Dawson v Police [2012] NZHC 3298 (7 December 2012)

Last Updated: 12 December 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-045 [2012] NZHC 3298

BETWEEN JADE MATHEW TONY DAWSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 December 2012

Counsel: R Rai for Appellant

SA Law for Respondent

Judgment: 7 December 2012

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 7 December 2012 at 9:30 am pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Till Henderson (Stratford) for Appellant

_{C&M Legal (New Plymouth) for Respondent}

DAWSON V POLICE HC NWP CRI-2012-443-045 [7 December 2012]

Introduction

[1] Mr Dawson appeals against a sentence of nine months’ imprisonment

imposed on him by Judge AC Roberts in the District Court at Hawera on 10 October

2012. Mr Rai, on the appellant’s behalf, submits that this sentence was manifestly excessive and that the District Court Judge should have exercised his discretion to impose a sentence of home detention coupled with special conditions to attend programmes to teach him to manage his anger problem and to address his drug dependency.

Background

[2] The appellant came before the District Court Judge for sentencing on three charges to which he had pleaded guilty. The first was threatening to cause grievous bodily harm, the second was possession of cannabis, and the third was possession of utensils. The latter two charges have not featured in the appeal since the District Court Judge convicted and discharged the appellant on them without comment. The charge of threatening to do grievous bodily harm carries a maximum term of

imprisonment of seven years.1

[3] The summary of facts describes circumstances surrounding a heated argument between the appellant and his partner in a car which had pulled over to the side of the road. It is convenient to quote from the summary of facts:

Three members of the public, including the victim as named in the information, saw the defendant’s partner crying in the vehicle and could hear the defendant yelling at her.

They approached the driver’s window and asked if she was ok.

The defendant has said to them “fuck off you don’t know what this is about”.

The defendant has picked up a hammer from by his feet, got out of the vehicle and stood approximately one metre from the victim.

He raised the hammer and said “fuck off and mind your own business, I’ll smash your fucking head in” and “do you want this hammer through your head?”

The victim believed that he was about to be hit in the head with the hammer by the defendant.

The defendant was told to calm down by the members of the public and eventually got back into the vehicle, telling his partner to drive off.

[4] Of significance, is that on 8 May 2012, just two months before this incident, the appellant had been before Judge Roberts on an admitted charge of behaving threateningly. That behaviour involved a golf club and a 24 year old female. At that time, because of the appellant’s medical condition, his inability to pay fines and his inability to do community work, the District Court Judge sentenced the appellant to come up for sentence if called upon. The appellant was warned by the Judge that if he reoffended the conviction would be revived.

The District Court Judge’s sentence

[5] The District Court Judge paid particular attention to the appellant’s history of criminal offending. He noted that the appellant, a man of 30 years, had amassed 61 convictions within a 10 year period. He had served eight sentences of imprisonment as well as sentences of community detention and home detention. Of particular relevance were convictions for intimidation in 2008 and behaving threateningly in

2010. These, of course, preceded the May 2012 conviction for behaving threateningly to which I have just referred.

[6] Judge Roberts considered the option of home detention. He appears to have

rejected that option largely on the basis of the appellant’s criminal history.

[7] The District Court Judge then turned his mind to the appropriate sentence of imprisonment:2

[14] The aggravating factors I determine to exist are these:

(a) The threat of violence and the immediate presence of a weapon.

(b) That man was vulnerable in the sense he was making enquiry of a distressed woman. He would not have expected or anticipated a reaction such as you provided him.

(c) You were armed and led him, the male, to believe that you were capable of carrying out your threat.

(d) Your previous history.

[15] The fact that you were subject at the time to a sentence of come up if called upon and an earlier sentence of intensive supervision with a rehabilitative component really achieved nothing. Other options are eliminated. Health wise you are unable to perform community work and you certainly do not have the ability to pay a fine. Nearly $7000 remain unpaid.

[8] The District Court Judge then adopted a start point of 12 months’ imprisonment. He reduced that to nine months’ imprisonment through giving credit for the plea of guilty. Special release conditions were ordered.

