KEIL v POLICE [2020] NZHC 682

KEIL v POLICE [2020] NZHC 682 [2 April 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-006[2020] NZHC 682BETWEEN PAUL PHILLIP KEILAppellantAND NEW ZEALAND POLICERespondentHearing: 2 April 2020 (via telephone)Counsel: L P F Lafferty for appellantL M Marshall for respondentJudgment: 2 April 2020RESERVED JUDGMENT OF DOBSON J[1] The appellant (Mr Keil) was sentenced in the Napier District Court on17 December 2019 on convictions for possession of methamphetamine for supply andcommon assault.1 District Court Judge Rea imposed a sentence of 23 months'imprisonment on the methamphetamine conviction and a three month concurrentsentence on the assault conviction.[2] Mr Keil has appealed the sentences on the basis that the District Court Judgeerred by failing to consider the least restrictive outcome appropriate in thecircumstances under s 8(g) of the Sentencing Act 2002, because there was noconsideration of the alternative sentence of home detention.1 Police v Keil [2019] NZDC 25610 at [7].Circumstances of the offending[3] On 6 August 2019, after an altercation at another address with his ex-partner(the victim), Mr Keil drove to 3 Maxwell Place, Napier. Shortly after he arrived, thevictim followed Mr Keil to 2 Maxwell Place in her vehicle, where both partiescontinued to argue. The victim then drove her vehicle at Mr Keil. Mr Keil picked upa large rock that was nearby and threw it at the vehicle's windscreen, causing thewindscreen to shatter. Mr Keil then dragged the victim out of her car and punched herto the side of the head, causing her to fall to the ground. Mr Keil continued to abusethe victim and argue with her. The Police arrived a short time later and subsequentlyarrested Mr Keil. In the course of his arrest, Mr Keil was searched. A black pouchcontaining 18.5 grams of methamphetamine was located in the pocket of his shorts. Aset of electronic scales and $362 in cash were also located.The sentencing analysis[4] The District Court Judge treated Mr Keil as a street level methamphetaminedealer, and assessed him as a lesser offender within this category. He set the startingpoint for the methamphetamine conviction at two and a half years' imprisonment.2 Anuplift of three months was imposed for the assault, leading to a total starting point oftwo years and nine months' imprisonment.3[5] The Judge then considered several mitigating factors. A helpful cultural reportobtained pursuant to s 27 of the Sentencing Act, as well as evidence that Mr Keil hadstruggled with a methamphetamine addiction for a significant period of time,warranted a discount of 15 per cent.4 A further discount of 20 per cent was given forrelatively early guilty pleas, leading to an end sentence of 23 months' imprisonmentfor the methamphetamine conviction, and three months' concurrent imprisonment forthe assault charge.5 The Judge also imposed special release conditions to run for sixmonths after the expiry date of the sentence. These were:22 Police v Keil, above n 1, at [5],3 At [5].4 At [6].5 At [7].• completion of a psychological assessment with a departmentalpsychologist;• an alcohol and drug assessment;• any treatment/counselling recommended following either assessment; and• no consumption of illegal drugs or alcohol.The ground of appeal[6] None of this reasoning in the sentencing analysis was challenged on appeal.The sole ground advanced was that, given the end sentence of a short term ofimprisonment, the Judge was obliged to consider whether a less restrictive form ofsentence could be imposed. The Judge's sentencing notes made no reference to thatconsideration. The ground is advanced notwithstanding that counsel for Mr Keil didnot raise the prospect of home detention in making submissions on sentencing. In oralsubmissions, Mr Lafferty acknowledged that this omission was his error, which hesuggested should not be visited upon Mr Keil.[7] In addition, home detention was not recommended in the pre-sentence report.The appendix assessing the prospects confirmed the existence of a technically suitableaddress, but raised concerns. The report advised that Police and Oranga Tamariki hadnot had sufficient time to respond.[8] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Theappeal must only be allowed if the Court is satisfied that, for any reason, there was anerror in the sentence imposed and a different sentence should have been imposed.6The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.76 Tutakangahau v R [2014] NZCA 279.7 Ripia v R [2011] NZCA 101 at [15].A short term of imprisonment or home detention?[9] There is no presumption for or against the commutation of a short-termsentence of imprisonment to home detention.8 What is called for is the exercise of asentencing discretion in a way that gives effect to the purposes and principles underss 7 and 8 of the Sentencing Act.9 This approach was affirmed in Palmer v R, wherethe Court of Appeal also held that, in marginal or borderline cases, the margin ofappreciation extended to judges is usually significant.10[10] The approach to appeals against a sentence of imprisonment where homedetention is available has also been outlined in Manikpersadh v R:11[11] This Court identified the appropriate approach in James v R in thisway:[17] We record that an appeal against a refusal to grant homedetention does not provide an opportunity to revisit orreview the merits. The question is whether [the Judge]erred in exercising his sentencing discretion: that is, didhe apply an incorrect principle, give insufficient orexcessive weight to a particular factor, or was he plainlywrong? Ms Guy Kidd for the Crown properly acceptsthat home detention can satisfy the objectives ofdeterrence and denunciation, but to a degree. We aresatisfied, in accordance with earlier authority in thisCourt, that the decision about whether home detentionwill meet those objectives in a particular case is a strictlyevaluative exercise. It is a matter of judgment for thesentencing Judge to determine whether home detentionis an adequate response to the seriousness of theoffending.[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing, as in other sentencingappeals to this Court, on the identification of error, if any, in the court below".