DEAR v POLICE [2022] NZHC 2474

DEAR v POLICE [2022] NZHC 2474 [29 September 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000257[2022] NZHC 2474BETWEEN ROYCE ATFIELD DEARAppellantAND NEW ZEALAND POLICERespondentHearing: 27 September 2022Counsel: PJ Syddall for AppellantBS Rorrison for RespondentJudgment: 29 September 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 29 September 2022 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.PJ Syddall, Auckland.The case[1] Royce Dear appeals a sentence of nine months' imprisonment on a charge ofattempted burglary, two charges of receiving stolen property, and one charge ofbreaching conditions of intensive supervision.1 An appeal must be allowed if therewas an error in the sentence and a different one should be imposed.2 Or, in short, ifthe sentence is manifestly excessive.3Background[2] In the early hours of 24 October 2021, Mr Dear and another attempted to breakinto a commercial refrigerator using crowbars and a hammer, causing $600 worth ofdamage. Police intervened, hence the charge of attempted burglary. Earlier thatmonth, Mr Dear twice received stolen property totalling $600. Earlier again—on18 May 2021—Mr Dear failed to report as required by a sentence of intensivesupervision.[3] Judge N R Dawson treated the attempted burglary as the lead offence, forwhich he adopted a starting point of 10 months' imprisonment. The Judge added atotal of three months for the other offending, then another month for Mr Dear's record;Mr Dear has an extensive criminal history.[4] The Judge deducted 25 percent for Mr Dear's guilty pleas, and a further10 percent for mitigating features identified in a cultural report. The Judge declinedto impose a sentence other than imprisonment. He noted Mr Dear had receivedcommunity-based sentences, including sentences of supervision, "none of which havedeterred you from offending".4The appeal[5] On Mr Dear's behalf, Mr Syddall takes no issue with the starting point orincreases, which he accepts are "entirely within range". However, Mr Syddall1 Police v Dear [2022] NZDC 14712.2 Criminal Procedure Act 2011, s 250(2).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.4 Police v Dear, above n 1, at [15].contends the Judge should have given greater discount for the cultural report-basedfeatures, particularly "addiction and mental health issues". He also contends thesentence should have been commuted to home detention. Mr Syddall argues Mr Dearhas embarked on a rehabilitative path, which home detention would facilitate.Analysis[6] Mr Syddall relies heavily on the cultural report Mr Dear placed before theDistrict Court. The report was written by Lara Syddall, who has aMasters in Education,5 and Vanna Blucher, a specialised education needs coordinator.The report says Mr Dear:(a) Began using alcohol at the age of 10, then cannabis andmethamphetamine from the age of 12.(b) Was expelled from school when 14.(c) Began to experience psychotic episodes relating to schizophrenia at theage of 18, and this led to the (ongoing) involvement of mental healthservices.(d) Has been "clean" since the age of 21, hence for 14 or 15 years, in partbecause of Mr Dear's completion of a long-term rehabilitativeprogramme.[7] The report offers not in-extensive observations about the effects ofmethamphetamine "on the brain and Mr Dear's offending", and the "Biological andPsychological Impact of Schizophrenia on Mr Dear's conduct".[8] Mr Syddall contends the report reveals addiction "causative of his offending,and therefore a mitigating consideration warranting a discount". Alternatively,Mr Syddall contends the report reveals a nexus between the offending and Mr Dear'sill mental health.5 Lara Syddall is completing a diploma in psychology.[9] There are difficulties with the argument, quite apart from the point the reportrelies heavily on Mr Dear's self-reporting.6 First, Mr Dear last used methamphetamine14 or 15 years ago. Second, the offences do not disclose an obvious link to anaddiction to that drug. Third, it is unclear the writers are qualified to offer the opinionsthey do. Addiction can be a difficult, complex area, and one in which Courts typicallyexpect expert assistance; more particularly, from experts operating within their fieldof expertise. The same is even more true of ill mental health, and whether it can becausatively linked to the commission of an offence.[10] Expressed more simply, and in terms borrowed from Zhang v R, Mr Dear hasnot offered "persuasive evidence" or "an evidential basis" to establish mitigation basedon an addiction to methamphetamine or mental health problems to justify a discount.7[11] Mr Syddall also advances an alcohol-based addiction given these observationsin the pre-sentence report:Mr Dear reported being under Mental Health Services, he acknowledged thathe has a severe drinking problem, he added that he had recently beendiagnosed by his doctor as having cirrhosis of the liver with a limited lifeexpectancy. He said he "wanted to live for his children" and had engaged withWaitemata Community Mental Health Services to volunteer for a detoxrehabilitation programme with Pitman House. Confirmation was receivedfrom Mental Health Services who advised that Mr Dear is actively engagedwith a full range of their services and has been referred to a CAD'Sprogramme, is seeking employment and awaiting a referral outcome forPitman House.Mr Dear reported that he drinks at least a box of beer a day, and often needs abeer first thing in the morning to feel "normal". A departmental tool ASSIST,which is based on a self-assessment, showed that Mr Dear is at high risk ofexperiencing severe health, social, financial, legal, and relationship problemsas a result of his current pattern of use and that he is likely to be a dependent.[12] These observations are also based upon self-reporting, albeit arguablybuttressed by use of a departmental tool. However, even assuming this factor playedsome role, a 10 percent deduction for the factors identified in the cultural could not beconsidered erroneous. Deductions in this context have a discretionary aspect, theinformation before the Judge was limited, and discounts based on cultural reports vary6 The writers spoke to Mr Dear and his former partner. They also completed, or referred to, twoforms of assessment and a literature review.7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148] and [152].according to circumstance.8 Another Judge might give greater discount, but that is notthe test. Furthermore, the Judge gave Mr Dear full credit for his guilty pleas.Mr Syddall responsibly accepted this was "generous".[13] Mr Syddall contends the Judge should have commuted the sentence to homedetention because Mr Dear may be eligible to participate in a residential programmeoffered by the Salvation Army, has "strong pro social supports",9 and offered to attenda restorative justice conference. As observed, Mr Syddall contends Mr Dear hasembarked on a rehabilitative path. He contends this is underscored by the fact Mr Dearspent approximately nine months on bail, apparently without incident.[14] There is no presumption a sentence of 24 months or less of imprisonment willbe commuted to home detention. Every case turns on its facts.[15] The aspects identified by Mr Syddall supported a sentence of home detention.However, as Judge Dawson observed, Mr Dear has been the beneficiary of manycommunity-based sentences, and yet continued to offend. The pre-sentence report issomething of a mixed bag in that while it supported home detention (largely becauseof Mr Dear's support), it also noted he had "very little insight" and posed a "medium"risk of re-offending. Mr Dear's criminal history is extensive.[16] Given all this, I am not persuaded of error.A final observation[17] As observed, one of the (two) authors of the cultural report is Lara Syddall.Mrs Syddall is Mr Syddall's wife. I raised the connection during the hearing.Mr Syddall said he considered there was nothing inappropriate about his wifepreparing the report as she did so independently of him.[18] I do not doubt that. However, in my view, a cultural report should not beprepared by a member of counsel's family or someone close to them. The reasons areobvious. Mr Syddall could not be wholly objective about a report written by his wife.8 See for example Whittaker v R [2020] NZCA 241 at [46].9 Pre-sentence report, p 2.A reasonable observer would consider the connection gives rise to concerns of bias.Awkwardness can also arise. This case is an example. In expressing reservationsabout the expertise of the report writers—a necessary incident of this decision—I haveexpressed an observation about a member of Mr Syddall's family.Result[19] The appeal is dismissed...Downs J