BOM v NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS [2016] NZHC 2875 [30 November 2016]

BOM v NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS [2016] NZHC 2875 [30 November 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000107CRI-2016-409-000108[2016] NZHC 2875BETWEEN SIMON JAMES BOMAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentHearing: 29 November 2016Appearances: R M Buddicom for AppellantE J Henderson for CrownJudgment: 30 November 2016JUDGMENT OF DUNNINGHAM J[1] The appellant faced a number of charges in respect of which he wassentenced by Judge O'Driscoll on 28 September 2016.1 These included a re-sentencing for a charge of driving whilst disqualified,2 breach of community work, possession of materials related to methamphetamine use, breach of release conditions, and breach of bail.[2] Of some consequence is the fact that the appellant was also before the Courton an unspecified "more serious charge". The Judge was apparently in two minds about adjourning the present sentencing, but the appellant wished to be sentenced that day.1 Police v Bom [2016] NZDC 19186.2 The appellant had initially been sentenced to community work, but had completed only 2.5 hours of that before an unopposed application to cancel and substitute was heard on 29 July 2016.[3] In respect of the various charges, the appellant was sentenced to 16 months'imprisonment.[4] The appellant's notice of appeal simply asserts that "there is an error in the sentence imposed on conviction and a different sentence should be imposed".However, in submissions which have been filed in support of the appeal, five grounds of appeal are advanced to demonstrate that the end sentence was manifestly excessive:(a) the starting point for the lead charge of driving whilst disqualified was too high;(b) the starting point failed to take into account mitigating features of the offending for which 40 hours community service was initially imposed;(c) the starting point failed to take into account that this was only theappellant's third conviction for driving while disqualified and the timeelapsed between convictions;(d) the Judge failed to give any credit for guilty pleas on the cumulatively-sentenced charges; and(e) the imposition of cumulative sentences made the sentence out of all proportion to the gravity of the offending.Principles on Appeal[5] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.33 Criminal Procedure Act 2011, ss 250(2) and 250(3).[6] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentenceis "manifestly excessive" that the Court should interfere with the exercise of the Judge's discretion. As Toogood J said (citing Ripia v R4) in Larkin v Ministry of Development:5[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.The District Court decision[7] In his decision, the Judge referred to the procedural history canvassed briefly above. He noted that the PAC report recommended a sentence of imprisonment on the basis of the appellant's demonstrated history of non-compliance with Court orders and Court-ordered conditions.6[8] On the aggravated charge of driving whilst disqualified, the Judge took astarting point of eight months' imprisonment. At this point the Judge discounted that sentence by two months to give effect to a 25% guilty plea discount.[9] From that six month mark, the Judge imposed the following cumulative uplifts:(a) two months for breach of community work;(b) four months for the possession of methamphetamine utensils;(c) four months for the breach of release conditions; and(d) zero months for the breach of bail (conviction and discharge).4 Ripia v R [2011] NZCA 101 at [15].5 Larkin v Ministry of Development [2015] NZHC 680.6 This included failure to answer DC bail in 2012 and several times in 2006, two breaches of community work in 2012, breach of Court release conditions in 2008, and breach of community work in 2004 and 2005.[10] This brought the cumulative end sentence to 16 months' imprisonment. No further discounts were applied for guilty pleas to the other offences.[11] The Judge noted he had no option but to impose a sentence of imprisonment because, at the time, the appellant was in custody on a more serious charge.7 The sentence of imprisonment was imposed, subject to standard and special conditions of release designed to address drug-related issues.AnalysisWas the starting point too high?[12] The first three grounds of appeal all relate to the appropriateness of the starting point adopted for the offence of driving while disqualified. The first and third grounds are interrelated and will be discussed together.[13] As the appellant notes, in respect of sentences for disqualified driving there is wide divergence. Each case is fact-specific, and there is by no means a mathematical way to determine the appropriate sentence based on the number or frequency of previous convictions. In this case, it was only the appellant's third such offence and I was directed to cases where a similar or lesser sentence had been imposed where the offender had 12 or more convictions for this offence.8 The appellant also submitted too little regard was had to the timing of the appellant's previous drivingwhilst disqualified offending, noting that some 14 years had elapsed between the first and second relevant convictions.[14] The respondent acknowledged this but, relying on Peterson,9 where a third of the maximum sentence of two years was deemed as a reasonable starting point, submitted that the eight months imposed here for a third offence was stern, but could not be considered outside the available range.7 Which has subsequently been withdrawn.8 Whakarau v Police [2016] NZHC 786; Hawthorne v Police [2016] NZHC 243; Penney v Police[2016] NZHC 816.9 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.[15] The appellant also contends that insufficient regard was had to the fact that this was a re-sentencing. Ms Buddicom drew my attention to the disparity between the sentence of 40 hours' community service which was originally imposed, and the subsequent sentence of eight months' imprisonment, saying this was disproportionate where no underlying factors of the offending have changed and where the re-sentencing involves another charge (breach of community service), which adds to the punitive result.[16] It is apparent that Judge O'Driscoll did not have the benefit of Judge Saunders' sentencing notes at the time of re-sentencing. Ms Buddicomexplained that the appellant's third arrest for driving while disqualified occurred at atime when he had not been served with papers stating that he was disqualified. This issue was drawn to Judge Saunders' attention and was reflected in the modest sentence imposed of 40 hours community work.[17] Of course where, as here, there is a re-sentencing after a s 68 application to cancel community work for breach, the Judge is not obliged to maintain a high degree of parity, even where the circumstances have not changed. A sentence of community work can rightly be commuted into a sentence of imprisonment. As the Court of Appeal said in R v Morgan:10[14] Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing.[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate.10 R v Morgan [2008] NZCA 232 at [14]-[15].