SANGSTER v DEPARTMENT OF CORRECTIONS [2021] NZHC 2371

SANGSTER v DEPARTMENT OF CORRECTIONS [2021] NZHC 2371 [10 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000284[2021] NZHC 2371BETWEEN STEVEN JASON PAUL SANGSTERAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 7 September 2021Counsel(via VMR):DHP Schellenberg and CJJ Mair for AppellantJ Nedeljkov for RespondentJudgment: 10 September 2021JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 10 September 2021 at 1 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.DHP Schellenberg, Auckland.CJJ Mair, Auckland.The appeal[1] Judge N R Dawson found Steven Sangster guilty1 of breaching prison releaseconditions without reasonable excuse.2 Mr Sangster appeals. He contends the Judgeerred in his assessment of the evidence to such an extent a miscarriage of justice hasoccurred.3Background[2] The alleged offending occurred 1 December 2020. A long run-up is necessary,beginning 20 May that year. Mr Sangster was then released from prison. His releaseconditions were explained. Mr Sangster signed a copy.[3] In early September 2020, Mr Sangster failed to attend an alcohol and drug testand twice failed to report to Community Corrections. A warrant for Mr Sangster'sarrest issued.[4] On 19 September 2020, Mr Sangster sprained his knee playing touch rugby.The Judge accepted the injury was "severe".4[5] On 30 September 2020, Melinda Chan, a probation officer, telephonedMr Sangster.5 He told her about the injury and that he was on crutches. He also saidhe was anxious about the warrant. Mr Sangster sent Ms Chan by text message, hismedical records in relation to his knee. Ms Chan directed Mr Sangster to report thefollowing Tuesday and weekly thereafter.[6] Mr Sangster reported, as required, 13, 20 and 27 October 2020.1 Department of Corrections v Sangster [2021] NZDC 11713.2 Sentencing Act 2002, s 96(1). The offence is punishable by maximum term of one year'simprisonment.3 Criminal Procedure Act 2011, s 232(2)(b).4 Department of Corrections v Sangster, above n 1, at [11].5 Ms Chan accepted in cross-examination she could not be sure she had called Mr Sangster (asagainst him calling her).[7] On 3 November 2020, Mr Sangster telephoned Glendon Motufoaki, anotherprobation officer. Mr Sangster said he could not report as his knee was sore.Mr Motufoaki told Mr Sangster to report 10 November 2020.[8] Mr Sangster did not report then or 17 November 2020.6 He also changedaddress without informing Community Corrections.[9] On 24 November 2020, Mr Motufoaki visited Mr Sangster at his new address,having learned of it from the Ministry of Social Development. Mr Sangsteracknowledged to Mr Motufoaki he had no excuse in relation to the 17th, albeitMr Motufoaki accepted in cross-examination Mr Sangster might have referred to hisknee injury.[10] Mr Sangster failed to report 1 December 2020. Mr Motufoaki accepted hemight have missed a telephone call from Mr Sangster on this date. Mr Sangster saidhe did not report as could not walk from the nearest bus stop (because of his injury),and he could not afford other means of transport. In cross-examination, Mr Sangsteraccepted he did not attempt to contact Mr Motufoaki by text message.[11] Judge Dawson outlined much of this background, then said:7The evidence indicated that the injury to your knee had improved after eightweeks and 1 December 2020 was after the eight-week period. However, inyour evidence you say that although it had improved, you still were requiredto use crutches and you could not go more than 10 metres without crutches.You say when you could not report on 1 December 2020, you rangMr Motufoaki a couple of times, but you could not contact him to tell him thatyou could not be there. In cross-examination, you accepted you did not makeany effort to text Mr Motufoaki which you could easily have done from yourphone, nor did you attempt to contact anyone else in the probation office whenyou could not contact Mr Motufoaki.I am, therefore, of the view that you should have tried harder and you did not.The obligation is upon you to attend unless you had a reasonable excuse andyou have an obligation to convey that reasonable excuse and the means to doso is open to you, but you did not do so.It is not an egregious breach in my view, but it is, nevertheless, a breach and,on that basis, I find the charge has been proved and you are guilty as charged.6 In relation to the 10th, Mr Sangster said he did not have transport and his knee was sore. He alsosaid he attempted to call Mr Motufoaki. Mr Motufoaki said Mr Sangster did not.7 Department of Corrections v Sangster, above n 1, at [8]–[11] (emphasis added).Mr Sangster, given the circumstances of the matter, as I have heard them, Iaccept you had a severe injury. You did not try as hard as you should and thatwas your biggest mistake.Principle[12] An appeal of this nature is a rehearing, but an appellant must persuade theappeal Court of error. Customary caution is required in relation to credibility findingsand other advantages enjoyed by the trial Court.8Mr Sangster's case on appeal[13] On behalf of Mr Sangster, Mr Schellenberg contends the Judge conflated thereasonableness of Mr Sangster's failure to appear on 1 December 2020 with thereasonableness of his communications with Community Corrections on or about thatdate.9[14] Mr Schellenberg emphasises s 96(1) of the Sentencing Act 2002 criminalisesbreach, without reasonable excuse, of any condition imposed under ss 93 or 94 of thatAct, the s 93 standard conditions incorporating reporting to a probation officer "as andwhen required".10[15] In short, Mr Schellenberg contends the Judge focussed on Mr Sangster'sfailings as a correspondent as opposed to the reasonableness of his failure to attend1 December 2020.The argument for the Department of Corrections[16] On behalf of the Department, Ms Nedeljkov acknowledges the decision can beread as Mr Schellenberg contends. However, she argues the Judge did not err.Ms Nedeljkov says the Judge was merely saying the absence of a text message was a"factor to be taken into account in assessing whether the excuse was reasonable in all8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].9 The prosecution must exclude the possibility of a reasonable excuse (beyond reasonable doubt)once an evidential foundation for such an excuse is raised. Whether an excuse is reasonable turnsnot on the defendant's perception, rather, objective assessment: A v Police [1999] 2 NZLR 501(HC) at 506.10 By s 14(1)(b) of the Parole Act 2002.the circumstances". Ms Nedeljkov says the totality of the evidence, including earlierbreaches, reveals an obvious instance of a breach 1 December 2020. Or in short, thecharge was properly proved.Analysis[17] I accept Mr Schellenberg's submission the Judge decided the charge on thereasonableness of Mr Sangster's communication, not the reasonableness of the excusefor failing to comply with the reporting condition. The italicised portions of thedecision, as to which see [11], support this conclusion rather than the Crown'sinterpretation.[18] Should the appeal be dismissed given the strength of the evidence? The recordpermitted the Judge to find the charge proved. While Mr Sangster was injured, hisinjury did not preclude him from reporting 13, 20 and 27 October 2020, or fromchanging address. Moreover, Mr Sangster did not inform Community Correctionsabout this change, or report early September or 10 and 17 November 2020. So, it wasopen to the Judge to conclude Mr Sangster was using his injury as a crutch, no punintended. I would have reasoned this way to dismiss the appeal but for one thing: theJudge appears to have accepted Mr Sangster's testimony. This is important. It countsagainst me finding the charge proved given the limitations inherent to the record, andthe customary caution on the part of appeal Courts in relation to credibilitydeterminations.Result[19] The appeal is allowed; the conviction quashed. I order no re-trial as the Judgeconvicted and discharged Mr Sangster without further sentence...Downs J