CLOSEY v POLICE [2020] NZHC 990

CLOSEY v POLICE [2020] NZHC 990 [14 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-74[2020] NZHC 990BETWEEN MATTHEW CLOSEYAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2020Appearances: N Soondram for the AppellantJ A Herring for the RespondentJudgment: 14 May 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 14 May 2020 at 2 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCounsel: N Soondram, AucklandIntroduction[1] The appellant, Matthew Closey, appeals a sentence of six months' homedetention imposed by Judge Fraser in the Auckland District Court on 28 February2020.1[2] The sole ground of appeal is that the sentencing Judge failed to take intoaccount the period of three months that Mr Closey had spent in custody on remandprior to sentence when determining the appropriate length of the sentence of homedetention. No issue is taken with the starting point or how the original end sentenceof 12 months' imprisonment was reached (which was then commuted to six months'home detention).[3] The respondent's position is that the sentence is not manifestly excessive.There was no error in the Judge's approach, the starting point was within the availablerange, and the overall discounts given were appropriate in the circumstances.Background[4] In November 2016, a final protection order was issued in favour of the victimagainst Mr Closey. The charges arise from two separate incidents. At the time of theoffending Mr Closey was aged 25 years.[5] First, in July 2019, the victim arrived at her home address around middaywhere she found Mr Closey inside her house intoxicated and drinking vodka. Thesummary of facts records that the victim had allowed Mr Closey to stay at her placefrom time to time. But it is not suggested that he had been invited to enter on thisoccasion. The victim attempted to remove the vodka from Mr Closey. Ultimately shehelped him into bed and left the house. She returned some five hours later and foundMr Closey still in bed. He demanded more alcohol and cigarettes. At that time hebegan hitting the wall in the bedroom causing it to become damaged. In an attempt tocalm Mr Closey down the victim agreed to his demands and went out and purchasedalcohol and cigarettes.1 Police v Closey [2020] NZDC 3630 (Sentencing Notes).[6] She then advised him she wanted him to leave the house. He began yellingloudly for her to help him. She allowed him to remain but in the early hours of thenext morning called for assistance from family members. On their arrival he calmeddown so the victim thought she would be safe if the family members left. A few hourslater Mr Closey began verbally abusing the victim and became angry, punching wallsin the bedrooms and kitchen. The victim called the police.[7] The second occasion was in August 2019. Mr Closey asked the victim to gofor a drive with him. She reluctantly agreed. Whilst in the car Mr Closey beganverbally abusing the victim. She felt fearful and as the car approached a set of trafficlights she jumped out of the car. She was then assisted by members of the public whooffered her a ride in their vehicle. Mr Closey followed that vehicle for 15 minutesattempting to communicate with the victim through the car windows. After being toldby members of the public to leave the victim alone he eventually did so.The District Court[8] At a case review hearing on 1 October 2019, Mr Closey pleaded guilty to twocharges of breaching a protection order,2 one charge of intentional damage,3 and onecharge of breaching release conditions. The guilty plea was entered as part of aresolution, with other charges being withdrawn.[9] At sentencing, in fixing the starting point, the Judge took the first breach of theprotection order as the lead offence. For that offending, the Judge adopted a startingpoint of nine months' imprisonment. He uplifted this by six months for the secondbreach in August 2019. This resulted in a starting point of 15 months' imprisonment.For totality reasons, the Judge did not add a further uplift for the remaining twocharges, wilful damage and breach of release conditions.42 Family Violence Act 2018, ss 9, 90(a) and 112(1)(a). The maximum penalty is three years'imprisonment.3 Summary Offences Act 1981, s 11(1)(a). The maximum penalty is three months' imprisonmentor a $2000 fine.4 Sentencing notes, above n 1, at [6].[10] The Judge applied a discount of three months (20 per cent) for Mr Closey'searly guilty plea, resulting in an end sentence of 12 months' imprisonment.5[11] The Judge commuted the sentence of imprisonment to one of six months' homedetention.6 I will return to the Judge's decision later in this judgment in the context ofconsidering whether the end sentence was manifestly excessive.Approach on appeal[12] Section 250(2) of the Criminal Procedure Act 2011 provides that the appealmust be allowed if there has been an error in the sentence imposed and a differentsentence should have been imposed. While there is no mention in s 250(2) of a"manifestly excessive" sentence being a ground of appeal, it is consistent with thestatutory language and "there is no reason not to use it when considering s 250(2)".7Mr Closey must show that an error occurred in sentencing and that this error resultedin a sentence which was outside the range or otherwise not justified by acceptedsentencing principles.8Approach to deduction for time spent in custody on remand on a sentence ofhome detention[13] In Kidman v R9 the issue on the appeal concerned the means by which timeserved on remand should be taken into account where the sentence imposed was oneof home detention. The Court of Appeal said:[15] For example if a discretionary approach is retained, a judge maytake time served into account in order to bring a person's end sentence downbelow two years so that home detention can be considered, the approachadvocated by [counsel for the appellant] would prevent this. [14] In Laloni v R,10 the appellant appealed a sentence of 10 months and 15 days'home detention on the basis that he should have received credit for time spent on5 At [6].6 At [8].7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].8 Ripia v R [2011] NZCA 101 at [15].9 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.10 Laloni v R [2015] NZCA 55.restrictive bail conditions and on custodial remand prior to trial and sentencing. TheCourt of Appeal said:[8] We are not persuaded in this case that the Judge erred in notreducing the sentence to reflect the time spent remanded on bail.[9] Different considerations arise in respect of the time spent in custody.In such cases, an allowance is commonly made to reflect the time spent onremand in fixing the period in respect of a sentence of home detention.11[15] As to the point at which recognition should be given for time spent in custodyon remand, the Court said:[14] In this respect, we do not consider it appropriate to deductthree months from the sentence of home detention, as Mr Holland urged us todo. Rather, the appropriate course is to deduct three months from thecalculated term of imprisonment, reducing that to 18 months. The result thatfollows is a sentence of nine months' home detention.[16] In her written submissions Ms Soondram, following the approach of the Courtof Appeal, submitted that the deduction of three months should be made from thestarting point of 12 months' imprisonment. This would result in a sentence of ninemonths' imprisonment, leading to an end sentence of four and a half months' homedetention.[17] In oral submissions, Ms Soondram argued that the deduction should in fact besix months' imprisonment, rather than three months' imprisonment. In other words,Ms Soondram submits that each month served prior to sentencing should equate to anadditional two months. The consequence would be that six months would be deductedfrom the end sentence of 12 months, making a sentence of six months' imprisonment.That would result in a sentence of three months' home detention.[18] That was a submission rejected by this Court in Saunders v R.12 I agree withDunningham J that any amount deducted could not be more than the time spent incustody. I therefore do not accept Ms Soondram's submission that six months is theperiod that should be deducted.11 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; R v Ford [2008] NZCA 64; R v Stempa[2008] NZCA 254.12 Saunders v Police [2015] NZHC 1964 at [26].Did the Judge take in account the time spent in custody on remand?[19] Mr Herring, for the respondent, acknowledges that while a discrete discountcould have been given for the time spent on custodial remand, this would have formedpart of an overall evaluative process.[20] It is clear that Judge Fraser was alert to the time that Mr Closey had spent incustody. The discussions with counsel prior to the Judge formally passing sentenceare included in the document containing the sentencing notes. The Judge questionedcounsel appearing for Mr Closey and Mr Closey himself regarding the time he hadspent on remand and on EM bail prior to sentencing. But this is not specificallymentioned in the formal sentencing remarks and there is nothing in those remarks tootherwise suggest that the Judge did in fact take time served into account.[21] However, even accepting that the Judge failed to have regard to the time spentin custody on remand, I go on to consider, first, whether the sentence was manifestlyexcessive and, second, even if it was not manifestly excessive, whether there was anerror which requires correction.Was the sentence manifestly excessive?[22] Mr Herring submits that when the sentence is looked at as a whole, it was analready lenient sentence oriented to rehabilitation. Mr Herring submits that it cannotbe said the failure to give a discrete discount resulted in a sentence which was outsidethe range that could be justified properly by accepted sentencing principles.[23] At the start of the sentencing remarks the Judge acknowledged there had beenno physical violence to the victim when breaching the protection order but he viewedMr Closey's conduct as "significant concerning behaviour" which distressed thevictim.13 The Judge then focused on the lack of any effective rehabilitative efforts byMr Closey and his explanation that re-offending had stopped his rehabilitative13 Sentencing notes, above n 1, at [1].progress.14 The Judge referred to the pre-sentence report which he viewed as"charitable" when suggesting home detention as an available sentence.15[24] The Judge identified the following aggravating features of the offending: harmto the victim; the victim's vulnerability; that it was a family violence situation; theevents were sustained over a period of time; and Mr Closey's previous convictions.16[25] In mitigation, the Judge noted Mr Closey's guilty pleas and his age. However,he stated that in terms of age, Mr Closey was "right at the outer perimeter of thedecision of Churchward v R".17[26] In commuting the sentence of imprisonment to one of six months' homedetention, the Judge stated:18It is tempting simply to send you off to jail because it may well be that is whatneeds to happen acknowledging your failure to do anything rehabiliatively.Why I am not going to do that is we have tried that, it has been a failure andit may be, again acknowledging your age, the fact that you tell me that you arein stable accommodation, it might be that the people that you are living withare what we call pro-social and they might support your rehabilitation.