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High Court of New Zealand Decisions |
Last Updated: 17 September 2018
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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
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CRI-2018-454-9
[2018] NZHC 2401 |
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BETWEEN
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TRACEY MAREE BEAVEN
Appellant
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AND
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THE QUEEN
Respondent
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Hearing:
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11 September 2018
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Appearances:
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G H Allan for Appellant
J J Harvey and E R Pairman for Respondent
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Judgment:
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12 September 2018
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JUDGMENT OF GRICE J
[1] Ms Beaven was sentenced to 27 months (two years and three months) imprisonment on one charge of aggravated robbery1 in the District Court on 25 May 2018.2
[2] Ms Beaven appeals her sentence on the grounds it was manifestly excessive for a number of reasons. They can be summarised as follows:
(a) The starting point was too high as the Judge wrongfully regarded Ms Beaven as “wilfully blind” and the discount for Ms Beaven’s lesser role was insufficient;
1 Crimes Act, ss 66(1) and 235(b).
2 R v Beaven [2018] NZDC 10938.
BEAVEN v R [2018] NZHC 2401 [12 September 2018]
(b) The Judge gave insufficient weight to Ms Beavan’s mitigating factors, specifically those relating to her family; and
(c) Home detention was a suitable sentence.
[3] The Crown say:
(a) The starting point of four years imprisonment adopted by the Judge was well within range for the offending. It was also open to the Judge to find Ms Beaven was wilfully blind;
(b) A further reduction was available to the Judge for the family situation of Ms Beaven in light of her responsibilities to her children and their dependence on her; and
(c) If the appeal is allowed and Ms Beaven’s sentence is reduced a new sentence at a level at which home detention is an available option, the Crown do not oppose it. This is as long as the risks Ms Beaven poses can be dealt with appropriately.
[4] There is also further evidence which is sought to be adduced in the appeal which was not before the sentencing Judge.
The offending
[5] On the afternoon of 15 July 2017, two young people known to Ms Beaven went to her home. They asked Ms Beaven if they could use her car, to which she said no. She offered to drive them, however, as she thought they were going to take her car anyway. They did not have drivers’ licences.
[6] She drove them from Palmerston North toward Levin. They picked up two other young people on the way. Ms Beaven was told to park outside a store in Levin while the young people went into a store to buy disguises to wear during a robbery. Ms Beaven did not know why they went into the shop.
[7] Ms Beaven was directed by the youths to drive and park near another store. One of the young people got out of the car, having been given $20.00 by one of the others, to go and buy a container to use during the robbery. The young person came back to the car after buying a small container, and was told to go back and get something bigger. He returned to the shop with a large green laundry basket.
[8] Once everyone was in the car again, Ms Beaven was directed to drive around the block and park within walking distance of the victim’s dairy. One of the young people went into the store to check if there was a security presence within the dairy. He went in and bought some lollies to hide his surveillance. He came back to the car and told the others that “the coast was clear”. At the direction of the young people, Ms Beaven drove the car around the block and parked.
[9] Three of the four young people got out of the car. One stayed with Ms Beaven in the car. The others covered their faces and entered dairy carrying a shotgun. Ms Beaven did not know about the shotgun.
[10] When the youths entered the dairy, they set off the store buzzer which alerted the owner someone was there. When she came from the back into the store, she found the barrel of a shot gun pointed at her. The complainant was told to get on the ground, but she bravely ran behind the counter and pressed the panic button before yelling the police were coming. She managed to lock herself behind an office door. Following this, the youths began to steal from the dairy. Two of the young people opened the cigarette cabinet and caused the CCTV3 camera to fall over onto a neighbouring shelf. They filled the washing basket with tobacco products valued at about $5,796.80.
[11] The youths then left the dairy, got into Ms Beaven’s car and she drove away. On the way, one of the youths told her to stop the car at a rural location to dispose of the shot gun. This is when Ms Beaven became aware there was a gun. Neither the gun nor the tobacco products have been recovered.
