ALLEN v DEPT OF CORRECTIONS [2017] NZHC 2902

ALLEN v DEPT OF CORRECTIONS [2017] NZHC 2902 [23 November 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-49[2017] NZHC 2902BETWEEN SHANE JOSEPH ALLENAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 23 November 2017Appearances: D J Sayes for AppellantJ P R Scott for RespondentJudgment: 23 November 2017JUDGMENT OF PAUL DAVISON JSolicitors:Crown Solicitor, WhangareiIntroduction[1] On 6 September 2017, Mr Allen, the appellant, was sentenced to 10 and a halfmonths' imprisonment by Judge M J Hunt in the Whangarei District Court on onecharge of breaching release conditions.1[2] Mr Allen appeals his sentence on the grounds that Judge Hunt erred by settingthe sentencing starting point too high and by failing to give sufficient discount for hisearly plea of guilty.[3] Mr Allen has a right to appeal his sentence pursuant to s 244 of the CriminalProcedure Act 2011. Pursuant to s 248(2), a notice of appeal or notice of applicationfor leave to appeal must be filed within 20 working days after the date of the sentenceappealed against. In this case, a notice of appeal was filed outside that timeframe. Anapplication for leave to appeal was filed on or around 30 October 2017. Applicationis made to bring the appeal out of time. Mr Scott for the Department of Correctionsdoes not oppose the application and I consider that, in the circumstances, it is in theinterests of justice that leave to appeal out of time be granted.BackgroundSummary of the Caption Sheet filed by the Department of Corrections[4] The facts to which Mr Allen pleaded guilty are as follows. Mr Allen wasreleased from prison on 21 June 2017. He was subject to release conditions whichwere imposed on 5 May 2017 at the Whangarei District Court following convictionfor breaching conditions of intensive supervision, common assault, behavingthreateningly, other common assault, and intentional damage. Mr Allen was alsosubject to a special condition that he was not to associate with the victim of theoffending, his partner.1 Department of Corrections v Allen [2017] NZDC 20097. Sentencing Act 2002, s 96. Maximumpenalty of 12 months' imprisonment or a $2,000 fine.[5] On 31 May 2017, prior to being released from prison, Mr Allen was inductedinto his order of release on conditions. The condition not to associate with his partnerwas discussed with him. Despite the condition, he stated at that time that he wouldcontact his partner and that nothing would stop that from happening or them beingtogether. Mr Allen signed a declaration of induction. On 22 June 2017, Mr Allenreported to the Whangarei Probation Centre where he was again inducted into thespecial conditions of his sentence. He confirmed that he was aware of the conditionthat he was not to associate with his partner.[6] On 6 July 2017, Mr Allen spoke to his Probation Officer and advised that hehad travelled to Taupo to be with his partner. His Probation Officer reminded himabout the special condition not to associate with his partner and what the consequenceswere.[7] On 7 July 2017, Mr Allen reported to the Taupo Probation Centre accompaniedby his partner. Mr Allen thereafter sent a text to his Probation Officer stating "I've justreported in. You know I'm not going to stop being with [referring to his partner]".Provision of Advice to Courts Report[8] Prior to sentencing, a Provision of Advice to Courts report was prepared by theDepartment of Corrections. The report writer outlined Mr Allen's criminal history andconcluded that the majority of his offending related to alcohol and drug use. The reportwriter stated that Mr Allen blamed Community Corrections for his offending. Thisappears to relate to the offending for which he was subject to the release conditions,and not the breach of the non-association release condition. The report writer identifiedas "offending related factors" in respect of his current offending "a sense ofentitlement, propensity for violence, anti social attitudes, substance abuse, lack ofinsight, problem thinking, relationship issues, criminal friends and associates". MrAllen's risk of re-offending and causing harm to others was assessed as high. Mr Allentold the report writer he was going to live with his partner and that he was notinterested in attending any rehabilitative programmes.[9] On 8 July 2017 Mr Allen was charged with an offence against s 96(1) of theSentencing Act with failing to comply with the non-association condition. He firstappeared before the Court on 8 July 2017 in the District Court, Rotorua and wasremanded in custody without plea to appear in the District Court, Whangarei on 24July 2017. On that date he entered a plea of guilty and was remanded in custody forsentence on 6 September 2017.District Court decision[10] Judge Hunt sentenced Mr Allen in the Whangarei District Court on 6September 2017. Judge Hunt outlined the facts in line with the facts as set out above,although he also said that "By 22 June, literally the day after your release, you werewith [your partner]".