BOX v POLICE [2018] NZHC 286

BOX v POLICE [2018] NZHC 286 [1 March 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2017-070-34[2018] NZHC 286BETWEEN REBECCA NICOLE BOXAppellantAND NEW ZEALAND POLICERespondentHearing: 22 February 2018Appearances: B J Hesketh for AppellantO M Salt for RespondentJudgment: 1 March 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 29 February 2018 at 11ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, TaurangaIntroduction[1] Rebecca Box has been convicted of the following offences:(a) possession of a Class A drug, namely methamphetamine;1(b) failing to appear in court (x 2);2(c) driving while disqualified (x 2);3(d) possession of a Class C drug, namely cannabis;4 and(e) giving false details as to her own identity.5[2] She was sentenced to a total period of four months' imprisonment with sixmonths of standard and special release conditions.6 Ms Box now appeals against thatsentence on the grounds that home detention should have been imposed and the specialrelease conditions relating to alcohol were inappropriate.[3] Since being sentenced on 6 October 2017, Ms Box has completed serving hersentence of imprisonment and has been released. As a consequence, the issues raisedby this appeal are effectively moot, although Mr Hesketh for Ms Box submits that adecision by this Court would nevertheless provide valuable guidance to the DistrictCourt in relation to future cases where the same or similar issues arise.The offending[4] The offending arose out of several discrete incidents.1 Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty six months' imprisonment or a fine notexceeding $1,000.2 Bail Act 2000, s 38(a); maximum penalty one year of imprisonment or a fine not exceeding $2,000.3 Land Transport Act 1998, s 32(1)(a); maximum penalty three months' imprisonment or a fine notexceeding $4,500, and mandatory disqualification from driving for six months or more.4 Misuse of Drugs Act, s 7(1)(a); maximum penalty three months' imprisonment or a fine notexceeding $500.5 Land Transport Act, s 44; maximum penalty a fine not exceeding $10,000.6 Police v Box [2017] NZDC 22914.[5] On 19 May 2016, police executed a search warrant at an address that Ms Boxwas visiting in Mount Maunganui. Police located half a gram of methamphetamine inMs Box's handbag.[6] Ms Box was disqualified from driving for a period of nine months commencingon 9 February 2016. On 15 August 2016, she was stopped while driving by police aspart of a routine traffic stop. It was then discovered that she was disqualified fromdriving.[7] On 10 October 2016, at about 2.00am, Ms Box was stopped by police whiledriving because one of her headlights was not working. When asked to provide detailsof her identity, she gave a false name and birthdate. At the time she was found to havein her possession five grams of cannabis packaged into six foils in a glass jar. She wasstill disqualified from driving at this time.[8] Ms Box was released on bail, but failed to appear in the District Court whenrequired to do so on two occasions in October 2016 and March 2017.Ms Box's personal circumstances[9] Ms Box is 24 years old and she has seven convictions dating back to 2012.These are all for relatively minor offences, and she has not previously been sentencedto imprisonment.[10] The pre-sentence report states that Ms Box sought to explain and justify heroffending. She explains that on one occasion she drove while disqualified because shewas at a party and believed she was going to be attacked and raped. On the secondoccasion she drove while disqualified because she felt uncomfortable where she wasand wanted to drive to a friend's place to stay the night. In relation to her failure toattend court on two occasions, she explained to the author of the report that she suffersfrom severe anxiety which impeded her ability to attend court. She admits topossessing methamphetamine for her own personal use, but says the cannabisbelonged to her friend whose car she was driving at the time she was stopped by police.[11] Ms Box lived a transient lifestyle over the period of the offending. Whenasked, Ms Box said she had been using methamphetamine for at least three years. Sheis willing to address her drug use.[12] The report states that Ms Box's drug use, criminal associates, unbalancedlifestyle and lack of consequential thinking all contributed to her offending. She isassessed as presenting a low to medium risk of reoffending (in part due to the extendedperiods between her convictions), and a low risk of harm to others. The reportrecommends a sentence of imprisonment for Ms Box, although an electronicallymonitored sentence was discussed with her and she agreed to comply with the relevantconditions.[13] Ms Box occupies a cabin on her parents' property at Papamoa, and it is thisaddress that was proposed for a sentence of home detention. The property is ownedand occupied by Ms Box's mother, her mother's partner, and their three teenagechildren (who are all over the age of 16). They consented to Ms Box carrying out anelectronically monitored (EM) sentence at the address, although the author of thereport stated that her mother acknowledged her daughter's untreated behaviouralissues and commented that she was unsure about her daughter's ability to contend withthe constraints of an EM sentence.