Palmer v R [2016] NZCA 541 (17 November 2016)

Last Updated: 24 November 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA475/2016 [2016] NZCA 541
BETWEEN	TYRONE JOHN PALMER Appellant
AND	THE QUEEN Respondent

Hearing:	19 October 2016
Court:	Wild, Miller and Winkelmann JJ
Counsel:	F E Guy-Kidd and G S Williamson for Appellant JEL Carruthers for Respondent
Judgment:	17 November 2016 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. We decline to set aside the sentence of 22 months imprisonment, but we impose the post-release conditions listed at [30].

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Tyrone Palmer appeals his sentence of 22 months imprisonment for the manslaughter, on 9 April 2016 at Invercargill, of Matthew Coley.^[1] He says that he ought to have been sentenced instead to home detention.

The facts

[2] This was a regrettably familiar offence; a one-punch manslaughter in which the victim was felled by an unexpected punch to the head and landed heavily on the ground, suffering predictable traumatic brain injury that led to his death.
[3] The summary of facts on which Mr Palmer pleaded guilty recorded that he had attended a party at which he took LSD and cannabis. He has also admitted that he took alcohol. He then went with associates to the inner city, where he behaved aggressively towards a man who had had an altercation with one of Mr Palmer’s female associates. That incident ended when the other man ran off, fearing that Mr Palmer meant to attack him.
[4] Mr Palmer and his associates then encountered Mr Coley, who was intoxicated but not aggressive. Mr Coley was in an altercation with Mr Palmer’s female associates, following which Mr Coley left the area. He was followed by the females, who confronted him at a convenience store. Mr Coley tried to calm the situation and leave, but Mr Palmer and his associates surrounded him. One of the females punched Mr Coley. Mr Palmer then punched him once in the head, with considerable force. Shortly afterwards he described it as a king hit. Mr Coley did not see it coming. He had his hands by his sides at the time. He fell back, striking his head. Mr Palmer fled the scene, and when apprehended he claimed to have acted in self-defence.
[5] Mr Coley died several days later from an acute subdural haemorrhage.

Personal circumstances

[6] Mr Palmer was 16 at the time of the killing. He was raised in a supportive family environment, but he has low intelligence (his IQ score is 81) and as a child he exhibited hyperactivity, impulsivity and poor social skills. The diagnosis is Attention Deficit Hyperactivity Disorder. At secondary school he achieved poorly and was disruptive. He was interested in sport, which provided him with structured routines, but he gave that up as he grew older, preferring to socialise with friends. He began using alcohol and cannabis at about 13.
[7] At school Mr Palmer experienced significant bullying, and it appears that he learned to handle this by resorting quickly to physical aggression. He also identified as a protector of others who he thought vulnerable. This latter characteristic may explain his attack on Mr Coley; in his interview with the probation officer, he claimed that Mr Coley had threatened his female associates.
[8] There is no evidence of anxiety, depression or mental illness, but the medical practitioner who assessed Mr Palmer for sentencing purposes, Dr Fernando, considered that he is a risk to others — a consequence of his tendency to resort quickly to violence and his difficulties in modulating mood and behaviour — and suggested that he is also vulnerable to more sophisticated offenders in a custodial setting. The probation officer assessed him as a moderate risk of harm to others and expressed concern at his choice of associates in the community. He noted that Mr Palmer did not think his substance use was problematic.
[9] Mr Palmer retains family support, and he offered what the probation officer considered a suitable home detention address, his family home. It is noteworthy that there had been three breaches of bail at the address, the second of which would have resulted in loss of bail had there been a custodial bed for him.
[10] At the time of sentencing Mr Palmer had satisfactorily completed a sentence of 30 hours community work for an assault committed on 6 April 2016.

The victims’ perspective

[11] Mr Coley was aged 40. It appears he had not long returned to Invercargill to start a business making surfboards and finish writing a novel. The victim impact statements from his family are eloquent and thoughtful. One, from his brother Graeme, merits quoting because it encapsulates a court’s sentencing dilemma in such a case: on the one hand, the need to rehabilitate a young offender so he can live a worthy life; on the other, the no less pressing need to hold him accountable and deter him and other young men from this all too common behaviour:

... The man needs to learn what a blessing is to be able to walk freely and breathe easily, he needs to learn the value of time and effort put into a life hard grafted, he needs to learn true respect for the blessing of life. There are no excuses. Drugs are no excuse, being young and dumb is no excuse — even a child knows if you hit someone hard enough in the head they will die. I am so gutted knowing Matt wouldn’t have wanted to go out without a chance to defend himself. His final moment as a hapless victim to this senseless act of gutless violence. A message must be sent to this man and his peers, local and national — a message to a generation of young brainless Kiwi men. One punch can kill.

The sentencing

[12] After recounting the facts, Davidson J adopted a starting point of four years imprisonment having regard to the aggravating circumstances of the offending, which he identified as serious violence to the head, the devastating harm done, the lack of provocation, the victim’s vulnerability (he was surrounded), and the evidence that Mr Palmer was “spoiling for some sort of confrontation” that night. There were no mitigating features of the offending.
[13] Turning to personal mitigating factors, the Judge made allowances for youth and previous good character, ADHD and its effect on Mr Palmer’s ability to cope with prison, remorse, and the guilty plea. That produced an end sentence of two years imprisonment, but the Judge reduced that further to 22 months, which he decided was the least restrictive sentence he could impose. There is no challenge on appeal to the sentence calculation or the end point reached.
[14] The Judge refused to substitute an appropriate term of home detention, reasoning that home detention would not adequately meet the need for deterrence and denunciation, or promote a sense of responsibility in Mr Palmer. He also noted the breaches of bail, but acknowledged that within a short time Mr Palmer would return to society in any event. He recognised that Mr Palmer enjoyed family support and had a job to go to. He concluded by emphasising that abuse of drugs and alcohol by young people poses a risk of harm to others. He did not impose the post-release conditions recommended by the probation officer; this we think must have been an oversight.

The appeal

[15] Ms Guy-Kidd submitted that the Judge overlooked the fact that home detention serves the purposes of denunciation and deterrence, citing Fairbrother v R and giving examples of cases in which home detention has been used for manslaughter or intentional grievous bodily harm.^[2] She submitted that the Judge failed to mention the need to rehabilitate Mr Palmer, citing this Court’s judgment in Manikpersadh v R and Mr Palmer’s youth and neurological problems.^[3]
Ms Guy-Kidd emphasised that Mr Palmer was extremely young when the offending occurred, and argued that his rehabilitation would be best achieved through immediate active counselling and therapy, which she suggested he will not get in custody. She submitted that the Judge failed to recognise that imprisonment will be disproportionately severe for Mr Palmer in his circumstances, noting that he is held in a Youth Justice facility in Christchurch, far from home, and so gets few family visits. She also submitted that the Judge placed too much weight on deterrence, when in reality this was impulse offending by a young person for which deterrence is better achieved through education. Finally, she submitted that the sentence was plainly wrong.

The standard of appellate review

[16] Both counsel approached the appeal on the basis that it is an appeal against the exercise of discretion, in the sense that this Court will not revisit or review the merits but rather must be persuaded that the Judge erred in exercising his sentencing discretion by applying an incorrect principle, giving insufficient or excessive weight to a particular factor, or reaching a decision that was plainly wrong. That approach was used by this Court in James v R, a home detention case.^[4] James was approved in Manikpersadh, a 2011 decision, although the Court was there careful to emphasise that the discretion is a fettered one.^[5]
[17] Under s 250 of the Criminal Procedure Act 2011 a first appeal court must allow an appeal if satisfied that for any reason there is an error in the sentence and that a different sentence should be imposed. In Tutakangahau v R this Court examined the standard of appellate review in sentence appeals under the Act, holding that, as under the former legislation, this standard requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed.^[6] Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge.^[7] For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation. In Kumar v R the Court explained, citing Tutakangahau, that:^[8]

[81] This Court routinely characterises sentencing decisions as discretionary in nature. That characterisation recognises that to reach the end result the sentencing court must balance numerous and sometimes conflicting considerations, and that the range of outcomes within which reasonable disagreement is possible is frequently wide. Reference to discretion signals that this Court is exercising what it considers an appropriate degree of restraint in the circumstances. ... The Court’s jurisdiction is statutory and the legislation has long been interpreted to mean that the Court will intervene only if the sentence is manifestly excessive. A degree of restraint and deference to advantages of the trial judge is built into that standard, which has its own settled criteria: it requires a “material” error, which may be one of fact; the error may be shown by additional information supplied on appeal; the appellate decision ultimately focuses on the end result rather than the process by which it was reached; and once satisfied that a different sentence should have been imposed, this Court will normally substitute its own opinion for that of the sentencing judge.

[18] The standard of appellate review adopted in Tutakangahau applies to decisions not to commute imprisonment to home detention as it does to any other sentence. It follows that James should no longer be followed insofar as it applied a different standard to home detention cases.
[19] This change of approach is unlikely to make a difference in the result, because it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention, and any material error would normally have justified intervention under the former approach. As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence.^[9] The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another.^[10] In consequence, the margin of appreciation extended to sentencing judges is usually significant.

The grounds of appeal

[20] We can deal with most of the grounds of appeal shortly.

Denunciation and deterrence

[21] We do not accept that the Judge made the mistake of assuming that home detention does not serve the sentencing purposes of denunciation and deterrence. He concluded rather that home deterrence would not “sufficiently” meet those purposes in the circumstances.

Rehabilitation

[22] Nor did the Judge overlook rehabilitation, although as noted he erred by not imposing the post-release conditions recommended by the probation officer. He recognised on the one hand that imprisonment will have a severe effect on Mr Palmer because of his youth and neurological disadvantages, and on the other that Mr Palmer has prospects of rehabilitation and a support network which will be available to him on release. He dealt with these matters by discounting the starting point by 20 per cent.

