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High Court of New Zealand Decisions |
Last Updated: 22 June 2016
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2016-476-2 [2016] NZHC 1120
BETWEEN
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MICHAEL SCOLES-YOUNG
Appellant
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AND
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NEW ZEALAND POLICE Respondent
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Hearing:
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17 May 2016
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Appearances:
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T Jackson for Appellant
M Beattie for Respondent
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Judgment:
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26 May 2016
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JUDGMENT OF MANDER J
[1] The appellant, Michael Scoles-Young, appeals his sentence of one
year ten months imprisonment imposed on his conviction
for injuring a
police officer. Mr Scoles-Young pleaded guilty after a sentence indication,
however he maintains the sentencing
Judge erred in not imposing a sentence of
home detention.
Background
[2] Mr Scoles-Young was arrested after police observed him deflating a tyre on a police vehicle. While being spoken to he threatened the arresting officer. During the journey to the police station Mr Scoles-Young head-butted a constable. He then leant over and sunk his teeth into the constable’s thigh, biting through his trousers with sufficient force to break the flesh. The bite resulted in a severe open laceration
and the officer was required to be
hospitalised.
SCOLES-YOUNG v NEW ZEALAND POLICE [2016] NZHC 1120 [26 May 2016]
The sentence indication
[3] Mr Scoles-Young sought a sentence indication.1 After
reviewing the relevant facts the Judge observed that the officers were acting in
the execution of their duty and that the offending
had both a physical and
emotional impact on the officer who had been attacked. It was noted that Mr
Scoles-Young had previous convictions
for fighting in 2014, injuring with intent
in 2012, and assault with intent in 2009.
[4] On the basis the injuring charge fell into the second band of
Nuku v R, a starting point of two years was taken.2 The
Judge accepted that deterrence and denunciation were important considerations in
a case of this kind. The starting point was
uplifted by three months in
recognition of the relevant recent convictions. It was intimated that a
discount of five months would
be extended to reflect the plea if entered and to
acknowledge efforts towards rehabilitation if established.
[5] The Court had received references and material in support of the
defendant but the Judge considered the weight to be afforded
to that material
could not be assessed until the Probation Service had made inquiries and a
pre-sentence report prepared.
[6] A sentence of one year ten months imprisonment was ultimately
indicated. In relation to the possibility of home detention,
the sentencing
Judge stated:3
Because of the circumstances I am not able to predict whether home
detention is available or not. I am not prepared to
give an indication based on
home detention. The availability of home detention depends very much upon a
very positive pre-sentence
report coupled with a supportive and positive
living environment and other forms of support which are likely to assist the
defendant
to focus upon rehabilitation and avoiding further offending. Those
matters cannot be presumed given the rate at which the defendant
has committed
offences in the past and the extent of his previous conviction history. Mr
Brown [the appellant’s counsel at
that time] has emphasised the need for
rehabilitation and the background factors facing this defendant are relevant to
whether or
not home detention is possible but I am simply not prepared in a
vacuum without the full benefit of a report to indicate whether
that is
accepted
[7] The sentence indication was accepted and pleas of guilty
entered.
1 Police v Scoles-Young HC Timaru CRI-2015-076-737, 14 January 2016.
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 Police v Scoles-Young, above n 1, at [7].
The sentencing
[8] At the sentencing hearing the police provided further information
relating to the previous conviction for injuring with
intent to injure. The
circumstances of that offending had previously been unknown to the Court.
Photographs were produced of the
serious facial wound sustained by the
previous victim, which again had resulted from Mr Scoles-Young biting his
victim.
[9] The sentencing Judge referred to Mr Scoles-Young’s personal
background and in particular the impact of offending against
him as a young man
when he was a vulnerable person.4 It was noted that Mr
Scoles-Young had recently obtained fulltime employment, that there had been
no further offending since
the incident for which he was before the Court, and
that with the birth of his son there were indications that Mr Scoles-Young was
changing his behaviour.
[10] While acknowledging these factors, the sentencing Judge considered
the repetition of Mr Scoles-Young’s offending involving
as it did the
biting of another person leaving them scarred was determinative. The Court
considered it had no option but to impose
a custodial sentence.
