THE SOLICITOR-GENERAL v CASEY [2016] NZHC 15

THE SOLICITOR-GENERAL v CASEY [2016] NZHC 15 [21 January 2016]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2015-463-000057[2016] NZHC 15BETWEEN THE SOLICITOR-GENERALAppellantAND GERARD MICHAEL FRANCIS CASEYRespondentHearing: 10 December 2015Appearances: Z R Johnston for AppellantH H Roose for RespondentJudgment: 21 January 2016JUDGMENT OF GILBERT JThis judgment is delivered by me on 21 January 2016 at 3.00 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors/Counsel:Crown Law, RotoruaH H Roose, Barrister, RotoruaIntroduction[1] Having accepted a sentence indication given by Judge Bidois in the RotoruaDistrict Court of a starting point of four years' imprisonment, Mr Casey enteredpleas of guilty and was convicted of the following charges arising out of offending over a five year period against four victims, all members of the same family:(a) Three charges of blackmail.(b) Two charges of assault.(c) One charge of assault with intent to injure.(d) One charge of criminal harassment.(e) One charge of wounding with intent to injure.(f) One charge of threatening to kill.(g) One charge of intentional damage.[2] On 1 September 2015, Judge L M Bidois sentenced Mr Casey to 10 months' home detention, 400 hours' community work and ordered him to pay reparation of $21,738.96. The Judge adopted a global starting point for all matters of four years'imprisonment, consistent with the sentence indication. He allowed a global discount of 16 months for Mr Casey's guilty pleas, family support and good character. TheJudge then applied a further discount of 14 months to take account of the seven month period Mr Casey had spent in custody on remand. He did this despite being advised by the prosecutor that this discount could not be allowed because s 82 of the Sentencing Act 2002 states that the Court must not take into account any period of pre-sentence detention in determining the length of the sentence.[3] The Crown appeals against this sentence on the grounds that it is wrong in principle and manifestly inadequate.Approach on appeal[4] The appeal must be allowed if the Court is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed.1 In any other case, the appeal must be dismissed.2 The Court will not intervene if the end sentence is within the range that can properly be justified by following accepted sentencing principles.Was the sentence wrong in principle?[5] Section 15A(1) of the Sentencing Act limits the circumstances in which a sentence of home detention may be imposed. It provides:15A Sentence of home detention(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if –(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.[6] It follows that a two step process is required. The Court must first determine the sentence that would otherwise be imposed. It is only if this sentence is two years' imprisonment or less that the Court takes the second step which requiresthe exercise of discretion as to whether it is appropriate, in all of the circumstances of the particular case, to commute the sentence of imprisonment to one of home detention. As the Court of Appeal stated in R v Vhavha, the first step must be undertaken as if there is never going to be a second step.3 This is clear from the section itself; the Court may not impose a sentence of home detention unless it would otherwise impose a short-term sentence of imprisonment.1 Criminal Procedure Act 2011, s 250(2).2 Section 250(3).3 R v Vhavha [2009] NZCA 588.[7] In determining the length of any sentence of imprisonment that would otherwise be imposed under the first step, the Court may not take into account time spent in custody pre-sentence. This is clear from s 82 of the Act which provides:82 Pre-sentence detention must not be taken into account in determining length of sentence.In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act 2002.[8] If Mr Casey was sentenced to imprisonment, the time he has spent in custody would be taken into account administratively under the Parole Act and should be disregarded by the sentencing Judge.[9] The Judge determined that the sentence of imprisonment that he would otherwise impose was a term of two years and eight months. That is not a short sentence of imprisonment and, accordingly, home detention was not an available option because of s 15A(1)(b). The sentence was clearly wrong in principle.[10] I note that Clifford J came to the same conclusion in Wilson v Police.4I respectfully agree with his analysis and conclusion.[11] Mr Roose points out that this approach could lead to anomalous outcomes. For example, an offender who spent time subject to restrictive bail conditions, such as EM bail, would have that taken into account in step one whereas time spent in custody by an offender in an otherwise comparable position would not be taken into account. I agree that this is arguably anomalous. However, the terms of ss 15(1)(b) and 82 are clear. If there is an anomaly, that is a matter for Parliament to address, not the courts.Was the sentence manifestly inadequate?[12] Mr Casey, who is now aged 46, knew each of the four victims well. They all lived in the same rural town. Mr Casey previously lived next door to three of thevictims, a father and his two sons. He also knew the father's partner, the fourth4 Wilson v Police [2013] NZHC 3455 at [13].victim, because they had attended school together. Mr Casey had also previouslybeen in a relationship with the father's former wife, the mother of his two sons.