Dean v Police [2014] NZHC 1542 (3 July 2014)

Last Updated: 10 July 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-00009 [2014] NZHC 1542

BETWEEN	LUKE MORRIS DEAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 July 2014
Appearances:	R Rai for appellant B Sweetman for respondent
Judgment:	3 July 2014

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Luke Morris Dean, pleaded guilty to one charge of injuring with intent to injure. He was sentenced by Judge Roberts in the District Court at New Plymouth on 2 April 2014 to one year and nine months' imprisonment.¹

Mr Dean now appeals that sentence as being manifestly excessive.

Mr Dean’s offending – the facts

[2] In the early hours of the morning on Saturday 23 November 2013 Mr Dean, who had been drinking alcohol in a bar, approached the victim. Unprovoked Mr Dean pushed the victim in the back and then punched him in the face causing the victim to fall to the ground. Mr Dean then delivered a further five punches to the victim’s face and stomped on the victim’s head. The victim lost consciousness for a period during the assault and suffered a contusion to the right eye, abrasions to the

_{lips, face and head, and a partial tear to the mouth.}

¹ _{Police v Dean DC Hawera CRI-2014-021-000051, 2 April 2014.}

DEAN v POLICE [2014] NZHC 1542 [3 July 2014]

[3] Disturbingly, Mr Dean had, just five months previously, been guilty of similar offending. On that occasion Mr Dean had, at a social function, knocked his victim unconscious by punching him and had then picked up a metal chair and proceeded to beat his victim as he lay unconscious on the ground. Mr Dean pleaded guilty to a charge of assault with a blunt instrument, and was sentenced to 275 hours community work and to pay reparation of $1,000.

[4] At the time of this offending Mr Dean had paid that reparation and had completed approximately 100 hours of his community work sentence.

The challenged sentencing decision

[5] By reference to the tariff decision of Nuku,² the Judge fixed a starting point of two years’ imprisonment, noting the aggravating factors of Mr Dean’s victim’s vulnerability, particularly after he had been knocked to the ground, and of Mr Dean stomping on his victim’s head. There is, and can be, no challenge to that starting point.

[6] The Judge then uplifted that starting point by four months to take account of Mr Dean’s previous offending. In doing so the Judge noted the similarity in the offending and the closeness in time of the two incidents. For Mr Dean, Mr Rai challenges that uplift as being excessive.

[7] The Judge declined to provide any credit for remorse, notwithstanding Mr Dean’s report writer’s assessment that Mr Dean took responsibility for his offending, was prepared to make restitution by way of financial reparation and was also willing to participate in a restorative justice process. At the same time, Mr Dean’s report writer said that Mr Dean gave the impression that he felt he was entitled to use violence. Mr Rai submits that some recognition should have been given for Mr Dean’s remorse and offer to make amends.

[8] Similarly, the Judge did not consider any discount for youth was appropriate, again noting the degree of similarity between, and closeness in time to the two

² Nuku v R [2013] NZCA 584, [2013] 2 NZLR 39.

occasions of violent offending. Mr Rai also suggested the fact of Mr Dean’s relative

youth should have contributed to some discount.

[9] Mr Dean’s sentence was, therefore, after a 25 per cent discount for his guilty

plea, one year and nine months’ imprisonment.

[10] The Judge then considered, but rejected, home detention as a sentencing option. Mr Rai’s particular submission was that the Judge had not properly considered that option. With supportive and pro social parents willing for Mr Dean to serve a sentence of home detention at their home and given Mr Dean’s relative youth, the fact he had complied with the sentence for his first offending and the fact that, other than these two instances, he had not previously offended, his sentence should have been commuted to one of home detention.

[11] For the Crown, Ms Sweetman supported the Judge’s analysis. She emphasised the troubling aspect of this offending: namely that Mr Dean has committed serious violent offending in a social context, for no apparent reason on two occasions closely connected in time. In those circumstances, and although he may have been complying with his community work sentence, any expressions of remorse or further discount for youth were not called for. Further, and although the Judge had not explicitly considered factors which might support a sentence of home detention, his consideration of that issue shows he had, implicitly, assessed all relevant factors in reaching his decision.

