MARTIN v R [2022] NZHC 145

MARTIN v R [2022] NZHC 145 [27 January 2022]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-34[2022] NZHC 145BETWEEN ROMEO STORMY MARTINAppellantAND THE QUEENRespondentHearing: 26 January 2022 (via VMR)Appearances: M B Ryan for AppellantT Simpson for RespondentJudgment: 27 January 2022JUDGMENT OF ISAC JIntroduction[1] Mr Romeo Martin pleaded guilty to two charges of recklessly discharging afirearm1 and one charge of unlawfully presenting a firearm at another individual.2 Hewas sentenced to 23 months' imprisonment on 30 November 2021.3[2] Mr Martin now appeals against that sentence on the basis that it should havebeen substituted for one of home detention. He submits nine months' home detentionis appropriate given the time spent on EM bail prior to his guilty plea and taking intoaccount the short-term sentence imposed and the five months he has already spent incustody.1 Crimes Act 1961, s 198(2); maximum penalty seven years' imprisonment.2 Arms Act 1983, s 52(1); maximum penalty six months' imprisonment or $10,000 fine.3 R v Martin [2021] NZDC 23530.The offending[3] The offending occurred as the result of a confrontation. The appellant wasdriving past a bar and became involved in a verbal confrontation with a group outsidethe bar. He got out of the vehicle and was subsequently assaulted by the group. Theappellant threatened to return with a gun and shoot the individuals involved. He leftthe area, and drove to his address to pick up a .22 rifle before returning. Upon hisreturn, the appellant fired two shots at two complainants, who were in a vehicle at acar park some 50m away. The vehicle was not struck and the complainants wereunharmed.[4] The two complainants left the area and picked up a third person in their vehicle.They travelled to Mr Martin's address in convoy with another car carrying three furthermen. It was accepted by the District Court Judge that they were behaving in amenacing way.4[5] Mr Martin came outside with the firearm and fired a shot towards one of thevehicles 90 to 95m away. This hit the sill below the driver's door. He then pointed thegun at another vehicle without firing a shot. The vehicles subsequently left thepremises.District Court decision[6] After outlining the relevant facts the Judge summarised the key elements of theoffending as the obtaining, loading and firing of a dangerous weapon at a vehicle, andthe pre-meditated nature of the first incident. These were factors aggravating to theoffending.5 Overall, the Judge considered a starting point of four and a half years'imprisonment was appropriate, having regard to relevant case law.64 At [4].5 At [34]–[35].6 At [38], citing Fane v R [2019] NZHC 408; Gathergood v R [2010] NZCA 350; and R v TempletonCA 460-05, 6 July 2008.[7] Turning to personal mitigating factors, the Judge noted that Mr Martin has beenregularly before the courts since 2011, including for violent offending, the most recentof which was in 2020 for assault with intent to injure and threatening to kill.7[8] A pre-sentence report and cultural report was provided to the Court andconsidered by the Judge. The Court acknowledged the appellant's explanation for theoffending, namely that he had felt threatened by the other men involved and acted toprotect himself and his family. The Judge also recognised the appellant's positivefamily circumstances, including his three year relationship and full time employmentas a shearer. This led the Judge to conclude Mr Martin had "reconfigured [himself] asa loving father, committed, partner and shearer". The Judge also took into accountMr Martin's remorse, gang-history, history of substance abuse and previous trauma.[9] The starting point was reduced by 20 per cent on account of the appellant'sguilty plea.8[10] The Judge then turned to consider other personal mitigating factors, beforeconcluding that "a reduction for personal background factors that have contributed tothis situation is blunted somewhat by the specific nature of the offending." He settledon a 10 per cent discount as appropriate. A further 15 per cent reduction was thenprovided to reflect the appellants' rehabilitation prospects, bringing the sentence to29 months' imprisonment. This was reduced by a further six months to account for thetime spent by Mr Martin on EM bail, resulting in the end sentence of 23 months'imprisonment.[11] Given his arrival at a short-term sentence, the Judge was obliged to considerwhether conversion to a sentence of home detention was appropriate. He declined togrant home detention as follows: 9Having arrived at a sentence of under 24 months' imprisonment, I mustconsider whether home detention sufficiently meets the purposes ofsentencing.7 At [7].8 At [39]. This was so despite the agreement by both parties that a full 25 per cent discount shouldapply. The Judge concluded that 20 per cent was generous because of the long period betweencharge and plea.9 At [44]–[46].I regret to say, Mr Martin, that I conclude that the purposes of sentencing arenot met by a sentence of home detention. The critical purposes I musttake into account are those to hold you accountable for the harm done to thecommunity by the offending and to deter you and others from offending in thiskind of way if possible.I must denounce your conduct and I must protect the community from you.The sentence on this occasion therefore is 23 months' imprisonment. Giventhat this is a stage two offence of a short-term nature, I direct that you are toserve the full term of the sentence and that you are not to be released beforethe expiry of the sentence.[12] Pursuant to s 86C of the Act, the Judge gave the appellant a second strikewarning and ordered him to serve the full term of the sentence and not be releasedbefore its expiry.10Appellant's submission[13] The appeal is brought solely on the Judge's failure to commute the short-termsentence reached to one of home detention. It is submitted that this is a case wherecomplete priority was given to the purpose of deterrence without regard to any of thecountervailing purposes of sentencing. The appellant contends that, withoutconsidering all of the purposes of sentencing, the Court was unable to identify whichsentence better qualified as the least restrictive sentence to impose.[14] It is further submitted that in making his decision, the Judge failed to recognisethe ability for home detention to also address the sentencing objectives of denunciationand deterrence.[15] The appellant lists numerous factors which he considers relevant to a decisionof commutation:(a) Mr Martin is 28 years old.(b) He is a parent of three young children.(c) He is employed as a shearer and will be able to resume employmentupon release from custody. His employment provides primary supportfor his partner and two young children.10 At [46]: see Sentencing Act 2002, s 86C(4)(b); and Parole Act 2002, s 86.(d) He is diligently working to improve his parenting skills for his olderchild to return to his full time care.(e) He has the support of his partner, employer and Oranga Tamariki.(f) He has not consumed alcohol since the date of the offending. Alcoholconsumption was a key contributor to the current offending and hisprevious convictions.(g) He was on EM bail for over a year, and demonstrated a high ability tocomply with the similar restrictions of sentence of home detention.(h) The pre-sentence report recommended an electronically monitoredsentencing option combined with intensive supervision as the bestmeans of supporting the defendant's efforts at rehabilitation.[16] The appellant submits that the principles of denunciation and generaldeterrence are met by the starting point of four years and six months' imprisonmentreached by the Judge. In terms of the sentencing purposes of holding Mr Martin toaccount for his actions and promoting in him a sense of responsibility andacknowledgment of harm, it is said this has been achieved by Mr Martin surrenderinghimself to Police, pleading guilty to the charges and spending five months in custody.Further, the appellant argues that given Mr Martin's compliance with EM bailconditions, the risk to community safety in imposing home detention is minimal.Respondent's submissions[17] The Crown rejects the proposition that deterrence was given complete priorityin the sentencing process. Ms Simpson notes that the Judge explicitly identified arange of purposes and principles which he considered relevant on the facts, indicatingthese were in the front of his mind during the sentencing process.[18] The Crown contends that given the serious nature of the offending, involvingthe deliberate and pre-meditated discharge of a firearm that could have posed asignificant risk of harm to six individuals, a sentence of imprisonment was theappropriate outcome. The respondent also highlights the appellant's criminal historyand previous convictions for violent offences, including assault and possession of aweapon as further evidence that the sentence was the appropriate one reached.[19] Finally, the Crown also emphasises the narrow margin by which homedetention was available as a sentencing option. Relying on observations in Palmer vR11 and R v D,12 Ms Simpson submits that the more marginal a case — such asMr Martin's — the harder it is for a sentencing judge to articulate reasons forpreferring a sentence of imprisonment. In such cases a significant margin ofappreciation on appeal is usual. Here the sentence imposed was on the cusp of thejurisdictional threshold, and appellate deference is therefore appropriate.Approach to appeal[20] This appeal is governed by s 250 of the Criminal Procedure Act 2011. InPalmer v R, the Court of Appeal confirmed the same standard of appellate reviewapplies to decisions not to commute a sentence of imprisonment to home detention asany other sentence.13 The appeal must only be allowed if the Court is satisfied that, forany reason, there was an error in the sentence and a different sentence should beimposed.14 The focus is on the final sentence reached. An appellate court will notintervene unless a sentence was outside the range available to the sentencing Judge.15DiscussionJurisdiction to impose home detention for second stage offences[21] Mr Martin received a second strike for this offending. His first strike offencewas for wounding with intent to cause grievous bodily harm in 2011, when he was18 years old, for which he received a sentence of 20 months' imprisonment.