M v POLICE [2017] NZHC 1427

M v POLICE [2017] NZHC 1427 [26 June 2017]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000141[2017] NZHC 1427IN THE MATTER OF an appeal against sentenceBETWEEN MAppellantAND NEW ZEALAND POLICERespondentHearing: 19 June 2017;Further submissions received 23 June 2017Counsel: G Timms for the AppellantG A Campbell for the RespondentJudgment: 26 June 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 26 June 2017 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Ministry of Justice (Public Defence Service), AucklandMeredith Connell, AucklandIntroduction[1] M was sentenced to 13 months' imprisonment for one charge of assault withintent to injure,1 and one charge of threatening to kill.2 He appeals that sentence on the grounds that the District Court Judge should have imposed a sentence of home detention.[2] One of the grounds advanced in support of a home detention sentence was that the Judge had failed to take into account the time spent on electronic bail. During the appeal hearing, it became apparent that the Judge had not given credit for that factor in calculating the term of imprisonment. I sought and received further submissions on that issue.[3] Accordingly the questions raised by this appeal are:(a) Did the Judge err in failing to commute the sentence to home detention? and(b) Should there be a discount for time spent on EM bail?The offending[4] The convictions arise out of a serious domestic violence event against M'spartner. M and his partner have been in a relationship for approximately 14 years. They have four children together.[5] On the afternoon of 31 January 2017, an argument started between the couple. M approached his partner from behind and using full force punched her once to the side of the head with a closed fist. He then grabbed her by the hair, pulled her off her feet across the room, causing her to land face first on the dining room table.[6] He then grabbed the victim by the shoulders and threw her to the ground. She stood up and ran away. But, M caught her and grabbed her again by the hair,1 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.2 Section 306. Maximum penalty seven years' imprisonment.violently throwing her around the room. He then threw her to the floor, causing her to become disorientated, picked her up and pushed her hard into the kitchen bench.[7] M held the victim against the bench, and punched her three times to the back of the head with full force. He threatened to kill her and again threw her on to the dining room table. Her back connected with the corner of the table. He then picked up a kitchen knife, pulled the victim towards him, and held his arm around the backof her neck, holding the knife millimetres from the victim's throat. The attack onlystopped when M's son approached his father asking him to stop.[8] At the time, the victim referred to the injuries she had suffered and the fear that she had experienced when the knife was held to her throat.Reports[9] The pre-sentence report writer assessed M as posing a high level of harm directed towards his partner. The key factors contributing to his offending were assessed as his propensity for violence and relationship difficulties with a sense of entitlement.[10] The report writer was not totally convinced about his statements of remorse, at least at that stage. A sentence of home detention was recommended so as to provide M with an opportunity to address his violence related issues and relationship needs.[11] M and his partner attended a restorative justice conference. M apologised for his offending at that conference and that apology was accepted. The restorative justice report refers to an upbringing of violence for both M and his partner. Drug and alcohol issues were also identified as contributing factors to the offending. The plans which were agreed as part of the conference included M attending a number of rehabilitative programmes. The victim expressed a desire for a protection order to be put in place for both her children and herself whether M was imprisoned or placed in the community.District Court sentence[12] The District Court Judge took a starting point of 20 months' imprisonment.He applied a three month discount for attendance at the restorative justice conference, remorse, and willingness to undertake rehabilitation. A further discount of four months for the guilty plea was allowed, bringing the end sentence to 13months' imprisonment.[13] The Judge considered whether to impose home detention or another community-based sentence. He found that those sentences were inadequate to satisfy the requirement to denounce the offending and to deter M and others fromoffending of this sort. In the Judge's opinion, the brutality of the violence involvedrequired a sentence of imprisonment to be imposed.