[11] In Fairbrother v R, the Court of Appeal outlined specific guidelines governingthe discretion of a sentencing judge when considering between a sentence ofimprisonment and home detention:128 R v Vhavha [2009] NZCA 588 at [29].9 At [29].10 Palmer v R [2016] NZCA 541 at [19].11 Manikpersadh v R [2011] NZCA 452 at [11]–[12].12 Fairbrother v R [2013] NZCA 340 at [29]–[30].Sentences of imprisonment have been quashed and home detention substitutedfor two errors of law. One is where the sentencing judge has assumed that theoffence category lies beyond a sentence of home detention. The other is wherethe purpose of deterrence has been given complete priority without regard toany of the countervailing purposes of sentence.That does not mean that a short-term period of imprisonment must always becommuted to a sentence of home detention. That equally would be an errorof law. What it does mean is that the judge must make a considered andprincipled choice between the two forms of sentence, recognising that bothserve the principles of denunciation and deterrence, and identifying which ofthem better qualifies as the least restrictive sentence to impose taking intoaccount all the purposes of sentencing.Analysis[12] The Judge had substantial information about Mr Keil on which to assess hislikely compliance with a sentence of home detention and his rehabilitative needs. ThePAC report stated that Mr Keil had been addicted to methamphetamine for 15 years.The report noted the significant history of past convictions, including 16 for violence.The report writer assessed Mr Keil as being at high risk of re-offending and having apropensity for violence. Given the nature of the present offending, the lack of remorseand an increase in risk of offending due to a significant methamphetamine addiction,the recommendation was for a sentence of imprisonment with release conditions.[13] The Judge also had the s 27 cultural report, which detailed a tragically difficultupbringing in an "extremely intensive gang environment". Mr Keil has been a victimof domestic and sexual abuse as a child and teenager, contributing to drug addictionfrom an early age. There is also a prospect that he suffered a traumatic head injury inhis youth.[14] Mr Keil has 10 convictions for non-compliance with community-basedsentences, a total of 92 previous convictions and has been the subject of 10 familyviolence reports. He has received 38 terms of imprisonment. Whilst helpful inenabling a much better understanding of the context in which Mr Keil's substantialoffending has occurred, the cultural report could not be determinative in the decisionrequired as to whether a short sentence of imprisonment ought to have been commutedto one of home detention.[15] Mr Lafferty advised that a former employer of Mr Keil as a plasterer isprepared to have him back, so there is the prospect of regular employment.[16] I infer that the materials available to the Judge would also have included threeDepartment of Corrections reports on the suitability of addresses and of Mr Keil forelectronically monitored (EM) bail completed in September and October 2019. Theconsistent theme of those reports was concern at Mr Keil's unsuitability to be placedon EM bail, given his propensity for violence and gang associations in the area of thebail addresses that had been proposed.[17] A street level dealer in possession of 18.5 grams of methamphetamine, andwith a substantial history of offending, would generally be vulnerable to a sentence ofimprisonment, given the presumption in s 6(4) of the Misuse of Drugs Act 1975, andapplying the sentencing considerations specified in Zhang v R.13 The level of violencewas also of concern, notwithstanding suggestions that Mr Keil's former partner wishedto recant on the complaint. Accordingly, although discounts enabled the length of thesentence to come below two years, it was sentencing for a type of offending wherepositive reasons in relation to the offender and his rehabilitation would most likely berequired before it was appropriate to commute the sentence to one of home detention.[18] Here, there were no such compelling personal circumstances weighing infavour of home detention. The existence of a possible address and work are notsufficient. Weighed against it were numerous relevant considerations that suggesthome detention would be inappropriate. Submissions for the respondent opposing theappeal included the following list of factors which operated against home detention:a. The recommendation of imprisonment in the pre-sentence report;b. The offending occurred whilst subject to a sentence which was in turnimposed for breaching a community based sentence;c. An application for EM bail pending trial was declined, the reportwriter noting that his gang affiliation and history of violent offendingrender him unsuitable, particularly given the risk of potential violencetowards staff involved in the management of EM bail;d. An application for compassionate bail was declined;13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.e. The defendant is a self-professed drug addict who is not eligible fordepartmental rehabilitative programmes within the community due tohis risk levels;f. Issues identified in the cultural report indicate that, whilst thedefendant is not without all hope, his current situation favoursincarceration;g. The defendant has previously been sentenced to multiple terms ofimprisonment and home detention, none of which have failed to deterhim from further offending;h. The defendant's compliance with a sentence of home detention in2016 can best be described as modest;i. The defendant's respect for authority is poor, as evidenced by10 convictions for non-compliance with community based sentences;j. The family harm reports involving the defendant and the complainantsuggest somewhat of an obsession with her, such that there must bereal concerns for her safety, should he receive a non-custodialsentence; andk. He has 92 previous convictions, including assaulting a probationofficer with intent to injure and assaulting a police officer.[19] I invited Mr Lafferty to respond on each of these considerations during oralsubmissions, and he did make points challenging the relevance or accuracy of some,and limiting the weight that should be given to others.14 In the end, however, it is arelatively compelling list.[20] With respect to the sentencing Judge and to defence counsel, it is quiteunsurprising that defence counsel did not raise the prospect of home detention atsentencing, and that the Judge overlooked an explicit acknowledgement of what isclearly implicit in his reasoning, namely that this was not a case in which homedetention was a viable alternative.[21] Even without affording the Judge a degree of latitude in the exercise of thediscretion, which I am bound to do, I would inevitably have come to the conclusionthat this is not a case in which to commute the prison sentence into one of homedetention.14 Mr Lafferty cited the terms of the judgment of District Court Judge Mackintosh on Mr Keil'sapplication for EM bail, which noted that Mr Keil's compliance with a recent sentence ofsupervision had been good and that he had served a term of home detention in 2015 where nobreaches were recorded: Police v Keil [2019] NZDC 19640.[22] Accordingly, the appeal is dismissed.Dobson JSolicitors:Leo Lafferty, Napier for appellantCrown Solicitor, Napier for respondent