Daw v R [2011] NZCA 581 (18 November 2011)

Last Updated: 24 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/2011 [2011] NZCA 581

BETWEEN MICHAEL IAN DAW Appellant

AND THE QUEEN Respondent

Hearing: 7 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: D H Hall for Appellant K Raftery and M Davie for Respondent

Judgment: 18 November 2011 at 10.30 am

JUDGMENT OF THE COURT

A Time for appealing is extended.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

[1] On the first day of his trial in the District Court at Hamilton the appellant pleaded guilty to one count of burglary. He was sentenced by Judge Burnett to 16 months imprisonment and ordered to pay reparation of $480.[1] The appellant appeals against his sentence of imprisonment on the ground that the Judge did not give proper consideration to the alternative of home detention.
[2] The appeal is one day out of time. There is no opposition by the Crown to an extension of time, which is granted.

The offending

[3] At about 12:15 a.m. on 16 October 2010 the appellant forced a window in a motel complex, climbed into a unit, and removed a television set valued at $599. His actions were recorded on closed circuit television. At the time the room was unoccupied. The television set has not been recovered.

The appellant

[4] The appellant is 24 years of age and has 31 prior convictions. These include burglary for which he received a six month sentence of imprisonment in May 2010. The offending giving rise to this appeal occurred shortly after he had been released from prison after serving that sentence. Earlier convictions include theft, assault with intent to rob, and breaches of various court orders.
[5] At the time of sentencing the appellant was employed on a dairy farm and he was regarded by his employer as a hard worker. The probation officer considered that there was a high risk of re-offending, with alcohol being a key factor. It is noted in the report that the appellant had failed to comply with conditions relating to two previous sentences of community work and that he had received a short sentence of imprisonment for each of those breaches. A sentence of imprisonment was recommended.

Sentencing in the District Court

[6] Upon pleading guilty the appellant was remanded for sentence and a home/community detention appendix was requested by the Judge. However, no appendix was provided because it became apparent that if a sentence of home detention was to be considered it would not be possible for the appellant to continue to reside at his rural address. Thus the pre-sentence report advised the sentencing Judge that the appellant had not been able to provide an alternative address and that if the Court wished to consider an electronically monitored sentence an adjournment would be necessary so that a suitable address could be identified.
[7] Given the absence of a home detention appendix, Mr Hall asked the Judge to adjourn sentencing so that a home detention appendix could be provided. At that time it was anticipated by the appellant that a suitable address would be available for himself, his partner, and their child.
[8] An adjournment was refused by the Judge who noted a number of factors that counted against home detention: premeditation; appellant’s unwillingness to take responsibility for his offending; 31 prior convictions including burglary; and the offending had occurred shortly after the appellant had been released from prison. The Judge continued:[2]

I mention these matters because I was invited earlier to consider a sentence of home detention, and indeed an adjournment was sought on the basis that an assessment of a home detention suitable property and sentence would be appropriate. I declined adjournment for that assessment. In my view the prisoner’s offending, plus his prior non-compliance, illustrates that he is not a suitable offender for home detention.

Later[3] the Judge reiterated that home detention was not an appropriate option given the appellant’s history, his aggressive conduct when apprehended,[4] and his history of non compliance.

[9] Taking a starting point of 16 months imprisonment the Judge added a further four months to reflect the appellant’s previous conviction history. Then she said: [5]

... He does get a 10% discount and I take that down to 16 months end sentence...

While not expressly stated, it can be inferred that the 10% discount mentioned by the Judge reflected the appellant’s guilty plea. Although arithmetically a 10 per cent discount would have produced an end sentence of 18 months imprisonment, the Judge actually allowed a further discount of two months.

This appeal

[10] It is alleged by the appellant that the Judge erred in two respects:

• (a) failing to adjourn the sentencing so that a home detention appendix could be provided; and
• (b) imposing a sentence of imprisonment rather than home detention.

There is, of course, a significant overlap between these two grounds.

[11] Mr Hall submitted that the Judge had exercised her discretion to decline home detention on an improper basis; an adjournment should have been granted so that a home detention appendix could have been obtained; by refusing an adjournment the Judge had effectively pre-empted a “proper and well rounded application” by the appellant for home detention; the appellant was only advised shortly before the sentencing that the initial address proffered was unsuitable and did not therefore have enough time to provide a new address; a home detention appendix would have provided further information as to the stability/security of the proposed address and further insight into the relationship between the appellant and his partner; this would have been relevant to whether home detention was the appropriate sentence; and all relevant information should have been obtained before the Judge embarked on the sentencing exercise.
[12] With reference to the sentence of 16 months imprisonment Mr Hall emphasised that the appellant had paid $400 of $480 reparation on the spot. He claimed that the sentence imposed by the Judge did not allow appropriate credit for this factor.

Discussion

[13] When declining to grant an adjournment the Judge had ample information to determine whether home detention might be an appropriate sentencing response. A full probation report had been provided and all that was lacking was a suitable address. However, if home detention was not going to be an appropriate sentencing response the availability of a suitable address would not alter that reality.
[14] Given the nature of this offending, the fact that the appellant had only recently been released from prison for similar offending, and his unsatisfactory response to community based sentences, it was clearly open to the Judge to form the view that home detention was not an appropriate sentence and did not require any further consideration. No error in the exercise of the Judge’s discretion has been demonstrated.
[15] There are strong parallels with Paora v R.[6] In that case it was alleged that the sentencing Judge had pre-determined the issue of home detention by declining to adjourn the sentencing until a further home detention address had been checked. Although a home detention report had been obtained, the address had been found to be unsuitable. Given the view of the sentencing Judge in that case that home detention was not a suitable response, this Court concluded that the Judge had correctly declined to delay sentencing so that a further report could be obtained. It also concluded that there was no pre-determination because the sentencing Judge already had all relevant material before her.
[16] Finally, we do not accept Mr Hall’s submission that the Judge failed to give proper credit for the immediate payment of $400 towards reparation. On our analysis the additional two months discount (after allowing for the guilty plea) adequately reflected this factor.

Result

[17] The appeal against sentence is dismissed.

Solicitors:
Douglas Hall, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Daw DC Hamilton CRI-2010-019-9904, 6 July 2011.
[2] At [4].
[3] At [7].

[4] When the plea of guilty to burglary was entered the Crown withdrew another charge of assaulting a constable with intent to obstruct him in the execution of his duty.
[5] At [6].
[6] Paora v R [2011] NZCA 472.