The appellant’s submissions

[9] Mr Rai, on behalf of the appellant, submits that an analysis of the case law demonstrates that the starting point of 12 months’ imprisonment adopted by the District Court Judge was too high. Mr Rai refers to O’Connor v Police,3

Faaleaga v R,4 and McKinlay v New Zealand Police.5 On his analysis, Mr Rai

submits that the starting point in the appellant’s case should have been between six and seven months’ imprisonment. Mr Rai accepts that an uplift for the appellant’s previous history of violent offending was necessary. He considers that the uplift of three months applied by the District Court Judge was reasonable. Therefore, after applying the 25% discount for the plea of guilty, the end sentence, Mr Rai submits, should have been around six-and-a-half to seven months’ imprisonment.

[10] Mr Rai then turned to the matter of home detention. The appellant’s mother had offered her address for the purposes of home detention, and this was made known to the District Court Judge at the sentencing hearing. However, it had not been checked for suitability, and in any event the District Court Judge determined that home detention was not an available outcome. For the purposes of the appeal before me, a further pre-sentence report was obtained with a home detention

_{appendix relating to the appellant’s mother’s address in Wellington. The address is}

3 _{O’Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.}

4 _{Faaleaga v R [2011] NZCA 495.}

5 McKinlay v New Zealand Police HC Rotorua CRI-2011-470-28, 28 November 2011.

technically suitable but, due to safety and welfare concerns, home detention is not recommended. Nevertheless, Mr Rai submits that given the appellant’s stated willingness to address his anger issues, his entrenched cannabis habit, and to attend counselling, rehabilitation should be emphasised and home detention is to be preferred to a sentence of imprisonment.

The respondent’s submissions

[11] Ms Law for the respondent addressed, first, the appellant’s contention that the sentence of nine months’ imprisonment was manifestly excessive. She pointed out that there is no tariff decision in this area and it is the circumstances of a threat that are decisive.6

[12] Ms Law also referred to Faaleaga v R, and quoted the following passage

from the Court of Appeal’s decision:7

Key factors in assessing the culpability of offending of this nature will include premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim. The inability to immediately effect a threat reduces the terror it might otherwise invoke, reducing the extent of harm resulting from the offence and thereby reducing culpability. We do not agree with the sentencing Judge that this factor cannot detract from the severity of the offending. Whether it does or not will turn on the specific facts.

[13] Ms Law submits that in this case the significant features are the ability to effect the threat and the actual danger to the victim. Given that the appellant had to leave his car with the hammer, a small degree of premeditation was also present.

[14] Ms Law also identified as aggravating factors the vulnerability of the victim, the presence of a weapon, and the previous convictions of the appellant. Related to this last factor is the point that the appellant was at the time of the offending subject

_{to the sentence of “to come up if called upon” for very similar offending.}

6 _{Burchell v R [2010] NZCA 314.}

7 Faaleaga v R, above n 4, at [11].

[15] Turning to the sentencing range available for offending of this nature, Ms Law submits that it appears to be in the range of six to 12 months’ imprisonment. On this basis, an appropriate end sentence on the charge for threatening to cause grievous bodily harm would be in the vicinity of eight months’ imprisonment. However, having regard to the drug offending and the May 2012 offending, an end sentence of nine months’ imprisonment could not be seen as being manifestly excessive.

[16] So far as home detention is concerned, Ms Law submits that the District Court Judge paid proper regard to the relevant factors. He was entitled to reject it as an option.

Discussion

[17] An appeal against sentence proceeds by way of rehearing. That does not mean that I, in effect, resentence the appellant. However, if I determine that the District Court Judge made an error which resulted in the sentence he imposed being manifestly excessive, I must impose the sentence that I find to be appropriate.

[18] The situation is slightly different when it comes to a consideration of whether the District Court Judge should have imposed a sentence of home detention. A Judge exercises a discretion when imposing home detention because it is available only if the Judge has determined that otherwise a short term of imprisonment would be necessary. Therefore, I have to look at the decision to see whether the District Court Judge applied an incorrect principle, gave insufficient or excessive weight to a

particular factor, or was plainly wrong.8

Was the sentence manifestly excessive?

[19] Almost all of the cases in this area relate to the offence of threatening to kill. This is more serious than threatening to cause grievous bodily harm. Nevertheless,

_{as Ms Law submits, the same principles apply.}

8 James v R [2010] NZCA 206.

[20] In McKinlay v New Zealand Police, Asher J usefully sets out details of a number of cases in this general area. It seems that a starting point of 12 months’ imprisonment is quite high, even where the threat was to kill. For example, in Blair v Police,9 the appellant telephoned his partner and threatened to kill her, saying that if she rang the Police he would shoot her, her mother, father, and brother in the head and burn down her house. He later sent a text message in which he threatened to kill

her. The Court held that 12 months’ imprisonment was an appropriate starting point

for this group of offences.