[13] The offending appears to have developed following Mr Casey's decision inMarch 2010 to gift a four wheel drive vehicle to the younger son, aged 26 at the time of sentencing. This was after he and his father had offered Mr Casey $1,000 for it. According to the summary of facts, Mr Casey responded that he could take the vehicle free of charge as it was not worth $1,000.First assault[14] In June or July 2010, Mr Casey confronted the son at his place of work and demanded his truck back. Mr Casey grabbed him by the throat and began to strangle him while forcing him down an adjacent alleyway. Mr Casey stopped when an associate of his intervened. The son sustained bruising to his throat and neck but did not require medical assistance.Assault with intent to injure[15] Following this incident, the son telephoned his father and told him what hadhappened. His father and older brother went to Mr Casey's home. Mr Casey arriveda short time later. He head butted the father in the face and followed with an upper cut to his jaw knocking him to the ground. The father sustained two black eyes and a split lip but did not require medical attention.Second assault[16] The older son stepped between Mr Casey and his father at which point Mr Casey swung his arm around and knocked him to the ground. He suffered superficial scratches to his back but no medical attention was sought.First blackmail[17] After the father got back to his feet, Mr Casey said "I won't hit you anymore,but you need to pay me some money otherwise I will get [your younger son] again".Fearing that Mr Casey would do so, the father agreed to pay the money. Mr Caseysaid he wanted $3,000 for the vehicle and a koha for the embarrassment caused to his family. The following day, the father withdrew $4,000 and gave it to Mr Casey who accepted the money and said he was happy with the payment and would leave them alone.Second blackmail[18] Approximately two weeks later, Mr Casey was sitting in his car in a supermarket car park when he saw the father and called him over. Mr Casey was wearing a clear plastic knuckle duster on his right hand and was punching his steering wheel with it. He told the father that the $1,000 koha was an insult to hisfamily and he wanted more. He said that he would accept the father's truck aspayment. After the father declined to give him the truck, Mr Casey said that if he didnot bring more money he would again "visit" his younger son. In response to thisthreat, the father gave Mr Casey between $3,000 and $5,000 later that day.Criminal harassment[19] After the payment was made, Mr Casey continued to harass and intimidate the family by following them in their vehicles, often parking near the family home or in their driveway. However, matters then settled down until mid-August 2014 when Mr Casey called unannounced at the family home. He said that he wanted to talk to the father about a loader that had been parked on their property for the last six years. This belonged to a neighbouring farmer but the father had allowed an associate to use it. Mr Casey claimed that he had purchased the loader from the farmer and hadmissed out on a sale of it as a result of it not being retained on the family's property.Mr Casey told the father that he owed him $10,000 for this. Mr Casey then began to target and harass the father's partner.[20] On 2 September 2014, Mr Casey followed the father's partner home and asked why his calls were not being answered. He told her "he's lucky I haven't sentsomeone to deal with this, I know someone who has gotten away with two murders".Mr Casey told her to arrange a meeting.Third blackmail[21] A meeting was arranged that night, Tuesday 2 September 2014. Mr Casey arrived and demanded payment of $10,000 for the loader. He said that unless the money was paid by Friday, all family members would be harmed. The father duly arranged for $10,000 to be paid to Mr Casey on Friday 5 September 2014.Wounding with intent to injure[22] On 30 January 2015, Mr Casey went to the home belonging to the family where the younger son lived. Mr Casey punched him twice in the face before telling him to sit down in his workshop. Mr Casey then berated him for saying something behind his back. Mr Casey then picked up a piece of pipe from the workshop and threatened the younger son with it and demanded to be told what he had been saying. When the younger son stood up, Mr Casey yelled at him and punched him in the left side of his rib cage, rupturing his spleen. This required urgent surgery and the spleen was removed.Threatening to kill[23] Mr Casey then tapped the pipe against the younger son's forehead and againdemanded to be told what he had been saying about him and to whom. Hethreatened to return the following day and take the younger son's car. Mr Casey thenmade a pistol shape with his hand and said that he was going to kill him, his father, brother and grandmother.Intentional damage[24] Mr Casey then swung the pipe towards the younger son but hit a jet ski beside him instead. He struck the jet ski approximately five times causing serious damage to it. He then walked around the workshop tapping the pipe on different vehicles asking who they belonged to and threatening to damage them as well. Using the pipe, Mr Casey then smashed the front headlight, indicator lens and thedriver's and passenger's windows on the younger son's ute. He then struck the frontleft guard with the pipe at least five times causing serious damage. Mr Casey strucka dog kennel with the pipe as he left. According to the summary of facts, this incident took place over a period of about one hour.Starting point[25] There is no written record of the sentence indication that was given. However, counsel confirmed that the indication was that a starting point of four years' imprisonment would be appropriate. I have not seen the submissions that were prepared for the purposes of the sentence indication but counsel advise that theCrown submitted that a starting point of between four and six years' imprisonment should be adopted.