[22] There is a tension between the imposition of home detention and the sentencingrequirements for stage-two offences under the three strikes regime. The maximum11 Palmer v R [2016] NZCA 541.12 R v D (CA253/2008) [2008] NZCA 254 at [66].13 Palmer v R, above n 11, at [18].14 Tuakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].15 At [36].sentence of home detention that may be imposed is 12 months.16 The rationale for thislimit is that an offender serving a short-term sentence of imprisonment of two years orless must be released after serving half of their sentence.17 Thus, the maximum lengthof home detention corresponds with the maximum length of time a defendantsentenced to a short-term of imprisonment will spend in prison. However, where adefendant is convicted of a stage two offence, they do not become eligible for releaseat half of their sentence. Instead, they are required to serve the full sentence imposed.18[23] This clearly creates issues when it comes to whether or not a short-termsentence of imprisonment can be commuted to a sentence of home detention when itinvolves stage two offending. The High Court have taken two separate approaches.[24] In Tialata v Police, a defendant sentenced to one year and six months'imprisonment for indecent assault was unsuccessful in his pursuit of home detentionon appeal.19 Katz J first considered there was no error in reaching a sentence ofimprisonment due to the seriousness of the offending, the risks posed by the offenderand previous poor compliance with community based sentences. However, HerHonour also challenged the ability to impose home detention in the context of thebroader three strikes regime, given that the length of sentence the defendant wasrequired to serve exceeded the maximum home detention length:20He must serve the full 18-month term of imprisonment, due to the operationof the three strikes regime. Logically, then, any period of home detention(whether it is to be served in a rehabilitative facility or elsewhere) would alsohave to be set at 18 months, to constitute an equivalent sentence. Themaximum permissible term of home detention, however, is 12 months.[25] A different approach was taken in Mangi v R21 and Moeller v R, in which homedetention was seen as a permissible sentence.[26] In Mangi, the defendant appealed a sentence of five months' home detentionfor a second strike offence of wounding with intent to injure, on the grounds that,16 Sentencing Act 2002, s 80A(3).17 Parole Act 2002, s 86(1).18 Section 86(1A); Sentencing Act 2002, s 86C(4).19 Tialata v Police [2017] NZHC 3096.20 At [37].21 Mangi v R [2018] NZHC 2732.taking into account the typical half-sentence rule in calculating home detention, ashorter home detention period should have been imposed. Powell J found that oncethe Court found a sentence of home detention to be appropriate in the circumstancesthe sentence "ceased to be a determinate sentence of imprisonment for the purposes ofs 86C(4)", namely the stage two provisions. Accordingly, he found there was no reasonwhy a home detention sentence of one half of the prison term should not be applied.22[27] In Moeller,23 the appellant was sentenced to 23 months' imprisonment for asecond strike offence, but was given leave to apply for home detention if a suitableaddress became available, pursuant to s 80K of the Act. When a suitable homedetention address became available, the District Court imposed a term of homedetention equivalent to the remainder of his custodial sentence length. Mr Moellerappealed on the basis that the length of that term should be half. Simon France Jreferred to the views expressed in both Tialata and Mangi. He recognised that "homedetention as a substitution for a second strike sentence of imprisonment is often not agood fit":24The two schemes – home detention and short-term sentences – work togetherin part because the maximum lengths match. A 24-month sentence ofimprisonment is a 12 month sentence in actual time. That is also the maximumlength of a home detention sentence. Broad equivalence can be achieved.The second strike rule distorts that. The time he has left to serve only arisesbecause he has an unusually lengthy period of remand credit (being 14 and ahalf months). But imagine he had none and the same thing had happened – a23-month sentence of imprisonment, six weeks to find a suitable address andthen a substituted home detention sentence. The s 80K(6) figure would bearound 21 months which is of course nine months longer than the availablemaximum home detention sentence.Equivalence is not in these circumstancespossible.