[14] The report noted that the police strongly objected to Ms Box serving a sentenceof home detention at her mother's property, as Ms Box had told them of issues she hadhad with her step-father and one of her brothers in the past. The police view was thatshould Ms Box be confined to the property by a sentence of home detention there waspotential for domestic violence. Ms Box reports having anger issues towards hermother and it is said she has in the past destroyed property when she does not get herway. The police also told the author of the report that Ms Box has an association withsome members of the Filthy Few gang.[15] Although the property is assessed as technically suitable for electronicmonitoring, the report concluded the address unsuitable for an EM sentence by reasonof the matters summarised above.Mother's letter to the Judge[16] As well as and in contrast to the information in the pre-sentence reportregarding Ms Box's mother being uncertain about whether her daughter would be ableto contend with the constraints of an EM sentence, Ms Box's mother herself wrote aletter to the sentencing Judge, dated 1 October 2017. She wrote:This letter is to let you know that we love Rebecca soooooo (sic) much. I amunbelievably happy she has been bailed and is now home with us where shebelongs. I missed her terribly when she was detained.She has made some poor choices in the past but has really grown up andmatured a lot since her last offence. Her behavior [sic], attitude and being ableto cope with things has dramatically improved, and a huge turnaround fromwhere she was a year or two ago.Rebecca has our full unconditional support to be on a bracelet at her familyhome with us. We really want her to be able to come home again today, to stay,after this sentencing.District Court decision[17] After summarising the facts, Judge Harding noted that a psychiatric reportprovided to the Court in part explained Ms Box's offending. The report listed severalconcerns about Ms Box's behaviour and suggested that she suffered from borderlinepersonality disorder. Judge Harding then reviewed the contents of the pre-sentencereport, noting the concerns about an EM sentence at the proposed address.[18] Judge Harding also recorded that Ms Box was sentenced to 260 hours ofcommunity work in late 2015, but that she had only completed one hour in the twoyears since this sentence began.[19] The Judge noted that Ms Box's counsel sought a sentence of home detentionas a rehabilitative sentence, but declined to impose it saying:7Home detention as a sentence is a sentence which is designed at least in partto be rehabilitative and there is no doubt at all that you need a period ofrehabilitation but it is going to require a length which means that homedetention would be entirely unsuitable because the total sentence ofimprisonment to be imposed is of such a length that converting that to home7 At [8].detention on the usual basis would result in a sentence which was too short tobe helpful.[20] With regard to the pre-sentence report and the psychiatric report, the Judgeconcluded that "regrettably nothing short of a sentence of imprisonment can beimposed but it can be short".8[21] The Judge sentenced Ms Box to:(a) three months' imprisonment on the charge of possession ofmethamphetamine, with standard and special release conditions for sixmonths after the sentence expiry date (those conditions includedattending an alcohol and drug assessment, abstaining from alcohol anddrugs, and completing any treatment or counselling recommended by aprobation officer);(b) one month's imprisonment on the first charge of driving whiledisqualified (to be served cumulatively);(c) nine months' disqualification from driving from the date of sentence;(d) one month's imprisonment on the second charge of driving whiledisqualified;9 and(e) one month's imprisonment on the two breaches of bail.10[22] On the charges of possession of cannabis and providing false information, MsBox was convicted and discharged. The Judge ordered the confiscation of the car MsBox was driving when she was first caught driving while disqualified.8 At [9].9 As the Judge described this as the appellant being "similarly sentenced" to the first driving whiledisqualified charge, although not expressly stated, having regard to the "effective sentence" offour months' imprisonment, it is clear that this one month term of imprisonment was also intendedto be served concurrently.10 The Judge said that this sentence again was cumulative on the sentence of three months'imprisonment, but if that is the case it is not clear how he reached a total period of four months'imprisonment.[23] Judge Harding clarified that this resulted in a total period of imprisonment offour months. He stated that in reaching these sentences, he had had regard to the"rather late pleas", but also the progress Ms Box had made and the need to deal withmatters on a totality basis.11 He cancelled the balance of Ms Box's community worksentence, stating that the prospect of her completing the work seemed "extremelythin".12Approach to appeal[24] Section 250(2) of the Criminal Procedure Act 2011 states that the Court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[25] In any other case, the Court must dismiss the appeal.13Submissions on appeal[26] Mr Hesketh for Ms Box submits that the Judge erred in refusing to impose asentence of home detention. He submits that the Judge was required to have regard tothe desirability of keeping an offender in the community, so far as consonant with thecommunity's safety. He says that the Judge was required to impose the least restrictiveoutcome in the circumstances according to the hierarchy of sentences in the Act.[27] Mr Hesketh submits that where a short term of imprisonment is considered theappropriate sentence, a judge must consider whether to commute that sentence to asentence of home detention.