GODFREY v NZ POLICE [2018] NZHC 920

GODFREY v NZ POLICE [2018] NZHC 920 [3 May 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2018-488-000005[2018] NZHC 920BETWEEN STEVEN MAURICE GODFREYAppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2018Appearances: N S Leader for the AppellantJ Scott for the RespondentJudgment: 3 May 2018JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 3 May 2018 at 10:00 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), WhangareiCounsel: N S Leader, Whangarei[1] On 22 February 2018, Steven Godfrey was sentenced by Judge D G Harvey to17 months imprisonment on one charge of assault with intent to injure and one chargeof driving with excess breath alcohol, being a third or subsequent offence.[2] He now appeals against sentence on the sole ground that the Judge should havecommuted the sentence of imprisonment to one of home detention.Factual background[3] The victim of the assault was his brother, Darren Godfrey. A second brother,Craig Godfrey, was also charged in relation to the assault. Craig was charged with amore serious offence, that of wounding with intent to injure on the basis of his primaryrole in the assault of their brother.[4] On the evening of 24 November 2016, the three brothers were together at theOtaika Sports Park situated on State Highway One. They were consuming alcohol inparked vehicles. There was then a verbal altercation between Craig and Darren overa historic personal matter. That escalated to Craig punching Darren six to seven times.Craig told his brother that he was going to kill him. Darren fell to the ground andCraig then kicked him in the face and upper body approximately three to four times.It was at that stage that the appellant became involved by also kicking Darren, mainlyin the head, front and side about five or six times.[5] Craig then went to his vehicle and retrieved a baseball bat, which he used tohit Darren in the head and back twice. Darren stood up and Craig hit him again in themouth using the baseball bat. Craig then used the baseball bat to smash the frontpassenger window of Darren's car. Craig told Darren that he was never going to gohome, swore at him and continued to hit him a few more times. Prior to leaving, Craigdemanded Darren's rings. Darren complied and handed these over, as well as anecklace. Craig then left with the appellant in Craig's vehicle. As a result of theassault, Darren received a cut to his right temple, bruising to his lower back, a cut lip,chipped teeth, and bleeding from his lips and head.District Court decision[6] The appellant was sentenced together with his brother Craig. After reviewingthe facts of the assault and the pre-sentence reports which had been compiled for bothCraig and Steven, the Judge adopted starting points for the offending before givingconsideration to any discounts which might be available. The Judge commented thathe had given some "very anxious consideration" to the appropriate discount for thebrothers' guilty pleas because he said the assault was a "very ugly incident". Heaccepted that the brothers had entered pleas of guilty, but commented that was at thevery last minute and only when, effectively a deal was offered, which benefited bothof the brothers quite considerably.[7] In the case of Craig, the primary perpetrator of the assault, the Judge adopteda starting point of three years imprisonment, which he discounted by four months forhis plea of guilty, leading to an end sentence of two years and eight monthsimprisonment.[8] As for Steven, the appellant, the Judge adopted a starting point of 16 monthsimprisonment, to which he added four months for the excess breath alcohol charge.He gave Steven full credit for his plea of guilty and thus reached a total term ofimprisonment of 17 months, being one year and two months on the assault charge andthree months on the excess breath alcohol charge.[9] The Judge accepted that technically a sentence of home detention was availablefor Steven, but he said that the Court was "dealing almost daily with this type ofrandom vicious, violence" and he was "simply not prepared to send a message to thecommunity that you can get away with this type of behaviour then expect a sentenceof home detention."[10] The Judge acknowledged that the Court of Appeal had said that a homedetention sentence does carry with it a deterrent aspect, but the fact remained for thistype of violence the community has to get, what he said was, a very clear message.Appellant's submissions[11] No issue was taken with the starting points or the adjusted end points of theterms of imprisonment. No issue was taken with the cumulative sentences, theoffending being different in kind and occurring over a year apart. The sole issue onappeal is whether or not the Judge erred by failing to commute the sentence ofimprisonment to one of home detention.[12] Counsel draws the Court's attention to the Court of Appeal decision inManikpersadh v R where the Court stated:1We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing, as in other sentencingappeals to this Court, on the identification of error, if any, in the court below".[13] The Court of Appeal went on to state:2We endorse the observations of William Young J in Vhavha that in exercisingthe discretion whether to commute a sentence of imprisonment to homedetention, those ss 7 and 8 purposes and principles of sentencing, relevant tothe particular case, must be considered by the sentencing judge.Section 7 deals with the purposes of sentencing. It includes deterrence,denunciation, accountability, promoting a sense of responsibility, providingfor the interests of the victim and the protection of the community. However,it also includes assistance to an offender's rehabilitation and reintegration.Section 8 of the Act requires the Court in sentencing to take into account thosematters set out in subss (a) to (j). Those factors will be relevant in decidingwhether a sentence of imprisonment initially is appropriate. They are alsorelevant in deciding whether or not, in a particular case, a sentence of homedetention might be imposed. The s 8 factors include the gravity of theoffending and culpability of the offender, the seriousness of the offence andvictim impact. But s 8 also requires the Court to have regard to the leastrestrictive appropriate outcome, the offender's personal circumstancesincluding his personal and family background and relevant rehabilitation.[14] The appellant submits that an error of law has occurred because the Judgefocussed solely on deterrence without any regard to the countervailing purposes ofsentencing.1 Manikpersadh v R [2011] NZCA 452 at [12].2 At [14]–[16].[15] The appellant submits that the following factors ought to have been consideredin the exercise of the Court's discretion:(a) The appellant had pleaded guilty. The downgrading of the chargereflected the fact that Steven was not acting in concert with his brother.(b) Although he had one previous conviction for violence, it was 10 yearsprior to this offending, and was not so relevant or recent to result in anuplift of the starting point.(c) Darren's injuries were not at the higher end of the scale.