Crosswell v Police [2012] NZHC 2435 (20 September 2012)

Last Updated: 10 October 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000050

CRI-2012-419-000051 [2012] NZHC 2435

BETWEEN JUSTIN GEOFFREY CROSSWELL Appellant

AND NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 19 September 2012

Appearances: M McLeod and R O Nicholson for Appellant

J Tarrant for Respondent

Judgment: 20 September 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 20 September 2012 at 2.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Hamilton

Copy to: M Mcleod, Hamilton

R O Nicholson, Hamilton

CROSSWELL V NZ POLICE & DEPT OF CORRECTIONS HC HAM CRI-2012-419-000050 [20 September

2012]

[1] On 30 July 2012 Judge Connell sentenced the appellant Mr Crosswell to nine

months’ imprisonment. The nine months was made up as follows: (a) three months for two breaches of release conditions; (b) one month for breach of community work; and

(c) five months for two other breaches of Court release conditions in substitution for community work.

The sentences were cumulative leading to the end sentence of nine months.

[2] The factual background is somewhat complicated. On 2 August the appellant was sentenced to imprisonment in relation to charges of unlawfully being in an enclosed yard x3; failure to answer District Court bail x2; breach of community work; common assault (domestic); and driving while disqualified.

[3] On 28 November 2011 he was released from the Manawatu Prison on conditions of release. He then breached those conditions of release on 5 and 12

January. On 9 February 2012 he was sentenced to 80 hours community work in relation to those two breaches.

[4] The appellant then failed to report for his community work on 12 March. He also further breached his release conditions on 5 March and 16 May. Because of his failure to report for community work an application was made to cancel the sentence. The appellant pleaded guilty to all the offending and was sentenced by Judge Connell accordingly.

[5] Mrs McLeod raised a preliminary point. She submitted that it appeared from the Judge’s sentencing notes that in imposing the sentence of five months’ imprisonment he was doing so in relation to the original sentence. Ms Tarrant submitted the following paragraph from the Judge’s sentencing notes was ambiguous:

[14] On reviewing the sentence as I consider the charges that you faced in respect of which you were sentenced and look at what outcome I might consider appropriate in view of those, I have come to a view that six months’ imprisonment is warranted less one for your plea of guilty. That is a five month term and that will be served cumulatively as well.

[6] I agree it is ambiguous but it is unlikely that an experienced District Court

Judge would have made the error that Mrs McLeod suggests was made.

[7] Mrs McLeod also made the point that it appeared strange the Judge had imposed a sentence of five months for the guilty pleas on two counts of breach of release conditions in January but had only imposed a sentence of three months for the two further breaches on 5 March and 16 May.

[8] The Judge was however considering the re-sentence for two counts of breach of release conditions. Each was subject to a maximum of one year. The Court of Appeal in R v Morgan[1] have made it clear that in re-sentencing the Judge is concerned to impose a sentence that could have been imposed on the offender originally and that the substituted sentence should not include any element of sanction for the failure to comply with the community work sentence. Section 71 of the Sentencing Act creates a specific offence of breach of a community work sentence and that is the appropriate mechanism to deal with that issue.

[9] In any event, on an appeal such as this the ultimate task of this Court is to determine whether, for all the offending that the appellant was before the District Court for sentence on, imprisonment for nine months can be said to be manifestly excessive.

[10] Counsel referred to a number of authorities. Mrs McLeod relied on the decision of Wright v Police.[2] In that case Clifford J held that, for breaches of community work and release condition charges a starting point of eight months was manifestly excessive. He noted that while Mr Wright had previous convictions for

_{breaches of community work it was over six years ago. Mr Wright also was facing}

one breach of community work and two breaches of release conditions. The Judge said:

Whilst these breaches are concerning, they occurred towards the end of his release period after substantial compliance for over six months. They did not warrant the six month cumulative sentence. A starting point of four months for this offending would appropriately reflect this offending, similarly reduced to three months on account of Mr Wright’s guilty plea.

[11] For her part Ms Tarrant referred to the decisions of McLean v Police[3] where a sentence of eight months’ imprisonment was imposed for two charges of breaching release conditions; Tennant v Police[4] where a sentence of two months’ imprisonment was imposed for breaching a release condition; and Johnson v Department of Corrections[5] where six months’ imprisonment was imposed for two breaches of release conditions. Mrs McLeod correctly pointed out that Tennant and Johnson dealt with issues of failure to advise change in addresses.

[12] Each case must of course be determined on its facts. As noted, the maximum penalty for a breach of release condition is one year imprisonment. In the present case the aggravating features in my judgment are that the first breaches on 5 and 12

January occurred very early on after release. The appellant was inducted to his order on 2 December. On 13 December he was given written instructions to report on 22

December and every week following. On 29 December he failed to report. A final written warning was given. He then failed to report again on 5 and 12 January despite those reports. The appellant then failed to report on 2 March. No action was taken because he advised he did not report because he did not have any transport. However he then failed to report on 5 March. In relation to the particular offending on 16 May, at his request Mr Crosswell rescheduled his appointment from 14 to 16

May and then failed to attend on the 16th. In short, the appellant’s breach of release

conditions was ongoing from the very outset of his release. He has apparently made little if any attempts to comply.

[13] On the re-sentence issue, as the Court of Appeal observed in Morgan,

_{imprisonment is legitimate in these cases since the offender has already had the}

benefit of the least restrictive alternative and failed to take advantage of it. There is a need for proportionality between the original sentence and the substituted sentence but there need be no direct correlation between the two.

[14] There can be no challenge to a cumulative end sentence of one month for the breach of the community work sentence on 12 March.

[15] The Judge then had four separate breaches of release conditions on 5 and 12

January and on 5 March and 16 May to address. Bearing in mind the appellant’s history of failure to comply with Court orders, the Judge would have been entitled to take three months in each case as appropriate allowing one month reduction for the guilty plea leading to two months in each case and to have imposed those sentences cumulatively. That would have led to an end result of nine months overall. Equally the Judge would have been entitled to regard the offending as two separate sets of offending and taken a starting point of six months’ imprisonment in each case, reducing it to four months in each case, for both sets of offending, again cumulative. It is necessary to impose the offending cumulatively because while it is similar offending it has occurred over a long and sustained period of time.

[16] The sentence of nine months’ imprisonment overall is also warranted in my judgment because of the appellant’s past history. That is not to re-sentence him for his past offending, but rather to recognise that he has a propensity to fail to comply with Court directions and orders. He must face the consequences of that. The appellant has at least six previous convictions for breach of community work, seven for breaching bail and 14 for breaching periodic detention orders in the past. As the probation officer notes he is:

a recidivist, high risk offender, with medium risk of harm to others. He has an offending history that started at the age of seventeen years, and has accumulated a total of one hundred and twenty offences over the span of eighteen years.

The probation officer assessed the appellant as having “no [or] little motivation or willingness to comply with Court imposed conditions”. He describes his offending as “normal and part of everyday life”.

[17] It follows that the ultimate sentence the Judge arrived at of nine months’ imprisonment for the offending before him could have been structured in a variety of ways. While the end result of nine months is perhaps towards the top of the scale given the particular circumstances of the appellant and his offending it cannot be

_{said the end result of nine months is manifestly excessive. The appeal is dismissed.}

Venning J

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[1] _{R v Morgan [2008] NZCA 232.}

[2] Wright v Police [2012] NZHC 493.
[3] _{McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007.}
[4] _{Tennant v Police HC Palmerston North CRI-2009-454-20, 10 June 2009.}
[5] Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010.