[14] The Judge also made a protection order for the protection of the victim and the children.Approach on appeal[15] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.3 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.4[16] An appeal against a refusal to grant home detention operates in the same way as a regular sentence appeal. It does not provide an opportunity to revisit the merits. Rather, the question is whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.5[17] In Palmer v The Queen, the Court of Appeal set out the approach to be taken on appeal where the issue is commutation of a sentence of imprisonment to home3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].5 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].detention.6 The Court of Appeal confirmed that the Tutakangahau approach applied equally to that decision and went on to say:[19] This change of approach is unlikely to make a difference in the result, because it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention, and any material error would normally have justified intervention under the former approach. As William Young P pointed out inR v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.(footnotes omitted)Grounds of appeal[18] M submits that the District Court Judge should have exercised his discretion to impose a sentence of home detention and that he gave too little regard to considerations in favour of a community based sentence. Specifically, he says that the District Court erred in the balancing exercise by:(a) placing undue weight on the principles of denunciation and deterrence;(b) placing insufficient weight on M's prospects for rehabilitation andreintegration;(c) placing insufficient weight on M's lack of prior history for violence;(d) failing to consider M's earlier remand in custody and compliance with electronically monitored bail;6 Palmer v The Queen [2016] NZCA 541 at [19].(e) placing insufficient weight on the mitigating material contained in the restorative justice report.Did the Judge err in failing to commute the sentence to home detention?[19] The choice between home detention and imprisonment involves a careful balancing of all relevant factors in light of the principles and purposes of the Sentencing Act 2002. Exclusive focus on deterrence and denouncement to the exclusion of other statutory purposes has led to a sentence of imprisonment being quashed on appeal.7[20] The mitigating features relied on by M were before the Judge and, with the exception of EM bail, formed the basis of discounts given for mitigating factors. However, I accept that by only referring to the principles of deterrence and denouncement in considering the question of home detention, the Judge has given the impression that the other principles and purposes have not been weighed in the balance. I have therefore conducted the balancing exercise afresh.[21] One of the purposes of sentencing set out in s 7(1)(c) is to provide for theinterests of the victim of an offence. Section 8(1)(f) also provides that the effect of the offending on the victim must be taken into account.[22] In a victim advisor memorandum presented to the court, the victim indicated that her partner was the main breadwinner for their family, and the family was dependent on his income. She has also stated on a separate occasion that she did not have any safety concerns, the children were missing their father, and she would like them to have contact with him.[23] The ongoing impact of M's offending on the victim and their children is ofconcern. I take into account those views, as I am obliged to do. But I also take into account the views of the victim expressed on other occasions – the fear for her life, the desire to protect her children, and the fact that a protection order was thought necessary. Those views deserve equal weight in the overall balancing exercise.7 Fairbrother v The Queen [2013] NZCA 340 at [29].[24] Assisting in the offender's rehabilitation and reintegration is another purpose to be considered in deciding whether to commute a sentence of imprisonment to home detention. In this respect there are several positive features arising out of the restorative justice report, namely:(a) M's admission that he has drug and alcohol issues;(b) An apparent willingness to attend counselling and participate in anger management programmes;(c) A recognition of the impact of his own violent upbringing on the way he conducts himself;(d) The making of plans to advance rehabilitation and reintegration back into the community.[25] The fact that M apologised to the victim at the restorative justice conference reflects remorse for his actions. However, the weight to be accorded to that expression of remorse must be tempered by the pre-sentence report writer'sreservations about the genuineness of remorse expressed at that time.[26] As Mr Timms submits, there are a number of other factors which would also tend to support a home detention sentence. Those include the following:(a) Wider family support, with a commitment made at the restorative justice conference to continue to support M in his efforts to reform;(b) Continuous and full time employment;(c) The lack of any prior convictions for violence related offences (with the exception of the wilful damage offence which has a family violence notation);(d) The fact that he has not previously been subject to an electronically monitored or rehabilitative sentence, coupled with the fact that there was compliance during his time spent on electronic bail;(e) The pre-sentence report writer's recommendation of home detentionon the basis that M would have a better opportunity to address his violence related issues and relationship needs.