[21] Of some relevance to this case is R v Thomas,10 in which the appellant threatened to do grievous bodily harm to two young women in the context of a belief that they could identify someone who had provided information to the Police against her partner. She approached the two women after a Court hearing and demanded that they tell her who had “narked” to the Police. By gesture she indicated a shot to the head and said that if the complainants would not come with her and identify the informant, she would drag them by the hair. The complainants were fearful for their safety and went with the appellant to an address during which the appellant continued to demand that they disclose the identity of the informant. She continued to threaten to harm the complainants and to burn down their homes. The starting point was not identified but the Court of Appeal upheld an end sentence of nine months’ imprisonment, reached after consideration of guilty pleas and a very positive pre-sentence report.

[22] In this case, it is difficult to work out what factors the District Court Judge took into account in adopting a start point of 12 months’ imprisonment. It might be that he did take into account the drugs charges on which he later convicted and discharged. It does seem that he took into account the May 2012 offending because he says:

[16] I concur with the submissions of the police prosecution. In all the circumstances, whether the start be nine months elevated to accommodate particularly that last offence where you were subject to the suspended sentence or struck simply on the basis of 12 months with no elevation, it matters little.

_{[My emphasis]}

9 _{Blair v Police HC Dunedin CRI-2010-412-10, 13 May 2010.}

10 R v Thomas CA212/04, 2 August 2004.

[23] In my view, having regard to the cases and the aggravating factors identified by the District Court Judge, I agree with Mr Rai that the starting point should have been around seven months’ imprisonment. I consider that a 50% uplift would be appropriate to take into account his previous offending, including the May 2012 offending. In my view, that would have meant a final starting point of no more than

10 months’ imprisonment was justified. Once the 25% discount for the guilty plea had been applied, that would have resulted in an end sentence of seven-and-a-half months’ imprisonment.

[24] I conclude that the end point of nine months’ imprisonment reached by the

District Court Judge was manifestly excessive.

Home detention

[25] Home detention is not a sentence of imprisonment. However, it is not to be regarded as a “soft option” and the Courts have made it clear that it carries with it significant qualities of deterrence and denunciation. It is best employed where, as the Court of Appeal said in R v Hall,11 “social and individual benefits available from such a sentence make it proper”.

[26] In this case, the District Court Judge seems to have focused on the appellant’s criminal history, particularly the May 2012 offending. He did not feel that a sentence of home detention would adequately hold the appellant accountable, denounce his conduct, and deter him from further offending.

[27] The District Court Judge could, perhaps, have expanded on the reasons why he denied home detention. However, a perusal of the appellant’s criminal record demonstrates that the District Court Judge made no error in refusing to exercise his discretion in favour of the appellant. In 2008, he was sentenced to six months’ home detention on a number of charges including one of intimidation. He served that sentence at the same address to which he would go if home detention were granted in

_{this case.}

11 R v Hall [2008] NZCA 207 at [15].

[28] In 2011, the appellant was sentenced to four months’ community detention in respect of a number of offences including one of behaving in a threatening way and another of common assault. I am told that this time the address concerned was that of his partner’s mother.

[29] The pre-sentence report available to the District Court Judge noted that the appellant had previously been subject to rehabilitative and electronically monitored sentences, yet his offending remains persistent.

[30] Under these circumstances, the District Court Judge was entitled to conclude that the appellant had had more than one chance to demonstrate that electronically monitored sentences would lead to the social and personal benefits for which they are designed. With two further offences of the threatening or intimidatory type, the District Court Judge was left with no choice other than to decline home detention.

[31] That being my conclusion, I do not have to consider the latest pre-sentence report which assessed the current suitability of the mother’s address. However, given the factors mentioned in the report to do with previous violent conflict between the appellant and an occupant of that address, plus a previous violent incident involving a neighbour, I doubt whether I could have concluded that it remains a suitable address.

Decision

[32] The appeal against the sentence of imprisonment is allowed. The sentence of nine months’ imprisonment is quashed and a sentence of seven months and two weeks’ imprisonment is substituted.

[33] The appeal against the District Court Judge’s refusal to impose a sentence of

_{home detention is denied.}

Brewer J