DE SILVA v NEW ZEALAND POLICE [2019] NZHC 195

DE SILVA v NEW ZEALAND POLICE [2019] NZHC 195 [18 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2018-404-0400[2019] NZHC 195BETWEEN SCOTT DE SILVAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 February 2019Appearances: C Newton for the appellantH Watts for the respondentJudgment: 18 February 2019ORAL JUDGMENT OF JAGOSE JSolicitors:Friendship Chambers, ManukauKayes Fletcher Walker, ManukauIntroduction[1] Scott De Silva appeals his sentence of 13 months' imprisonment imposed byJudge G A Fraser in the District Court at Manukau on 16 November 2018.1 Mr DeSilva was convicted on one charge of male assaults female.2 Mr De Silva's counsel,Colleen Newton, contends the sentence "border[s] on being" manifestly excessive.She says the Judge erred in adopting too high a starting point; failing to give sufficientcredit for the guilty plea; and failing to consider an electronically monitored sentence.Approach on appeal[2] I must allow the appeal only if satisfied there is an error in the sentenceimposed, and a different sentence should be imposed.3 Otherwise, I must dismiss theappeal.4 The measure of error is the sentence be "manifestly excessive" – a principle"well-engrained" in the Court's approach to sentence appeals.5 That is to bedetermined by reference to the final sentence, not the route adopted to reach it.6Offending[3] In the morning of 18 September 2016, the victim – then in a relationship withMr De Silva for some 14 years – arrived home to find Mr De Silva drunk and asleepin his daughter's bed. The daughter was not present. The victim was angered by MrDe Silva's intoxication, and told him to leave once he had finished sleeping. Anargument ensued. Rising from the bed, Mr De Silva grabbed the victim's hair beforepunching her twice in the head. When he let her go, she demanded he leave the house.He did not.[4] She ran upstairs to call the police. Mr De Silva followed later, yelling at thevictim. After talking to the police, she followed him back downstairs. There, hepunched her three times in the face, hitting her once in the eye. He then violently shookher – described in the accepted summary of facts as a 'rag-dolling' – before picking1 New Zealand Police v De Silva [2018] NZDC 23776.2 Crimes Act 1961, s 194(b). Maximum sentence is two years' imprisonment.3 Criminal Procedure Act 2011, s 250(2).4 Criminal Procedure Act 2011, s 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].6 Ripia v R [2011] NZCA 101 at [15].her up by the hair. The victim was scared, crying and pleading with Mr De Silva tostop. He let her go briefly, before kneeling on her stomach, causing breathingdifficulties. Let go again, she ran upstairs and awaited police arrival. She sufferedswelling, tenderness, and facial bruising, which she described in her victim impactstatement as a black eye.The District Court Judge's approach to sentencing[5] The Judge clearly was frustrated and concerned by the two-year periodbetween offending and sentencing. Mr De Silva pleaded guilty after a second trial datewas abandoned for lack of Court time in July 2017. The presiding Judge directed heattend a family violence programme. On a monitoring appearance on 9 November2017, it transpired he had been exited from the programme. Further directions weremade he attend a Community Alcohol and Drug programme and a Stopping Violenceprogramme. Sentencing was adjourned twice, on account of Mr De Silva's failure toattend pre-sentence report interviews. On 12 September 2018, Judge Fraser cautionedMr De Silva the only available option would be imprisonment if he failed to attend hispre-sentence report.[6] Judge Fraser began his sentencing noting Mr De Silva's previous convictionsfor violence (there are 10), while "somewhat historical", then most recently in January2015. His record shows 24 occasions of police family violence intervention, which theJudge characterised a "massive police commitment".7[7] The Judge considered he had been "unusually patient" in his attempts to getMr De Silva to address his offending through engagement with programme work,8 butMr De Silva had not, at that time, taken any such steps. The offending to which thisappeal relates occurred only two months after Mr De Silva completed a shortrehabilitation programme, during a sentence of intensive supervision ending in July2017. The Judge also noted Mr De Silva's failure to attend for three different pre-sentence reports, observing – as with the rehabilitation programmes – there had "beenabsolutely nothing done at all" by Mr De Silva.97 New Zealand Police v De Silva, above n 1, at [4].8 At [8].9 At [6].[8] The Judge was particularly concerned by the victim's impact statements. Hermost recent statement, on 18 September 2016, stated Mr De Silva "gets drunk moreoften" since gaining his current employment, and that he remains violent andargumentative. She was no longer in a relationship with him, yet remained fearful.[9] The Judge considered the need for Mr De Silva to be held accountable and theneed for a sentence to be denunciating and deterrent, especially in situations like this.He considered the interests of the victim. He noted the sentence imposed must be theleast restrictive appropriate in the circumstances, having regard for the principles andpurposes of sentencing.