WOODS v NEW ZEALAND POLICE [2019] NZHC 335

WOODS v NEW ZEALAND POLICE [2019] NZHC 335 [4 March 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000128[2019] NZHC 335BETWEEN QUENTIN DYLAN WOODSAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2019Appearances: N R Wham for AppellantK A Courteney for RespondentJudgment: 4 March 2019JUDGMENT OF GENDALL JIntroduction[1] The appellant, Quentin Woods, pleaded guilty to two groups of charges. Thefirst related to offending on 9 July 2018 consisting of threatening to kill, SummaryOffences assault, behaving threateningly, and two charges of common assault. Thesecond related to events that occurred on 23 September 2018 and involved charges ofthreatening to kill, breaching release conditions and two charges of common assault.Mr Woods was sentenced by Judge Saunders on 28 November 2018 to a term of 12months' imprisonment. Release conditions were imposed for a period to run of 12months. He appeals that sentence on the basis that first, it was manifestly excessiveand secondly, the Court did not have jurisdiction to impose the release conditions itdid.[2] It should be noted that the Department of Corrections has receivedcorrespondence from the appellant indicating the appellant would now like to bereferred to as "Amy Woods", and for the pronouns "she" and "her" to be used. Forconsistency with the decision appealed against, however, the reports and thesubmissions filed, this judgment will use "he", "him" and "his". No disrespect isintended by this.Facts[3] At the time of the incident on 9 July 2018, the appellant was at his homeaddress in Templeton, where he was subject to GPS monitoring and 24/7 supervision.The three victims in this set of offending were all Christchurch residential caresupervisors.[4] At about 2.45 pm the appellant used a razor blade to cut his right arm. He then,while standing approximately three metres away from Matthew Smith, a residentialcare supervisor, held the razor blade in the direction of Mr Smith's face and said: "CanI cut your face?" The appellant then wrapped his arm around Mr Smith's neck andsqueezed tightly for approximately two seconds. The duress alarm was activated andthis, it seems, caused the appellant to let go of the victim's neck.[5] At about 7.00 pm that day, the appellant was transported to ChristchurchHospital due to the cuts to his arm. At the hospital he stated to Leonard Welsh that hewas going to kill him. When the appellant and Mr Welsh went outside for a cigarette,the appellant turned suddenly towards the victim and shoulder barged him twice,causing Mr Walsh to lose his balance and stumble off the footpath. The appellantpicked up a road cone and lifted it above his head. Gary Lee-Taylor who was presentthen grabbed the road cone off the appellant. The appellant wrapped his arm aroundMr Lee-Taylor's neck in an attempt to place him in a headlock. Mr Lee-Taylor brokefree and the appellant had to be restrained on the ground with the assistance of hospitalsecurity until the police arrived.[6] In relation to the incident on 23 September 2018, the appellant was at that timesubject to electronic monitoring at a specified address. At around 8.15 pm, TimothyMakaafi and Jamie Hack, both residential support workers, discovered the appellantwas not at the required address. They both contacted him explaining he needed toreturn, and went to the address to wait for him. When the appellant returned heverbally abused Mr Makaafi and Mr Hack, and said to Mr Hack repeatedly: "I'mgoing to kill you".[7] The appellant then punched Mr Hack in the left side of his face near his earand attempted to head-butt him in the face but missed. Mr Hack struck the appellantand moved away from him to call police. Mr Makaafi intervened and attempted tocalm the appellant down. The appellant struck him with a closed fist twice to the sideof the face. Mr Makaafi was attempting to restrain the appellant when he was head-butted in the forehead. Both men then managed to restrain the appellant until policearrived.District Court decision[8] In relation to the first set of offending, Judge Saunders in the District Courttook the two common assaults and the threatening to kill as the lead charges. HisHonour imposed terms of six months' imprisonment for each of those charges. Hefurther sentenced the appellant to three months' imprisonment for the SummaryOffences assault and two months for behaving threateningly. All those sentences wereimposed concurrently, resulting in six months' imprisonment for the offending on9 July 2018.[9] The Judge considered that the second set of offending on 23 September 2018should be signalled by a separate sentence, cumulative on the first. His Honourimposed six months' imprisonment for the common assault on Mr Hack and the threatto kill, and a concurrent four months for the assault on Mr Makaafi and the breach ofrelease conditions.