SADLIER v POLICE [2018] NZHC 993

SADLIER v POLICE [2018] NZHC 993 [8 May 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI 2018-44-9[2018] NZHC 993BETWEEN TREVOR TEREWA SADLIERAppellantAND NEW ZEALAND POLICERespondentHearing: 8 May 2018 (via AVL)Counsel: W Hawkins for AppellantF E Cleary for RespondentJudgment: 8 May 2018JUDGMENT OF ELLIS J[1] Mr Sadlier appeals his sentence of six months' imprisonment following hisguilty plea to, and conviction on, one charge of common assault.1 In essence he saysthat the eight month starting point adopted by the sentencing Judge was manifestlyexcessive and/or that the Judge did not, and was unable properly to, consider asentence of home detention because a home detention appendix had not been prepared.Background[2] By way of background I can do no better than set out Judge Adeane'ssentencing notes more or less in full. He said:[2] The summary of facts informs the Court that Mr Sadlier is in arelationship with the victim's mother. In the early hours one Saturday morning,he went into the victim's bedroom where the victim was to be found andwithout warning began punching him in the face with a closed fist. He waspunched four or five times and the summary of facts says that his nose wassplit causing significant loss of blood.1 Laid under s 196 of the Crimes Act 1961.[3] When spoken to, the defendant attempted to offer an explanation thatthe complainant had damaged his letterbox the night before.[4] Crimes Act assault is punishable by a maximum of 12 months'imprisonment. There is certainly no tariffs for assault at this level because thecircumstances vary so widely.[5] The probation report in the case is highly instructive as to Mr Sadlier'sattitude. He has no real remorse for the offending and continues to justify hisbehaviour by reference to the behaviour of the complainant. It is suggested in thereport that Mr Sadlier has a sense of entitlement to use violence to settle disputesand that proposition is certainly supportable when one looks at his previouscriminal history which is regrettably marked by instances of violence, so that hisrecent history reads "contravention of protection order, wilful damage, threateningbehaviour, contravention of protection order, common assault, common assault,assault with intent to injure" and that is simply the entries since 2009. The sametheme is to be found further back in time with breaches of protection order,common assaults, assaults on females being a well-established pattern ofbehaviour on the part of this defendant over a period of 25 years.[6] The time has now come where deterrence and denunciation loom large insentencing Mr Sadlier. This was completely uncalled-for violence and a sentenceof imprisonment is the least that can be imposed to mark society's disapproval ofthis sort of ongoing behaviour. That is the recommendation of the probationofficer also.[7] I adopt a starting point of eight months' imprisonment. Mr Sadlier haspleaded guilty at an early stage and a sentence of six months' imprisonment isimposed accordingly. That is to be followed by six months of release conditionsas set out in the probation officer's report.[8] The case would not be adequately by a sentence of home detention andthe Court does not proceed in that direction at this time.[3] The only point it is necessary to add is that, at the time of taking Mr Sadlier'sguilty plea Judge Courtney made the standard direction for a pre-sentence report andhandwrote beside it "Address offending causes and all options". It is unclear whetherthis was intended to mean that a home detention appendix was required. In any event,one was not provided.2Discussion[4] In terms of the starting point, there are, of course, many cases with differentfacts to which reference could be made.3 I do not regard those cases as overly helpful.2 The PAC Report writer noted "Electronic Monitoring was not requested by the Courts ".3 Amongst the cases to which I was referred were Dooley v Police HC ChristchurchCRI-2008-409-1, 21 February 2008, Dempsey v Police [2015] NZHC 2589, R v Sheppard [2014]NZHC 2302; Kapene v Police [2014] NZHC 41 and Mihaka v Police [2015] NZHC 1318.[5] Rather, I agree with Ms Cleary that a starting point of eight months'imprisonment cannot be said to be outside the available range. Such a starting pointcan, in my view, be justified, in light of the following aggravating features:(a) the fact that Mr Sadlier entered the victim's home early on a Sundaymorning when the victim was still in bed;(b) multiple blows directed at the head (Mr Sadlier punched the victim upto five times to the head with a closed fist, causing the victim's nose tosplit and bleed profusely); and(c) an element of vigilantism in the sense that Mr Sadlier sought to justifyhis behaviour to police (and later to the PAC report writer) by sayingthat the victim was "cheeky" and had provoked him.4[6] It can also be inferred that the eight month starting point included (or couldhave included) an uplift for Mr Sadlier's quite numerous and similar previousconvictions. And I record for completeness Ms Cleary's observation that, hadMr Sadlier been charged with injuring with intent to injure (which attracts a maximumpenalty of five years imprisonment) then an application of Nuku would render eightmonths imprisonment a very lenient sentence.5 I agree with her that the availabilityof such a charge is a further indicator that Mr Sadlier's offending is at the higher endof the "common" assault spectrum.[7] In terms of the question of home detention, Mr Hawkins relied, in particular,on Woodhouse J's statement that:6On this point, as on other relevant points, I acknowledge that a Judgesentencing in the District Court, and possibly in a busy list Court, cannot beexpected to articulate every point that may be relevant. However, giving thatconsideration proper weight, I do not consider it is possible to infer that theJudge gave consideration to home detention. A sentencing Judge is bound toconsider home detention, if it is technically available in terms of s 15A of the4 Even if vigilantism of any kind could be countenanced (which it cannot) Mr Sadlier's responsewas out of all proportion to the victim's perceived wrong.5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.6 Fomai v Police [2014] NZHC 377 at [18]. He also relied by analogy on those cases which haveheld that it is wrong in principle to proceed to a sentence of imprisonment without a pre-sentencereport: Fowler v R [2016] NZCA 233.Sentencing Act, notwithstanding that there is no submission for a defendantthat home detention should be imposed. [8] For the Crown's part, Ms Cleary accepted that the PAC report should haveincluded appendices. But, she said, the Judge nonetheless had adequate materialbefore him to make a properly informed decision about all sentencing options. Theonly information missing was advice as to the suitability of an address for electronicmonitoring. Given that Mr Sadlier had previously been bailed to his home address inNapier, that option could have been directed to be explored if the Judge had thoughtthat appropriate or necessary.[9] Again, I agree. By contrast with Fomai, the Judge's notes expressly recordthat he did, in fact, consider home detention but formed the view that imprisonmentwas the only sentence that adequately met the relevant purposes and principles ofsentencing. It seems to me that that conclusion was open to the Judge in light of boththe facts of Mr Sadlier's past and present offending and the contents of the PAC report.As regards the former, the present offending was, as I have said, at the more seriousend of the spectrum. As to the latter, Mr Sadlier's criminal history shows that he haspreviously received sentences of imprisonment for assault and breaching protectionorders and, in 2010, was sentenced to 21 months' imprisonment for assault with intentto injure. As well, the PAC report writer's fairly negative assessment was based onMr Sadlier's continued sense of entitlement, his apparently total lack of remorse andhis relative poor prognosis in terms of risk. It seems to me highly unlikely that a homedetention appendix would have added to the writer's assessment in any material way.[10] I am unable to discern any error in the Judge's sentencing approach or in theresult. The appeal is dismissed accordingly.__________________________Rebecca Ellis J