[27] Those factors need to be weighed against the other sentencing purposes, and in particular those of accountability, responsibility, denouncement, deterrence and the protection of the community.8[28] As the Judge noted, this was a brutal attack. It involved threats with a knife and attacks to the head. The violence took place in the sanctity of the home where the victim was entitled to feel safe, and where children were present. The fact that it only stopped on the intervention of one of those children is of the upmost concern. Domestic violence incidences of this nature demand a very strong response in terms of sentence.[29] Mr Timms referred me to the Court of Appeal case in Luff-Pycroft v R.9 Asentence of home detention was substituted on appeal for a sentence of 18 months'imprisonment. That case involved three incidences of violence against theappellant's girlfriend. The violence involved choking, threatening with a knife, pushing, kicking, biting and forcefully using his hand to stifle the victim's screams.[30] That violence is equally, or arguably more, grave than that in the instant case. But there are several features which distinguish it from this case. Those include theoffender's relatively young age (21 years), and the fact that he had completedrelationship counselling and anger management courses by the time of appeal. Most significantly, the risk of reoffending was assessed as low in Mr Luff-Pycroft's case,whereas M's risk of reoffending was assessed as high.8 Sentencing Act 2002, s 7(a), (b), (c), (f) and (g).9 Luff-Pycroft v R [2012] NZCA 107.[31] In any respect, each case turns on its own facts. Taking into account all relevant circumstances and weighing them in light of the principles and purposes set out in ss 7 and 8 of the Sentencing Act 2002, I am satisfied that imprisonment was the appropriate sentence. The Judge did not err and the appeal on this ground must be dismissed.Should there be a discount for time spent on EM bail?[32] Section 9(2)(h) of the Sentencing Act requires the Court to take into account the time that an offender has spent on electronic bail. The level of discount is withinthe Judge's discretion and there is no arithmetical formula that should be applied.10A discount is not automatic.11 The level of restriction imposed is a relevant factor, as is the record of compliance.[33] M was remanded on electronic bail for six weeks. The conditions of bail included a 24 hour curfew with a number of limited exceptions. Although those conditions were not as restrictive as being remanded in custody, they nevertheless curtailed M's freedom of movement. As previously noted, there were no breaches ofbail.[34] As Crown counsel quite properly submits, it is the end sentence which is the focus on appeal, and not the individual components by which that sentence is reached. The starting point adopted by the Judge is unimpeachable by reference to cases provided by the Crown in supplementary submissions.12 But I consider the omission to provide a discount for time spent on EM bail means there has been insufficient credit given for personal mitigating factors. In my view, a further one month discount was appropriate for time spent on EM bail.[35] I accept that a difference of one month to the end sentence imposed suggests that it was not manifestly excessive. I am mindful of the prohibition against mere tinkering with a sentence on appeal. But given the mandatory statutory direction to take into account time spent on EM bail, I am satisfied that the failure to do so10 Rangi v R [2014] NZCA 524.11 R v Nepe [2008] NZCA 98 at [33].12 Bonfert v R [2012] NZCA 313; Pathiranage v Police [2013] NZHC 738; Hotu [2013] NZHC 229.resulted in an end sentence which was manifestly excessive in the particular circumstances of M's case. Accordingly, I intend to quash the sentence and substitute a sentence of 12 months' imprisonment.Result[36] The Judge did not err in imposing a sentence of imprisonment instead of home detention. That ground of appeal is dismissed.[37] However, the Judge was required to take into account time spent on electronic bail and the failure to do so resulted in a manifestly excessive sentence.Accordingly, the appeal is allowed and the sentence of 13 months' imprisonment is quashed and substituted with a sentence of 12 months' imprisonment. The protection order made by the Judge remains.[38] Section 125 of the Domestic Violence Act 1985 applies in this case, and thevictim and her children fall within the definition of "vulnerable persons" set out ins 11D of the Family Courts Act 1980. To preserve the integrity of those provisions, and to prevent undue hardship to the victim and her children, I direct this judgment to be anonymised by using initials instead of names.___________________Edwards J