[10] This resulted in an overall sentence of 12 months' imprisonment. JudgeSaunders further sentenced the appellant to 12 months of release conditions, beingthose recommended in the pre-sentence report.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can be properly be justified by accepted sentencing principles".2 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.3SubmissionsAppellant's submissions[12] Ms Wham, counsel for the appellant, contends that the overall sentence of12 months' imprisonment was a manifestly excessive sentence. She submits that theJudge did not give the appellant any credit for his early guilty pleas, the informationin the pre-sentence report, totality, and most significantly the report obtained unders 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. This reportsets out background information about the appellant's history and identifies him ashaving significant mental health problems, as well as having experienced childhoodtrauma. Ms Wham contends that the Judge accepted the information in the s 38 reportbut simply "took the opportunity to tell Mr Woods variations on the theme that heshould just exercise better self-control".[13] Ms Wham further submits that the Judge imposed unlawful release conditions.This is firstly due to the requirement for the appellant to abide by the conditions of aprogramme between 8.00 am and 8.00 pm every day. Ms Wham contends that thisprogramme is specific to the appellant and requires him to have person to personmonitoring for those 12 hours, which she argues is "intensive monitoring by stealth".Intensive monitoring may only be imposed when the court makes an extendedsupervision order, which was not the case here.41 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].4 Parole Act 2002, s 107IAC(1).[14] Ms Wham also takes issue with a release condition that she submits is aresidential restrictions condition (which I assume is essentially for the period 8 p.m.to 8 a.m. daily monitored by GPS), which she says is prohibited under s 93(2B) of theSentencing Act 2002. She does not exactly specify, however, which of the eightconditions imposed on the appellant she is referring to.Respondent's submissions[15] Ms Courteney, for the respondent, argues that the sentence here is notmanifestly excessive. She does acknowledge that it is unclear from the Judge'ssentencing notes whether the matters the appellant raises were taken into account ornot, but Ms Courteney records that the focus on this appeal, like any other, must be"on the sentence imposed rather than the process by which the sentence is reached".5It is therefore only relevant whether the end sentence was manifestly excessive. Giventhe number of charges on which the Judge was sentencing the appellant, Ms Courteneymaintains an end sentence of 12 months' imprisonment cannot be described asmanifestly excessive. Each incident involved the appellant assaulting and threateningmultiple victims, all of whom were trying to care for him. The appellant targeted thevictims' heads in several of the assaults. Ms Courteney notes the victim impactstatements that were filed and suggests these may also properly have had some effecton the end sentence.[16] On this aspect, Ms Courteney cites the case of McCormack v Police, whereMiller J considered an appeal against the sentence imposed for an arson charge and anassault charge.6 There, His Honour commented: "It is important that deterrentsentences be imposed for behaviour of this kind towards social workers, who performa difficult and essential task."7 Ms Courteney submits that in the present case,similarly a deterrent sentence was called for.[17] With regard to the release conditions appeal, Ms Courteney submits that theywere lawful and appropriate. She notes that the appellant had previously raised thesame arguments in relation to similar release conditions on other offending of which5 Tutakangahau v R, above n 2, at [36].6 McCormack v Police [2012] NZHC 2970.7 At [14].he was convicted and at that time those conditions were upheld.8 The appellant hassought leave to bring a second appeal to the Court of Appeal in relation to thatparticular decision of this Court9 and the Court of Appeal shortly is to hear this matteron 4 April 2019.[18] The first condition opposed by the appellant, regarding attendance at aprogramme between 8.00 am and 8.00 pm each day of the week, was previously, innot dissimilar circumstances in the first High Court decision, found to be lawful. ThisCourt considered in that decision there was a clear rational nexus between thecondition and the purposes of imposing conditions under s 93(3) of the SentencingAct, and that the condition was necessary and proportional.10 Ms Courteney contendsthat such a condition is also necessary for the appellant in the present case, due to hisrisk of further offending and his needs as assessed by the s 38 report.