WHITLOW v NEW ZEALAND POLICE [2017] NZHC 1834

WHITLOW v NEW ZEALAND POLICE [2017] NZHC 1834 [3 August 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000080[2017] NZHC 1834BETWEEN TAWHAI WHITLOWAppellantAND NEW ZEALAND POLICERespondentHearing: 3 August 2017Appearances: C Nolan for AppellantS L Dayal for RespondentJudgment: 3 August 2017ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant Tawhai Whitlow was sentenced in the District Court at Christchurch to 13 months imprisonment after pleading guilty to the following 11 charges:1(a) Driving while suspended x 2(b) Receiving ($500-$1000)(c) Obtaining by deception (over $1000)(d) Obtaining by deception ($500-$1000) x 3(e) Offering to sell/supply psychoactive substance;1 Police v Whitlow [2017] NZDC 14535.(f) Breaching community work; and(g) Breaching supervision x 2Leave to apply for home detention was declined in the District Court.[2] Mr Whitlow appeals his sentence, saying the Judge erred in not imposing a sentence of home detention being the least restrictive sentence that was appropriate in the circumstances here.Background[3] Turning now to the background facts in this matter, the receiving and obtaining by deception charges relate to advertisements made by Mr Whitlow on aFacebook 'for sale' page in July and August of 2016. The appellant listed an iPad valued at $899 on the site which had been reported as stolen. The appellant also listed a motorbike, a collection of power tools, and two rifles for $1,700, $1,000, $800, and $800 respectively for sale on the same page. After reaching an agreement to buy certain items, third party purchasers transferred the purchase monies to the appellant who withdrew the funds from his bank account but did not did not release the advertised items.[4] Next, in June 2016 the appellant was suspended from driving due to excess demerit points. On one occasion in August 2016 and one in September 2016 the appellant was caught driving while still suspended.[5] In October 2016 a search of the appellant's phone revealed text messages sentby him offering to sell synthetic cannabis.[6] Lastly, the breach of community work and supervision charges relate to numerous incidents where the appellant failed to report and to comply with sentences imposed for common assault charges.[7] In the District Court His Honour Judge Couch had given a sentencing indication of 12 months' imprisonment in relation to the receiving, obtaining bydeception, and offer to sell or supply psychoactive substance charges. This was accepted by the appellant and he entered guilty pleas. At sentencing the Judge adopted, in relation to those charges, the indication. For the five dishonesty charges, Judge Couch took a starting point of 10 months, and uplifted by three months for the other charge. Noting as aggravating features the high degree of premeditation, theappellant's prior history of dishonesty offending, and the fact that the offences werecommitted while he was subject to community based sentences, the Judge uplifted the sentence by three months, before reducing by four months for early guilty pleas.[8] In his indication, the Judge had noted that he had been informed there may be other charges, and said that any sentence on those matters was likely to be cumulative to the 12 months indicated. At sentencing, the Judge treated the remaining charges as concurrent, but imposed uplifts on the indicated sentence to reflect them: two months for the driving charges, and three months for the sentence breaches. The Judge then reduced the 17 month sentence by four months to reflect the fact that the appellant had been on electronically monitored bail for eight months leading up to sentencing.[9] His Honour then considered whether home detention should be imposed. He noted the conclusion in pre-sentence reports he had before him that the appellant was"only marginally suitable" for home detention. Taking into consideration theappellant's history of breaching community based sentences, the Judge concluded that home detention was not appropriate here.Jurisdiction and principles of appeal[10] Turning now to jurisdiction and the principles on appeal, the appellant here appeals as of right.2 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.3 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive orinappropriate if the sentencing Judge's discretion is to be interfered with.2 Criminal Procedure Act 2011, s 244.3 Criminal Procedure Act 2011, s 250.[11] It is not enough that the Judge made an error in his or her reasoning. The focus is on the sentence imposed rather than the process by which the sentence was reached.4Submissions[12] Turning now to submissions I have received, before me counsel for the appellant confirmed that Mr Whitlow takes no issue with the starting point adopted by Judge Couch, nor the uplifts and discounts, nor the end sentence of 13 months. However, he argues that the least restrictive outcome appropriate in the circumstances here was one of home detention, and as such Judge Couch's refusal to grant home detention resulted in a manifestly excessive sentence.[13] As to this aspect, counsel submits that Mr Whitlow's compliance withstringent conditions while on electronic bail for eight months prior to sentencing should assure the Court that he can comply with home detention. Counsel alsosubmits that the Judge was wrong to consider the appellant's "turbulent" relationshipwith his father as a factor against home detention as his father is now supportive of home detention and the two, it appears, have lived together at his bail address over the last eight months without issue.[14] In response, the respondent submits that given, first, the appellant's failure tocomply with community based sentences in the past, secondly, the pre-sentence reports which indicate he is at increasing risk of reoffending, and thirdly his failure to attend community work whilst on bail, it was clearly open to the Judge to exercise his discretion to decline the application for home detention. Counsel for the respondent before me suggests therefore that no error has occurred here.Analysis[15] On this home detention issue, the Court of Appeal in James v R said5:an appeal against a refusal to grant home detention does not provide anopportunity to revisit or review the merits. The question is whether [the4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 James v R [2010] NZCA 206. (2010) 24 NZTC 24,271 at [17].judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?[16] In his sentence decision I am satisfied Judge Couch clearly turned his mind to home detention and set out his reasons for declining it. Those reasons, in my view, are sound. The appellant has six convictions for breaching community based sentences. This must demonstrate, as I see it, a concerning disregard for authority and surely indicates that such sentences have not had the desired deterrent effect. Whilst it is true that the appellant has complied with his bail conditions on this occasion, this does not make the prior breaches irrelevant. Judge Couch had before him two presentence reports dated 15 November 2016 and 30 May 2017, both ofwhich referred to the appellant's poor compliance, his low motivation and increasingrisk of reoffending. Further, as Judge Couch noted, the appellant has not made the most of opportunities afforded him while on bail to engage in community work and demonstrate a reformed attitude. Given these factors, it was certainly open to him as the sentencing Judge to reach the conclusion that non-compliance with home detention conditions was a real possibility. It is not for this Court, which in my judgment is not as well placed to assess this matter, to contradict his reasonable conclusion.[17] In addition to these factors, the dishonesty offending in this case is of a moderately serious nature. It comes too after a long history of related offending. It was open for Judge Couch to find that home detention would not in the circumstances satisfy the sentencing purposes of deterrence and denunciation.[18] I accept that the 'turbulent' relationship between the appellant and his fatheras noted in the pre-sentence reports is not a particularly compelling factor, although it has some relevance here. However, I do not consider the Judge placed undue weight on this, and declining home detention in the circumstances would have been reasonable absent this.[19] Finally, I note certain comments of the Court of Appeal in the decision R v D6which held:6 R v D [2008] NZCA 254 at para 66.[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.[20] Taking into account these comments in R v D and the other matters I have noted above, I am satisfied Judge Couch here appropriately assessed home detention as an unrealistic alternative.Conclusion[21] For all these reasons I conclude here that the appellant has not shown there was an error in the sentence imposed in the sense that home detention was refused and that a different sentence should be substituted. This appeal is dismissed....................................................Gendall JSolicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch