RYLAND v NEW ZEALAND POLICE [2023] NZHC 2100

RYLAND v NEW ZEALAND POLICE [2023] NZHC 2100 [8 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000274[2023] NZHC 2100BETWEEN MATTHEW RYLANDAppellantAND NEW ZEALAND POLICERespondentHearing: 8 August 2023Appearances: K R Borich for AppellantH F Brown for RespondentJudgment: 8 August 2023REASONS JUDGMENT OF VAN BOHEMEN J[appeal against sentence]This judgment was delivered by me on 8 August 2023 at 3:30 pm.Registrar/Deputy Registrar..Solicitors:Public Defence Service, WaitakereCrown Solicitor, Auckland[1] On 19 May 2023, Matthew Ryland was sentenced by Judge L Tremewan in theDistrict Court at Waitakere to nine months' supervision after pleading guilty to onecharge of being unlawfully on a property.1 Mr Ryland appeals that sentence on thebasis that it was disproportionate to his offending and based on an erroneous findingby the Judge that he had a continuing issue with alcohol.[2] The Police submit that it is unclear whether there was jurisdiction to imposethe order for supervision. They suggest that an appropriate sentence may be an orderto come up for sentence if called upon.[3] At the hearing on 8 August 2023, I quashed the sentence of supervision andordered that Mr Ryland come up for sentence if called upon within six months of thedate of this decision. This judgment sets out the reasons for my decision.The offending[4] At around 9:45 pm on 11 October 2022, Mr Ryland entered a property on theTe Atatu Peninsula in Auckland. He walked onto the deck and up to a table and leftwith a pair of running shoes worth $100.[5] When arrested on 3 March 2023, Mr Ryland told Police the location of theshoes which were subsequently seized. Mr Ryland said he did not remember theincident because he was drunk.Sentencing decision[6] The Judge's sentencing notes were brief. The Judge said that Mr Ryland'ssentence would be for nine months' supervision with a probation officer and orderedthat Mr Ryland undertake any assessment, course, programme, counselling, ortreatment as directed for alcohol issues or any other issue. The Judge said that thiswas designed to give Mr Ryland support and oversight. The Judge expressed the hopeMr Ryland would see it as an opportunity. It was not imposed as punishment, but tohelp Mr Ryland by encouraging him to carry on making better choices as the Judgesaid she had heard that he had since tried to do.1 Police v Ryland [2023] NZDC 12452.Approach on appeal[7] An appeal against a sentence is an appeal against a discretion. Section 250(2)of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow anappeal against sentence if it is satisfied that, for any reason, there was an error in thesentence and that a different sentence should be imposed. In any other case, it mustdismiss the appeal.2 Section 251 of the CPA provides that, if a Court allows an appealagainst sentence, it must either set it aside and impose another sentence as appropriate,vary the sentence or any part of it, or remit the sentence back to the Court whichoriginally imposed it.[8] It is well-established that an appeal against sentence will be successful only ifthe appellant can point to an error, either intrinsic to the Judge's reasoning, or as aresult of materials submitted on the appeal, that vitiates the lower Court's sentencingdiscretion.3 Unless there is a material error in the end sentence, the Court will notintervene.4 There will be a material error if the end sentence is manifestly excessiveor wrong in principle.5 In general, the focus is on whether the end sentence is withinthe available range, rather than the process by which the sentence was reached.6Accordingly, mere tinkering is not permitted.7 However, there may be cases wherethere has been an error that requires correction, even if the sentence imposed is withinrange.8Relevant provisions of the Sentencing Act 2002[9] Under s 45 of the Sentencing Act 2002, a Court may sentence an offender tosupervision if the offender is convicted of an offence punishable by imprisonment.Provided the sentence is greater than six months but less than a year, the sentence maybe for any period the Court thinks fit.92 Criminal Procedure Act 2011, s 250(3).3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA169 at [14] and [29]–[30] .4 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 3, at [14].5 Tamihana v R, above n 3, at [14].6 Tutakangahau v R , above n 3, at [36]; Tamihana v R , above n 3, at [14].7 Maihi v R [2013] NZCA 69 at [21].8 Tutakangahau v R, above n 3, at [36].9 Sentencing Act 2002, s 45(2).[10] Section 46 provides:A court may impose a sentence of supervision only if the court is satisfied thata sentence of supervision would reduce the likelihood of further offending bythe offender through the rehabilitation and reintegration of the offender.[11] Under s 48, an offender who is sentenced to supervision is subject to thestandard conditions in s 49 and any special conditions imposed by the Court underss 50 or 52, or both.[12] Section 49 requires an offender who is sentenced to supervision, among otherthings, to report to a probation officer as and when required, to notify a probationofficer of their residential address and nature and place of employment, not to moveto a new address without the approval of a probation officer and to take part in arehabilitative and reintegrative needs assessment as and when required by a probationofficer.[13] Under s 50, the Court may impose conditions related to a programme ifsatisfied that there is a significant risk of further offending by the offender; standardconditions alone would not adequately reduce that risk; and the offender requires aprogramme to reduce the likelihood of further offending by the offender through therehabilitation and reintegration of the offender. Under s 51, a programme for thepurposes of s 50 includes any non-residential counselling or assessment or attendanceat a therapeutic, rehabilitative, or reintegrative programme.[14] Under s 52, the Court may impose other special conditions if satisfied that thereis a significant risk of further offending by the offender, that standard conditions alonewould not adequately reduce that risk and that the imposition of special conditionswould reduce the likelihood of further offending by the offender through therehabilitation and reintegration of the offender.Submissions for Mr Ryland[15] Ms Borich, counsel for Mr Ryland, submits that the sentence of supervisionwas disproportionate to the offending and that there was no further evidence to supportthat Mr Ryland has a continuing issue with alcohol. She says that Mr Ryland'soffending was at the lower end of the scale and notwithstanding his significantcriminal history, his last conviction was three years prior. She explains that Mr Rylandhas recently started studying Land Surveying and that he was charged around fourmonths after his offending, during which time he was been without incident.Ms Borich says that the Court can draw from the fact that Mr Ryland has notcommitted any further offending since that there is no continuing issue with alcohol.[16] Ms Borich acknowledges that the Judge imposed the sentence of supervisionwith a rehabilitative focus but submits that the practical impact is ultimately punitivebecause of the reporting requirements attached to it and the length of the sentence.Ms Borich refers to S v Police and says it is an error to impose excessive punishmentas a rehabilitative measure.10 Ms Borich submits that an end sentence of convictionand discharge or come up for sentence would have been more appropriate.Submissions for Police[17] Ms Brown, counsel for the Police, submits that the sentence of supervision wasimposed in accordance with the statutory guidance in s 49 of the Sentencing Act giventhe Judge's explanation that the sentence was to help Mr Ryland by encouraging himto continue to make better choices. Ms Brown observes, however, that the Judge'snotes do not disclose any analysis of whether there was a significant risk of furtheroffending by the offender as required for the special condition related to an alcoholprogramme. Ms Brown says that it is unclear whether the required threshold ofMr Ryland presenting a significant risk of further offending is properly met given theonly matters that appear to have been before the Judge were Mr Ryland's ownadmission that he was intoxicated while he was offending, and in light of hissignificant criminal history prior to 2019.[18] Ms Brown also observes that a sentence of supervision without the specialcondition imposed by the Judge would not address the issues identified by the Judge.Ms Brown notes that the maximum penalty for Mr Ryland's offence is only threemonths imprisonment, that the offending is of a low to moderate level, that the value10 S v Police HC Hamilton AP160/89, 16 October 1989.of the property taken was low and had been returned, that Mr Ryland pleaded guiltyat an early stage and that he spent two to three days in custody between arrest and bail.[19] While leaving any substituted sentence to the Court, Ms Brown submits that,in the absence of any need for a punitive sentence, an order to come up for sentencemay be appropriate.Analysis[20] A sentence of supervision is in Tier Four of the Hierarchy of Sentences, frommost restrictive to least, as set out in s 10A of the Sentencing Act.[21] As Asher J observed in Sherley v Police:11[17] A sentence of supervision is a significant sentence. It ranks as moreserious than fines and reparation. It can involve a very considerable impositionon personal liberty. The offender is required to report, to live and to takeemployment where directed, and not to move without permission. There canbe a requirement imposed by the probation officer on the offender not toassociate with any specified person, and a requirement to take part in arehabilitative or reintegrated needs assessment.[22] Such a sentence cannot be imposed if the requirements of s 46 are not met.[23] While Judge Tremewan is an experienced judge and has particular expertise indrug and alcohol matters, in Mr Ryland's case it appears as if she may not have turnedher mind to the specific requirements of s 46. The Judge's references to the sentencebeing intended to provide support and oversight and to encourage Mr Ryland to carryon making better choices are consistent with an objective of reducing the likelihoodof further offending by Mr Ryland through his rehabilitation and reintegration.However, there is no explicit consideration of whether such a sentence was requiredin the circumstances of Mr Ryland and the offending for which he had been sentenced.[24] However, even if it is accepted that the Judge had implicitly been satisfied thatthe requirements of s 46 had been met, there is nothing to indicate that the Judge hadconsidered the requirements of ss 50 and 52 when imposing the special condition that11 Sherley v Police [2012] NZHC 1499 (footnotes omitted).Mr Ryland undertake any assessment, course, programme, counselling, or treatmentas directed for alcohol issues or any other issue. Both sections require that the Judgehad to be satisfied that there was a significant risk of further offending by Mr Rylandand that standard conditions alone would not adequately reduce that risk.[25] While Mr Ryland has a significant criminal history, prior to the currentoffending his most recent offending was in 2019 and was of a different order ofseriousness. It is not apparent that that history and Mr Ryland's acknowledgementthat he had been drunk and that he could not remember the incident could support aconclusion that there was a significant risk of further offending by Mr Ryland unlesshe was subject to the special condition imposed by the Judge. That is particularly soin the absence of any consideration of Mr Ryland's current circumstances, includingthe fact he is now engaged in a course of regular study.[26] I also accept Ms Borich's submission that the sentence was not the leastrestrictive outcome that could have been appropriate in the circumstances.[27] For these reasons, I accept that the Judge erred and agree that the sentence ofsupervision should not stand. Accordingly, I am satisfied I should quash the sentenceof supervision and substitute it with an order that Mr Ryland come up for sentence ifcalled.Result[28] I allow Mr Ryland's appeal,[29] I quash the sentence of supervision imposed by Judge Tremewan.[30] I order Mr Ryland to come up for sentence on the charge of being unlawfullyon a property if called upon within six months of the date of this judgment; that is by8 February 2024.____________________G J van Bohemen J