[12] When Ms Beaven was asked by the police about the offending, she had no explanation for her actions. She denied knowledge of the shotgun before its use. She
3 Closed Circuit TV camera.
told the police she thought “they were going to hit an old lady over the head and steal the handbag”.
[13] Ms Beaven pleaded guilty following a sentence indication given to her on 8 March 2018 by the sentencing judge.4 The Judge followed the tariff case for aggravated robbery, of Mako.5 The Judge noted that she would adopt a starting point of 5 years, taking into the presence of the firearm, that it was pointed at the complainant, the number of offenders involved and the amount of property taken.
[14] The Judge then turned to what the difference in starting point should be in light of the role Ms Beaven played in the aggravated robbery. She was not in the dairy, she did not know there was a shotgun and was not actively involved in the planning.
[15] After acknowledging the cases referred to her about lower starting points where limited knowledge or reluctance is involved,6 the Judge noted that caution should be had with the submission that Ms Beaven did not know what was going on. The Judge noted that the pragmatic decision to drive the young people rather than them simply taking her car was coloured by the fact she was not simply giving them a lift. She drove them to several stops, and she must have been alive to an extent to what was occurring. As the only adult she had plenty of opportunities to stop the robbery.
[16] The Judge concluded that Ms Beaven was not blind to what was going on, and if she was, it was wilful blindness. She did not ask questions about the containers, why they needed to be bigger or why a laundry basket was needed. Ms Beaven also admitted she had an idea that some form of criminal activity was occurring, she admitted that she thought some form of robbery was to take place, but believed it was a different nature.
4 R v Beaven DC Palmerston North CIV-2017-031-000962, 8 March 2018.
5 R v Mako [2002] 2 NZLR 170 (CA).
6 R v Royal [2009] NZCA 65; Solicitor General v Moranga [2015] NZHC 1954.
[17] In light of the unusual circumstances in this case, namely that Ms Beaven was the only adult involved, the Judge imposed a 12-month reduction for her lesser role. In the Judge’s view this was generous.
[18] In the sentencing indication the Judge then turned to the guilty plea and mitigation. She concluded there were a number of factors that could be considered, including her lack of any criminal history at the age of 43, health problems, remorse, and a willingness to engage in restorative justice. The Judge does not specify the size of the discounts available, but note that the sentence is unlikely to reach a level where home detention would be available. Ms Beaven was allowed a full 25 per cent guilty plea discount for a plea of guilty to the indication.
The sentencing
[19] Ms Beaven did plead guilty. On 25 May 2018 the Judge sentenced Ms Beaven.7 Having already given a sentence indication, the four year starting point adopted in Ms Beaven’s indication was adopted. The indication was attached to the sentencing notes.
[20] The Judge then considered the relevant mitigating factors and the discount to apply for them. She canvassed the terrible impact this offending had had on the complainants in this case. She noted the fear that the complainant felt, and the paranoia she had about shoppers’ intentions. The further impact on her and her husband’s financial situation and her husband’s medical state (he was recuperating from a heart attack at the time of the robbery) was also noted.
[21] Turning to mitigating factors, the Judge noted that this was Ms Beaven’s first criminal conviction. She was aged 43 so was entitled for a discount for prior good character. The Judge also canvased her letters of support. These showed she was a devoted mother to her children. There was also mention of her voluntary work, and how this offending was out of character. The Judge says that Ms Beaven was a credit to her community.
7 R v Beaven, above n2.
[22] The Judge the turned to other mitigating factors, including restorative justice, reparation and remorse. The Judge noted that Ms Beaven had said she didn’t understand why she was being blamed by the victims reported in the PAC report. The Judge also said that she was the last of the five offenders involved to accept ownership. That may have been why the victims did not want to engage in restorative justice.
