Potter v Police [2014] NZHC 1769 (29 July 2014)

Last Updated: 12 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000044 [2014] NZHC 1769

BETWEEN	EDWARD KEITH POTTER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4-5 June and 29 July 2014
Counsel:	M Hislop for Appellant T Hu (4-5 June) and KR Muirhead (29 July) for Respondent
Judgment:	29 July 2014

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

M Hislop, Auckland.

Crown Solicitor, Auckland.

POTTER v POLICE [2014] NZHC 1769 [29 July 2014]

[1] The appellant, Edward Keith Potter, pleaded guilty in the District Court at Auckland to two charges of breaching a protection order and a charge of breaching a community work requirement. He was sentenced by Judge G A Fraser on

6 September 2013 to 125 hours’ community work and nine months’ supervision.¹ He

appeals the sentence.

[2] In his decision Judge Fraser noted that the offending on all three charges was historical. The protection order breaches had occurred in early 2012. The Judge noted that there had been no prior breaches between the time when the protection order was made and served on 7 January 2009 and the specific incidents which took place on 3 March 2012 and 5 April 2012. He noted the lack of any previous convictions for breaching protection orders, but that there were convictions for

breaching other orders of the Court and other convictions. He stated that:²

Had there been more recent offending of a similar nature then I would not be dealing with it by way of community work but I accept that change has occurred and in recognition of that a community work sentence is appropriate. That also protects your employment situation which, in my view, is important and is also protective of likely future offending.

[3] While there has been a short submission made by Mr Hislop for Mr Potter in his written submissions that the sentence was manifestly excessive, this particular submission was not pursued by Mr Hislop orally before me. Rather the focus of his submission was that the appellant would not be able to comply with a sentence of community work and maintain his present commitments. Mr Hislop accepted that Mr Potter must be held accountable for his offending, and after some discussion with me and after taking instructions from his client, he submitted that a penalty of community detention could be an appropriate alternative. In other words he did not contest the 125 hours of community work and supervision imposed on the basis that it was manifestly excessive, but rather that it was not the appropriate sentence in the circumstances.

[4] Mr Hislop proposed a sentence of community detention of one to two months. Although I did not understand him to contest the proposition that a sentence

_{of up to three months could be within range.}

¹ _{Police v Potter DC Auckland CRI-2012-044-2487, 6 September 2013.}

² At [3].

[5] Ms Hu for the respondent submitted that the Judge’s sentence was entirely appropriate in the circumstances. However, after some discussion with me she accepted that a sentence of community detention could be an appropriate alternative. She submitted that it should be at least four months’ community detention.

[6] The first question to be determined is whether community work was a sentence that was correctly imposed in the circumstances.

[7] There is no doubt that the requirements for a sentence of community work in s 55 of the Sentencing Act 2002 apply. Section 56(1) states that in considering whether to impose a sentence of community work the Court must give particular consideration to:

(b) whether the sentence is appropriate having regard to the offender's character and personal history, and to any other relevant circumstances.

[8] At the hearing before Judge Fraser, Mr Hislop did not place emphasis on similar matters that have now been emphasised in this appeal. For this appeal he has relied on two affidavits by Mr Potter.

[9] Mr Potter is currently working fulltime as a carpenter. His current work hours as set out in a letter from his employer are 7 am to 5.30 pm Monday to Saturday and he works on various building sites as a contract labour-only carpenter. The letter from his employer states:

These are the required working hours if Eddie is to continue contracting with us.

[10] In his affidavits Mr Potter also states that Sundays are his only days off from work. He states:

I have recently changed my life and my spirituality is very important to me. On Sundays I attend church at the Church of Jesus Christ of Latter Day Saints situated in Grey Lynn from 1pm to 4pm.

[11] Mr Potter has three children by his former partner. He has seen them at Barnados on Sunday mornings. That is his only contact with them. Sundays are the only time he has to do his domestic chores including shopping and obtaining

groceries. He does not believe he can maintain his employment and do community work. He observes that he needs to carry on his employment to survive financially. He has debts of approximately, $70,000 and is currently making weekly payments of

$450 to creditors.

