MCALISTER v NEW ZEALAND POLICE [2021] NZHC 800

MCALISTER v NEW ZEALAND POLICE [2021] NZHC 800 [14 April 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2021-463-06[2021] NZHC 800BETWEEN TRIDENT-HYDE TUKOTUKU WILSON-MCALISTERAppellantAND NEW ZEALAND POLICERespondentHearing: 11 March 2021 (AVL)Appearances: J Sparrow for the AppellantR W Jenson for the RespondentJudgment: 14 April 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 14 April 2021 at 3:00 pmRegistrar/Deputy Registrar[1] On 20 October 2020 Mr Wilson-McAlister pleaded guilty to one charge ofinjuring with reckless disregard.1 He was sentenced to 18 months' imprisonment byJudge Mabey QC in the District Court at Tauranga on 11 January 2021.2 The Judgedid not consider a sentence of home detention was appropriate.[2] Mr Wilson-McAlister appeals against sentence on the basis that homedetention was the appropriate outcome.Background[3] On the evening of 11 July 2020, the complainant was at a bar in Mt Maunganui.Mr Wilson-McAlister arrived at the bar with another person who is a patched gangmember. There was a conversation between the complainant and the gang member.The gang member became upset and aggressive. He threatened the complainant.[4] During this conversation, Mr Wilson-McAlister positioned himself behind thecomplainant. Two associates stood on either side of him. The complainant did notsee Mr Wilson-McAlister. Mr Wilson-McAlister then struck the complainant with hisright fist on the right side of her face. She was rendered unconscious and fell to thefloor. Mr Wilson-McAlister left.[5] The complainant was unconscious for about 90 seconds. The force causeddamage to her teeth which required medical attention. She has had ongoing healthissues connected with the concussion.District Court decision[6] The Judge viewed CCTV footage of the assault. He noted the considerablesize difference between Mr Wilson-McAlister and the complainant, that she did notknow he was behind her, the application of force by him to the complainant frombehind was significant and without warning, and that she was clearly unconsciousimmediately after she was struck.1 Crimes Act 1961, s 189(2). Maximum penalty: five years' imprisonment.2 Police v Wilson-McAlister [2021] NZDC 235.[7] As to personal features, the Judge acknowledged Mr Wilson-McAlister's priorconvictions did not disclose a history of violence, that he was employed and supporteda family. The Judge noted that he reported giving up alcohol after the assault.[8] In setting a starting point, the Judge considered the offending was in band 2 ofNuku v R,3 at the upper end. This provided for a starting point of up to three yearswhere three or fewer of the aggravating factors identified in R v Taueki were present.4Those aggravating factors accepted by the Judge were the premeditation involved, anattack to the complainant's head, and the vulnerability of the victim given the sizedisparity between Mr Wilson-McAlister and the complainant. After comparing toother cases, the Judge settled on a starting point of two years' imprisonment.[9] The Judge rejected submissions on Mr Wilson-McAlister's behalf that he wasentitled to discounts for youth, remorse, efforts at rehabilitation and prior goodcharacter. The only discount allowed was for an early guilty plea. The Judge acceptedMr Wilson-McAlister was entitled to the full discount of 25 per cent, bringing the endsentence to 18 months' imprisonment.[10] A sentence of home detention was not one the Judge considered appropriate inthis case. The level of brutality in the assault meant home detention would be muchless than the least restrictive outcome.Grounds of appeal[11] On behalf of Mr Wilson-McAlister, Mr Sparrow does not challenge the startingpoint of two years' imprisonment, nor the discount that the Judge allowed. He focusesmerely on the Judge's refusal to commute the sentence of imprisonment to one ofhome detention. Mr Sparrow says that this decision was wrong for two reasons. First,it was inconsistent with other cases. Second, the Judge did not impose the leastrestrictive outcome.3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.4 R v Taueki [2005] 3 NZLR 372 (CA).Relevant principles[12] There is no presumption in the Sentencing Act 2002 for or againstcommutation of imprisonment to home detention. The decision calls for an exerciseof judgment on a case by case basis against the statutory principles and purposes ofsentencing that a sentencing judge is called upon to asses when determining whetherhome detention is an adequate response to the seriousness of the offending.5[13] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.6 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.7 This standard ofappellate review applies to decisions not to commute imprisonment to home detentionas it does to any other sentence. However, the margin of appreciation extended tojudges in deciding whether to commute a prison term to a sentence of home detentionis usually significant.8DecisionConsistency with other sentences[14] One of the mandatory principles of sentencing provided for in s 8 of theSentencing Act is the "general desirability" of consistency of "appropriate sentencinglevels" when dealing with similar offenders who commit similar offences in similarcircumstances.9 Mr Sparrow relies on the three cases he provided to the Judge tosupport his submission that the sentence was inconsistent with this principle ofsentencing.10 Mr Sparrow submits that Mr Wilson-McAlister's offending was moreserious than that in Gilliland, where the defendant received a sentence of communitywork, but less serious than that in either Burton or Te Puni. In Burton, the defendant5 Palmer v R [2016] NZCA 541 at [19].6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27] and [31]-[35].7 At [36].8 Palmer v R [2016] NZCA 541 at [18] and [19].9 Sentencing Act 2002, s 8(e).10 Gilliland v Police [2019] NZHC 289, Burton v Police [2017] NZHC 664 and Te Puni v Police[2019] NZHC 762.was sentenced to home detention while in Te Puni a sentence of imprisonment of 13½ months was imposed. Mr Sparrow says that the injuries sustained by thecomplainant in this case were not nearly as serious as those inflicted by the defendantsin Burton and Te Puni, but Mr Wilson-McAlister's sentence was a term ofimprisonment well in excess of the sentences in those cases.