[23] Ms Beaven suffers from a number of medical conditions, both mental and physical. These include epilepsy, neck and back injuries, and an injury to her hand from a dog bite that will require ongoing skin grafts. Ms Beaven struggles to sleep and is medicated for her epilepsy. Further, Ms Beaven has been on anti-depressants since October last year. She had experienced low mood and thoughts of self-harm. The Judge held these factors could warrant recognition by way of a reduction.
[24] With all this in mind, the Judge gave a global 12-month reduction from Ms Beaven’s four year starting point, taking her sentence to three years. After giving a 25 per cent discount for the guilty plea, Ms Beaven’s sentence totalled two years and three months’ imprisonment. Reparation of $300 was also ordered to be paid. No period of disqualification was imposed.
[25] The Judge noted that home detention was not an option but had the sentence reached the 24-month period required, Ms Beaven would have been a suitable candidate to have her sentence commuted to home detention.
Standard of appeal
[26] Ms Beaven has brought her appeal under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) first an intrinsic error in the sentence imposed and secondly a different sentence should be imposed.8 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
9 Ripia v R [2011] NZCA 101 at [15].
Ground one: the starting point was too high
[27] The arguments advanced by counsel for Ms Beaven on this point are:
(a) The Judge erred in concluding that Ms Beaven was at least wilfully blind to the offending; and
(b) The 12-month reduction from the starting point was too low in light of Ms Beaven’s lesser role in the “very unusual circumstances of this case”.
[28] Specific issue is taken with the fact the Judge said that as Ms Beaven was the only adult involved and therefore had plenty of opportunities to stop the robbery. Counsel also says the Judge could not have found Ms Beaven was wilfully blind on the evidence before the Court. Counsel said driving people around to many places, failing to ask about a container, and believing the young people were going to hit an old lady over the head and steal her hand bag fell short of establishing wilful blindness. He said that conclusion is “vague and unsupported”. Because of this error the Judge “failed to get to grips with the essential sentencing assessment”. Counsel also points to Ms Beaven’s letters of support. These paint a picture of her as being too willing to help and naïve. This illustrates an alternative conclusion. That is that Ms Beaven simply wanted to help and trusted the wrong people.
[29] The Crown argues that the finding Ms Beaven was wilfully bind was open to the Judge. I respectfully agree.
[30] Wilful blindness occurs where a person acts in ignorance of the circumstances, or the fact that their actions can or will have particular consequences, when they have failed to make inquires that could readily have ascertained the true situation.10 There must have been a deliberate failure to make inquires.11
11 At [CA20.23].
[31] The Crown has referred to a number of cases on the issue. In R v Martin (an importation of controlled drugs case) the Court of Appeal noted the test for wilful blindness was essentially whether the defendant had her suspicions aroused as to an illegal activity, but refrained from making inquiries or confirming her suspicions to remain ignorant.12 In that case, it was expressly noted that fault was in the deliberate failure to inquire when the defendant knew there was a reason to do so.13
[32] However, the Supreme Court in Cameron v R held that R v Martin applied the wrong standard for knowledge in the context of the importation of controlled drugs.14 In Cameron the Supreme Court noted that recklessness as to ascertaining the true circumstances was sufficient to establish wilful blindness. The offence did not require the proof of knowledge.15
[33] The Crown argues that both the knowledge and recklessness standard of wilful blindness can be met in this case. I agree. The cumulative facts that Ms Beaven was aware of led to that conclusion. Specifically, Ms Beaven had said she only drove the youth because she thought they would take her car anyway, she was told to stop at multiple places to purchase odd items like containers, she never asked about the containers or what they were doing, she did not ask the youth why they were putting on disguises when they eventually did, or why they needed to check the security in the dairy when they were talking about this in front of her. She even admitted that she believed that the youth were going to steal someone’s handbag using force. She was aware criminality was afoot and did not further inquire into it.
[34] I see no error in the Judge’s assessment as to wilful blindness. Nor do I see any inappropriate impact her conclusion had on sentencing.