[18] However, in this case I am satisfied that there was no real proportionality between the two sentences and there should have been taking into account the principle of consistency in sentencing in s 8(e) of the Sentencing Act 2002. It is clear the Judge was not aware of the reasons for the lenient original sentence and there is no obvious justification for the jump from a sentence of 40 hours community service to a sentence of eight months' imprisonment for the same offending. In the circumstances, I consider this was an error and I would allow the appeal on this ground. In my view, in the particular circumstances of this case, an appropriate starting point would be no more than four months' imprisonment.Credit for guilty pleas[19] The next issue raised was the Judge's failure to apply a discount for the guiltyplea to any charge but the lead charge. There was no dispute that the sentencing proceeded on the basis of guilty pleas on all charges and there is no explanation for why the discount was only applied to the lead charge. To the extent that the Judge was minded to impose cumulative sentences for the various offences, the appellant should have been entitled to a guilty plea discount on the cumulative total reached on all charges. In this case the four months for the driving while disqualified charge would be reduced to three months and the other sentences would also be reduced by 25 per cent.Cumulative approach and totality[20] The appellant submits that the "interrelated mitigating factors" surroundingthe breach charges are such that they should have been imposed cumulatively on the other charges, but concurrently as between themselves. In effect, the Judge should have made only one uplift to the sentence which encompassed both offences. Counsel emphasises the appellant's difficulties with child-care which made attendance at community work difficult. These were the same difficulties said to bring about his non-compliance with release conditions.[21] Against that is the fact that these offences, whilst broadly similar in terms of the type of offending (breach through non-compliance), are materially different anddesigned to address different aspects of a defendant's conduct after sentence. Theywere not proximate in time, despite the general assertion that there were similar factors behind the non-compliance. Finally, there was the question of the appellant'ssubstantial history of non-compliance. Indeed, that history formed much of the basisfor the Judge's selection of the appropriate uplift (compared with the appellant'sbreach of bail charge, for which he was convicted and discharged).[22] Ultimately, though, the decision to impose cumulative sentences was adecision in the Judge's discretion under s 84 of the Sentencing Act 2002, and I would not disturb it, particularly when the Judge expressly turned his mind to the principle of totality and found that it was not breached.The question of community detention[23] Finally, the appellant submits that although a community-based sentence was not available when the appellant was sentenced, if the Court is minded to grant this appeal against sentence then a community-based sentence should be considered, particularly as he has no active matters before the Court and an address is available for a community-based sentence.[24] In support of this Ms Buddicom explained that the appellant is the father of a number of children, including a three year old with quite serious health issues. The appellant had obtained custody of that child in 2015. Indeed, issues around the care of the child formed part of the factual matrix which led to the breach of community service and release conditions.[25] Against these submissions stands the fact that the appellant has already been subject to sentences of imprisonment. Additionally, the recommendation in the pre-sentence report for imprisonment was not based on the technical inability for alesser sentence to be imposed (because of the appellant's remand status), but on whatthe Judge identified as "the repeat nature of [the appellant's] offending and the past non-compliance with community-based sentences".[26] The imposition of home detention is a matter for the Judge's discretion. There is no presumption that home detention, if available, will be imposed instead of imprisonment. In all cases, a balancing of the purposes and principles in ss 7 and 8of the Sentencing Act 2002 is required.11 There are personal circumstances in this case which tend to highlight the "least restrictive outcome" principle, and which would suggest a community-based sentence. On the other hand, there is theappellant's proven track record which makes the principles of denunciation anddeterrence relevant. In addition, the Judge did turn his mind to the rehabilitative aspect of sentencing, and was satisfied that could be met with a prison sentence by the imposition of special release conditions.12[27] Overall, notwithstanding the fact that imprisonment was the only course open to him, the Judge was clearly of the view that a message needed to be sent in relationto the appellant's admitted drug problem and its effect on his offending saying:[11] Clearly release conditions are imposed in order to attempt to help and assist you with your drug issue and other issues and if you bury your head in the sand and do not comply as required, then you will continue to be at risk of re-offending.[28] In my view, there is no reason to depart from the Judge's conclusion that ashort term of imprisonment was appropriate. The appellant's track record makes theprinciples of denunciation and deterrence highly relevant. Furthermore, this is not a case where the appellant has never been in prison before and where I should perhaps be more cautious about selecting that option without first discounting community detention. Finally, the past non-compliance with community-based sentences points strongly to a prison sentence instead of a community-based sentence. For that reason, even though I accept that the sentence should be reduced, I do not accept it should be commuted to one of home detention.[29] Accordingly, the appeal is allowed on the basis that the Judge erred in:(a) setting a starting point on re-sentencing for the lead charge without appropriate reference to the sentence originally imposed and the reasons for it;11 R v Vhavha [2009] NZCA 588 at [29].12 In addition to standard release conditions, the appellant was made subject to the special condition that he attend any counselling, treatment, course, or programme designed to address his offending and drug-related issues.(b) applying a discount for guilty pleas to only one of the charges when all were pleaded guilty to.[30] The appeal is therefore allowed. The sentences of imprisonment imposed in the District Court are quashed and the following sentences of imprisonment are imposed, to be served cumulatively:(a) on the charge of driving while disqualified – three months;(b) on the charge of possession of utensils – three months;(c) on the charge of breach of community work – one month two weeks; and(d) on the charge of breach of release conditions – three months.[31] For completeness, the conviction and discharge on the charge of breach of bail conditions is not affected, nor is the imposition of standard and special conditions on release from prison.Solicitors:Ruth Buddicom, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch