Baker v Police [2014] NZHC 2194 (10 September 2014)

Last Updated: 3 October 2014

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-000012 [2014] NZHC 2194

JAMES FREDERICK BAKER

v

_{NEW ZEALAND POLICE}

Hearing (via AVL):	9 September 2014
Counsel:	R Gould for Appellant S O'Donoghue and N McKessar for Respondent
Judgment:	10 September 2014

_{JUDGMENT OF WILLIAMS J}

[1] Mr Baker, 26, pleaded guilty to one charge of breaching a community work sentence, contrary to s 71(1)(a) of the Sentencing Act 2002.¹ On 25 August 2014, he was sentenced to two months’ imprisonment by Judge Zohrab.²

[2] He now appeals that sentence on the grounds a sentence of imprisonment was not justified, and even if it was, a two month term was manifestly excessive.

Background

[3] On 3 March 2014 Mr Baker was sentenced to 300 hours’ community work

for driving while disqualified, third or subsequent. The matter was reheard on 5 May

_{2014, but the original 300 hours remains. Mr Baker signed a form acknowledging}

1. The penalty imposed by s 71(1) is a term of imprisonment not exceeding three months or a fine not exceeding $1,000.

² _{Department of Corrections v Baker DC Blenheim CRI-2014-006-000621, 25 August 2014.}

BAKER v NEW ZEALAND POLICE [2014] NZHC 2194 [10 September 2014]

his understanding of the requirements and obligations of the sentence, including the consequences of non-compliance.

[4] On 26 June 2014 he failed to report to the probation officer for his community work duties. At that time he had completed 58.5 of the 300 hours. At the date of sentencing, that had increased to 71.5, leaving 228.5 hours outstanding.

[5] This is Mr Baker’s fifth conviction for breach of community work, his most

recent conviction being entered on 5 December 2011. There were two convictions in

2010 and another in 2008.

Judge Zohrab’s decision

[6] The information before the Judge Zohrab included a pre-sentence report recommending a term of imprisonment. The Judge also had a note from the probation officer indicating that Mr Baker last reported for community work on

10 July 2014.

[7] Judge Zohrab noted Mr Baker’s “history of contempt for Court orders”, including previous convictions of driving whilst disqualified, breaching supervision and breaching community detention on top of his convictions for breaching community work.

[8] The Judge said:

[4] The aims and objectives of sentencing in a case such as this have to be to encourage you to do your community work but also to send out the message to others that it is a sentence to be taken seriously. It is the main sentence imposed by this Court and when people fail to turn up to do their community work, it can have an unsettling effect on others because they wonder why they should bother turning up on a weekly basis, more especially when they see people who do not turn up and then nothing much happens to them. So, people who continually breach the sentence of community work have an unsettling effect on other people and it causes them to breach their sentence of community work.

[5] Given your contempt for this particular sentence on this occasion, given you history of contempt for the sentence, the start point has to be a prison sentence. The issue is then whether or not the aims and objectives of sentencing can be met by anything other than a prison sentence. I do not believe they can in your case, given your contempt for Court imposed

sentences, given your contempt previously for the sentence of community detention.

[9] Judge Zohrab took the maximum sentence of three months’ imprisonment, and gave a discount of one month for Mr Baker’s guilty plea. He cancelled the outstanding community work hours.

Grounds of appeal and legal principles

[10] Mr Baker advances his appeal on the basis that a sentence of imprisonment was not justified in this case and even if it was, the two month term was manifestly excessive.

[11] Section 250 of the Criminal Procedure Act 2011 governs appeals from the

District Court to the High Court. Section 250(2) provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[12] Given s 17 of the Sentencing Act (which gives the court discretion to impose a sentence of imprisonment if satisfied that the offender is unlikely to comply with any other sentence), the first ground of appeal is against the exercise of discretion. In that case, the court must be satisfied the District Court Judge: (1) made an error of law or principle; (2) took into account irrelevant considerations; or (3) failed to take account of relevant considerations; or (4) made a decision that was plainly wrong.³

[13] On the ground that the two months was manifestly excessive, I must be satisfied Judge Zohrab made an error in imposing a sentence of two months’ imprisonment, and that a different sentence should be imposed.

Ground 1 – exercise of discretion

[14] An appeal against a Judge’s refusal to impose home detention as opposed to a

_{sentence of imprisonment is an appeal against a fettered discretion, constrained by}

³ Kacem v Bashir [2010] NZSC 112 at [32].

the purposes and principles of sentencing.⁴ There is no presumption for or against imposing home detention over imprisonment. The requirement is that the court must impose the least restrictive outcome that is appropriate in the circumstances.⁵

[15] Ms Gould’s submissions suggest Mr Baker was experiencing significant family-related stress at the time he breached his community work, due to having a small baby and a pregnant partner (who was struggling with the pregnancy) to care for. She emphasises that the Judge did not take the appellant’s family situation into account, especially given that at the time of sentencing Mr Baker’s second child was newborn. The sentence imposed meant Mr Baker’s partner was stuck at home with two babies under 12 months and very unwell.