Disproportionate severity

[23] The Judge did not overlook s 8(h) of the Sentencing Act, which required that he take into account any personal circumstances that would make imprisonment disproportionately severe for Mr Palmer. He accepted that Mr Palmer’s personal circumstances create a risk that he will be violent toward others, posing a risk to them and to him. The Judge appears to have assumed, reasonably, that Corrections should be able to manage these risks, and he noted that Mr Palmer would need to be monitored by mental health services. We observe that Mr Palmer has been in custody since sentencing on 22 August 2016 and there is no evidence that he has failed to adjust.

Sentence plainly excessive?

[24] There having been no error of principle, the appeal comes down to the question whether imprisonment was clearly excessive in the circumstances. We are not persuaded that it was, for several reasons.
[25] First, this was highly culpable offending of its kind. Mr Coley was not aggressive; on the contrary, he sought to escape and to avoid confrontation. He was pursued, surrounded and attacked. Mr Palmer’s punch took him by surprise, and death ensued. Mr Palmer’s youth and neurological problems mitigate his culpability, but Dr Fernando found him able to understand the difference between right and wrong and capable of behaving in a morally appropriate manner. He is impulsive but his lack of restraint on this occasion is partly a function of substance abuse, which is not a mitigating factor.
[26] Second, denunciation and general deterrence are very important sentencing considerations. Offending of this kind is far too common. Personal deterrence is also a relevant factor, to the extent that Mr Palmer is capable of exercising self-control. His clinical history, which is summarised in Dr Fernando’s report, suggests he does have that capacity but needs to accept that substance use is harmful.
[27] Third, rehabilitation is a very important consideration, and it will be challenging given Mr Palmer’s neurological disadvantages, which also put him at risk of reoffending in future. Rehabilitation matters a great deal, since young people are generally capable of it and they and the community will benefit in the long term if it succeeds. A custodial sentence is not usually the best rehabilitative option for a young person. However, Mr Palmer’s sentence of imprisonment is a short one — we were given to understand that his release date, taking into account time served in pre-sentence detention, is likely to be June 2017 — and there is no reason to think it will have an irreversible effect on his rehabilitation. The only evidence of that is Dr Fernando’s non-specific concern that he is vulnerable to the influence of more sophisticated offenders.
[28] We are mindful of Dr Fernando’s concern but we do not consider home detention is the appropriate outcome in this case. The risk to Mr Palmer posed by more sophisticated offenders must be balanced against the useful features of a short custodial sentence: namely that Mr Palmer will presumably have no contact with his unsuitable associates at home and no access to intoxicants, giving him an opportunity to break the cycle of bad friendships and substance abuse. Other factors also count against a sentence of home detention: Mr Palmer breached bail three times while living at home; he committed an assault three days before the manslaughter; and at the time of the fatal punch he was affected by LSD, cannabis and alcohol. These factors all demonstrate the inappropriateness of detaining him in the home where he had been living when all of these things were able to happen. Mr Palmer is in a Youth Justice facility and we expect Corrections to ensure that a rehabilitative programme begins there. He retains family support and has a job to go to on release. Post release conditions should allow the probation officer to put a structured programme in place, building on work done while he is in custody.
[29] Ms Guy-Kidd directed us to several cases involving manslaughter by an unlawful act in which home detention was imposed on offenders who were older than Mr Palmer. We note these cases but consider in these circumstances and for the reasons here outlined home detention is not an appropriate sentence.

Result

[30] We are not prepared to substitute home detention for the sentence of imprisonment. However, we are satisfied that there was an error in the sentence, in that the Judge did not impose post-release conditions which are necessary for rehabilitative purposes. In order to make that adjustment under s 250 it is necessary to allow the appeal. We sustain the sentence of 22 months imprisonment and impose the following post-release conditions. Mr Palmer is to:

• (a) Attend such treatment, counselling and/or programmes for alcohol and drug use as directed by the Probation Officer. The provider of that treatment, counselling and/or programmes is to be determined by the Probation Officer.
• (b) Not associate with or contact any person or persons named by the Probation Officer and without the prior written approval of the Probation Officer.

Solicitors:
AWS Legal, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Palmer [2016] NZHC 1962.

^[2] Fairbrother v R [2013] NZCA 340.

^[3] Manikpersadh v R [2011] NZCA 452.

^[4] May v May (1982) 1 NZFLR 165 (CA); James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.

^[5] Manikpersadh v R, above n 3, at [11]–[12].

^[6] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

^[7] At [35].

^[8] Kumar v R [2015] NZCA 460 (footnotes omitted).

^[9] R v Vhavha [2009] NZCA 588 at [29]. This was in dissent but this point was later adopted in Osman v R [2010] NZCA 199 at [20].

^[10] R v D (CA253/2008) [2008] NZCA 254 at [66].