Facts of the offending

[12] The protection order was for the benefit of Mr Potter’s former partner and his three children. It arose out of a number of incidents of domestic violence and issue on 19 January 2008 and served on 7 January 2009. He was not to physically abuse the protected persons or to make contact with them, except insofar as that was permitted under any order or written agreement relating to the care of a minor.

[13] On 3 March 2012 at 12.30 pm Mr Potter had arranged to meet his former partner to collect his children from her. They began to argue. When the complainant decided to leave Mr Potter opened the front passenger door of her car and stood there, preventing her from closing it. The argument intensified and Mr Potter grabbed the complainant by her hand and bent her fingers backwards, causing her pain then and for about half an hour after the incident.

[14] The second incident involved Mr Potter at 1.10 pm on 5 April 2012 going to his childrens school to see his two eldest children. He was permitted to see the children while being supervised by school staff. Apparently it was coming up to Easter and Mr Potter wished to give them Easter eggs. It seems the visit took place without incident.

[15] As to the breach of community work, it appears to have been a failure to report. Mr Potter had, prior to his sentencing, completed the 80 hours of community work that were imposed. The offending had been driving while under the influence of alcohol.

Should this Court intervene on appeal?

[16] Judge Fraser does not in his decision make any reference to Mr Potter’s work commitments and any difficulty he might suffer in carrying out community work. Mr Hislop confirms that there were no particular submissions made in that regard.

[17] There is no doubt that before community work can be imposed it must be an appropriate sentence having regard to the offender’s character and personal history, and other relevant circumstances which would include his employment and domestic commitments.

[18] I have no doubt that the sentence imposed by Judge Fraser was appropriate in the circumstances and that he made no error at the time. However, I have before me relevant new material which was not drawn to his attention. That new material indicates that community work is not an appropriate sentence if Mr Potter is to meet his work and domestic commitments.

[19] The Court is always cautious about too readily accepting an offender’s protests that community work is impossible. However, given that Mr Potter will face a sentence of equal gravity should there be a new sentence substituted, and given the letter from the employer, I am prepared to accept his assertions as true.

[20] Given that there was inadequate material before the Judge on the issue of community work, I consider it appropriate for this Court to intervene on appeal.

Approach

[21] When an appeal Court carries out a re-sentencing exercise, the Judge is concerned to impose a sentence that could have been imposed on the offender originally. The substituted sentence must be one that could have been properly imposed initially and it must be imposed against the background where the sentence

_{of community work was thought initially to be appropriate.}³

³ R v Morgan [2008] NZCA 232 at [13]–[17].

[22] It can be expected that there will be some co-relation in terms of gravity and proportionality between the sentence originally imposed and the substituted sentence. There can be no strict co-relation between them and there is no formula that can be sensibly applied.

The appropriate sentence

[23] I turn therefore to consider what the appropriate sentence would be, putting to one side a sentence of community work as an option.

Starting point

[24] In terms of assessing the culpability of the offending, the level of culpability was moderate in that there was a moderate assault involved on the first occasion in the bending back of the fingers. Culpability must be assessed against a background of three years having gone by since the protection was made without there being any convictions for infringement of that protection order. It took a year and a half for the charges to come to Court and it would seem there have been no further infringements in that year and a half period.

[25] Thus, although Mr Potter has some conviction history in relation to relatively minor violence, this particular offending can be seen as relatively isolated and not symptomatic of a defiance of the protection orders, or systematic rejection of them.

[26] I take into account the victim impact report. Clearly the offending has caused suffering to the complainant, although it does not appear that she has suffered any long term effects, except of course the general caution with which she must view Mr Potter.

[27] I have considered a number of cases to which I have been referred including Tihi v Police,⁴ Sherwood v Police⁵ and Grafton v Police⁶ where sentences of relatively short periods of community work and short periods of imprisonment were

_{imposed. It is my assessment that the appropriate starting point based on the}

⁴ _{Tihi v Police HC Auckland CRI-2008-404-214, 18 March 2009.}

⁵ _{Sherwood v Police HC Christchurch CRI-2010-409-113, 19 August 2010.}

⁶ Grafton v Police HC Christchurch BC200961939, 25 June 2009.

culpability of the offending alone would have been in the order of three to four

months’ imprisonment.

[28] I do not have any factual details relating to the breach of community work. It does appear to have been a relatively minor breach in terms of culpability, in that he went on to complete his community work without further incident. It appears to have been just a single failure to turn up on a particular day and I am not going to impose any particular uplift for that offending, while I have borne it in mind when fixing the three month starting point.

