EMERY v NEW ZEALAND POLICE [2021] NZHC 851

EMERY v NEW ZEALAND POLICE [2021] NZHC 851 [21 April 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2021-419-18[2021] NZHC 851BETWEEN WILLIAM STEVEN EMERYAppellantAND NEW ZEALAND POLICERespondentHearing: 19 April 2021Appearances: J Bell for the AppellantB Harris for the RespondentJudgment: 21 April 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 21 April 2021 at 11:30 amRegistrar/Deputy Registrar[1] Mr Emery pleaded guilty to one charge of assault with a weapon.1 On 16February 2021 Judge D M Wilson QC sentenced him to nine months' imprisonment.2Mr Emery appeals that sentence, arguing the sentence should have been one ofintensive supervision.The offending[2] On 18 September 2020 Mr Emery was in a car with the complainant, his thenpartner. The couple argued. Mr Emery pushed the complainant out of the car. Hedrove away, turned around, drove toward the complainant, and pinned her against awire boundary fence. He pushed her into the fence with the car four times. He revvedthe car engine to frighten the complainant, and told her "get in the vehicle or I will runyou over". She suffered broken fingernails.District Court decision[3] Judge Wilson QC gave a sentence indication on 8 December 2020.3 If MrEmery pleaded guilty, the approximate sentence would be 11 months' imprisonment.The Judge indicated that a further discount might be available because Mr Emery wasconfined to a wheelchair (Mr Emery having had one leg amputated above the knee).Home or community detention were also identified by the Judge as possible sentencingoptions.4[4] At sentencing, the Judge began with his indication of 11 months'imprisonment. The Judge explained that home or community detention was, forpractical reasons, not available. For medical reasons it was not practical to have anelectronic bracelet on Mr Emery's remaining leg. Nor was it practical for a braceletto be fitted to Mr Emery's wrist.[5] Mr Bell, who represented Mr Emery at sentencing, submitted that, since homeor community detention was not available, the appropriate sentence was one of1 Crimes Act 1961, s 202C. Maximum penalty 5 years' imprisonment.2 Police v Emery [2021] NZDC 2641. The Judge also added post-release non-contact andcounselling conditions, and suspended Mr Emery's driver licence for eight months.3 Police v Emery DC Hamilton CRI-2020-019-004998, 8 December 2020.4 At [7]-[9].intensive supervision. The Judge disagreed. Such a sentence "would not offeradequate deterrence for the dangerous situation in which you placed your partner".5[6] The Judge allowed a further discount of two months for the difficulty of servinga sentence of imprisonment with Mr Emery's disability. The end sentence wasaccordingly nine months' imprisonment. The Judge also disqualified Mr Emery fromdriving for eight months.The appeal[7] Mr Bell, for Mr Emery, submits that a sentence of imprisonment for someonein Mr Emery's unique circumstances is manifestly excessive. With home detentionbeing unavailable, a period of intensive supervision was the least restrictive sentencemost suitable in the circumstances.[8] Mr Harris, for Police, opposes the appeal. He submits that a sentence ofintensive supervision would be manifestly inadequate in the circumstances. Theemphasis of a sentence of intensive supervision is on rehabilitation. The offendingrequires a sentence that meets the sentencing purposes of denunciation and deterrence.Intensive supervision would not do so.Legal framework for the appeal[9] For an appeal against sentence to succeed, the sentence generally must beshown to be manifestly excessive or wrong in principle.6 The Court will not intervenewhere the sentence is within the range that can properly be justified by acceptedsentencing principles. Whether a sentence is manifestly excessive generally dependson the end sentence imposed, rather than the process by which it is reached.75 At [14].6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].7 At [36].Decision[10] Under s 8(g) of the Sentencing Act 2002, the Court must impose the leastrestrictive outcome that is appropriate in the circumstances. Under s 8(h), the Courtmust take account of any particular circumstances of the offender that mean that thesentence that would otherwise be appropriate would, in the particular instance, bedisproportionately severe.[11] Under s 16(1), when considering the imposition of a sentence of imprisonment,the Court must have regard to the desirability of keeping an offender in the communityas far as that is practicable and consonant with the community's safety. Under s 16(2),the Court must not impose a sentence of imprisonment unless it is satisfied that asentence is being imposed for particular statutory purposes, that those purposes cannotbe achieved by a sentence other than imprisonment, and that no other sentence wouldbe consistent with the application of the principles of s 8 to the particular case.[12] In R v Rawiri8 the Court of Appeal, largely in reliance on s 16, rejectedsubmissions that:(a) Where home detention is appropriate, but for some reason isunavailable, the sentence must revert by default to imprisonment.(b) Intensive supervision is appropriate only where the need forpunishment or deterrence is minimal or non-existent.[13] Mr Emery's offending was serious. I agree with Judge Wilson QC that therelevant purposes of sentencing in this case included deterrence. But I respectfullydisagree with his conclusion that, in the circumstances of this case, a sentence ofintensive supervision would not provide adequate deterrence, and that imprisonmentwas appropriate.[14] Mr Emery has separated from his partner. His risk of re-offending is assessedas low. Keeping him in the community would not put the safety of the community at8 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.risk, particularly in light of the circumstances to which refer in the next paragraph.Under s 16(1), this points to a community-based sentence.[15] Mr Emery has limited mobility, and lived alone prior to his sentencing. Healso has a range of serious medical conditions, which are outlined in the pre-sentencereport to which Judge Wilson QC referred in his notes. Indeed, at the hearing of theappeal I was informed that Mr Emery is currently in hospital.[16] Mr Emery's personal circumstances have two implications. First,imprisonment would be disproportionately severe. Second, given his limited mobility,that he lives alone, and that he has been disqualified from driving for eight months, ifMr Emery were to be sentenced to intensive supervision, he would, in a practical sense,spend a great deal of time confined to his residence. I am of the view that, in theserather peculiar circumstances, the least restrictive sentencing outcome that isappropriate is intensive supervision.[17] Those two implications mean that a sentence of intensive supervision wouldbe consistent with the application of the principles of s 8 to this case. In consequence,under s 16(2), imprisonment is ruled out.[18] I am also of the view that, in this case, the purpose of deterrence can beachieved by a sentence of intensive supervision. The need to deter Mr Emery fromfurther similar offending is low, given his low risk of re-offending. The need to deterothers from similar offending is not undermined by a sentence of intensivesupervision, because that sentence is a response to Mr Emery's rather peculiarcircumstances. For this reason also, the effect of s 16(2) is to rule out imprisonment.[19] For all of these reasons, I conclude that the appropriate sentence in thecircumstances is one of intensive supervision. An appropriate period of intensivesupervision is 15 months. However, Mr Emery has already spent a little over twomonths in custody since his sentencing. I will therefore impose a period of only 12months.[20] In light of Mr Emery's low chance of re-offending, there is no basis for me toimpose special conditions under s 54G or s 54I. Only the standard conditions in s 54Fwill apply.Result[21] I allow the appeal.[22] The sentence of nine months' imprisonment is quashed. I substitute a sentenceof 12 months' intensive supervision, that period to commence from the date of thisjudgment. The standard conditions in s 54F of the Sentencing Act apply.______________________Campbell J