[11] In relation to Mr Allen's criminal history, the Judge noted that the releaseconditions were imposed because of concerns that the Department of Corrections hadfor his partner's safety and stated:2Now that is based on the history. That does not necessarily affect all of thecircumstances but there is a history and that is just the most recent matters.There is a history for you of involvement with drug use. You have hadconvictions for using and procuring methamphetamine. Some of those arequite dated but, nevertheless, that is a factor that I cannot ignore. But it is aconcern for the safety of the complainant and your persistence with notcomplying with the directions that are problematic.[12] The Judge then noted that Probation had concerns about the co-dependentnature of the relationship between Mr Allen and his partner. Probation assessed therisk of re-offending as being very high. The Judge noted that Mr Day had told him thatMr Allen's partner and Mr Allen wanted to get married in October, and acknowledgedthat Mr Allen's partner was present in Court, stating:3 that is a choice she has made, to be here. It is not [her] standing in the docktoday, it is you. It is about your compliance.Nevertheless, I cannot ignore the fact that this is a very flagrant breach, incircumstances where you are unapologetic and say well that is simply howthings are going to be and in circumstances where effectively the samebreaches or restrictions of the same kind have been breached before and youhave received a sentence of imprisonment.2 At [6].3 At [9] and [11].[13] The Judge then proceeded by deciding on a sentencing starting point which hediscounted to take account of Mr Allen's guilty plea. The Judge stated:4I conclude that you are someone who, on a sentencing approach, has a startpoint at the maximum. You are someone who attracts a maximum sentencebecause that is the only protective deterrent factor that I have available to meand that is one of 12 months' imprisonment.The discounts that I have given you for your plea are limited because of yourattitude towards compliance. And so while I do acknowledge the plea of guilty,which came at an early stage, the discount I give you is of one and a halfmonths.So the sentence I impose today is one of 10 and a half months' prison. Starting point[14] The Judge adopted the maximum starting point of 12 months' imprisonment.Mr Sayes for Mr Allen submits that the Judge was wrong to do so. Mr Sayes submitsthat the Judge incorrectly took account of four factors and failed to take account of afifth.[15] Mr Sayes submits that the Judge incorrectly took account of Mr Allen'sprevious drug-related convictions. However, the Crown submits that the previousconvictions are a mandatory aggravating factor pursuant to s 9 of the Sentencing Act.In any event, I consider that although the Judge made general reference to the drug-related convictions, it is clear from reading the Judge's sentencing decision that thoseconvictions were a subsidiary factor to the convictions for the offending against MrAllen's partner, although no harm had occurred to her as a result of the breach of thenon-association condition.[16] Next, Mr Sayes submits that the Judge erred in noting that the appellant wasunapologetic. Mr Sayes submitted that being apologetic or showing remorse can be amitigating factor but the absence of such a factor should not be an aggravating factor.The Judge's reference to Mr Allen being unapologetic was made in the context ofsetting a starting point and appears to have been a factor taken into account by theJudge in deciding the starting point and I will have more to say about that shortly.4 At [12]–[14].[17] Next, Mr Sayes submitted that the Judge erred in taking into account thatsentences of imprisonment had previously been imposed in respect of the samebreaches or restrictions. Mr Sayes submits that this is not the case. Mr Sayes informedthe Court that Mr Allen has four previous convictions for breaches on 5 May 2017, 22June 2006, 15 October 1994 and 8 July 1994. The 2017 conviction was for breach ofintensive supervision and the remainder were for breaches of supervision. Mr Sayesinforms the Court that he has made inquiry of Corrections as to the nature of thebreaches and has been informed that the two more recent were for failing to reportwithin 72 hours, and failing to notify an address. No information is available regardingthe circumstances of the more historical breaches.[18] It is not clear what the Judge was referring to when he said "effectively thesame breaches or restrictions of the same kind have been breached before". It may bethat the Judge was referring to Mr Allen having previously breached release conditionsgenerally, or that the Judge may have mistakenly considered that Mr Allen hadpreviously breached a non-association condition in respect of his partner. The factremains, however, that Mr Allen has several previous convictions for breachingconditions of supervision. He has an extensive list of other convictions, that have notbeen referred to, including breaches of court orders for community work, breach ofperiodic detention, and driving while disqualified. Overall, Mr Allen's criminalhistory does display an attitude of disregard for court orders. A breach need not be ofexactly the same nature to demonstrate a pattern of behaviour. Here, Mr Allen's historyshows previous breaches of various kinds of court orders. This history and pattern canappropriately be taken into account.