[26] Despite that submission, the Crown now contends that anything less than a five year starting point would be manifestly inadequate. Ms Johnston places particular reliance on R v Hapeta5 and R v Duffy & Brown6 to support this submission. Four year starting points were adopted in each of those cases but Ms Johnston submits that the facts of the present case require a materially longer starting point.[27] In Hapeta, the starting point reflected the totality of offending over an eight month period giving rise to nine charges: two of blackmail, one of kidnapping, two of robbery, one of common assault, one of threatening to kill, one of threatening to damage a dwelling and one of cultivation of cannabis. There were two victims in that case both of whom were particularly vulnerable because they were elderly and socially isolated. The victims were so intimidated that both felt they had no alternative but to leave their properties and move out of the area. One had to sell his property at a loss and put his dogs down because they could not come with him. He was forced to live with his son and suffered a heart attack which he attributed to the stress caused by the offending. The other had to leave his job and relocate to Australia. He was unable to find work and the offending has significantly affected him in retirement. The sums paid in that case were more modest but this is at least partly offset by the fact that significant property was stolen. The physical injuries were not as significant but one of the victims was punched in the head and face and5 R v Hapeta [2012] NZHC 605.6 R v Duffy & Brown HC Christchurch CRI-2004-042-2810, 15 April 2010.pushed up against a wall. The psychological and emotional harm appears to have been at least as great. The threats were comparable. In that case, the threats included numerous threats to kill both victims, family members and burn their houses down. While the offending occurred over a shorter period, it persisted throughout that period. The offending in Hapeta also included kidnapping, an extremely seriousoffence for which the maximum penalty is 14 years' imprisonment. Overall, Iconsider that Judge Bidois was entitled to assess the totality of the offending in the present case as being broadly comparable to that in Hapeta.[28] The facts in Duffy & Brown were less comparable. In that case, the offenders were enlisted by drug dealers to recover a drug debt from the victim. Fogarty Jadopted a starting point of four years for Mr Brown's involvement. Mr Brown went to the victim's house, walked up to him and punched him in the head three timesbefore marching him into the house and assaulting him again. Approximately an hour later, Mr Brown forced the victim into a car and he was driven away. While in the car, Mr Brown punched the victim in the head no fewer than 15 times causing much bruising and subsequent swelling to his head and face. On arrival at the destination, the victim was taken to a garage where Mr Brown assaulted him with a large piece of 4 x 2 timber, first across the back of his leg and then to his head. The final blow was of such severity that the length of timber broke. The victim was then threatened and placed in the back of a vehicle following which he contacted his girlfriend by mobile phone and arranged for his vehicle to be delivered to Mr Brown. While these facts are quite dissimilar to the present, the extent of the violence was much greater and involved multiple blows to the head, including with a weapon. That case also involved kidnapping.[29] I am not persuaded that the totality of the offending in the present case is more serious than the offending in Hapeta or Duffy & Brown, certainly not to such a degree that a materially higher starting point was required. I consider that the starting point adopted by the Judge, which was within the range advanced by the Crown in their submissions, was not manifestly inadequate. Although a higher starting point could have been justified, the starting point adopted was within therange of the Judge's sentencing discretion.Conclusion[30] The Judge made no error in fixing the starting point of four years'imprisonment which reflected the sentencing indication. There is no challenge to the global discount of 16 months the Judge gave for personal mitigating factors and Mr Casey's guilty plea. That leads to a final sentence of two years, eight months'imprisonment. The Judge was not entitled to commute that sentence to a sentence of home detention and community work. Accordingly, the appeal must be allowed, thesentence quashed and replaced with a sentence of two years and eight months'imprisonment.Result[31] The appeal is allowed. The sentence is quashed and replaced with a sentenceof two years, eight months' imprisonment.________________________M A Gilbert J