COLVIN v R [2021] NZHC 400

COLVIN v R [2021] NZHC 400 [5 March 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000099[2021] NZHC 400BETWEEN PAUL LAURENCE COLVINAppellantAND THE QUEENRespondentHearing: 10 February 2021Appearances: T Sutcliffe for the AppellantA Alcock for the RespondentJudgment: 5 March 2021JUDGMENT OF HINTON JThis judgment was delivered by me on 5 March 2021 at 4:30 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Thomas Sutcliffe, Barrister, HamiltonHamilton Legal, Hamilton[1] Mr Colvin appeals against sentence on one charge of assault with a weapon;six charges of assault on a child and two charges of assault with intent to injure. Thecharge notice was dated October 2015. He entered pleas to an amended charge noticeon 27 August 2020 and was convicted. He was sentenced on 19 October 2020 byJudge Menzies in the Hamilton District Court to 12 months' intensive supervision.1[2] Mr Colvin appeals on the basis that Judge Menzies did not adequately considerhis remand in custody and time spent on electronically monitored bail. He says heshould be convicted and discharged, or at most the sentence should be six months'supervision.[3] The respondent says that the end sentence imposed was within the rangeavailable to the sentencing judge; intensive supervision was consistent with therelevant purposes and principles of offending; and accordingly the appeal ought to bedismissed.Law[4] The appellant has an appeal as of right under Section 244 of the CriminalProcedure Act 2011 ("the Act").[5] Section 250 of the Act sets out how a court must determine a sentence appealand requires both identification of an error and a need to be satisfied that a differentsentence should be imposed.[6] The Court of Appeal in Palmer v R outlined the position with respect tosentence appeals, stating that:2the standard of appellate review in sentence appeals requires that theappellant show a material error was made and satisfy the appellate court thata different sentence ought to be imposed. Sentencing is not a science and anappellate court will not ordinarily interfere unless the end sentence wasoutside the range available to the sentencing judge. For that reason, it is notan error to describe sentencing decisions as discretionary, so long as it is clearthat "discretion" means only the sentence enjoys an appropriate margin ofappreciation.1 R v Colvin [2020] NZDC 25392.2 Palmer v R [2016] NZCA 541, at [17].[7] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestlyexcessive" continues to apply, and the Court would not intervene where the "sentenceimposed was within a range that could be properly justified by accepted sentencingprinciples".3Factual background[8] The key facts of the offending were summarised by Judge Menzies atsentencing. It involved assaults over a period of three years from 2013 to 2016. Therewere three victims. The two oldest were stepdaughters and the third child was theappellant's natural child. The oldest of the three children was aged between eight and12 when the offending occurred, the second child aged between seven and 11 and theyoungest aged between three and five years.[9] In relation to child S one charge involved grabbing her by the neck andmarching her into the house. A further charge, which was assault with a weapon,involved using a belt. It was doubled over and used to whip her on the back of herthighs four times causing significant bruising for several days. A second charge ofassault with a weapon involved throwing a glass of water at the same child. It missedher but she was wet by the water which spilled. A further assault charge on the samechild involved grabbing her arm, taking her to her bedroom and locking her insidebecause the appellant was angry with her. A further representative charge of assaulton a child involved smacking the child's bottom on a number of occasions when angrywith her.[10] In terms of the offending against the child K, the assault with intent to injurecharge involved lifting the child by her neck, holding her against the wall andstrangling her. She struggled to breathe. She thought she was going to die. Theappellant told her not to tell her mother. As a result of this offending the child had redmarks on her neck. A further charge of assault with intent to injure was a secondoccasion on which the appellant grabbed the child round the neck and strangled heragain. A representative charge of assault on that particular child involved againfrequent occasions of smacking her bottom when mad at her.3 Tutakangahau v R [2014] 279, at [35]-[36].[11] The charges in relation to the third child N included a representative assaultcharge on a child which involved smacking the child's legs and body to stop her fromcrying. A further representative charge of assault on that child involved the appellantpulling her into her mother's bedroom, smacking her bottom with his hand when hebecame annoyed with her, then slamming the door shut and telling her she was in time-out.[12] Overall the offending involved deliberate and repeated physical violenceagainst the two step-daughters and young daughter, in anger.[13] As a result of the appellant's violent conduct, the children were left with bruisesand/or swelling and marks.Sentencing in the District Court[14] Judge Menzies adopted a two-year starting point which the appellant does notchallenge.[15] After adopting that starting point the Judge imposed a sentence of intensivesupervision, recognising time spent on EM bail, time spent in custody, rehabilitation,remorse and the appellant's guilty pleas:[25] If I were to take a starting point of two years, which is where I regard thestarting point should be, reflecting for all this offending and then to makeallowances for the pleas that have been entered, the rehabilitative measuresthat you have taken, the remorse that has been reflected and the period of timein prison plus the electronically monitored bail does take us to a point wherethe imposition of a sentence such as home detention or of course imprisonmentwould be in the Crown terminology moot. I believe we do reach that point forthe reasons that I have articulated. I do however consider the appropriatesentence is intensive supervision. That is to reflect the conditions that wouldbe included as part of a sentence as part of the recommendations in the pre-sentence report.[16] In the regrettably unusual circumstances of this case the appellant had spentnine months in custodial remand and two years on EM bail.[17] In terms of rehabilitation the Judge recognised a number of positive featuresthat had come out of Corrections' PAC report dated 14 October 2020, suggesting thatMr Colvin had recognised he needed assistance. Mr Colvin had a long history of drugabuse. By the time of the report Mr Colvin's only addiction was to smoking cigarettes.He had been attending Community Alcohol and Drug Services for over three years4and said he had been clean for approximately four years. He was on methadone at thetime that the report was prepared, which is prescribed for those with an addiction tomorphine-like drugs. A letter from Mr Colvin's counsellor at CADS confirmed thathis attendance had been extensive and reliable. The report from the counsellor wasthat he was doing well, reliable on attending appointments, did not drink alcohol, didnot use illicit substances and was continuing to show stability because of theprogramme.[18] The PAC report acknowledged the time spent on EM bail, the appellant'sprevious convictions and his personal circumstances. Mr Colvin was assessed asbeing of low risk of harm in the community and low risk of re-offending. Mr Colvinhad not offended while on EM bail and had breached bail only once which the Judgedescribed as not significant.[19] In recommending a sentence of home detention with other possible sentencingoptions of intensive supervision and community detention Corrections proposed thefollowing special conditions in the case of intensive supervision:(a) To attend an assessment for a non-violence programme for men (HAIP)as directed by a Probation officer;(b) To attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by, and to the satisfactionof a Probation officer;(c) Not to possess, consume or use any alcohol or non-prescribed drugs.[20] The Judge's sentence was made on the basis of those conditions.4 The District Court judgment refers to attending the service for a period of two years but the PACreport says he was still attending CADS at the date of it and had been since July 2017.Discussion[21] The Judge clearly accepted the defence submission that the periods of timespent in custody and subject to EM bail served as the punitive element of sentence. Itwas also clearly appropriate that the Judge factor in, as he did, remorse andrehabilitative measures taken by Mr Colvin.[22] I note that while the Judge was required to recognise time spent on EM bail asa mitigating factor, it is clear that is not to be the equivalent of the time spent on EMbail and that it involves an evaluative assessment of all the circumstances before theCourt.5 If there were any question of a custodial sentence time spent on remand wouldbe deducted by Corrections.[23] Judge Menzies did not quantify the discounts he granted but his remarks onsentencing make it clear that material discounts were given when converting thesentence to intensive supervision and that while a prison sentence would customarilyapply to this sort of offending he did not consider either a prison sentence or homedetention justified in these unusual circumstances.[24] The Judge clearly considered it appropriate that Mr Colvin still face a sentence,albeit in the community, given the nature of the offending and the still outstandingneed for rehabilitation and reintegration. These were determinative considerations forthe Judge. I agree that these concerns remained as relevant sentencing principlesregardless of the fact that any punitive element may have been expunged.[25] In these circumstances and particularly given the strides that Mr Colvin hadmade already towards rehabilitation, at least in terms of becoming drug-free, thelogical sentencing choice was between intensive supervision or supervision, and overthe term to be imposed. In substance argument from both counsel proceeded on thatbasis.5 Section 9(2)(h) Sentencing Act 2000; R v Tamou [2008] NZCA 88; Parata v R [2017] NZCA 48.