[27] The Judge then said that he would judicially monitor Mr Closey for thefollowing 12 months and warned Mr Closey as follows if he did not make any progresswith his rehabilitation:19I can tell you without doubt, if I do not see you making a genuine effort withrehabilitation you will see me, and you will see me quickly, and you will goto jail, and you will go for a lengthy period of time. You will not get anopportunity like this again. As I say, it is tempting to just lock you up but yourage and the possible stability, possible support might mean that we can seesome turnaround. As I say it will not happen again, you will not get thischance again. So do not abuse it and I look forward to the first report in threemonths.[28] Before referring to the cases cited by the Crown, I note that there is no tariffcase for this type of offending. Sentences for breach of protection orders vary widely14 At [3].15 At [3].16 At [5].17 Churchward v R [2011] NZCA 531. Note that Mr Closey was born on 15 July 1994, making him25 years old at the time of the offending.18 Sentencing notes, above n 1, at [7].19 At [9].because the offending is always highly contextual. Comparison between cases isdifficult in these circumstances. However, it is not impossible: consistency insentencing is an important principle in the sentencing regime.20[29] In Morris-Stewart v Police,21 this Court held that a starting point of 12 months'imprisonment on a single charge of breaching a protection order was appropriate. Theappellant had sent his former partner a large number of text messages over the courseof a day. He had a history of family violence charges against the victim and also ofbreaching protection orders. The Judge referred to statements by the Court of Appealthat the Court should uphold the integrity of protection orders and respond sternly tothose who flout their force and effect.22 Orders are intended to ensure that the recipientof a protection order is secure and inviolate.23 Wylie J went on to say that where therehas been repeat offending over a brief period of time, a short term of imprisonment isthe proper response.24[30] In Crean v Police,25 the appellant was at the victim's home in contravention ofa protection order. They were drinking alcohol together; they began to argue; and theappellant refused to leave the address after being asked repeatedly to do so. Nine dayslater the appellant was again at the victim's home drinking. The appellant againrefused to leave when asked. The victim left and the appellant followed her. Shelocked herself in a public toilet and contacted the police. In that case the appellant hadtwo recent previous convictions for breaching protection orders. The High Court wasof the view that concurrent sentences of 15 months' imprisonment for each breach ofthe protection order were appropriate.[31] In Mataiti v Police,26 the appellant had pleaded guilty to two charges ofbreaching a protection order against his former partner. There were two incidents thathad occurred several months apart. On each occasion the appellant had becomeverbally abusive towards the victim and had refused to leave her property when asked.20 Jackson v Police [2019] NZHC 281 at [41].21 Morris-Stewart v Police [2016] NZHC 1030.22 At [15].23 At [15].24 At [15].25 Crean v New Zealand Police [2015] NZHC 3203.26 Mataiti v Police [2014] NZHC 1675.His previous convictions included three convictions for breaching a protection order.The sentencing Judge imposed a term of 12 months' imprisonment on each of the twobreach charges, to be served concurrently. On appeal Heath J concluded that whilethe sentence may have been stern, there was no basis to interfere with it on the groundsof manifest excess.[32] In this case, the aggravating features of the offending were: uninvited entryinto the victim's home while she was absent from the home; the offending occurredwhile Mr Closey was still subject to a previous sentence; it was a family violenceoffence; and it caused emotional harm to the victim. In terms of Mr Closey's previousconvictions, there are nine for family violence against the victim beginning in 2016.Five of those were for breaching protection orders.[33] Having regard to the maximum penalty of three years' imprisonment, the casesI have referred to and the aggravating factors, I consider the starting point wasappropriate and the final sentence was not manifestly excessive.Was there an error?[34] However, while the sentence cannot be said to be manifestly excessive, that ofitself does not persuade me not to correct what I consider was an error. As was saidby the Court of Appeal in Laloni, an allowance is commonly made to reflect the timespent on remand in fixing the period in respect of a sentence of home detention.27 Asin Laloni, it was Mr Closey's conduct that resulted in his remand in custody becausehe breached his bail conditions. But as was said by the Court of Appeal in Laloni:28That factor however should not disentitle him from the normal allowance,which is made to reflect time spent in custody in imposing a sentence of homedetention.[35] The three months Mr Closey spent in custody prior to sentence should havebeen deducted from the initial end sentence of 12 months' imprisonment, resulting in27 See also Longman v Police [2017] NZHC 2928 at [9], where Simon France J held that the cleardefault position is that full credit should be given for time spent on custodial remand where thesentence is one of home detention.28 Laloni v R, above n 10, at [10].an end sentence of nine months' imprisonment, leading to a final end sentence offour and a half months' home detention.[36] I note, but do not accept, the respondent's submission that a deduction ofone and a half months is tinkering, when viewed in the context of a sentence ofsix months' home detention.Result[37] The appeal is allowed.[38] The sentence of six months' home detention imposed on each of the fourcharges is quashed and a sentence of four and a half months' home detention issubstituted on each of the four charges. The conditions are unchanged.___________________________________Gordon J