SCOLES-YOUNG v NEW ZEALAND POLICE [2016] NZHC 1120

SCOLES-YOUNG v NEW ZEALAND POLICE [2016] NZHC 1120 [26 May 2016]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYCRI-2016-476-2[2016] NZHC 1120BETWEEN MICHAEL SCOLES-YOUNGAppellantAND NEW ZEALAND POLICERespondentHearing: 17 May 2016Appearances: T Jackson for AppellantM Beattie for RespondentJudgment: 26 May 2016JUDGMENT OF MANDER J[1] The appellant, Michael Scoles-Young, appeals his sentence of one year ten months imprisonment imposed on his conviction for injuring a police officer. Mr Scoles-Young pleaded guilty after a sentence indication, however he maintains the sentencing Judge erred in not imposing a sentence of home detention.Background[2] Mr Scoles-Young was arrested after police observed him deflating a tyre on a police vehicle. While being spoken to he threatened the arresting officer. During the journey to the police station Mr Scoles-Young head-butted a constable. He thenleant over and sunk his teeth into the constable's thigh, biting through his trouserswith sufficient force to break the flesh. The bite resulted in a severe open laceration and the officer was required to be hospitalised.The sentence indication[3] Mr Scoles-Young sought a sentence indication.1 After reviewing the relevant facts the Judge observed that the officers were acting in the execution of their duty and that the offending had both a physical and emotional impact on the officer who had been attacked. It was noted that Mr Scoles-Young had previous convictions for fighting in 2014, injuring with intent in 2012, and assault with intent in 2009.[4] On the basis the injuring charge fell into the second band of Nuku v R, a starting point of two years was taken.2 The Judge accepted that deterrence and denunciation were important considerations in a case of this kind. The starting point was uplifted by three months in recognition of the relevant recent convictions. It was intimated that a discount of five months would be extended to reflect the plea if entered and to acknowledge efforts towards rehabilitation if established.[5] The Court had received references and material in support of the defendant but the Judge considered the weight to be afforded to that material could not be assessed until the Probation Service had made inquiries and a pre-sentence report prepared.[6] A sentence of one year ten months imprisonment was ultimately indicated. In relation to the possibility of home detention, the sentencing Judge stated:3Because of the circumstances I am not able to predict whether home detention is available or not. I am not prepared to give an indication based on home detention. The availability of home detention depends very much upon a very positive pre-sentence report coupled with a supportive and positive living environment and other forms of support which are likely to assist the defendant to focus upon rehabilitation and avoiding further offending. Those matters cannot be presumed given the rate at which the defendant has committed offences in the past and the extent of his previousconviction history. Mr Brown [the appellant's counsel at that time] hasemphasised the need for rehabilitation and the background factors facing this defendant are relevant to whether or not home detention is possible but I am simply not prepared in a vacuum without the full benefit of a report to indicate whether that is accepted[7] The sentence indication was accepted and pleas of guilty entered.1 Police v Scoles-Young HC Timaru CRI-2015-076-737, 14 January 2016.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.3 Police v Scoles-Young, above n 1, at [7].The sentencing[8] At the sentencing hearing the police provided further information relating to the previous conviction for injuring with intent to injure. The circumstances of that offending had previously been unknown to the Court. Photographs were produced of the serious facial wound sustained by the previous victim, which again had resulted from Mr Scoles-Young biting his victim.[9] The sentencing Judge referred to Mr Scoles-Young's personal backgroundand in particular the impact of offending against him as a young man when he was a vulnerable person.4 It was noted that Mr Scoles-Young had recently obtained fulltime employment, that there had been no further offending since the incident for which he was before the Court, and that with the birth of his son there were indications that Mr Scoles-Young was changing his behaviour.[10] While acknowledging these factors, the sentencing Judge considered the repetition of Mr Scoles-Young's offending involving as it did the biting of another person leaving them scarred was determinative. The Court considered it had no option but to impose a custodial sentence.[11] As a result, the indicated term of imprisonment of one year ten months was imposed. Concurrent terms of three months imprisonment for unlawful interference with a motor vehicle, and one month imprisonment on the Summary Offences Act threatening charge were also imposed.The appeal[12] Mr Scoles-Young submitted the Judge, having been aware at the time of the sentence indication of his previous conviction for injuring with intent and, as it was framed by counsel in his written submissions, having "indicated that home detention turned on favourable reports", she ought not to have excluded that alternative sentence. Mr Scoles-Young's appeal is based on a submission that home detentionshould have been imposed rather than imprisonment.4 Police v Scoles-Young [2016] NZDC 3697.[13] Despite his appeal resting on a submission that the plea had been entered on the premise that home detention remained a possibility, Mr Scoles-Young explicitly disavowed any wish to vacate his guilty pleas. At the conclusion of the oral hearing an opportunity was provided to Mr Scoles-Young's counsel to get confirmation from his client that he was not seeking to vacate his pleas. A memorandum filed by Mr Scoles-Young's counsel confirmed this was his position.Discussion[14] At the time of the sentence indication hearing it was not disputed that the second band of Nuku v Police applied which could attract a sentence of up to three years as a starting point. No challenge was made on the appeal, either in written or oral submissions, that the starting point was excessive, nor was there any criticism of the process by which the final sentence was arrived at. There is no issue therefore that the term of imprisonment indicated and ultimately imposed was within the range of sentence.[15] Despite Mr Scoles-Young disavowing any wish to vacate his guilty pleas, he sought to rely on the approach taken by this Court in Biskowiak v Police.5 In that case Mr Biskowiak received a sentence indication which included the possibility of home detention depending upon the content of a pre-sentence report and his suitability for such a sentence. Despite a favourable report, Mr Biskowiak was ultimately sentenced to imprisonment with his previous offending being cited as a key factor in the decision to decline home detention.[16] In allowing the appeal, Clifford J observed that the sentencing Judge had not made it clear that he was still reserving to himself an opportunity to further assessthe significance of the appellant's previous convictions and the risk of reoffendingwhen he indicated that if a favourable pre-sentence report was obtained he would impose home detention. As a result the appeal was allowed and the case remitted back to the District Court in order to allow Mr Biskowiak the opportunity to re-plead to the charge.5 Biskowiak v Police [2015] NZHC 486.[17] Mr Scoles-Young submitted the sentencing Judge in his case had fallen into a similar error by initially indicating the possibility of home detention depending upon the content of the pre-sentence report but ultimately declining to consider such a course after being provided with further information relating to Mr Scoles-Young'sprevious offending.[18] He submitted the sentencing Judge when providing the sentence indication had considered his previous criminal history. Specifically, the Court had taken intoaccount "the rate at which" the appellant had previously offended and "the extent of his previous conviction history". Mr Scoles-Young claimed it was wrong for the police to introduce information that was available at the time of the sentence indication. Because the sentence indication had left open the possibility of home detention and been couched in terms that encouraged the appellant to do all he could to obtain a favourable pre-sentence report, for the Court to now change the basis upon which the appropriate sentence would be assessed was unfair. It was submitted the Court should not have had regard to this material.[19] The difficulty for Mr Scoles-Young in prosecuting his appeal on this basis without seeking the opportunity to vacate his pleas is that the sentence actually imposed must be the focus. The situation is the same as that faced by Moore J inAppuhamilage v Police.6[20] In that case a sentence indication had been provided by the District Court of 12 months imprisonment with the possibility of home detention being substituted should a positive pre-sentence report be received and a successful restorative justice outcome achieved. A sentence of home detention was ultimately imposed however it was coupled with a sentence of 200 hours community work. On appeal it was submitted the sentence was different from that which the Judge had indicated. As the sentencing Judge was bound by his earlier indication there was an error in the sentence imposed. In that case, as with the present, the appellant did not wish to vacate her plea.6 Appuhamilage v Police [2015] NZHC 2355.[21] After reviewing the relevant provisions of the Criminal Procedure Act 2011 (the Act), Moore J concluded the sentencing Judge in that case had erred in failing to give the appellant an opportunity to vacate her plea or in failing to impose the sentence which had earlier been indicated.7 Where an appeal is allowed on that basis, the conviction should generally be quashed to allow the defendant to exercise the right to vacate his or her plea. However, where the defendant does not wish to vacate the plea the situation is different.