[28] At the hearing of the appeal, Mr Hesketh withdrew the ground of appealreferred to in his written submissions alleging that the Judge erred in imposing a11 At [11].12 At [17].13 Criminal Procedure Act 2011, s 250(3).release condition not to consume alcohol without there being any foundation. MrHesketh acknowledged that such a condition was proposed in the pre-sentence report,and that no submission had been made to the Judge suggesting that such a conditionwas inappropriate either as a post release condition or home detention sentencecondition.[29] Mr Hesketh submits that in making the decision between a sentence of homedetention and imprisonment, a judge must weigh the factors that really count, and mustnot only consider deterrence without also having regard to the other purposes ofsentencing.Respondent's submissions[30] Mr Salt for the respondent submits that the Judge adequately considered allrelevant factors, and that he was justified in declining home detention as it would notprovide for the level of rehabilitation needed by the appellant.[31] Mr Salt submits that the decision to decline home detention resulted in a shortprison sentence which was the least restrictive outcome when considering theappellant's need for rehabilitation. The respondent submits that the short term ofimprisonment was well justified by reason of: the appellant's drug use, criminalassociates, unbalanced lifestyle and offending supportive attitude; continuingoffending in a similar manner; low compliance with court imposed conditions andsentences; potential issues with members of the appellant's family living at theproposed home detention address and a related risk of domestic violence; and the needto denounce the appellant's conduct and deter her from further offending.[32] The respondent submits that the Judge did make a considered choice betweenthe two sentences. Mr Salt submits that while the Judge may not have addressed thedetail of his evaluation of the sentencing options in detail, the key issue on appeal iswhether the total sentence was in the available range, rather than the method by whichit was arrived at.Home detentionCase law[33] Home detention is available where the offender would otherwise be sentencedto a short-term period of imprisonment,14 i.e. a period of two years or less.15 It wastherefore prima facie available to the sentencing Judge in this case given that heultimately sentenced Ms Box to four months' imprisonment. This meant the Judgewas obliged to consider whether to commute the sentence of imprisonment to one ofhome detention.16[34] In the hierarchy of sentences from most to least restrictive, home detention isimmediately below imprisonment.17 It is recognised that home detention is a serioussentence that imposes major restrictions on liberty;18 it is not to be perceived as alenient option. The Court of Appeal has observed that a sentence of home detentionoffers social and individual benefits:19The sentence of home detention reflects a perception that society's interestsare better served in some cases by the imposition of restrictions on libertythrough home detention rather than through imprisonment. The explanatorynote [to the Criminal Justice Reform Bill] identifies the "acknowledgedadvantages" of home detention as including "low rates of re-conviction andre-imprisonment, high compliance rates, and positive support for offenders'reintegration and rehabilitation".[35] The decision to commute a sentence of imprisonment to one of home detentionis a discretion to be exercised in accordance with the purposes and principles ofsentencing in ss 7 and 8 of the Sentencing Act.20 There is no presumption for or againstsuch commutation, either generally or in respect of particular types of offence.21 TheJudge must:22 make a considered and principled choice between the two forms ofsentence, recognising that both serve the principles of denunciation and14 Sentencing Act, s 15A(1).15 Sentencing Act, s 4(1); Parole Act, s 4(1).16 Fomai v Police [2014] NZHC 377 at [18].17 Sentencing Act, s 10A.18 R v Bisschop [2008] NZCA 229 at [19].19 R v Hill [2008] 2 NZLR 381 (CA) at [33].20 R v Vhavha [2009] NZCA 588 at [34]–[36]; Manikpersadh v R [2011] NZCA 452 at [10].21 Manikpersadh v R [2011] NZCA 452 at [10].22 Fairbrother v R [2013] NZCA 340 at [30].deterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.[36] As for the term of a home detention sentence, the maximum period is 12months, and the minimum is 14 days.23 When determining the length of a sentence ofhome detention, the Court typically halves the sentence of imprisonment it wouldotherwise have imposed.24 This is because home detention is served in full, whereasthe release date of a short-term sentence of imprisonment is the date on which half thesentence has been served.25 However, the Court of Appeal has recognised that "it doesnot automatically follow that the appropriate term of home detention will be half theappropriate sentence of imprisonment in every case."26 The term of a home detentionsentence is to be fixed by reference to the purposes and principles of the SentencingAct and all the factors relevant to the offending and offender.27[37] This Court must not use an appeal against a refusal to grant home detention asan opportunity to revisit the merits of the case. The question is whether the Judgeerred in exercising the discretion, namely by applying an incorrect principle, givinginsufficient or excessive weight to a particular factor, or because the Judge was plainlywrong.28Did the Judge err in refusing to impose home detention in this case?