A higher reduction for a lesser role should have been given
[35] The second point by Counsel for Ms Beaven is that the Judge failed to take sufficient account of Ms Beaven’s lesser role in the offending. Counsel argues that
12 R v Martin [2007] NZCA 386 at [10].
13 At [10].
14 Cameron v R [2017] NZSC 89 at [73].
15 At [73].
she was not involved in the planning, she was unaware of the plan, she did not enter the dairy, and she did not know about the gun.
[36] This also focuses to an extent on Ms Beaven’s knowledge of the offending that was to occur. Having rejected the contention that the Judge made an error in relation to this conclusion, this consideration falls away.
[37] Counsel for Ms Beaven then turns to two cases that were put before the Judge. In R v Royal, Mr Royal was a decoy and lookout in the aggravated robbery of a family home.16 He stood guard, called the intruders when the police arrived, and blocked the police gaining access to the property. He then sped away to distract the police. He received 12 months less than the other offenders. In Solicitor-General v Morunga, Mr Morunga dropped an armed and disguised offender at a bank, and was the getaway driver.17 He shared in the spoils. He knew of the offender’s intention, but wasn’t sure if he would follow through. He was given an 18-month reduction.
[38] Counsel for Ms Beaven argues that Ms Beaven is less culpable than both of those offenders. The case should not have been distinguished on the grounds that Ms Beaven was the only adult offender. The fundamental argument here relies on the idea Ms Beaven had lesser knowledge of the intention of the offenders, and therefore should receive a higher discount. Counsel also focus on the idea that Ms Beaven was inappropriately saddled with the causation of the offending.
[39] The Crown point to the case of Kingston v R, in which the offender was a getaway driver for two offenders who robbed a takeaway premise.18 The offender in that case had very little knowledge about what was going to occur, but saw that there was a knife and that the co-offenders had bandanas over their faces. The offender said he thought the co-offenders were going to burgle a residence. The Court noted that while the offender knew little in advance of what was to occur, he had voluntarily associated with people engaging in a criminal activity where he must have reasonably anticipated he was going to assist in the proposed offending in the role of a getaway
16 R v Royal [2009] NZCA 65.
17 Solicitor-General v Morunga [2015] NZHC 1954.
18 Kingston v R [2010] NZCA 460.
driver. The Court held the starting point of four years’ imprisonment (as reduced from to four and a half years) was appropriate in light of his lesser culpability.
[40] The Crown also highlighted the percentages of the discounts applied in the cases above. In Royal it was only a 9 per cent discount (from 11 years to 10 years). In Morunga it was higher at 25 per cent (from six years to four years and six months), however the Court further commented that a discount of 12 months (or 16.67 per cent) would be difficult to appeal against.19 In Kingston it was 11 per cent (from four years and six months to four years). In the present case, the 12-month reduction was a 20 per cent reduction from the starting point of five years.
[41] An overview of these cases make it clear that the 12 month discount applied in this case was appropriate, and clearly within range. There was no error by the Judge in adopting the starting point she did.
Ground two: a higher discount should have been given for mitigating factors
[42] As discussed above under my summary of the sentencing, the Judge considered a number of mitigating factors and gave a global 12-month reduction for prior good character, physical/mental health issues, remorse, and a guilty plea.
[43] Ms Beaven argues that a further reduction should be given to account for the impact that a sentence will have on Ms Beaven’s family.20 Sentencing Judges have acknowledged the need to address the impact an offender’s incarceration will have on their children.21 This is particularly clear where the offender is the primary caregiver for the children.22 The Crown has accepted, after reading the new affidavit evidence that was not before the Judge about Ms Beaven’s children, that these matters could be considered mitigating factors which would have assisted the Judge.