Personal factors

[29] It is necessary then to turn to factors personal to the offender. The pre- sentence report is in general terms positive towards Mr Potter and the recommendation was for only supervision. It is noted that he has accumulated 20 convictions, including minor violence offending, thefts and car conversions, and they have tended to come in sprees. He has also convictions for dishonesty offending, driving offending including four alcohol-related offences, and for breaches of bail and probation. Mr Potter has attributed his serious periods of offending as relating to time of alcohol and drug addiction.

[30] The Probation Officer assesses Mr Potter’s motivation or ability to comply with reporting requirements as low. He discloses mental health diagnoses from the past, but he now manages his mental state. Mr Potter cites work commitments for the reasons that he often misses appointments. The officer notes:

His employer was contacted and describes a reliable hard working employee. It is clear that employment is a protective factor for Mr Potter, but he appears to value his employment over his Court required obligations.

[31] He is assessed at having a medium risk of offending and a medium risk of harm. The Probation Officer observes:

It is recommended that special conditions be limited to avoid overburdening

Mr Potter while addressing his offending needs.

[32] It was also observed that Mr Potter’s employer advised that he was happy with Mr Potter’s workmanship and work ethic. The employer has seen an improvement in his reliability.

[33] Given that Mr Potter’s previous history includes some violence offending and earlier breaches of Court orders, I consider that an uplift of one month would be appropriate for his bad previous record. However, he entered pleas of guilty and this is a factor warranting a discount of 25 per cent. More to the point, the positive statements by his employer and the Probation Officer, and my general assessment of Mr Potter persuade me that a prison sentence would not be the least restrictive outcome that is appropriate in the circumstances.

[34] I confess to having a little scepticism about Mr Potter’s claim that he is entirely unable to do community work. For instance, the Probation Officer notes Mr Potter having told her that his association with the Church of Latter Day Saints is only social and that he is not currently active in attending church.

[35] However, what really influences me against imposing any sentence such as community work which involves a high degree of co-operation with authority is that this does not seem to me to be something that Mr Potter is at all good at. I have a concern that in imposing that sort of sentence Mr Potter would be being set up to fail. On the other hand it does seem from the probation report and from what his employer says, that he may be in a more stable and rational state of mind now than he has been previously, and in a position to get on with the sort of constructive life he is clearly capable of. It would be more preferable for him, and the good of the community, if he were not set up to fail and instead given an appropriate sentence, but one which he can comply with.

[36] I do not consider that when the gravity of his offending and his personal position are looked at in the round, that imprisonment, or indeed home detention, are required.

Sentencing outcomes

[37] This effectively was the decision of the District Court Judge in sentencing him to community work. Given that option is not appropriate, for the reasons I have set out, I consider that community detention is the appropriate sentence. Community detention does of course involve voluntary co-operation on Mr Potter’s part. He will have to make sure he gets home and stays at home through the required curfew period. However, it is my impression he will be much better able to deal with that sort of restriction than the more onerous and detailed requirements imposed on him if he is to do community work.

[38] Mr Potter is of course at the threshold. If he fails to comply with his community detention obligations then he will come back before the Courts and face the likelihood of a much more severe sentence which would be likely to involve imprisonment.

[39] So it is my conclusion in the circumstances that community detention is the appropriate sentence.

[40] Given the mitigating factors that I have referred to, and the very positive signs that at present exist in Mr Potter’s life while nevertheless recognising his culpability, I conclude that the appropriate length of community detention is 15 weeks, or a little over three and a half months.

[41] I am satisfied that the sentence of supervision imposed by the District Court Judge should remain. Mr Potter is at a turning point in his life. He has had a bad history, but there are positive signs. He needs supervision to make sure that he stays on the right road.

[42] For the reasons I have set out, and the requirements set out in s 69(c)(ii) met with a favourable report having been received, it is appropriate to allow this appeal and sentence Mr Potter to community detention.

Result

[43] The appeal is allowed in part. The sentence of 125 hours community work is quashed.

[44] A substituted sentence of 15 weeks community detention is imposed. [45] The District Court sentence of nine months’ supervision remains.

...................................

Asher J