[38] Judge Harding recorded Mr Hesketh's submission that home detention wasappropriate. He noted that home detention was a rehabilitative sentence and agreedthat Ms Box required a period of rehabilitation, but observed:29 it is going to require a length which means that home detention would beentirely unsuitable because the total sentence of imprisonment to be imposedis of such a length that converting that to home detention on the usual basiswould result in a sentence which was too short to be helpful.23 Sentencing Act, s 80A(3).24 Brittin v Police [2017] NZHC 2410 at [59]; R v Chevin [2017] NZHC 285 at [38].25 Parole Act, s 86(1).26 R v Bisschop [2008] NZCA 229 at [18].27 R v Bisschop [2008] NZCA 229 at [18]. See also Brittin v Police [2017] NZHC 2410 at [59].28 James v R [2010] NZCA 206 at [17].29 At [8].[39] I take that to mean that the Judge considered there to be little point insentencing Ms Box to home detention for rehabilitative purposes because she wasreceiving such a short sentence which, if commuted to a sentence of home detentionof half the prison term, would result in insufficient time for rehabilitation. However,it does not logically follow from that analysis that imprisonment is warranted, or is theleast restrictive outcome that is appropriate in the circumstances.30 On the contrary,the Court of Appeal has observed that the lower the appropriate prison sentence is, themore likely it is that home detention will be appropriate.31 In Manikpersadh v R, theCourt of Appeal explicitly noted that a four-month prison sentence (proposed in thatcase) favoured home detention.32[40] Further, the Judge's reasoning (and particularly the reference to "convertingthat to home detention on the usual basis") seems to overlook the fact that the Courtcan impose a term of home detention if it sees fit to meet the purposes and principlesof sentencing (for example, rehabilitation). If the Judge considered three or fourmonths' home detention was appropriate for rehabilitative purposes, he was notobliged to halve the notional period of imprisonment and impose two months' homedetention.[41] For these reasons I consider that the Judge erred in his reasoning in reachinghis conclusion that a sentence of imprisonment was required because converting thetotal sentence of imprisonment to home detention on the usual basis would produce asentence which was too short to be helpful in terms of the appellant's rehabilitation.It was open to the Judge to tailor a term of home detention to both hold Ms Boxaccountable for her offending and provide a realistic period for her rehabilitation,without being limited to the usual basis of converting a prison sentence to homedetention by halving it.[42] The Judge also noted that "regrettably nothing short of a sentence ofimprisonment can be imposed" with regard to the pre-sentence report and psychiatricreport. I do not consider that such a conclusion necessarily followed from those30 Sentencing Act, s 8(g).31 Manikpersadh v R [2011] NZCA 452 at [22].32 Manikpersadh v R [2011] NZCA 452 at [22].reports. The psychiatric report indicates that Ms Box has a number of personal issues,observing that she exhibits a pervasive maladaptive behavioural pattern suggestive ofborderline personality disorder.[43] While on one view, Ms Box's pattern of unstable relationships and recklessbehaviour arguably made her an unsuitable candidate for home detention, on anotherview this points to an increased need for rehabilitation and treatment which was bestachieved with a sentence of home detention rather than imprisonment. It isnevertheless clear that Ms Box has been struggling to achieve stability in her life, andshe needs to make changes in order to do so.[44] I also note that the pre-sentence report did not entirely point towardsimprisonment. While some aspects of it were not favourable to Ms Box, the reportrecorded that she is willing to address her drug use and it assessed her as posing a lowrisk of harm: she does not have convictions for violence.[45] Although the report states that Ms Box's mother was unsure about Ms Boxcontending with the constraints of a home detention sentence, it is clear from the termsof her mother's letter to the Judge that she was in fact strongly supportive of herdaughter receiving a home detention sentence. In the face of the letter from Ms Box'smother, police concerns about possible domestic violence by Ms Box towards hermother appear to be without foundation.[46] In my view a sentence of three months' home detention would have been theleast restrictive outcome that was appropriate in this case. This is longer than theperiod of two months suggested by Mr Hesketh, in order to give Ms Box a realisticchance at rehabilitation. In reaching the conclusion that home detention wasappropriate I have had particular regard to Ms Box's mental health problems, the factthat she has not been sentenced to imprisonment before, and the relatively minornature of the offending of which she was convicted.Post-release conditions[47] As noted earlier, Ms Box no longer appeals the post-release conditionsimposed by the Judge.Result[48] I would have imposed a sentence of three months' home detention with thestandard post release conditions,33 together with the special conditions imposed by theJudge. The nine-month disqualification from driving imposed by the Judge wouldhave remained in place.[49] I find that the sentence of four months' imprisonment was manifestlyexcessive. I quash that sentence and direct that Ms Box's criminal record be amendedin accordance with the terms of this judgment._____________Paul Davison J33 Sentencing Act, s 80O.