Analysis

[12] Relevant previous offending will make an uplift to a starting point sentence appropriate, including where the fact of the subsequent offending indicates a need to deter an offender, to protect the public and to hold an offender accountable. Although Mr Dean was complying with his community work sentence in respect of the June 2013, his reoffending in November, being very close in time and not dissimilar, if not more serious, than his earlier offending, in my view clearly called for an uplift for those reasons. I do not think the uplift of four months was disproportionate.

[13] Nor am I persuaded that the Judge was in error declining to provide Mr Dean with a credit on account of remorse. The Judge was, in these circumstances, best placed to assess the genuineness or otherwise of Mr Dean’s remorse. It is perhaps not surprising that the Judge questioned that remorse, given these two incidents of like offending closely linked in time.

[14] I am not persuaded, however, that the Judge properly considered the question of home detention. The Judge assessed that issue in the following terms:

[23] The sentence [one year and nine months’ imprisonment] will be served. Home detention is quite inappropriate given the following factors, the serious nature of your offending, the fact too, that you were undeterred by the last sentence and re-offended whilst still serving community work. Lesser sentences than a full-time custodial sentence would be quite inappropriate and simply gloss over the sentencing principles designed to hold you accountable, denounce your conduct and deter you.

[15] My concern is that whilst the Judge clearly considered a number of factors that would count against a sentence of home detention, he did not consider a number of factors which, in my view, supported that outcome and needed to be weighed in the balance.

[16] In James v R the Court of Appeal has stated:³

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?

[17] In my view the Judge overemphasised the need for deterrence and denunciation and failed to consider relevant s 7 and 8 purposes. The need to rehabilitate Mr Dean, who was a young and relatively new offender, was not considered. Nor was the need to impose the least restrictive sentence that would meet the principles and purposes of sentencing. Moreover, the Judge failed to recognise that home detention is itself a sentence that carries a considerable measure

_{of denunciation and deterrence.}⁴

³ _{James v R [2010] NZCA 206, (2010) 24 NZTC 24, 271.}

⁴ R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].

[18] For the reasons submitted by Mr Rai, I think home detention should have been imposed. Mr Dean is only 19 years of age and has only committed one prior offence. He has a supportive, pro-social family and there is every indication he would comply with a sentence of home-detention. I do not think Mr Dean’s offending has yet reached the stage where imprisonment is the only adequate response – there is still currently hope for his rehabilitation. At the time of his offending, and afterwards, Mr Dean was gainfully employed in a local freezing works, where his parents also work. There is a possibility that he may regain that employment whilst serving his sentence of home detention. In my view, that adds to the appropriateness of that sentence for Mr Dean.

[19] It has to be said, however, that if Mr Dean were to offend in like manner again, there would be no question of home detention and a sentence of imprisonment, with a material personal deterrent factor, would be called for.

Outcome

[20] I therefore allow Mr Dean’s appeal, quash his sentence of imprisonment and

substitute one of home detention.

[21] The home detention address is that of Mr Dean’s parents at 49 Collingwood Street, Eltham. That address has already been assessed as being suitable, and the adult residents have consented to a home detention arrangement.

[22] Mr Dean’s relevant sentence of imprisonment is one of one year and nine months. He has now served some three months of that sentence. That sentence therefore has a remaining nominal term of 18 months. On that basis he will serve a further period of home detention of nine months.

[23] In addition I impose the conditions that Mr Dean:

(a) undertake and complete an alcohol and drug assessment and any counselling/treatment programme as may be directed to the satisfaction of the Probation Officer;

(b) undertake and complete an anger management assessment and treatment programme should one be available to the satisfaction of the Probation Officer; and

(c) undertake and complete any other counselling/programme to reduce the risk of reoffending as may be directed by the Probation Officer.

“Clifford J”

Solicitors:

Till Henderson, Stratford.

C & M Legal, New Plymouth.