DENNIS v NEW ZEALAND POLICE [2018] NZHC 886

DENNIS v NEW ZEALAND POLICE [2018] NZHC 886 [2 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-424CRI-2017-404-438[2018] NZHC 886BETWEEN RICHARD DESMOND DENNISAppellantAND NEW ZEALAND POLICERespondentHearing: 23 April, 1 May 2018Appearances: M W Ryan for AppellantA R C Linterman for RespondentJudgment: 2 May 2018JUDGMENT OF WHATA JThis judgment is delivered by me on 2 May 2018 at 11.00ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:M W Ryan, Barrister, AucklandMeredith Connell, Auckland[1] Mr Dennis pleaded guilty and was sentenced to 21 months' imprisonment onmultiple charges, including injuring with intent to injure, assault with a weapon, fivecharges of male assaults female, one charge of indecent assault, disorderly behaviourand one charge of threatening behaviour. The central issue on appeal is whether JudgeD J Sharp was wrong not to impose a sentence of home detention.Background[2] Mr Dennis pleaded guilty to the following summary of facts.Male assaults female[3] Sometime in 2006, Mr Dennis returned home after being out drinking. Anargument ensued with the complainant. He picked up a baby bottle and threw itdirectly at the complainant's head. The bottle struck her cheek, resulting in a blackeye.Injuring with intent to injure[4] In late July 2006, Mr Dennis and the complainant were at a show. An argumentensued about Mr Dennis wanting to go out drinking afterwards. The complainant wenthome. A brief time later, the defendant also returned home. The defendant punchedthe complainant in the chest with a closed fist and said, "I will stop your heart".Mr Dennis also kicked the complainant once to the buttock area, causing her ear tocontact a skirting board, resulting in her ear splitting. She required several stitches.Assault with a weapon[5] Sometime in 2009, Mr Dennis accused the complainant of sleeping with herbrother's friends. He picked her up by the throat with his left hand. He lifted her offthe ground, causing her head to bump the extraction fan. He grabbed a knife with hisright hand and held it towards her face. He held the knife to the complainant's cheekand said he would, "Fucken kill her".Male assaults female[6] Between September and October 2011, the defendant kicked a secondcomplainant in the groin with his foot.Indecent assault[7] The same complainant stood up and Mr Dennis grabbed her around the throatand forced her onto her knees. They walked further down the road and Mr Dennisurinated on her. They then got into a taxi together.Male assaults female[8] Between 1 January 2012 and 31 December 2012, Mr Dennis and thecomplainant were at a lodge. They got into a car together. The defendant slammedthe complainant's head against the steering wheel of the vehicle and punched her inthe arm. Because of the assault, the complainant received a large bruise on her arm.Male assaults female[9] Between 15 January 2013 and 31 December 2013, the defendant threw a packetof cigarettes at the complainant and then kicked her in the chest, knocking the windout of her. Because of the assault, the complainant could not breath properly for threedays but did not require medical attention.Male assaults female[10] Between 1 January 2014 and 31 January 2014, the defendant and thecomplainant were at the lodge. The defendant pushed the complainant into a couchand shut a window on her hand. She did not require medical attention.Disorderly behaviour[11] On 9 April 2014, Mr Dennis arrived at the address of the defendant and thecomplainant and started kicking the front door. She let him in. The defendantaggressively pushed the door open. The complainant went into the bathroom to getaway from him. He followed and pushed the bathroom roller door in, causing thecomplainant to fall on the sink. She sustained no injuries.Mr Dennis[12] Mr Dennis is 51 years of age. He has one conviction in 2008 for male assaultsfemale and a conviction for assaulting with intent to injure. At that time, he wassentenced to supervision, together with directions to undertake alcohol and angermanagement programmes. He complied with his sentence. The PAC report states thatin discussing the offences with Mr Dennis, his right of entitlement appeared paramountwithin the relationships subject to the offending. The report also notes, however, thatMr Dennis was also in a long-term relationship with his current partner who contendsthat violence has not been evidenced towards her during this period.[13] Having regard to the seriousness of Mr Dennis' offending, the report considersEM a suitable sanction, as would be imprisonment. Due to the historical nature ofsome of the offences, and without the availability of either victim impact statementsor a restorative justice report, the impact of Mr Dennis' assaults upon the two victimsis unknown. The report writer also considers him suitable for management within thecommunity. He has an ability to continue gainful employment, however, due to hisprecarious immigration status, continued paid employment may not be an option.Sentencing notes[14] Mr Dennis was sentenced on 7 November 2017. Judge D J Sharp identifiedthe lead charge as the injuring with intent to injure. The Judge refers to:(a) the need to deter and denounce domestic violence;(b) the need to make Mr Dennis accountable;(c) the requirement to take into account Mr Dennis's rehabilitative needs;(d) the requirement to impose the least restrictive outcome in thecircumstances.[15] The Judge considered that the lead charge by itself would justify a startingpoint of 18 months. He uplifts this starting point by 12 months, to 30 months'imprisonment for the other offending, noting that the other offending is indicative ofMr Dennis' desire to dominate other people and exercise control. Judge Sharp thenuplifts the start point sentence by four months to account for prior convictions.[16] Turning to mitigating factors, Judge Sharp noted that Mr Dennis has attendedcourses, and having regard to his prospects for rehabilitation, reduces the start pointfrom 34 months to 30 months. He then gives a further separate discount for restrictivebail of two months, to 28 months. The end sentence is reduced to 22 months'imprisonment after remorse and guilty plea discounts.[17] The Judge then has this to say about an electronically monitored sentence:[12] That brings on the lead charge a sentence of 22 months imprisonment.That sentence is within the jurisdiction for electronically monitored sentences.I have considered the position in relation to the number of offences here, thelength of time which offending took place and my requirement to meetdenunciation and deterrence requirements. In this situation, notwithstandingthe fact that your counsel has said everything that could be said for you andyour pre-sentence report is one which is in your favour. I do not consider thatan electronically monitored sentence can be sufficient to deal with the issuesthat I am required to deal with in terms of the Sentencing Act 2002.[18] Accordingly, the Judge handed down a sentence of 22 months' imprisonment.Grounds of appeal[19] Mr Ryan, for Mr Dennis, submits that:(a) the sentencing Judge wrongly focused on the purposes of denunciationand deterrence and failed to consider the other principles and purposesof sentencing;(b) the Judge failed to give adequate weight to all of the principles of homedetention taken from the Sentencing Act;(c) the sentence of home detention has, in any event, sufficient deterrenceand denunciation in the present case;(d) the offending is largely historical, so there were and are no risks to thecommunity that would warrant a sentence of imprisonment rather thanhome detention; and(e) Mr Dennis has completed counselling sessions, assisting hisrehabilitation, but this factor was not considered by the Judge in thehome detention assessment.Alternate sentencing notes[20] It emerged during the hearing that my signed copy of the sentencing notes didnot precisely correspond to the sentencing notes provided to counsel. Relevantly thelast sentence of my signed notes at [12] did not refer to the Sentencing Act. Rather itstated:I do not consider that an electronically monitored sentence can be sufficientto deal with the requirements for denunciation and defence [sic] given theseverity and scale of the offending.[21] I sought clarification from Judge Sharp as to which of the notes was the correctset. The Judge confirmed that the set provided to counsel, being the transcript of thedelivered sentence, is the correct version. I must proceed on that basis. Mr Ryanaccepted this, but submitted, in a careful way, that the alternate version of the notesreveals the underlying focus of the Judge on denunciation and deterrence. I disagree.A Judge's sentence stands or falls on what is delivered in open Court.Assessment[22] The Court of Appeal in Fairbrother1 provides a helpful frame for assessmentof appeals against a decision not to impose a sentence of home detention. The Courtstated:[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing Judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any countervailing purposes of sentence.1 Fairbrother v R [2013] NZCA 340.[30] That does not mean that a short term 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.