[19] The second opposed release condition is referred to by the appellant as"residential restrictions". Ms Courteney assumes the appellant is referring to thefollowing release conditions which were imposed by Judge Saunders:4. To comply with the requirements of electronic monitoring, andprovide access to the approved residence to the Probation Officer andrepresentatives of the monitoring company, for the purpose ofmaintaining the electronic monitoring equipment as directed by theProbation Officer.5. To be at that address between the hours of 8.00 pm and 8.00 am unlessthere is the prior written approval of a Probation Officer.[20] In the first High Court decision where Mr Woods as appellant opposed asimilarly worded set of conditions, this Court referred to the statement of Woolford Jin Whichman v Department of Corrections:11In order for the conditions imposed upon the appellant to be "residentialrestrictions" all five of the conditions listed under s 33(2) of the Act needed tobe imposed upon him.8 Woods v Police [2018] NZHC 2189.9 [2018] NZHC 2189 (the first High Court decision).10 At [31].11 Whichman v Department of Corrections [2013] NZHC 3075 at [33].[21] As was the case in the first High Court decision, Ms Courteney submits theappellant is only subject to three of the restrictions noted in s 33(2) of the Parole Act2002. Accordingly, the respondent takes the position the appellant is not subject toresidential restrictions. She says this reflects the finding reached by this Court in thefirst High Court decision.12Law[22] The respondent's submissions before me quite properly went on to draw theCourt's attention to s 94(3) of the Sentencing Act 2002 which enables the Court, if itsees fit, to:(a) suspend any condition or vary the duration of any condition, orimpose additional conditions; or(b) discharge a condition and substitute any other condition described insection 93 that could have been imposed on the offender at the timewhen the offender was convicted of the offence for which the sentencewas imposed.[23] Section 93 also allows the Court where, as here, it sentences an offender toimprisonment for 12 months or less, to impose any special conditions including,"without limitation, conditions of a kind described in section 15(3) of the Parole Act2002, other than a residential restriction condition referred to in section 15(3)(ab) ofthat Act". Subsection (3) requires that a special condition must not be imposed unlessit is designed to:(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender.[24] The Court of Appeal stated in Patterson v R that: "any given condition mustexhibit a rational nexus to the s 93(3) purposes, and that when considered with otherconditions to be imposed it must be reasonably necessary and proportional".1312 At [24]-[25].13 Patterson v R [2017] NZCA 66 at [11].[25] Section 33 of the Parole Act discusses residential restrictions. Subsection (2)sets out the requirements of an offender under such a restriction as follows:(a) to stay at a specified residence:(b) to be under the supervision of a probation officer and to co-operatewith, and comply with any lawful direction given by, that probationofficer:(c) to be at the residence—(i) at times specified by the Board; or(ii) at all times:(d) to submit, in accordance with the directions of a probation officer, tothe electronic monitoring of compliance with his or her residentialrestrictions:(e) to keep in his or her possession the licence issued under section 53(3)and, if requested to do so by a constable or a probation officer, mustproduce the licence for inspection.Analysis[26] Regrettably here, Judge Saunders in his decision did not set out his sentencingmethodology. To his credit, however, the Judge spent some time in his decisionreferring to the detailed and helpful s 38 report he had before him, noting theappellant's hard life and upbringing and encouraging and commenting on theappellant's real need to learn how to control his anger. As to this last aspect,Judge Saunders went to some lengths to talk to the appellant directly, to encouragehim to seek appropriate help and to work on turning around his life now. That is to beapplauded.[27] With all the material which was before him, Judge Saunders approachedsentencing by imposing two cumulative six months' imprisonment sentences for eachgroup of offending, with the sentences within each group being imposed concurrently.This resulted in the overall sentence of 12 months' imprisonment.[28] On all of this, Mr Woods had pleaded guilty to nine charges, some of whichcarry substantial maximum penalties, for example seven years' imprisonment forthreatening to kill and 12 months' imprisonment for common assault. As I have noted,the Judge chose to impose cumulative sentences for each group of offending, with thesentences within each group being imposed concurrently which, in my view, clearlyshows that he had regard to totality. There were several aggravating features present,and it is clear from the Judge's sentencing notes that he was fully cognisant of theappellant's mitigating circumstances.