Bourton v Police [2016] NZHC 2883 (1 December 2016)

Last Updated: 8 December 2016

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2016-476-10 [2016] NZHC 2883

BETWEEN	JOSHUA PHILLIP BOURTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 November 2016
Appearances:	D I Brown for Appellant M A Beattie for Respondent
Judgment:	1 December 2016

_{JUDGMENT OF DUNNINGHAM J}

Summary of appeal

[1] The appellant faced 13 charges relating variously to dishonesty and firearms offences, to which he pleaded guilty. The firearm offences involved the appellant’s unlawful possession of a $750 firearm which the appellant had stolen from an address at which he was living. In the main, the dishonesty charges related to the appellant obtaining funds by deception or by dishonest use of a document, either to secure hotel accommodation or to make credit card purchases. He pleaded guilty to all charges. On 27 July 2016, the appellant was sentenced by Judge Turner on all

_{charges to 20 months’ imprisonment.}¹

¹ _{Police v Bourton [2016] NZDC 14111.}

BOURTON v NEW ZEALAND POLICE [2016] NZHC 2883 [1 December 2016]

[2] At time of sentencing, there was no suitable address for an electronically-monitored sentence, and accordingly home detention was not recommended in the pre-sentence materials.² That inevitably left a short sentence of imprisonment as the only viable option.

[3] Although the notice of appeal records the ground of appeal as the “sentence was manifestly excessive”, counsel for the appellant has conceded that the length of the end sentence of imprisonment was within range and not capable of serious challenge. The appeal is therefore based solely on the Judge’s alleged failure to grant the appellant leave to apply for a cancellation of his sentence of imprisonment and substitution for a sentence of home detention, under s 80I of the Sentencing Act

2002.

[4] It would appear that the appellant now has an address at which an electronically-monitored sentence could be served (although an updated PAC report confirming this has yet to be procured).

Principles on appeal

[5] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.³ For relevant purposes, the appellant contends that the Judge has erred by failing to grant the appellant leave to apply for home detention.

The relevant law

[6] Whether the Judge has erred by failing to grant leave turns on the proper application of the home detention provisions in the Sentencing Act 2002, in particular s 80I:

80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1) This section applies if—

(a) a court has sentenced an offender to a short-term sentence of imprisonment; and

(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[7] The appellant cites Hall’s Sentencing for the proposition that the obligation to grant leave to apply for home detention is a mandatory one which arises on satisfaction of the threshold criteria.⁴ In that commentary the author says:

A sentence of home detention may be substituted for a short-term sentence of imprisonment on an application by the offender: s 80K. A pre-requisite to this application is that the Court, at time of sentence, must have granted leave to the offender to apply (to the Court of first instance) for cancellation of the sentence of imprisonment and substitution of home detention if the offender finds a suitable residence at a later date.

The sentencing Court must grant leave to apply if the Court, instead of sentencing the offender to a short-term sentence of imprisonment, would have sentenced the offender to home detention had a suitable residence been available: s 80I. This is a mandatory requirement placed upon the sentencing Court and is not dependent on any application or submission by counsel for the defendant at the time of sentence.

[8] The appellant contends that the approach taken by Mander J in Dalton v Police is inconsistent with the interpretation afforded by the commentary, and the clear statutory effect of the provisions.⁵ In Dalton, the appellant failed because he could not show that the Judge below had erred by failing to grant leave, with the Court concluding:

[9] Ms Gray acknowledged that no application had been made before Judge Neave for leave to be granted and that she could not argue that any error arose from leave having not been granted. It was apparent to Judge Neave at the time of sentencing why an electronically monitored sentence was not available for consideration, however there is nothing in his sentencing remarks to suggest he would have sentenced the offender to such a sentence if a suitable residence had been available at that time.

[10] In the absence of any identifiable error in the sentence imposed, either in terms of the sentence of imprisonment or in not granting leave under s 80I the appeal cannot succeed.

The issues

[9] The first issue therefore is whether the appellant is correct that s 80I imposes a mandatory obligation on the Judge provided the threshold criteria are met, and that that obligation arises regardless of whether there is any application for leave by a defendant.

[10] If I find that it does, then, I must determine whether, in the circumstances, the Judge can be said to have implicitly determined that even if a suitable address were available he would not have granted leave. If he has not, and I consider he was in error in failing to address s 80I, the question then arises as to whether such leave should be granted.

[11] Finally, if I decide it should, there remains the jurisdictional issue as to whether this Court can grant that leave or whether it needs to be referred back to the District Court. I address each issue in turn.

Does s 80I require an application by the offender or is it a consideration that the

Court must address in every relevant case?

[12] I am satisfied that the commentary in Hall’s Sentencing is correct. Section 80I is directory not discretionary. The section imposes a mandatory obligation on the Judge provided the threshold criteria are met. The obligation arises independently from any application by a defendant (or lack thereof) for leave to apply for substitution.

[13] The Court must therefore reach a view when it imposes a short-term sentence of imprisonment as to whether it would have sentenced the offender to home detention if a suitable residence had been available. Commonly this issue is addressed by judges simply saying something along the lines of “even if a suitable address had been available I would have imposed a sentence of imprisonment because ...”. A statement such as that precludes the application of s 80I(1)(b) and heads off the mandatory application of s 80I(2).