(d) The majority of the injuries cannot be attributed to Steven, given thelesser role he played in the offending, and given the more serious chargefaced by his brother Craig.(e) Although he was not intoxicated on this night, he was prepared to attendcounselling to address his alcohol issues. He had insight into howalcohol caused him problems and was motivated to complete furthercounselling.(f) He was remorseful for his actions and regretted his part in theoffending.(g) He had no previous convictions for breaching community-basedsentences.(h) He suffers from anxiety, which is possibly a by-product of a violent,abusive upbringing.(i) He had been in steady employment for a year. That employment wasavailable to him if he was sentenced to home detention.(j) There no longer appeared to be any issues between the appellant andhis brother, Darren.(k) There was a technically suitable address, and the appellant was suitablefor home detention.(l) The Crown sentencing submissions noted that the end sentence forSteven would be within range for consideration of home detention orother community-based sentences.[16] In conclusion, the appellant submits that the Judge erred by failing to weigh upall of these factors, and instead focussed solely on deterrence. He submits that onceall of the relevant factors are assessed, and having regard to the desirability of keepingoffenders in the community as far as that is practicable and consonant with the safetyof the community, then the least restrictive outcome ought to have been one of homedetention.Discussion[17] In Manikpersadh, the District Court Judge had focussed solely on deterrence.The Judge had said:3[10] I consider whether any form of home detention is appropriate for youand I do not believe it is. Home detention and community detention for thatmatter do have deterrent aspects but it would be inviting the public, in myview, to lose confidence in the Court if you were sentenced to home detention.[11] The public of Auckland is outraged and rightly so by drunks like youcrashing through red lights and causing serious injury. I do not believe thathome detention is a sufficient deterrent for people like you and others who arelikeminded to do that and I decline to sentence you to a sentence of homedetention.[18] The Court of Appeal was satisfied that the District Court Judge was in errorwhen he focussed solely on deterrence when considering whether he could impose asentence of home detention instead of imprisonment. The Court of Appeal then carriedout its own assessment of the relevant ss 7 and 8 factors and concluded that overallthose clearly favoured a sentence of home detention.3 At [5].[19] In Brittin v New Zealand Police, Woodhouse J summarised the principlesrelating to a sentencing Judge's choice between imprisonment and home detention:4(a) Imprisonment is a measure of last resort.(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall the purposes of sentencing.[20] Woodhouse J also held that the District Court Judge in that case had erred bygiving paramountcy to deterrence, denunciation and holding the offender to account,on the basis that deterrence was a stated purpose of the Act.[21] With all due respect to Judge Harvey, I am of the view that he fell into error infocussing solely on deterrence when considering whether to commute the otherwiseappropriate sentence of imprisonment to one of home detention.4 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].[22] The Judge referred to violence in the appellant's background without analysinghis criminal record to properly assess his risk of reoffending. The appellant has11 convictions over a six year period when he was aged 18–24 years. He is now30 years of age and has not been convicted of any criminal offence in the last six years.His convictions, which could be characterised as involving violence or potentialviolence, are wilful damage in 2012, disorderly behaviour in 2010, assault with aweapon in 2008 and possessing a knife in a public place in 2006. He has never beensentenced to a term of imprisonment previously.[23] The current offence did not involve the public, being a dispute betweenbrothers. The appellant's involvement was much less than that of his brother, Craig,who is serving a term of imprisonment for his primary role in the offending. Thepre-sentence report noted the advice of their mother that Stephen and Darren no longerhad issues and were on friendly terms.[24] The pre-sentence report also recorded the appellant's regret for his part in theoffending and remorse for his actions. It further noted that the appellant was preparedto attend counselling to address his alcohol use, which he believed was a major factorin the offending.[25] The Judge made no reference to the fact that the appellant was in full-timeemployment with Fresh to the Chef operating out of Tauranga, which supplies a widerange of freshly prepared products to restaurants and catering establishments. Thatemployment would be available to him if he was sentenced to home detention.[26] The pre-sentence report also noted that the appellant had no convictions forbreaching community-based sentences so he was considered suitable for furthersentences of this nature.[27] I am, therefore, of the view that the requirement of holding the appellant toaccount, denunciation or deterrence should not have dictated the decision whether tocommute the otherwise appropriate sentence of imprisonment to home detention. Thatbeing so, and the appellant being a good candidate for home detention, I see theprinciple that the least restrictive outcome that is appropriate in the circumstances mustbe imposed as the primary consideration with the result that I would allow the appeal.Outcome[28] The sentences of one year and two months imprisonment on the assault chargeand three months imprisonment on the excess breath alcohol charge are quashed.Taking into account the 10 weeks the appellant has been in custody, I impose insteadcumulative sentences of five months home detention on the assault charge and onemonths home detention on the excess breath alcohol charge.[29] I am advised by counsel that the proposed home detention address remainsavailable. Accordingly, I impose the following conditions:(a) Upon release from prison, travel directly to the nominated address andawait the arrival of a field officer.(b) To reside at that address for the duration of the sentence.(c) Not to purchase, possess or consume alcohol and/or illicit drugs for theduration of home detention.(d) To report to a probation officer as directed.(e) Undertake alcohol and other drug assessment, and complete anyrecommended counselling or treatment for abuse of alcohol and otherdrugs, to the satisfaction of the probation officer and programmeprovider.(f) To attend and complete such counselling/programme/treatment toaddress identified offending behaviour as may be directed by theprobation officer and to the satisfaction of the probation officer andprogramme provider.(g) Post detention conditions with the following special condition:(i) To undertake and complete any remaining rehabilitativeprogramme, counselling, treatment and maintenance follow upprogramme as directed by the probation officer._________________________Woolford J