[19] However, Mr Sayes is quite correct in his submission that Mr Allen has noprior conviction for breaching a non-association order and no prior imprisonment forsuch a breach. Mr Scott, for the Department of Corrections, accepts that that is so.[20] Next, Mr Sayes submits that the Judge erred in concluding that the maximumsentence was the only effective deterrent measure available. He submits that thisoffending was not in fact the worst of its kind. While Mr Allen has previously offendedby failing to comply with Court orders and conditions relating to the serving ofcommunity based sentences, he has not previously offended in relation to a non-association condition. The circumstances in this instance, involving Mr Allen'spartner, who was entirely co-operative with his wish to be with her, was the motivationfor the breach and that background informs consideration of the need for a sentencenecessary to deter any repeat offending. Mr Allen refused to engage with rehabilitativeprograms and also expressed his intention to breach the condition again in order to bewith his partner.[21] In light of Mr Allen's determination to be with his partner, and it must be saidhis partner's obvious wish to be with him, the question is whether a maximum sentenceis the only means of achieving the sentencing objective of effective deterrence.[22] Mr Sayes submits that the Judge erred by failing to take into account that thecontact by Mr Allen was welcomed and consented to by his partner. In his writtensubmissions, Mr Sayes submitted that Mr Allen's partner had been a sentencedprisoner herself, and that Mr Allen had picked her up, or met up with her, on 5 July2017 upon her release from Auckland's Women's Prison and thereafter travelled withher to Taupo where she was to visit her father who was dying. The Judge was awareof Mr Allen's partner's wish to be with Mr Allen. He referred explicitly to her presencein the Court on the occasion of the sentencing and noted that it was not her, but MrAllen, who was in the dock. However, the Judge proceeded on the basis that MrAllen's partner's attitude and support for Mr Allen was of no relevance to the sentenceto be imposed, commenting that apart from the immediate facts relating to the breach,"I am not looking for a further explanation".Analysis[23] I find that the Judge made several errors in determining the sentence imposed.Firstly, the Judge was wrong in saying that on the day after his release on 21 June 2017Mr Allen was with his partner. As I have said, his partner was herself in prison until5 July 2017 and Mr Allen met her at the prison upon her release and the pair thentravelled to Taupo. This error is not, in my view, material, as on both the Judge'sversion of the facts and what I understand to be the correct position, Mr Allen breachedthe terms of the non-association condition on what was effectively the first opportunityavailable to him following his release from prison.[24] The second error of the Judge, however, is material and it led to the Judgeadopting a sentencing starting point that was excessive and wrong in my view. TheJudge found Mr Allen's breach of the release condition by which he was directed notto associate with his partner involved him in making a deliberate decision to disobeya Court order. The Judge, having found that Mr Allen had wilfully committed whathe appropriately described as a flagrant breach, then went on to say that any reasonswhy the non-association condition had been breached were wrong. The Judge said"the reasons why you chose to do what you [did] are not the point." In my view,however, the reasons why Mr Allen acted in breach of the non-association conditionand the context within which that conduct occurred were highly relevant to anassessment of the gravity of his offending and therefore relevant to the decision as tothe appropriate starting point.[25] The condition that he not associate with his partner had been imposedfollowing what is described in the pre-sentence report as an attempt at strangulationof his partner and was imposed by the Court in order to provide his partner withprotection and to reduce the risk of re-offending. Mr Allen was entirely open with hisProbation Officer regarding his intention to see and reunite with his partner. He toldhis Probation Officer on 6 July 2017 that he had travelled to Taupo to be with her. Thenext day he reported into the Taupo Probation Centre accompanied by his partner.Soon afterwards he sent a text message to his Probation Officer saying that he was notgoing to stop being with her.[26] While the non-association condition was imposed as a protective measure asregards Mr Allen's partner, it is clear that she herself had no wish to be protected fromhim and was quite willing to associate with Mr Allen notwithstanding the existence ofthe condition and notwithstanding his conduct that had led to the imposition of thecondition. I note that the pre-sentence report recorded that both Mr Allen and hispartner were emphatic regarding their intention to live together regardless of anyconditions that might be imposed by the Court.