19 At [25].
20 Ransom v R [2010] NZCA 390.
21 At [12], R v Smith [2018] NZHC 1763 at [17],
22 R v Lyon [2018] NZHC 1434 at [23].
[44] In Theodore v NZ Police the appellant was sentenced to 25 months imprisonment which is six weeks shy of the home detention threshold.23 Ms Theodore was the primary caregiver of three children under the age of 12. Justice Ellis canvased the relevant international material that supported more lenient sentences in cases where parents had dependent children that relied on them.24 She then turned to the New Zealand position. Under s 8(j) of the Sentencing Act 2002 the circumstances of an offender must be taken into account if they would render an otherwise appropriate sentence disproportionately severe. Justice Ellis cited the following cases:25
- (a) Ransom v R where the District Court sentenced the defendant to 18 months’ imprisonment after allowing a discount of 20 per cent for the defendant’s six-year-old child who had “considerable behavioural difficulties” that were “exacerbated by his mother’s absence from the family home”. On appeal, no issue was taken with the discount but the Court of Appeal quashed the sentence of imprisonment and substituted one of nine months home detention coupled with 75 hours of community work, on the grounds (inter alia) of the defendant’s need to care for her child.26
(b) R v Porter-Riley where the defendant was sentenced to nine months’ home detention, which included a discount of six months (18%) for her personal circumstances which included (inter alia) the need for her to take care of her new born baby. Although her remaining nine children were not able to live at the home detention address they would be able to live with their father (the defendant’s partner) in the family home nearby (the family home was not suitable for home detention) and they would be able to visit their mother regularly.27
(c) Zheng v R where the sentence of two years and nine months’ imprisonment which had been imposed by the High Court included a nine-month discount (21%) for (inter alia) the fact that the defendant was the sole caregiver of her two dependent children.28 On appeal, the Court of Appeal quashed the sentence of imprisonment and substituted a sentence of eight months home detention with special conditions. While not expressly saying that this reduction was because of her dependent children, the Court did say that reducing the sentence to one where home detention became an available sentencing option (24 months) would take account of the “particular hardship of prison for her”.29
23 Theodore v NZ Police [2018] NZHC 2364 at [1].
24 At [35] - [38].
25 At [22].
26 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
27 R v Porter-Riley HC Auckland CRI-2010-092-14703, 12 April 2011.
28 Zheng v R [2015] NZCA 451.
(e) R v Walker where the defendant was given a 10% discount “out of compassion for [his] children and to provide [him] with some encouragement”. The end sentence was one of three years and 18 months’ imprisonment.31
(f) R v Ralph where the defendant was sentenced to 12 months’ home detention which included a discount of seven months (20%) to account for her six-year-old child. She was the primary caregiver of the child because the father worked full time and was the sole breadwinner. The District Court expressly considered psychologist reports that the child’s development would be affected by the mother’s imprisonment. The sentence was upheld on appeal to the High Court.32
(g) R v Lyon where a sentence of two years and four months’ imprisonment, included a seven month (20%) discount to account for the fact that the defendant was the primary caregiver of the children, his partner would lose her prospective re-employment and the family would lose their main income for the duration of his incarceration.33
[45] Finally, Ellis J noted that “...in cases where there is a risk that an offender... may be sentence to imprisonment it seems to me to be imperative that the sentencing Court receive as much information about her or his domestic circumstances and, in particular, the impact of such a sentence on dependent children...”.34
[46] Ms Beaven is the primary caregiver for her two children, aged 10 and 19. Now that Ms Beaven is in prison, her elder child has taken on the role of looking after her daughter. Following the Judge’s sentencing more information has come to light.
30 Proctor v Police [2016] NZHC 2656.
31 R v Walker [2017] NZHC 2303.
33 R v Lyon [2018] NZHC 1434.
34 Theodore v NZ Police, above n 23, at [44].
Affidavit evidence filed on 6 September 2018 relates to Ms Beaven’s family and the importance the considerations relating to the children may play in a sentencing.
[47] Neither counsel have raised the fact that this evidence was not before the District Court Judge as an issue. Now that the Court has the benefit of this material, it should be considered.
[48] First, I note that there are different rules for considering fresh evidence on appeal that was in existence at the time of the sentencing and as compared to evidence that arises subsequent to sentencing. As the evidence before me contains a mixture of both forms of information, I will cover both sequentially.