[31] Sometimes, as this Court said in R v D(CA253/208), that can prove avery difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other". Even in those cases, however, the choice must beintelligible. The factors that really count must be identified and weighed.[23] Three decisions cited by Mr Ryan, Brittin v Police,2 Box v Police3 and McLeanv Police4 are each an illustration of correction for failure to properly consider andapply the purposes and principles of sentencing when fixing a sentence ofimprisonment instead of home detention. Those judgments do not, however, evince afresh principle that might independently justify an appeal against sentence in thiscase.5[24] It is evident that the sentencing notes at [12], when dealing specifically withhome detention, focus on denunciation and deterrence. But this passage immediatelyfollows a relatively detailed evaluation of the offending and Mr Dennis' personalcircumstances against the relevant principles of sentencing. I am not satisfiedtherefore that the Judge, by process of improbable intellectual gymnastics, disregardedthat overall evaluation when deciding to impose a sentence of imprisonment.2 Brittin v Police [2017] NZHC 2410 at [56] – [58]. This case involved one charge of harm by digitalcommunication. The Court found the 12 month sentence of imprisonment was excessive andimposed a sentence of 7 months imprisonment. That sentence was substituted for 12 months' homedetention, the Court noting that improper emphasis was given to deterrence.3 Box v Police [2018] NZHC 286 at [39] – [41]. This case involved a combination of charges,including possession of methamphetamine and cannabis, failing to appear, driving whiledisqualified; and giving false identity. A sentence of 4 months imprisonment was set aside and asentence of three months home detention imposed.4 McLean v Police [2018] NZHC 102 at [40] – [42]. Mr McClean was sentenced to 12 monthsimprisonment for one charge of intent to injure. He knocked a victim unconscious. On appeal, theCrown conceded the sentencing Judge only referred to deterrence and denunciation. A homedetention sentence of four and half months was imposed.5 In Brittin, the High Court observed the sentencing Judge was wrong, on the facts of that case, toidentify general deterrence as an essential reason for setting a high starting point and for refusingto impose a sentence of home detention. That specific issue does not arise in this case. However,as the High Court also noted in Brittin, general deterrence may be relevant to the assessment ofwhether home detention is appropriate. For reasons set out at [26], I consider general deterrenceto be a relevant factor in this case.[25] I accept however, that by referring only to the principles of denunciation anddeterrence when expressly considering home detention, the sentencing evaluation isamenable to appeal in light of the guidance afforded by Fairbrother and the approachtaken by the High Court in Brittin, Box and McLean. I propose therefore to brieflyaddress the merits, and whether the sentence of imprisonment was open to the Judge.[26] Mr Dennis' rehabilitation was plainly a crucial factor to be weighed, as is thedeterrent value of a sentence of home detention. But the aggravating features of hisoffending – especially his unbroken propensity over several years to physically abusehis partners, on one occasion involving strangulation and on another, in a grosslydemeaning way, strongly support the conclusion that a period of imprisonment ratherthan home detention, was required. Notably this offending is markedly more seriousthan the offending in Brittin (causing harm by digital communication), Box(possession of methamphetamine and cannabis, failing to appear, driving whiledisqualified and giving false details) and McLean (one charge of assault with intent toinjure). This brings into sharp focus whether the requirement for deterrence,particularly of domestic abuse of this kind, is met by a sentence of home detention. Inthis regard, the requirement to deter is not limited to Mr Dennis, but to all personsengaged in repeated, serious domestic violence. As this Court has previously noted,drawing on reports by the Ministry of Social Development, a history of domesticviolence is a key risk factor to be carefully managed.6[27] I should be clear that not every case of serious domestic violence will attract asentence of imprisonment.7 But the combination of features in this case meant that itwas open to Judge Sharp to conclude that the proper balance of competing purposesand principles demanded a sentence of imprisonment not home detention.[28] The appeal is therefore dismissed.6 S v Police [2017] NZHC 2916.7 See for example Solicitor-General v SC [2017] NZHC 2252.