Gamble-Mackesy v Department of Corrections [2015] NZHC 1568 (6 July 2015)

Last Updated: 30 July 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-470-0003 [2015] NZHC 1568

BETWEEN	NIKI GAMBLE-MACKESY Appellant
AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	2 July 2015
Counsel:	P T Attwood for appellant H J Sheridan for respondent
Judgment:	6 July 2015

JUDGMENT OF KATZ J [Appeal against sentence]

This judgment was delivered by me on 6 July 2015 at 4:45 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Counsel: P T Atwood, Barrister, Tauranga

GAMBLE-MACKESY v DEPARTMENT OF CORRECTIONS [2015] NZHC 1568 [6 July 2015]

Introduction

[1] Niki Gamble-Mackesy pleaded guilty to a charge of indecently assaulting a female aged over 16. On 9 March 2015 he was sentenced by Judge L M Bidois, in the District Court at Tauranga, to two years’ imprisonment. Judge Bidois gave Mr Gamble-Mackesy leave under s 80I of the Sentencing Act 2002 (“Act”) to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, if a suitable home detention address could be found.

[2] A subsequent application to substitute a sentence of home detention, under s

80K of the Act, was declined by Judge C J Harding. His Honour’s decision was largely based on concerns raised in a Department of Corrections re-sentencing report. That report referred to ongoing misconduct issues in prison, Mr Gamble- Mackesy’s denial of his offending and lack of remorse (contrary to his position at sentencing) and his refusal to engage in a sex offender treatment programme. There was no issue, however, that the proposed home detention address and its occupants were suitable.

[3] Mr Gamble-Mackesy appeals Judge Harding’s decision not to substitute a sentence of home detention, on two grounds:

(a) That Judge Harding erred in law, because he had no discretion to decline to substitute a sentence of home detention if the requirements of s 80A(2) of the Sentencing Act 2002 were met. Section 80A(2) relates to the suitability of a proposed home detention address and its occupants, and also requires that an offender understands and agrees to comply with the conditions of home detention.

(b) That if Judge Harding did have a discretion to decline to substitute a sentence of home detention, he erred in the exercise of that discretion by taking into account (or giving undue weight to) unfair and unbalanced information provided to him by the Department of Corrections in the re-sentencing report.

[4] The first appeal issue is a particularly significant one, as a previous decision of this Court, White v Police, held that although s 80K(4) of the Sentencing Act states that the court may cancel a sentence of imprisonment and substitute a sentence of home detention when leave has been granted under s 80I, the court is obliged to do so if the preconditions in s 80A(2) (having a suitable home detention address, etc)

are met.¹ In effect, the word “may” in s 80K(4) should be read as “must.” The only

exception is where an offender has, since receiving the sentence of imprisonment, received a concurrent or cumulative sentence of imprisonment for other offending that would make home detention inappropriate.

[5] Counsel for Mr Gamble-Mackesy submitted, on the basis of White, that the appeal must succeed, as it was common ground that the requirements of s 80A(2) were met in this case. In such circumstances a Judge considering an application under s 80K(4) has no option but to re-sentence an offender to home detention. That was said to be the case even if new information comes to light, post-sentencing, which casts doubt on an offender’s suitability for such a sentence.

[6] The Crown submitted, on the other hand, that the Court retains a residual discretion on re-sentencing and that White was wrongly decided to the extent it suggested otherwise. In the alternative, the Crown submitted that White can be distinguished on the facts of this case.

[7] I will address each issue in turn, after outlining the relevant background.

Background

[8] When sentencing Mr Gamble-Mackesy to two years’ imprisonment, Judge Bidois noted that no members of his family were (at that time) willing to have him serve a home detention sentence at their home. He concluded that:

In relation to this matter I am going to confirm the sentence at two years’ imprisonment. I will give you leave to seek a sentence of home detention and that will be coupled with community work. Why I am doing that is that you have pleaded guilty and of course you are relatively young and you have now apologised and seem to have got some understanding of the harm that you have caused. Of course because you have been in custody for a little

¹ White v Police HC Napier CRI-2010-441-000051, 16 December 2010 at [14].

while that has had a salutary lesson on you and you are more likely than others to comply with a sentence of home detention.

[9] Mr Gamble-Mackesy was subsequently able to find a suitable home detention address. He therefore applied to substitute a sentence of home detention for the sentence of imprisonment that had been imposed upon him. That application came before Judge Harding on 25 May 2015, together with the Department of Corrections re-sentencing report which annexed, as Appendix 1, a suitability report regarding the

proposed home detention address.²

[10] The re-sentencing report noted that it should be read in conjunction with the original pre-sentence report of 6 March 2015. It contained the following passages:

Mr Gamble-Mackesy has continued with his non-compliant and arrogant attitude while he is in custody. Prison notes reveal he has been removed from two units already due to his behaviour. Mr Gamble-Mackesy refuses to complete the sex-offender treatment programme as he does not acknowledge his offending and does not show any remorse for the victim.

Information from the Police reveal serious concerns for the community if

Mr Gamble-Mackesy is released on a sentence of Home Detention.

He has not complied with bail conditions when he was last residing at the proposed address and would come into the Police station making demands and being abusive towards staff. Police believe he would not comply with the conditions of Home Detention and may place the community at risk by having the opportunity to abscond while on Home Detention.

...

It is apparent that Mr Gamble-Mackesy does not engage with or trust people in positions of authority. This would seriously jeopardise his compliance if he is granted Home Detention.

[11] Appendix 1 to the re-sentencing report contained the following additional comments:

Mr Gamble-Mackesy does not appear to be a suitable candidate for Home Detention. Previous reports state that he is a difficult person to engage with in the community, displays disruptive and aggressive behaviour and his inability to cooperate with authority has continued in prison with Mr Gamble-Mackesy coming to the attention of staff on 14 occasions stating unacceptable behaviour.

Given Mr Gamble-Mackesy does not acknowledge his offending, his current attitude towards authority and information from previous reports, I believe he will not engage with any rehabilitative aspect if sentenced to Home Detention, thus placing further risk to the community.

[12] Judge Harding declined to substitute a sentence of home detention in light of this information. He found the proposed home detention sponsor to be entirely suitable and the proposed address technically feasible. His Honour was, however, concerned about the matters referred to in the updated reports before him.

[13] Judge Harding acknowledged that in most cases the determination of the Court at the time of sentencing that an offender is, on the face of it, suitable for home detention will mean that the only issue for a court faced with a re-sentencing application will be the suitability of the proposed home detention address. Mr Gamble-Mackesy’s case was, however, “in marked distinction to that.” In contrast to the position that was put before Judge Bidois at sentencing, Mr Gamble- Mackesy now did not acknowledge his offending and would not engage with any rehabilitative aspect of a home detention sentence, thus placing the community at further risk.

[14] Judge Harding also referred to Mr Gamble-Mackesy’s behaviour and attitude in prison, including his refusal to complete the sex offender treatment programme, his denial of offending and the lack of remorse. This was a “marked change from the position that was put before the Court when you were sentenced.”

[15] Counsel for Mr Gamble-Mackesy made comprehensive submissions to the Judge in support of a home detention sentence. Indeed the Judge noted that Mr Attwood had “said all that could possibly be said on your behalf.” While Mr Attwood had accepted that his client’s personality was “confrontational, oppositional, agitated and difficult,” he submitted that Mr Gamble-Mackesy had in fact made quite good progress in prison. Mr Attwood read a number of comments to the Judge from Mr Gamble-Mackesy’s prison reports which showed, for example, that he was respectful and courteous during an alcohol and drug programme and that he “showed some understanding”. Mr Gamble-Mackesy had engaged in various educational opportunities in prison and was achieving well in those programmes.