[22] There is some difference of view in this Court as to the approach to be taken on appeal when a different sentence is imposed from that which had previously been formally indicated to a defendant. In Te Tau v Police and Te Namu v Police the original sentence was amended to conform with the sentence indication.8 However, in Wilson v R and Appuhamilage v Police, Wylie and Moore JJ each took the view the Court must first be persuaded the sentence under appeal was wrong and that a different sentence should be imposed before disturbing the sentence.9 This approach is consistent with s 250 of the Act which requires the Court to be satisfied a different sentence should be imposed before an appeal against sentence can be allowed. The issue for the appellate Court in the absence of an appellant wishing to take the opportunity to re-plead is whether the ultimate sentence imposed is correct.[23] In the present case, when the sentencing Judge became aware of the seriousness of the previous injuring conviction she concluded that a custodial sentence was the only appropriate response. The sentencing Judge gave very close consideration to whether Mr Scoles-Young's background and personal circumstancesmight allow her to substitute a sentence of home detention. In the exercise of her discretion, she concluded, understandably, that she was precluded from taking such a course.[24] Mr Scoles-Young's submissions do not provide grounds which would support a conclusion that the Judge erred in that assessment, nor that the length of the prison term was excessive. Unlike the previous cases cited, the term of imprisonment was entirely consistent with the sentence indicated. It follows that the appeal cannot7 Criminal Procedure Act 2011, ss 115-116, 250 and 252.8 Te Tau v Police [2015] NZHC 1716; Te Namu v Police [2013] NZHC 3443.9 Wilson v R [2015] NZHC 298; Appuhamilage v Police, above n 6.succeed. The merit of any complaint that there was "some shifting of the ground"between the sentence indication and the sentencing itself which precluded a sentence of home detention falls away.[25] Mr Scoles-Young sought to identify as a separate ground that the sentencing Judge should not have taken into account the further information provided by the police, in particular the photograph of the previous victim's injury. However, thatinformation was relevant to the sentencing exercise and the Court could not be estopped from taking such material into account which better informed it of the seriousness of the past offending. As I have already observed, the only potentially valid complaint links to whether the fresh information changed the basis on which Mr Scoles-Young understood he was entering his plea after the completion of the sentence indication.[26] It is not strictly necessary for me to comment about whether the sentencing Court, after having received the further information which effectively prevented the Court from being able to realistically entertain a sentence of home detention, ought to have provided Mr Scoles-Young with the opportunity to consider vacating his plea. However, I note the sentencing Judge had made it very clear in her sentence indication that she was not prepared to include the possibility of home detention as part of her formal sentence indication. The availability of home detention was observed as depending upon a very positive pre-sentence report, and that such matters could not be presumed. In such a vacuum and without the full benefit of the report, the Judge was not prepared to indicate whether such an option would be available, although equally it was not ruled out.[27] It is apparent therefore that while home detention did not form part of the sentence indication, the possibility of home detention remained. As matters turned out and as the sentencing Judge herself concluded at sentencing, because of the seriousness of the previous similar offending, home detention was not an option.[28] In Taylor v R the Court of Appeal examined whether a sentence differed sufficiently from the sentence indication to warrant the appellant being afforded theopportunity to vacate his guilty pleas.10 That was another case where further information became available to a Judge at the sentencing hearing that had not previously been provided. Importantly in the present context, the Court of Appeal observed that where a sentence indication generates an expectation and that for whatever reason the expectation is not met, the defendant should be given the opportunity to vacate his or her plea. The focus should therefore be on what thedefendant's expectation was as a result of the sentence indication process.[29] The Judge made it clear that she was unwilling to formally indicate that home detention would be substituted should potential mitigating factors be confirmed, but the door was not shut on such a possible outcome. Whether, therefore, an expectation on Mr Scoles-Young's part was created by the sentence indicationprocess which subsequently proved to be illusionary upon greater detail of the prior offending coming to hand is moot.[30] Given the position taken by the appellant it is not necessary for me to come to any conclusion as to whether the sentencing Judge should have provided an opportunity to Mr Scoles-Young to vacate his plea; this was not his complaint.Decision[31] The appeal is dismissed.Solicitors:Quentin Hix Legal, TimaruCrown Solicitor, Timaru10 Taylor v R [2013] NZCA 55.