[14] As I recently held in Verbitsky v Police:⁶

[28] The usual course in cases such as this is for the Court to either grant leave under s 80I, or to clearly articulate its reasons as to why imprisonment is required, notwithstanding the mandatory obligation to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A. A failure to do this makes the decision amenable to appeal.

[15] As a consequence, where a Judge has failed to address s 80I(1)(b) such that it is not clear whether he or she has overlooked the mandatory requirement in s 80I(2), there is an error in sentencing.

Did the Judge make a determination under s 80I that he would have sentenced the offender to imprisonment even if a suitable residence had been available?

[16] While the Judge may not expressly refer to s 80I(i)(b) and discount home detention even if a suitable residence had been available, that conclusion may also be gleaned from reviewing the decision as a whole. There will be decisions where it is clear the Judge has determined that imprisonment is the only appropriate sentence in the particular case and, by implication, the option of home detention is precluded.

[17] However, I am not satisfied that, in the present case, the District Court judgment discloses such a view. At [13] of his sentencing notes, the Judge records:

There is no address available for an electronically monitored sentence and accordingly Probation concludes by recommending a sentence of imprisonment. You do not argue against that.

⁶ Verbitsky v Police [2016] NZHC 2843.

[18] The Judge does go on to refer to the primary purposes and principles guiding him in sentencing, being denunciation and deterrence, to hold the offender accountable for the harm he has caused his victims in the community generally and to provide for the interests of the victims. In terms of mitigating matters, he notes the offender’s expression of remorse and desire to pay reparation, but concludes that offer is hollow where there is no ability to pay reparation. He then simply says “you will be imprisoned”.

[19] Despite Mr Beatties’s efforts, I am unable to conclude that the Judge’s decision to imprison the appellant is based on it being the most appropriate sentence, or whether it is based on it being the only sentence available because there is no suitable address. Because I cannot be sure that the Judge has turned his mind to whether home detention would be appropriate if a suitable address was available, and therefore whether s 80I(2) applies, I accept there is an error in sentencing. However, that does not dispose of the matter.

Do I have jurisdiction to grant leave under s 80I?

[20] If I did consider the sentence was in error, Dalton raises the question of whether I have jurisdiction to grant leave under s 80I, as it held:

[7] The ability to grant leave however only arises at the time that the offender is sentenced and the pre-requisites to leave being granted are limited to those that apply at first instance.

[21] However, there have also been cases since Dalton in which leave under s 80I has been given by an appellate Court, albeit without reference to Dalton or the reasoning in it.⁷ For example, in Anae v Police, leave was given by the appellate Court because home detention would undoubtedly have been the correct outcome had an address been available.⁸

[22] In my view, if Dalton is interpreted as suggesting that an appellate Court does not have jurisdiction to grant leave under s 80I(1), in circumstances where the

_{sentencing Judge has erred by failing to do so, I do not consider that is correct.}

⁷ _{Verbitsky v Police, above n 6, at [33]; Ellery v Police [2015] NZHC 480 at [32].}

⁸ Anae v Police [2016] NZHC 1476 at [27].

Section 251 of the Criminal Procedure Act 2011 grants to the Court the broad power to “set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate”, provided that it is minded to allow the appeal. The grant of leave is an aspect of the sentence imposed, and therefore can be ordered on appeal if it is considered appropriate. That avoids the cumbersome alternative which is to refer the matter back to the District Court for reconsideration in light of the identified error.

Should a different sentence be imposed?

[23] Section 250 of the Criminal Procedure Act 2011 requires the appellant to both establish an error in sentencing, and also to satisfy the Court that a different sentence should be imposed. Counsel both acknowledged, and I agree, that a sentence of imprisonment with leave to apply for home detention should a suitable residence become available, is a different sentence from a sentence of imprisonment alone.

[24] Because I consider the Judge has not turned his mind to whether s 80I applies and because I consider that matter can be addressed afresh on appeal, I go on to do so. The offending for which Mr Bourton was being sentenced was extensive. It involved dishonesty offences and firearms offences, with several of the charges carrying a maximum sentence of seven years’ imprisonment. The total loss to his victims amounted to nearly $14,000 and, while he expressed remorse to the Probation Officer interviewing him, it was clear there was no possibility of him making reparation.

[25] However, Mr Bourton has a limited criminal history prior to this offending, being two convictions for unlicensed driving. He was assessed as being “moderately likely to comply with a community-based sentence”. He had previously been gainfully employed on a dairy farm and did not have other issues (for example, alcohol dependency) which would have a bearing on his ability to comply with a community-based sentence.

[26] In all the circumstances, and taking into account the hierarchy of sentencing options, and given the preference for someone of Mr Bourton’s relative youth to avoid the adverse effect of a prison sentence, I am satisfied this is a case where it would be appropriate to grant leave to apply for home detention.

Result

[27] Accordingly, the appeal is allowed. The sentence of imprisonment stands, but leave is granted under s 80I to apply to the Court of first instance for the cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence is available.

Solicitors:

Douglas Brown, Barrister, Timaru

Gresson Dorman & Co., Timaru