[28] Simon France J noted that the statute afforded flexibility to the sentencingJudge to impose a length of home detention as they think fit, within the limit of a12 month maximum, and while there was no mandatory rule that the term of homedetention should be one half of the sentence of imprisonment, it provided a reasonablereference point.25 He concluded:2622 At [44].23 Moeller v R [2020] NZHC 1290.24 At [10]–[11].25 At [12].26 At [13].In the present case I accept the sentencing Court did not identify any featuresthat would support Mr Moeller serving longer than a non-second-strikeoffender would for the same offending. I would therefore halve the timeremaining.[29] Ultimately, despite acknowledging the two regimes were not necessarily agood fit, he did not find any jurisdictional barrier existed in relation to the Court'sability to substitute a sentence of imprisonment with one of home detention for secondstrike offenders.[30] I accept the approach in Mangi and consider it open to the Court to impose asentence of home detention for second-strike offences when deemed appropriate in thecircumstances. In reaching this conclusion, I note that there are other cases in whichhome detention has been imposed for second stage offences, without discussion ofpotential jurisdictional limitations.27The availability of home detention[31] The real issue in this case is whether there was a material error in the decisionto decline Mr Martin home detention.[32] The choice to commute a short-term sentence of imprisonment to a sentenceof home detention is at the discretion of the Judge.28 There is no presumption for oragainst commutation of a sentence to home detention. Rather, it is an evaluativeexercise that involves an assessment as to whether the purposes and principles ofsentencing can be met by a sentence of home detention.29 The Court must impose theleast restrictive outcome that is appropriate in the circumstances.30[33] The difficult balance that must be struck between different purposes andprinciples of sentencing when considering whether to commute a short-term ofimprisonment into home detention was helpfully summarised by the Court of Appealin Fairbrother v R:3127 R v Tepania [2021] NZHC 2015; and R v Patel [2018] NZHC 2946.28 Manikpesadh v R [2011] NZCA 452 at [12].29 R v Vhavha [2009] NZCA 588 at [29]. This was in dissent but this point was later adopted inOsman v R [2010] NZCA 199 at [20]; and Palmer v R, above n 11, at [19].30 Sentencing Act 2002, s 8(g).31 Fairbrother v R [2013] NZCA 340 at [29]–[31].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 error oflaw. 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.Sometimes, as this Court said in R v D (CA 253/2008), 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" [34] The difficulty for sentencing judges when articulating reasons for preferringone approach to the other — home detention or imprisonment —was also recognisedby the Court of Appeal in Palmer. There the Court said that the margin of appreciationextended to sentencing Judges is usually significant, particularly where the principlesand purposes of sentencing point in different directions.32[35] The sentencing remarks of the Judge in this case indicate careful considerationof the relevant purposes and principles of sentencing in establishing a starting pointand appropriate discounts for Mr Martin's sentence. However, the Judge did notexpressly engage with these principles when he considered the question of homedetention.[36] This case, to my mind, is not so close to the "dividing line" that a greatermargin of appreciation should be afforded. A consideration of the relevant purposesreveals that they do not pull in different directions for Mr Martin. Instead, homedetention adequately addresses both the need for denunciation and deterrence, as wellas other important purposes of the Act such as the need to assist in the appellant'srehabilitation and reintegration. As such, home detention is the least restrictivesentence appropriate in the circumstances and should have been imposed.3332 Palmer v R, above n 11, at [19].33 Sentencing Act, s 8(g).[37] Accordingly, I consider the conclusion that home detention was not sufficientto adequately respond to the seriousness of the offending was an error.[38] The Court of Appeal has recognised that home detention is a significantsentence in its own right that carries the principles of denunciation and deterrence inconsiderable weight.34 It has been emphasised that a non-custodial sentence shouldnot be considered a lenient sentence.35 While presenting and recklessly discharging afirearm are clearly serious offences that pose significant public safety risks and wouldordinarily result in a sentence of imprisonment, there are two factors that lead me toconclude the Judge's assessment failed to reflect the appropriateness of homedetention as an adequate response to the offending.[39] First, while the first incident involved Mr Martin quite wrongly taking mattersinto his own hands following the assault, the subsequent events suggest a lower levelof culpability given it was the group of victims who sought out Mr Martin and, as theJudge found, behaved threateningly towards him. And, while Mr Martin is lucky tonot have caused serious injury as a result of the offending, the harm done to thecomplainants was not long lasting. I also accept that the harm done to the communityhas in large part been addressed by the appellant's surrender to Police, his remand incustody, and subsequent compliance while on EM bail in the community for a lengthyperiod.