[49] Facts relating to an offender which existed at the time of sentencing, but were not known to the sentencing Judge, are typically unable to be introduced on appeal unless they could not be called with due diligence.35 This rule can be departed from where the Court is satisfied the evidence should be taken into consideration and the sentencing Judge did not have sufficient information to do this.36 In Blondell v NZ Police Gendall J admitted evidence related to the personal family circumstances of an offender that was not before the District Court as it showed the sentence was inappropriate.37
[50] This suggests that any evidence relating to Ms Beaven’s family circumstances that existed at the time of her sentencing should be considered here given there is no objection to that. The evidence is required to illustrate why the sentence was inappropriate in light of her family circumstances.
[51] Facts relating to an offender that arose after sentencing typically cannot be considered, as the role of the Court is to correct an error rather than to have a second shot at sentencing.38 However, events that have occurred after a sentence can be considered to the extent they illustrate an error on the part of the sentencing Judge.39
36 R v Fox [2013] NZCA 557 at [7].
37 Blondell v NZ Police [2014] NZHC 2546 at [11].
38 Polyanszky v R [2011] NZCA 4 at [17]; Poi v R [2015] NZCA 300.
39 El-Nafeh v Police [2018] NZHC 57 at [11].
In El-Nafeh information was before the Sentencing Judge that indicated that Mr El- Nafeh was the breadwinner of his family. The alleged error was that the Judge should have foreseen that imprisonment would impose unfair hardship on his family, as the family would be deprived of their income earner. Affidavit evidence was admitted from his family about the family’s suffering after his sentencing and about his ability to work from home. In that decision, it appears the Judge focused on the evidence relating to whether Mr El-Nafeh could work from home rather than the suffering of his family.
[52] In my view, the evidence before me about events that occurred after sentencing are admissible as they help illustrate why the sentence was inappropriate in the circumstances.
[53] The first affidavit before me is from the deputy principal of Ms Beaven’s 10- year-old daughters school. It details a clear deterioration in the young girl’s mental health since her mother has been imprisoned. Although the deputy is careful to note that Ms Beaven’s 19-year-old son is doing a good job of looking after the daughter physically, the deputy notes that the emotional impact has been more prominent. She says that “the effects of not having her mother at home are obvious. It has been sad watching [her] change from a once bubbly and engaging little girl to a withdrawn child who is often sad and emotional.” The child has less confidence; her academic and social performance has declined so that she has fallen from being a top student to performing well below expectations. She has withdrawn from activities she has previously enjoyed, like kapahaka and netball. The deputy notes, in what I believe to be the crux of this case that “[i]t has been devastating to watch her bear the brunt of a punishment that is supposed to have been directed at her mother”.
[54] The second affidavit was provided by Ms Beaven’s father, or the grandfather of her children.
[55] Mr Beaven describes the heart-breaking struggle that Ms Beaven’s son, who is now the carer for Ms Beaven’s daughter, has gone through in his life time. When Ms Beaven’s son was born he was three months premature and required oxygen for the
first 12 months of his life. He is partially sighted, and was placed into the care of the foundation of the blind when he was three who taught him to walk with a cane. He required continuous support from them when he began school. Ms Beaven’s son left school at 15 due to the stress of being unable to manage his work load. When he was young, his father attempted to run him over and their relationship never recovered. He reports having a short fuse, and expressed concern that “I’m afraid I’m just going to break down and [lose] it” and that “I’m not very good under pressure and my mum is the only person who can seem to settle me down and make me think straight.”
[56] Turning to his 10-year-old granddaughter, Mr Beavan describes difficulties she now has sleeping. He says she often wakes up crying from separation anxiety and she takes a long time to settle. At just 10 years old she is afraid of puberty and her 19- year-old brother cannot help her with that. Mr Beaven describes how the child now finds it hard to be around other children and their mothers.
