. Itis clear from the Judge's sentencing notes that he did not consider home detentionwould be a viable sentence. He referred to the probation report's recommendation ofimprisonment and said:10The difficulties that faces Mr Espie is that because of his alcohol dependencywhich has been present for a number of years he frankly is unlikely to be ableto meet any community-based sentence.8 R v Morgan [2008] NZCA 232.9 At [15].10 Police v Espie, above n 1, at [3] (emphasis added).[23] Later, the Judge referred to Mr Paima's submission that Mr Espie was not yetat the point where a sentence of imprisonment had to be imposed. The Judge said:11 the answer to that is there is simply no sentence which I consider could beimposed of a community-based nature, which he would comply with and hisfailing to do the intensive supervision is indicative of that.[24] In the 29 September 2016 report, the Department of Corrections did not assessMr Espie as being suitable for an electronically-monitored sentence, in part becausehe had openly acknowledged he could not handle the physical constraints of homedetention.[25] There was no error in the Judge's assessment of the situation in this regard.There was nothing in the information before the Judge to suggest that, if Mr Espie wasto live with his grandmother, it would have led to a changed attitude on his part andhis meeting the conditions of a community-based sentence. Neither Mr Espie nor hisgrandmother had considered he could live with her when his living with his parentshad such adverse consequences for him.[26] There is no basis on which it can be said that the refusal of an adjournment hasled to the wrong sentence being imposed. The appeal cannot succeed on this ground.[27] Finally, Mr Paima submits the end sentence of seven months' imprisonmentwas manifestly excessive. He argued the offences could have been dealt with by wayof a shorter term of imprisonment. Mr Paima rightly acknowledged that, on appeal, itis the end sentence which is of focal concern so that sentence should not be "unpickedby process". Despite that acknowledgement, he then looked at the sentences whichthe Judge arrived at for the various components of the offending. He referred to themaximum sentence for a breach of intensive supervision of six months' imprisonment.He submitted the original offences for which Mr Espie was to be resentenced wouldnot normally have attracted imprisonment and suggested a sentence of three months'imprisonment for that offending was problematic, but he also acknowledged thatsentence for the original offending was concurrent with the sentence for breaches ofintensive supervision.11 Police v Espie, above n 1, at [7].[28] Mr Paima did not suggest an uplift of two months for the most recentshoplifting offences was inappropriate but suggested the sentence should not havebeen cumulative.[29] In relation to the breaches of intensive supervision, it is significant that therewere separate and distinct breaches. One charge dealt with 16 instances of failing toreport. The other related to Mr Espie's failure to attend a programme.[30] In R v Morgan, referred to above, the Court of Appeal considered a sentenceof two months' imprisonment where there was an almost complete failure to perform150 hours' community work. That sentence was cumulative on a sentence of threemonths' imprisonment for the original charge of assault with a weapon on which thesentence of 150 hours' community work had originally been imposed. The effectivesentence for both the original offence and the breaches was thus five months'imprisonment, the same that was imposed in this instance for the two breach offencesand the original offending of unlawfully being in a building, wilful damage, possessionof a knife in a public place and shoplifting.[31] There were then the further three instances of shoplifting, separate in time andcircumstance from the earlier offending, and distinct from the breach of intensivesupervision offences. That offending occurred when Mr Espie was subject to intensivesupervision, was on bail and just prior to his being sentenced for the other matters.The offending, associated with his alcohol problem, was consistent with what theDepartment of Corrections had described as his antisocial attitude. The Judge did notexpressly refer to a discount for a guilty plea but nor was there any expressed upliftfor the fact this offending occurred while he was subject to sentence and on bail.[32] With there being no viable alternative to a sentence of imprisonment, JudgeStrettell was justified in deciding a short term of imprisonment could be the deterrentwhich Mr Espie now needs to make a determined effort to deal with his alcohol anddrug problems and avoid the sort of offending which has made him a potential dangerto himself and to others. Both nominally and in reality, this was a short term ofimprisonment. Mr Espie will be subject to pre-release conditions and post-prisonsentence conditions requiring him to attend a departmental programme and/or analcohol and drug programme. The sentence will mean there should be oversight andsupport for him in taking the steps he needs so as to avoid further offending. There isthus a rehabilitative component to the sentence.[33] For all these reasons, I have not been persuaded there was any error in the endsentence imposed or that there should have been a different sentence.[34] The appeal is dismissed.Solicitors:K Paima, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.