[40] Second, and critically in my view, Mr Martin has made genuine and significantprogress in his rehabilitation while on EM bail. He has complied successfully with hisEM bail conditions. I am advised that he has abstained from alcohol since theoffending. He has left the area in which the offending occurred and has indicated hehas no intention of returning. He has the strong support of his employers and full-timework available should he be released from custody. Oranga Tamariki appears to seeencouraging signs about Mr Martin's parenting, and I accept as genuine his strongdesire to be a good father to his children, whom he supports, having himself been award in State care. He has also been engaging positively with Rangitāne o Tamaki nuia Rua Incorporated in relation to parenting skills. A letter of support indicates that he34 R v Iosefa [2008] NZCA 453 at [41]; and Fairbrother v R [2013] NZCA 340 at [29].35 R v Minto [1982] 1 NZLR606 (CA) at 608; and R v Edbrooke [2000] 3 NZLR 360 (CA) at [14].has made significant progress with the assistance of iwi over a three year period. Thesesigns are therefore not a recent response to his predicament but an indication of adeeper desire for a better future for both himself and his family.[41] I also note that a sentence of community detention accompanied by intensivesupervision was recommended in Mr Martin's pre-sentence report. The reportclassified the appellant as being at medium risk of re-offending with a firearm, a highrisk of offending generally and a high risk of harm. However, it concluded:Based on the remorse that Mr Martin has displayed, his family circumstancesand his full-time employment, a recommendation of Community Detention istherefore recommended to serve as a punitive element to hold Mr Martin toaccount for his actions. The recommended curfew hours will allow Mr Martinto remain employed, as this is deemed a protective factor and allowsMr Martin to have income to support his children.It is also recommended that the Court considers imposing a sentence ofIntensive Supervision. This will provide Mr Martin with oversight from aProbation Officer to assist him with his offending related needs and accessappropriate rehabilitative interventions required. It is recommended that aspecial condition for Mr Martin to abstain from the consumption/and or(sic)possession of alcohol and illicit drugs as well as a special condition forMr Martin to attend a non-violence programme.[42] By all accounts, and as recognised by the sentencing Judge, the appellant hasspent the last year reforming himself while on bail for these charges. Those matters inmy view go directly to the question of the appropriate balance between the competingpurposes and principles of sentencing. Had any one of them been absent, the balancecould well have been different. But collectively they lead me to conclude that this isnot a case that is on the cusp, as suggested by the respondent.36 Unfortunately, thesentencing remarks of the Judge do not reveal the extent to which weight was accordedto these matters when considering the critical question of home detention.[43] Taking into account the five months spent in custody, a substituted sentence ofnine months' home detention is appropriate in the circumstances.36 I do not consider that cases close to the margin contemplated in Palmer v R and R v D are onlythose where the end sentence is close to the two year jurisdictional threshold for home detention,as the respondent seemed to suggest, but rather those cases where the outcome of the choice ofsentence is very finely balanced. That could arise for sentences far removed from the upper limitof the sentence.Result[44] The appeal is allowed. Mr Martin is to be released from Manawatu prison on28 January 2022.[45] Mr Martin is to serve nine months home detention at the previously approvedEM bail address, on the following conditions:(a) Mr Martin must travel to the address directly from prison with no stopsunless authorised by Probation;(b) Mr Martin must not leave the address without an approved absence.This may include an approved absence for the purposes of undertakingemployment;(c) Mr Martin must comply with the requirements of electronicmonitoring,(d) Mr Martin must abstain from the consumption and or possession ofalcohol and illicit drugs unless prescribed by a medical practitioner;(e) Mr Martin must attend an assessment for a non-violence programmeand to complete any treatment/counselling and/or programme asrecommended by the assessment and to the satisfaction of the probationofficer and treatment provider;(f) Mr Martin must attend an assessment for any other programmes,training and/or counselling as directed by a Probation Officer andattend and complete any counselling, treatment, or programme asrecommended by the assessment as directed by and to the satisfactionof a probation officer.Isac JSolicitors:M B Ryan, Palmerston North for AppellantCrown Law Office, Wellington for Respondent