[10] He identified five aggravating factors of Mr De Silva's offending: the actualviolence inflicted; the harm sustained; the offending occurring within two months ofMr De Silva's completion of a short rehabilitation programme; that offendingoccurring five months into Mr De Silva's intensive supervision sentence and against abackground of previous violence; and the victim's vulnerability.[11] Judge Fraser determined that the least restrictive outcome appropriate was asentence of imprisonment.10 He took the view Mr De Silva's continued failure toaccept responsibility and acknowledge his offending through primarily rehabilitativesentences meant a sentence emphasising denunciation and deterrence was required.[12] The starting point was placed at 12 months, with an uplift of three months toreflect Mr De Silva's prior convictions.11 He gave credit for a guilty plea. As it wasnot entered at the earliest possible juncture, a discount of two months was applied (justover 13 per cent). This resulted in an end sentence of 13 months' imprisonment. Sixmonths' standard and special conditions prohibiting possession and consumption ofalcohol and drugs, requiring attendance at assessment for domestic violence, drug andalcohol, and other appropriate programmes as required by Probations, were imposed.10 At [8].11 At [10].Submissions[13] Ms Newton primarily advances Mr De Silva's positive lifestyle change –securing a lawnmowing contract, enabling him to provide for his family – was notconsidered by the Judge, due to Mr De Silva's failure to attend for pre-sentencereports. She suggests the Judge could have remanded Mr De Silva in custody to allowa pre-sentence report to be carried out. Otherwise, she acknowledges the sentenceimposed was not specifically manifestly excessive. But she complains the startingpoint was excessively high, and Judge Fraser did not allow a sufficient discount for aguilty plea.Discussion[14] The Judge did not cite any comparable cases to establish his starting point. Ashe correctly identified, there is no tariff case for male assaults female. The range ofconduct "can vary greatly".12 While a more severe starting point than the five- to nine-months starting points often adopted,13 it is well short of the offence's two-yearmaximum. Mr De Silva's domestic attack on the victim was sustained through severalphases and modes of attack, including repeatedly to her head and interfering with herbreathing, more seriously than cases at the high end of that range.14 Fifteen-monthstarting points were affirmed on appeal in similar circumstances, although respectivelyextending to a second less serious attack,15 and in the other the victim'sunconsciousness.16[15] A three-month uplift applied in respect of Mr De Silva's previous convictions.Mr De Silva has appeared for sentencing on 28 previous occasions related to 88 priorconvictions. Thirty-nine of these were for non-compliance with court orders and policeand probation directives, ten for the use of violence against people (of which two arenoted to be family violence offences and five male assaults female), one for wilful12 R v Reihana CA143/03, 3 July 2003 at [43]; Kelly v R [2018] NZCA 347 at [10].13 Police v Wuetaki [2016] NZHC 2515, citing Wawatai v Police [2015] NZHC 406 at [4].14 Yeo v Police HC Auckland CRI-2006-404-283, 8 September 2006 (eight months); Taueki v Police[2015] NZHC 2238 (eight to nine months); Shepherd v R [2018] NZCA 232 at [10] (eight months).15 Wallace v R [2012] NZCA 546 at [14].16 Moa v R [2015] NZCA 429 at [9].damage, and nine for drug and alcohol related offending. Such an uplift is entirelyappropriate in those circumstances.17[16] Mr De Silva's complete lack of co-operation, which suggests his lack ofawareness as to the consequences of his offending, is a significantly aggravatingfactor, particularly in the context of his criminal history. The Judge was right toemphasise denunciation and deterrence in sentencing, particularly after the extendedfailed attempts to address Mr De Silva's accountability, responsibility andrehabilitation.18 In that context, the Judge's discount for Mr De Silva's belated guiltyplea, after trial was twice deferred, was generous.[17] There is no presumption in the Sentencing Act for or against commutation ofimprisonment to home detention, and substantial latitude allowed to sentencing judgesin considering its application.19 Mr De Silva's attitude renders him a poor candidatefor home detention, the utility of which significantly turns on the offender'scompliance. Imprisonment, as the Judge predicted, was inevitable.20Result[18] Viewed overall, the Judge's final sentence was not manifestly excessive. MrDe Silva's offending was more serious than others in which an end point of 12 months'imprisonment was upheld on appeal.21 That same term recently was imposedconcurrently in the context of more serious offending.22 The appeal is dismissed.—Jagose J17 At [9].18 Sentencing Act 2002, s 7(1).19 Twomey v R [2018] NZCA 206 at [14].20 Sentencing Act 2002, s 17.21 Nixon v R CA87/01, 19 June 2001 at [26].22 Franklin v R [2018] NZCA 495 at [28].