[16] Mr Attwood also challenged the suggestion in the re-sentencing report that Mr Gamble-Mackesy had previously been non-compliant on bail. Rather, Mr Attwood advised, he was simply trying to “front foot” the issue that he needed to change his bail address. The Judge accepted that that submission may put in context the suggestion that there had been difficulties with his bail compliance. The Judge also noted Mr Attwood’s submission that there were no actual bail breaches.

[17] Judge Harding confirmed that he had taken into account all of the matters raised by Mr Attwood. Ultimately, however, Mr Attwood’s submissions were not enough to persuade the Judge that home detention was appropriate. The Judge observed that:³

In no other case that has come before me have I been faced with such an adverse series of reports as to your personal suitability based substantially in part on matters which have occurred after your sentencing.

[18] In essence, the landscape had changed significantly since Judge Bidois’ original sentencing. The prospects of Mr Gamble-Mackesy complying with the rehabilitative aspects of a home detention sentence looked bleak, now that Mr Gamble-Mackesy denied “the very offending for which you pleaded guilty.” His refusal to undertake sexual offender treatment and assistance did not bode well for any rehabilitative efforts during a home detention sentence. Accordingly, even giving Mr Gamble-Mackesy “full credit” for the progress he had made in prison, the Judge was not satisfied he was a suitable person to be granted home detention. He concluded that:

[11] To grant you home detention would provide a danger to the community so long as you maintain the attitude towards your offending and those in positions of authority that is demonstrated in the material before [me].

Did the Judge have discretion to decline to substitute a sentence of home detention in the circumstances?

[19] Mr Gamble-Mackesy’s first ground of appeal is that, as a matter of law, the Judge did not have a discretion to decline to substitute a sentence of home detention, given that the requirements of s80A(2) of the Act were met.

The relevant provisions

[20] Home detention is available as a sentence if the Court would otherwise sentence an offender to term of imprisonment of two years or less.⁴ In some cases a sentencing judge may be of the view that home detention is the appropriate sentence, but no suitable home detention address is available. In such cases s 80I(2) of the Act provides that:

(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[21] Judge Harding granted leave pursuant to that provision in this case and, once he had found a suitable home detention address, Mr Gamble-Mackesy applied to substitute a sentence of home detention for his sentence of imprisonment.

[22] Section 80K(3) provides that an application to substitute a sentence of home detention must be accompanied by a pre-sentence report updated in accordance with section 80L. Section 80L provides that the offender must agree to the report being updated “with any new information” in accordance with s 26A.

[23] Section 26A is the general provision relating to pre-sentence reports when a sentence of community detention or home detention is being considered. A report prepared under s 26A may include any of the matters outlined in s 26(2). These cover the full range of matters generally covered in pre-sentence reports for a person charged with an offence punishable by imprisonment, such as information regarding the offender’s personal and family circumstances, information regarding the factors contributing to the offending, rehabilitative needs, sentence recommendations taking into account the risk of further offending, and so on. In addition a s 26A report must include information regarding the proposed suitability of the home detention residence, including the safety and welfare of the occupants, as well as confirmation that the offender consents to the conditions of home detention. These are, in essence, the matters set out in s 80A(2) of the Act.

[24] The updated pre-sentence report (commonly referred to as a re-sentencing report) is provided to the Judge responsible for determining the application to substitute a sentence of home detention. Section 80K(4) sets out the powers of that Judge as follows:

(4) On application [to substitute a sentence of home detention] under subsection (1), the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention.

(Emphasis added)

[25] As I have already noted, the matters in s 80A(2) in respect of which the Court must be satisfied relate to the suitability of the proposed home detention address and so on.

The decision in White v Police

[26] In White v Police, Mackenzie J interpreted the word “may” in s 80K(4) as essentially meaning “must.” He noted that the Court, in granting leave to apply under s 80I, must have reached the point that a sentence of home detention would have been imposed in preference to a short period of imprisonment, if a suitable residence had been available. His Honour then stated that:

[16] Under s 80K(4) the Court may, if satisfied of the matters in s 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention. I consider that the use of the word “may” does not indicate that the Judge considering the application should exercise afresh a sentencing discretion, so that the Judge has power, where the Judge is satisfied of the matters in s 80A(2), nevertheless to decline to substitute a sentence of home detention. The sentencing decision as to whether home detention is, in principle, the proper sentence is made by the Judge who grants leave under s

80I. The task of the Judge dealing with an application under s 80K is to determine whether the matters in s 80A(2) are satisfied. If they are not

satisfied, then the sentence will not be substituted. If those matters are

satisfied, then the statutory scheme is such that the decision as to home detention made by the sentencing Judge under s 80I must be given effect.