[57] Looking to care options, Mr Beaven notes that the children’s uncle has moved down to help out for a short period with the children, but this is not ideal. Further, he is going to have to return home in mid-September. The grandparents are only able to come down fortnightly. This has taken a huge toll on them as well.
What is the error and how does the fresh evidence establish this?
[58] In my view this fresh evidence supports a strong case for a discount to account for Ms Beaven’s personal circumstances. There is no specific, or general, mitigation in the sentencing Judge’s decision for Ms Beaven’s family situation for the reason that this information was not before her. I would conclude that the sentence has been rendered inappropriate due to the family circumstances of Ms Beaven. A further discount of 6 months should be applied to account for this.
[59] This would reduce Ms Beaven’s sentence before the guilty plea discount to two years and six months’ imprisonment – or 30 months’ imprisonment. Taking in account a guilty plea discount, a final sentence of 22 months’ imprisonment, or one year and ten months’ imprisonment results.
Ground three: home detention should be given
[60] A final sentence of 22 months’ imprisonment is less than 24 months’ imprisonment40 and so home detention becomes available as a sentencing option.
[61] Whether or not home detention is appropriate is a matter for the sentencing Judge. There is no presumption in favour of home detention being imposed.41 There is a twostep process involved in assessing whether home detention can be imposed. The case of R v Vhavha helpfully set this out as follows:42
The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (‘stage one’) and then whether to commute that sentence to home detention (‘stage two’). Similar (at least broadly) two stage processes were associated with the power to suspend prison sentences and the power to give leave to apply for home detention — the precursors of the present discretion to sentence to home detention. Faithful adherence to such processes requires the judge at stage one to operate on the assumption that there is no stage two. The underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned.
[62] In R v Hill,43 rehabilitative considerations are expressly considered to be important in determining whether to sentence to home detention:
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[63] There is a general practice of calculating the sentence of home detention by halving the end point of imprisonment that would have been imposed. This reflects the fact that persons serving short-term sentences are usually released after serving half their sentence.44 However, a sentence of home detention must be served in full. This practice was discussed in R v Bisschop, where the Court said that it ignores the reality that imprisonment is more onerous than home detention and that the “proper
40 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).
41 R v Stacey [2008] NZCA 465 at [2].
42 R v Vhavha [2009] NZCA 588 at [31].
43 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
44 Parole Act 2002, s 86. See s 4 for definition of “release date”.
approach... is an evaluative assessment of all the circumstances.”45 Once the jurisdiction to impose home detention exists, the term is to be “fixed after an overall assessment of all factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act”.46
[64] In my opinion Ms Beaven is an ideal candidate for home detention. She has a suitable address according to the PAC report. Further, the Judge indicates that she would have sentenced Ms Beaven to home detention had it been available. Therefore, I conclude a sentence of 11 months home detention should be applied.
[65] I note Ms Beaven has served three and a half months imprisonment.47 That should be taken into account. On the principles discussed above, time spent in prison can be doubled when being taken account of in a final sentence of home detention. However, for the reasons outlined in Bisschop and to ensure the final sentence appropriately addresses the sentencing principle of denunciation ,48 I will only deduct five months’ from Ms Beaven’s final sentence of 11 months home detention to account for the time served. This leaves a total of six months’ home detention to be served.
Conclusion
[66] I allow Ms Beaven’s appeal against her sentence.
[67] The sentence of 27 months’ imprisonment is quashed and substituted with a sentence of six months’ home detention otherwise the sentence is confirmed.
[68] The address and conditions imposed in the sentence of home detention are as set out in the PAC report dated 17 May 2018.
Grice J
Solicitors:
Crown Law Office, Palmerston North for Respondent
45 R v Bisschop [2008] NZCA 229 at [18]–[19].
46 At [18].
47 From 25 May 2018 to 11 September 2018.
48 R v Bisschop, above n 45, at [18]; Sentencing Act 2002, s 7(1)(c).
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