[27] Here, where the person for whose benefit and protection the non-associationcondition is made, had made it plain that she did not seek its protection and willinglyassociated with Mr Allen because she wished to be in a relationship with him, with theintention of perhaps marriage, the reasons why Mr Allen breached the condition arevery relevant as they inform an assessment of the seriousness of his offending. Wherethe breach of the non-association condition did not only not cause harm to Mr Allen'spartner, but was in fact demonstrably welcome by her, such circumstances must clearlyinform an assessment of the seriousness of the offence notwithstanding that theoffending was deliberate and flagrant.[28] Contrary to the Judge's conclusion, I find that the reasons why Mr Allen actedin breach of the non-association condition were relevant and the Judge was in error bydisregarding the existence of these mitigating circumstances in relation to the mutuallywilling personal relationship between Mr Allen and his partner.[29] An unusual feature of the offending was the openness with which Mr Allencarried out his actions of associating with his partner. His offending could not havebeen more transparent. He informed his Probation Officer of his intended actions andthen even attended the Probation Office at Taupo accompanied by his partner. Whilethe breach was appropriately termed flagrant, equally there was no attempt whatsoeverat concealment, meaning that Mr Allen would be readily held accountable for hisactions by the authorities. I consider that the fact that Mr Allen conducted himselfopenly and informed his Probation Officer of his actions and intentions, whilereflecting the deliberate nature of his offending, also demonstrated his preparednessto be held accountable and this too is relevant to an assessment of the gravity of theoffending.[30] The Judge, in my view, made a further error in proceeding on the basis that MrAllen had previously been imprisoned for having breached restrictions of the samekind. While Mr Allen had been previously convicted of breaches of community basedsentences, he had not been convicted or imprisoned for offending by way of breachinga non-association order. The Judge's comment implied that Mr Allen's offending onthis occasion was yet another instance of him breaching a non-association conditionand preceded his decision to adopt a sentencing starting point with a maximum penaltyof 12 months' imprisonment.[31] Finally, the Judge concluded, that the adopting of the maximum penalty wasthe only protective deterrent factor available to him. I consider that finding also to bein error. The adoption of the maximum penalty as a starting point was not necessaryin order to impose a sentence which operated as an effective deterrent. The adoptionof a lower starting point for a term of imprisonment would not be inconsistent withthe imposition of a deterrent sentence.[32] Thus, in his assessment of the gravity of the offending and determination ofthe sentencing starting point, the Judge wrongly proceeded on the basis that Mr Allenhad previously been sentenced to imprisonment for breaching restrictions of the samekind, disregarded the significant circumstances and reasons for Mr Allen's actions andthe existence of the relationship that existed between he and his partner, anddisregarded his partner's continuing support.[33] The Judge further erred by proceeding on the basis that adopting the maximumpenalty was the only protective deterrent factor available.[34] These errors were individually and in combination material and resulted in theJudge adopting a maximum penalty of 12 months' imprisonment as a starting point.However, in my view, a proper analysis of the offending produces a differentconclusion. While the offending was obviously deliberate, it did not warrant beingtreated as the most serious type of offending, thereby attracting the maximum penalty.The offending occurred in the context of significantly mitigating circumstances.While the author of the Department of Corrections' pre-sentence report considered thatthe risk of re-offending and causing harm to Mr Allen's partner was high andCommunity Corrections was unable to guarantee her safety should Mr Allen and hispartner cohabit, Mr Allen's partner herself had demonstrated her willingness to be withhim despite the prior event which had resulted in the imposition of the non-associationcondition.[35] In these circumstances the breach of the non-association condition was asignificant mitigating factor and the Judge was wrong to disregard it and concentrateexclusively on the deliberate and wilful breach of a Court order as determining andindeed dictating the adoption of the maximum penalty as the starting point.[36] Mr Sayes submitted that the District Court Judge failed to follow the three-stepapproach to sentencing outlined in Clifford and, as a consequence, failed to determinethe sentencing starting point by reference only to the aggravating or mitigating factorsrelating to the offence.5[37] The Judge's errors of disregarding the mitigating circumstances of theoffending relating to Mr Allen's partner and her wish to be with Mr Allen andproceeding on the basis that Mr Allen had been in prison previously for breaching arestriction of the same kind, together with his finding that the imposition of amaximum penalty was the only deterrent available to him, contributed to his selectionand adopting of a starting point which, in my view, was manifestly excessive.[38] For the reasons I have explained, the offending here was not the most serioustype of offending calling for the imposition of the maximum penalty. One can readilyimagine more serious types of breaches where the consequences are damaging.Maximum sentences are to be reserved for offending that is of the worst kind and inmy view the offending here was well below that level.[39] Applying the provisions of s 250 of the Criminal Procedure Act, I consider theJudge's errors are material and are such as require a different sentence to be imposed.I consider that while the deliberate breach of the non-association condition shows ahigh-handed disregard for authority of the Court, calling for a stern response and adeterrent penalty, the purposes and principles of sentencing provided for in ss 7 and 8of the Sentencing Act 2002 would be met by the adopting of a lower starting point. Iconsider that a starting point of six months' imprisonment is appropriate.Reduction for guilty plea[40] Mr Sayes submitted that the Judge should have reduced the starting point by25 per cent on account of Mr Allen's guilty plea – the maximum available pursuant toHessell v R.6 However, as Mr Scott for the Department of Corrections has submitted,a guilty plea reduction is not automatically applied at the level of 25 per cent, even5 Clifford v R [2011] NZCA 360, [2012] 1 NZLR 23 at [57]–[63].6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.where entered at the earliest stage. A guilty plea discount must be evaluated in light ofall the relevant circumstances – including the strength of the prosecution case.7 MrScott submits that it was open to the Judge to conclude that, despite the plea of guilty,the circumstances did not warrant the application of a 25 per cent discount orreduction.[41] The Judge's assessment of the appropriate discount to be given for the guiltyplea was limited, he said, because of Mr Allen's attitude towards compliance.However, the appellant's attitude towards compliance was a factor that ought to havealready been taken into account by the Judge when determining the sentencing startingpoint. To the extent that the appellant's attitude can be seen as indicating an absenceof remorse, that factor, that is remorse, is to be treated separately from the guilty pleaand assessment of a discount.8 It was the appellant's deliberate flouting of the Courtorder that attracted the Judge's imposition of the maximum penalty as a starting point.[42] For those reasons, I consider that the Judge's reference to Mr Allen's attitudetowards compliance had no proper part to play in a consideration of the guilty pleadiscount. The Judge's reduction of the sentence by six weeks was approximately adiscount of 12.5 per cent. I consider that having regard to the appellant's prompt andearly guilty plea, an appropriate discount of 20 per cent of the starting point isappropriate. In that regard, while the guilty plea was entered at the first availableopportunity, there needs to be appropriately some recognition of the strength of theprosecution case, contributed to as it was by the appellant's own conduct and the wayin which he acted in relation to disclosing his intentions before and after offendingwhich made the prosecution case particularly strong.Result[43] Therefore, applying a discount of 20 per cent and adopting a six-month termof imprisonment as the starting point, an end sentence of four months, three weeks'imprisonment is the result.7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].[44] Accordingly, the appeal against sentence is allowed. The sentence of 10 and ahalf months' imprisonment imposed by Judge Hunt on 6 September 2017 is set asideand pursuant to s 251(2) of the Criminal Procedure Act 2011 I hereby substitute asentence of imprisonment for a term of four months and three weeks.[45] As to the non-association condition imposed by Judge Hunt, and set out inparagraphs [15] and [16] of his sentencing notes, which prohibits Mr Allen associatingwith his partner without her consent and without the written consent of the ProbationOfficer, that condition shall remain in force and also be part of the sentence I nowimpose. I note that although the Judge in expressing this condition said that it was tobe "without her consent and without the consent of the Probation Officer", in what Itake to be his handwritten addendum to the condition that appears on the file, thewording is "without her consent and without the written consent of the ProbationOfficer". I consider that the requirement of written consent is an appropriate featureof the condition and the condition that I impose is in those terms._____________Paul Davison J