The question whether home detention is in principle the appropriate

sentence, decided at the s 80I stage, is not, under the statutory scheme, to be reconsidered at the s 80K stage.

[27] The issue before me is whether I should follow that approach in this case. If so, it necessarily follows that Mr Gamble-Mackesy’s appeal must be allowed,

regardless of the significance of any new information that may have come to light in the re-sentencing report.

Discussion

[28] I accept, as a general proposition, that the Act envisages that the sentencing decision as to whether home detention is in principle the proper sentence will be made by the Judge who grants leave under s 80I. The task of the Judge dealing with an application under s 80K will then usually be simply to determine whether the matters in s 80A(2) are satisfied. In my view, however, the use of the word “may” in s 80K(4) provides some flexibility. If new information comes to light following sentencing which clearly renders a sentence of home detention unsuitable, then the judge who considers any re-sentencing application will be able to exercise his or her discretion to decline to substitute a sentence of home detention for the sentence of imprisonment.

[29] In the vast majority of cases one would expect that, if home detention was the appropriate sentence at the original sentencing (save for the lack of a suitable address), that will not have changed by the time a suitable address is found. Normally any re-sentencing will take place within a few months of the original sentencing. It would be relatively unusual for new information to come to light during that period which is of such significance that home detention is no longer an appropriate sentence.

[30] Parliament has, however, provided the re-sentencing judge with a residual discretion to decline to substitute a sentence of home detention even where the requirements of s 80A(2) are met. It has done this by providing that, when considering an application to substitute a sentence of home detention, the court may, (if satisfied of the matters in s 80A(2)) cancel the sentence of imprisonment and substitute a sentence of home detention. If Parliament had intended that judges considering such applications should not have any discretion, provided the requirements of s 80A(2) were met, it would have used the word “must” instead of “may” in s 80K(4).

[31] This interpretation is supported, in my view, by the overall statutory scheme. For example, the information to be provided to the re-sentencing judge is not restricted to information relating to the s 80A(2) requirements. Rather, s 80L provides that an offender who applies for substitution of a sentence of home detention must agree to a probation officer updating the offender’s pre-sentence report “with any new information.” That new information can cover the full range of matters listed in s 26(2) of the Act (personal circumstances, rehabilitative needs, risks of further offending and so on) as well as the mandatory s 26A matters (which broadly correlate with the s 80A(2) requirements).

[32] If the Department of Corrections is entitled (pursuant to s 80L) to put any new information before the re-sentencing Judge, it necessarily follows that the Judge must be able to take that information into account in the re-sentencing exercise. If that were not the case there would be no point in providing such information. All that would be required is confirmation that a suitable home detention address had been found and compliance with the other s 80A(2) factors. The use of the word may in S 80K(4) provides the court with a residual discretion to respond appropriately to any new information that is provided as part of the re-sentencing process. Accordingly, the word “may” in s 80K(4) should, in my view, be given its natural and ordinary meaning, rather than being read as “must”.

[33] I am also concerned that any interpretation which has the effect of removing the re-sentencing court’s residual discretion to decline to substitute a sentence of home detention may have a potential chilling effect on the willingness of the courts to grant leave to apply to substitute such a sentence. For example, Heath J in Wills v

Police, in declining to grant leave to apply for home detention, stated that:⁵

I am concerned about the possibility of allowing the appeal on the basis of imposing a sentence and granting leave to apply for home detention in substitution because it may require the Judge to order home detention in circumstances where Mr Wills might be found ultimately to be unsuitable.