[16] She stressed the fact that Mr Baker has not had a conviction for breaching community work since 2011, and that Judge Zohrab placed undue weight on his history of non-compliance. She says the imposition of a prison sentence was “premature”, and given that his offending has settled down in the last few years, a warning that he needed to “knuckle down” would have sufficed.

[17] Ms Gould pointed out that the Judge had been misinformed when advised that the home detention address was deemed unsuitable. Apparently CYF had recorded an altercation at the address between the appellant and his partner in October 2010 but in fact the altercation did not involve Mr Baker at all. Rather, it involved Mr Baker’s partner’s ex-partner, the father of her eight year old son, and the altercation had been the cause for Mr Baker’s partner terminating her former relationship. Ms Gould submitted that the exclusion of home detention as a practicable option was based on that mistake, and therefore the Judge had been in error.

[18] The Crown submitted that although there had been an error with respect to the evidence of a physical altercation at the proposed home detention address, CYF nonetheless continued to express concern with the prospect of the appellant being

_{sentenced to home detention at the address. CYF noted that there was record of one}

⁴ _{Fraser v R [2013] NZCA 250 at [20]; citing Manikpersadh v R [2011] NZCA 452.}

⁵ At [20].

verbal argument in January 2014 over Mr Baker going to the pub with his brother. CYF advised that they continued to have concerns for the safety of the children and that CYF would be required to notify Community Probation Services (CPS) of this incident for the purpose of compiling a pre-sentence report for Mr Baker.

[19] The Crown submitted that the sentence of imprisonment was available to the Judge, and justified because of the history of non-compliance showing that, as per s 17, Mr Baker was unlikely to comply with any non-custodial sentence so that imprisonment was the only appropriate course.

[20] The learned Judge was confronted with an offender who had breached his community work sentence, and not for the first time. According to the Judge there were “10 fails to report on the record as at 20 August.” The CPS record of performance indicates that there were five unexplained failures to report prior to the receipt of a formal warning on 19 June 2014. On 26 June, he failed to report again noting, according to the report, that he “doesn’t care if he has breached that will not make a difference anyway – not going to do it.” It seems that, having been breached, Mr Baker took the view that he would be receiving a sentence of either home detention or worse, and so lost interest in compliance.

[21] To persist with this form of sentence in this case would be to bring it into disrepute. Mr Baker complained his breaches were for family related reasons but this explanation is no more than a generalised one. There was no good or even fact specific excuse given. Nor was there any indication of a motivation to correct past breaches and knuckle down in the future. In fact motivation seemed to be a significant issue generally for him.

[22] But in my view, the option of home detention was available and the learned Judge was wrongly advised that it was not. I do not see for myself how the record of an argument about whether the appellant should go to the pub with his brother provides a basis for saying the address was unsuitable. I do not accept that the address was unsuitable. It follows that by excluding home detention as a possibility, the learned Judge was drawn into an error albeit not ultimately of his making.

Ground 2 – sentence manifestly excessive

[23] Ms Gould argued that Judge Zohrab erred in imposing a sentence of two months’ imprisonment. She says the starting point of three months’ imprisonment (the maximum) was excessive and should be reserved for the “worst cases of their kind”. This, she said, was a first breach and could not be described as the worst case. She says:

It is clear that by imposing the two month sentence and cancelling the remaining community work hours the Judge formed the view that the Appellant was unlikely to ever complete the sentence and would probably be content to sit in jail for a few weeks and come out with no further obligations.

[24] I agree that the starting point seems unduly high. Mr Baker had made some reasonable attempt at compliance, and had phoned in on a few occasions to indicate that he could not attend although he eventually lost all motivations as I said. Presumably the worst case for a charge of breach of community work would be to contemptuously refuse to turn up at all and from the very outset. That was not the case here. I consider that the sentence was manifestly excessive. This was a first breach of this particular sentence of community work, and his last conviction for previous breaches was three years earlier.

[25] It is relevant too that the appellant’s partner is unwell and has two babies under the age of one year. That, in my view, ought to have tipped the balance in favour of a lighter prison sentence rather than a heavier one, if prison were the option under consideration.

Conclusion

[26] I allow the appeal accordingly. While, the appellant ought properly to have been considered for home detention that is now unnecessary. He has spent roughly two weeks in prison – the equivalent of a one month sentence. That would, in all the circumstances, have been a just sentence. The sentence of two months’ imprisonment is set aside and a sentence of one month imprisonment is substituted – effectively time served.

Williams J