[26] The appellant submits that at most a sentence of six months' supervision, asopposed to 12 months' intensive supervision, was the least restrictive sentencingoutcome.[27] Supervision is governed by ss 45-54A of the Sentencing Act 2002 and intensivesupervision by ss 54B-54L. Section 10A of the Act, which sets out the hierarchy ofsentences, states that intensive supervision is a more restrictive sentence thansupervision. However, I do not consider intensive supervision is fairly described as apunitive sentence, as Mr Sutcliffe submits. It is more appropriately classified as arehabilitative sentence. Offenders who are sentenced to intensive supervision arelikely to have more complex rehabilitative needs and require more substantialassistance with their rehabilitative needs than supervision.[28] In Soloman v R the Court of Appeal identified the differences between the twosentences as essentially three-fold:6The first is duration. Supervision can be for a period of up to one year whileintensive supervision can be for any period up to two years.7 Secondly, aprogramme imposed as a special condition under supervision cannot beresidential in nature.8 There is no such limitation for intensive supervision.Thirdly, only intensive supervision can have as a special condition arequirement for compliance with judicial monitoring.9[29] I note in addition that a sentence of intensive supervision requires morefrequent reporting,10 and as Mr Sutcliffe emphasised a greater penalty applies tobreach.11[30] Section 54C of the Sentencing Act 2002 provides when a sentence of intensivesupervision can be imposed:6 Soloman v R [2012] NZCA 300, at [14].7 Sentencing Act 2002, s 45(2).8 See s 50.9 Section 54I.10 Section 54F(1)(b), a standard condition of intensive supervision is that an offender must report toa probation officer once a week for the first three months of the sentence then at least once a monthfor the remainder of the sentence. Compared to s 49(1)(b) where there are no requirements forhow frequently an offender sentenced to supervision must report to a probation officer.11 Compare s 70 to s 70A, an offender who breaches intensive supervision is liable to six months'imprisonment as compared to three months' imprisonment for breach of supervision.54C Guidance on use of sentence of intensive supervisionA court may impose a sentence of intensive supervision only if it is satisfiedthat—(a) a sentence of intensive supervision would reduce the likelihood offurther offending by the offender through the rehabilitation and reintegrationof the offender; and(b) the nature of the offender's rehabilitative or other needs requires theimposition of conditions—(i) for a period longer than 12 months; or(ii) that are not available through the sentence of supervision.[31] Section 46 of the Sentencing Act 2002 provides when a sentence of supervisioncan be imposed:46 Guidance on use of sentence of supervisionA 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.[32] The Judge must be taken to have identified that a period of 12 months'rehabilitation was required, as opposed to some lesser period, in order to protect thepublic and to rehabilitate the appellant effectively. I agree with that in circumstanceswhere, although Mr Colvin has participated extensively in drug and alcoholprogrammes, he has had no treatment of which I am aware to address family violenceor parenting issues. Although Mr Sutcliffe says the HAIP course runs for only sixmonths that does not mean it necessarily fits into a six month period of supervision orthat some further follow-up course may not be required. As the Judge said, this wasserious offending.[33] However, while I agree with the Judge's conclusion that there needed to be acommunity based sentence imposed and that it should require monitoring andtreatment for 12 months, s 54C of the Act stands in the way of that sentence beingintensive supervision. The Judge has not considered conditions were required forlonger than 12 months (s 54C(b)(i)), nor has he imposed conditions not availablethrough the sentence of supervision (s 54C(b)(ii)). At least in terms of the specialconditions imposed by the Judge, these can be and as I understand it are, regularlyimposed on a sentence of supervision.[34] The Judge therefore did not have jurisdiction to impose a sentence of intensivesupervision.12 In those circumstances the sentence is in error and a sentence of12 months' supervision should be substituted.[35] The offending here was grievous but I commend Mr Colvin for the extensivework he has already done and hope that he might rehabilitate sufficiently that he canresume contact of some sort, at least with his natural daughter.Conclusion[36] The appeal is allowed. The sentence of 12 months' intensive supervision isquashed and replaced with a sentence of 12 months' supervision on the sameconditions imposed by the Judge.Hinton J12 The same conclusion was reached for similar reasons in Soloman v R, above n 6 and Mahu v R[2015] NZHC 3155.