[29] As I have noted, the appellant suggests Judge Saunders did not give any creditfor his early guilty pleas, nor for the appellant's personal circumstances and history asset out in the reports. Further, the appellant submits no adjustment for totality wasmade.[30] Unfortunately, it is not clear from the Judge's sentencing notes whether thematters the appellant has raised were or were not taken into account. I repeat the Judgedid not set out his sentencing methodology. But, as the Court of Appeal notes inTutakangahau v R, the focus on an appeal must be "on the sentence imposed ratherthan the process by which the sentence is reached".14 In this case, the focus must bewhether the sentence imposed by Judge Saunders is manifestly excessive and thereforea different sentence should be imposed.[31] Clearly, a significant discount should have been allowed here for theappellant's guilty pleas. It is a pity the Judge did not specifically refer to this, andspecify that he had weaved appropriate discounts into his sentencing calculation.Although that did not occur here, I am satisfied that he did take into account totalityand the appellant's personal circumstances and history and that overall the finalsentence of 12 months' imprisonment imposed for the raft of offending here was notmanifestly excessive in the sense referred to by the Court of Appeal inTutakangahau.15[32] I am satisfied too that, given the number of charges the appellant was to besentenced on which had significance here, an end sentence of 12 months'imprisonment cannot be described as manifestly excessive. Each incident involvedthe appellant assaulting and threatening multiple victims – all of whom were trying to14 Tutakangahau v R, above n 2 at [36].15 Above n 2.look after the appellant. The appellant also targeted the victims' heads in several ofthe assaults. Also, the Judge had the victim impact statements before him whichtellingly included comments from these residential care specialists, such as:(a) "I do not feel safe to care for [the appellant]." (Jamie Hack)(b) "As a result of the incident which occurred on the 9th of July 2018 I amfearful to be around [the appellant] againI was fearful for my safetyas I thought he was going to strike me in the face with the bladeI wasscared that [the appellant] was going to choke me out and at this pointI was fearful for my life." (Matthew Smith)(c) "I am left feeling a bit hesitant about being around [the appellant]again. During the incident I was very fearful for my safety as I believedthe threats were directly aimed at me." (Leonard Walsh).[33] With regard to the legality of the release conditions, as I have noted, this Courtrecently ruled on these same arguments from the same appellant.16 The Court foundthere, that the condition requiring attendance at a programme was not intensivemonitoring, but rather an allowable programme as defined in s 16 of the Parole Act.Such a programme continues to be necessary for the appellant given his mental health,and in order to assist his rehabilitation and reduce his risk of reoffending.[34] In that earlier decision, this Court also found that the appellant, on a similarlyworded set of conditions, was not subject to residential restrictions. The Court there,as I have noted, referred to the decision in Whichman, where the Judge also held: "Thefact that a curfew may be imposed in addition to electronic monitoring as a specialcondition does not necessarily bring an offender within the residential restrictionsregime".17 In Hohua v Police it was found that a curfew "may readily be consideredto be a special condition which could aid one or more of the objectives set out in s16 Woods v Police, above n 8.17 Whichman v Department of Corrections, above n 11, at [32].93(3)".18 I am satisfied here the appellant does not meet all five requirements forresidential restrictions under s 33 of the Parole Act. His release conditions ofelectronic monitoring and curfew are therefore not unlawful.Conclusion[35] For all the reasons outlined above, I conclude that in all the circumstanceshere, the sentence of 12 months' imprisonment imposed on the appellant was notmanifestly excessive. I find, too, that the release conditions imposed byJudge Saunders were lawful and necessary to meet the purpose of special conditionsunder s 93(3) of the Sentencing Act. Overall, I conclude that no appealable erroroccurred in Judge Saunders' decision.[36] This appeal is dismissed....................................................Gendall JSolicitors:Michael Starling, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch18 Hohua v Police HC Rotorua CRI-2013-463-21, 20 March 2013 at [10].