(Emphasis added)

[34] In my view the use of the word “may” in s 80K(4) denotes a discretion in

_{sentencing, intended to be retained and used for exactly the type of case that is}

⁵ Wills v Police [2014] NZHC 3291 at [17].

presently before the Court. As Judge Harding noted, Mr Gamble-Mackesy’s case is an exception to most cases under s 80I, in that the updated reports demonstrated a “marked change from the position which was put before the Court when [Mr Gamble-Mackesy was] sentenced”. Indeed, his Honour observed that he had never previously seen “such an adverse series of reports as to your personal suitability based substantially in part on matters which have occurred after your

sentencing”.⁶

Did the Judge err in the exercise of his re-sentencing discretion?

Applicable legal principles

[35] Appeals against sentence are typically determined under s 250(2) of the Criminal Procedure Act 2011. The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.⁷ Further, despite s

250 making no express reference to “manifestly excessive”, this principle is “well-

engrained” in the court’s approach to sentence appeals.⁸

[36] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:⁹

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

⁶ _{Gamble-Mackesy v Department of Corrections, above n 2, at [9] and [4].}

⁷ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁸ _{At [33], [35].}

⁹ R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[37] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.¹⁰

[38] In relation specifically to appeals on whether home detention or imprisonment should have been imposed, the Court of Appeal in Manikpersadh v R stated:¹¹

[11] This Court identified the appropriate approach in James v R in this way:¹²

[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? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

(Footnotes omitted).

[12] We agree with counsel for the respondent's assessment that the proper approach of an appellate Court in such cases as this is that ‘the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below’.

[39] In Manikpersadh, the Court also noted that it will be a reviewable error if relevant ss 7 and 8 factors of the Sentencing Act 2002 are not considered in the exercise of the Judge’s discretion in imposing a sentence of imprisonment or home

_detention. ¹³

¹⁰ _{Ripia v R [2011] NZCA 101 at [15].}

¹¹ _{Manikpersadh v R [2011] NZCA 452.}

¹² _{James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.}

¹³ Manikpersadh, above n 9, at [14] – [19].

Discussion

[40] The “error” allegedly made by Judge Harding is that he took into account information, namely the re-sentencing report that had been prepared by the Department of Corrections, that was unfair and unbalanced.

[41] Mr Atwood did not submit that the re-sentencing reports were factually incorrect in any specific respects. Rather, his criticism was that they did not also include more positive material that the Department should have had access to and which would have presented a more balanced picture. Without that information, the reports only accentuated the negative aspects of Mr Gamble-Mackesy’s personality.

[42] Mr Attwood referred to additional material which showed, for example, that Mr Gamble-Mackesy had successfully engaged in a drug and alcohol programme, had received some positive feedback while in prison, and had participated in ongoing educational opportunities. I note, however, that all of these matters were raised before Judge Harding and expressly considered by him in his judgment. Ultimately, however, this more positive information was not sufficient to outweigh the negative information contained in the re-sentencing reports. That information included Mr Gamble-Mackesy’s rejection of his “sex offender” status and lack of remorse (contrary to his position at sentencing), his unwillingness to engage with a sex offender rehabilitation programme, his difficulties in dealing with authority and his poor disciplinary record in prison. These are all matters that were properly taken into account in deciding whether a sentence of home detention was appropriate.

[43] The appellant has failed to establish that Judge Harding made an error which has resulted in a manifestly excessive sentence (imprisonment) being imposed. There is no evidence that he took into account irrelevant information, or failed to take into account relevant information. The more positive information referred to by Mr Attwood was all available to the Judge and was expressly acknowledged by him in his judgment.

[44] In my view it was appropriate for Judge Harding, in light of the new information contained in the re-sentencing reports, to undertake the sentencing exercise afresh, rather than simply rely on Judge Bidois’ original decision.

Judge Harding’s decision to decline to substitute a sentence of home detention was one that was open to him on all of the information before him.

Result

_{[45] The appeal is dismissed.}

Katz J