[15] Sentencing is a process that takes into account not merely the circumstances ofthe offending but also the circumstances of the offender. A final sentence for similaroffending is not necessarily going to be similar, because the personal circumstances ofoffenders can vary widely. Mr Sparrow does not dispute the Judge's approach fordealing with Mr Wilson-McAlister's personal aggravating and mitigating features.[16] The Judge adopted a starting point of two years and reduced that by 25 per centfor Mr Wilson-McAlister's guilty plea. No other discounts for personal mitigatingcircumstances were allowed. In Burton, the sentencing Judge took a starting point of30 months' imprisonment. Discounts of six months for personal mitigating featuresand six months for a guilty plea were applied. This took the sentence to eighteenmonths' imprisonment, which was commuted to a sentence of ten months' homedetention. The Judge deducted a further two months for systemic administrativedelays in sentencing from the sentence of home detention, resulting in a final sentenceof eight months' home detention. The sentence was affirmed on appeal.[17] The violence applied to the complainant in that case was more serious than inthis case, but only to a matter of degree. There the defendant struck the intoxicatedcomplainant in the chin, causing him to fall, and then kicked him on the ground untilhe was unconscious. Mr Wilson-McAlister applied considerable force in a singleblow, to a victim who was more vulnerable, causing her to lose consciousness beforeshe was even on the ground. In any event, the difference in the level of violence wasreflected in the two-year starting point Judge Mabey adopted. It was six months lowerthan the starting point in Burton. The reason for the divergent outcome in the casesrests solely on the personal circumstances of the defendants. In Burton, the defendantwas entitled to much greater discounts for personal circumstances than Mr Wilson-McAlister. And, as I have noted, Mr Sparrow does not challenge the Judge'sassessment of Mr Wilson-McAlister's personal circumstances.[18] In Te Puni, the defendant struck the complainant once in the face with suchforce that he was knocked unconscious and blood began coming from his nose andears. The complainant spent two days in intensive care and a bone was fracturedbehind his ear. He suffered brain injuries that affected his smell, taste and vision andrequired ongoing medical treatment. Those were more serious injuries than thecomplainant in this case received, but she also sustained serious injuries and similarforce was applied to her.[19] In Te Puni, the sentencing Judge adopted a starting point of 24 months with anuplift of one month to take account of a charge of breaching bail. A discount of sixmonths for youth was allowed and a further month for remorse. This resulted in asentence of 18 months' imprisonment. A discount of 25 per cent for a guilty plea wasallowed, giving the final sentence of 13 ½ months. This was affirmed on appeal.Again, the final sentence reached was a consequence of factors personal to thedefendant. Indeed, the starting point of 24 months in Te Puni for similar offending,albeit on the more serious charge of injuring with intent to injure, indicates the startingpoint adopted by Judge Mabey was consistent with other cases.[20] I can see no error in the sentence that the Judge reached or that it wasinconsistent with other similar cases. Offenders in those cases had different personalcircumstances.Home detention[21] Mr Sparrow submits that the Judge erred in not commuting the sentence ofimprisonment to a sentence of home detention because it was the least restrictiveoutcome.11 Mr Sparrow sets out a range of relevant factors in his submissions. Hesays it is inconsistent with previous sentencing levels, that home detention wasrecommended in the PAC report, that a suitable address was available, and that MrWilson-McAlister has not previously been sentenced to home detention. Mr Sparrowalso submits that this is Mr Wilson-McAlister's first offence involving violence and isout of character, that he has addressed the causes of his offending by abstaining fromalcohol since the assault, and that he is in full-time employment and is sole provider11 Sentencing Act 2002, s 8(g).for his partner and child. Finally, Mr Sparrow adds Mr Wilson-McAlister had been oncurfew since August 2020 without breach.[22] Mr Jenson, for the respondent, submitted that there was no error in the Judge'sapproach. In determining that home detention was not an available sentencing option,Judge Mabey took account of the purposes and principles of sentencing. Those heidentified were accountability, denunciation, personal and general deterrence andtaking account of the circumstances of the victim. Rehabilitation was also a relevantconsideration. The Judge concluded that home detention would be much less than theleast restrictive outcome for this brutality and violence.12[23] I agree with Mr Jenson's submission. I do not consider the Judge made anyerror. There were factors that favoured a sentence of home detention, such as MrWilson-McAlister's personal circumstances and the benefits which would come fromrehabilitation in the community on a first offence involving serious violence andinjury. The Judge took those factors into account. However, those factors wereoutweighed by the need for denunciation, deterrence and the effect on the complainantgiven the seriousness of the offending. As the Judge said, this was a premeditatedattack to the head of a vulnerable complainant, causing serious injury. The seriousnessof the offending and the importance of deterrence point to a sentence of imprisonment.[24] In my view, the Judge was correct to determine that home detention would bemuch less than the least restrictive outcome for this offending.Result[25] The appeal against sentence is dismissed.______________________Campbell J12 Police v Wilson-McAlister [2021] NZDC 235 at [23].