[11] As a result, the indicated term of imprisonment of one year ten
months was imposed. Concurrent terms of three months imprisonment
for unlawful
interference with a motor vehicle, and one month imprisonment on the Summary
Offences Act threatening charge were also imposed.
The appeal
[12] Mr Scoles-Young submitted the Judge, having been aware at the time of the sentence indication of his previous conviction for injuring with intent and, as it was framed by counsel in his written submissions, having “indicated that home detention turned on favourable reports”, she ought not to have excluded that alternative sentence. Mr Scoles-Young’s appeal is based on a submission that home detention should have been imposed rather than imprisonment.
[13] Despite his appeal resting on a submission that the plea had been
entered on the premise that home detention remained a possibility,
Mr
Scoles-Young explicitly disavowed any wish to vacate his guilty pleas. At the
conclusion of the oral hearing an opportunity was
provided to Mr
Scoles-Young’s counsel to get confirmation from his client that he was not
seeking to vacate his pleas. A
memorandum filed by Mr Scoles-Young’s
counsel confirmed this was his position.
Discussion
[14] At the time of the sentence indication hearing it was not disputed
that the second band of Nuku v Police applied which could attract a
sentence of up to three years as a starting point. No challenge was made on the
appeal, either in written
or oral submissions, that the starting point was
excessive, nor was there any criticism of the process by which the final
sentence
was arrived at. There is no issue therefore that the term of
imprisonment indicated and ultimately imposed was within the range
of
sentence.
[15] Despite Mr Scoles-Young disavowing any wish to vacate his guilty
pleas, he sought to rely on the approach taken by this Court
in Biskowiak v
Police.5 In that case Mr Biskowiak received a sentence
indication which included the possibility of home detention depending upon
the
content of a pre-sentence report and his suitability for such a
sentence. Despite a favourable report, Mr Biskowiak was ultimately
sentenced
to imprisonment with his previous offending being cited as a key factor in the
decision to decline home detention.
[16] In allowing the appeal, Clifford J observed that the sentencing Judge had not made it clear that he was still reserving to himself an opportunity to further assess the significance of the appellant’s previous convictions and the risk of reoffending when he indicated that if a favourable pre-sentence report was obtained he would impose home detention. As a result the appeal was allowed and the case remitted back to the District Court in order to allow Mr Biskowiak the opportunity to re-plead to the charge.
[17] Mr Scoles-Young submitted the sentencing Judge in his case had
fallen into a similar error by initially indicating the possibility
of home
detention depending upon the content of the pre-sentence report but ultimately
declining to consider such a course after
being provided with further
information relating to Mr Scoles-Young’s previous offending.
[18] He submitted the sentencing Judge when providing the sentence
indication had considered his previous criminal history. Specifically,
the
Court had taken into account “the rate at which” the appellant had
previously offended and “the extent of his
previous conviction
history”. Mr Scoles-Young claimed it was wrong for the police to
introduce information that was available
at the time of the sentence indication.
Because the sentence indication had left open the possibility of home detention
and been
couched in terms that encouraged the appellant to do all he could to
obtain a favourable pre-sentence report, for the Court to now
change the basis
upon which the appropriate sentence would be assessed was unfair. It was
submitted the Court should not have had
regard to this material.
[19] The difficulty for Mr Scoles-Young in prosecuting his appeal on this
basis without seeking the opportunity to vacate his
pleas is that the sentence
actually imposed must be the focus. The situation is the same as that faced by
Moore J in Appuhamilage v Police.6
[20] In that case a sentence indication had been provided by the District
Court of
12 months imprisonment with the possibility of home detention being substituted should a positive pre-sentence report be received and a successful restorative justice outcome achieved. A sentence of home detention was ultimately imposed however it was coupled with a sentence of 200 hours community work. On appeal it was submitted the sentence was different from that which the Judge had indicated. As the sentencing Judge was bound by his earlier indication there was an error in the sentence imposed. In that case, as with the present, the appellant did not wish to vacate her plea.
[21] After reviewing the relevant provisions of the Criminal Procedure Act 2011 (the Act), Moore J concluded the sentencing Judge in that case had erred in failing to give the appellant an opportunity to vacate her plea or in failing to impose the sentence which had earlier been indicated.7 Where an appeal is allowed on that basis, the conviction should generally be quashed to allow the defendant to exercise the right to vacate his or her plea. However, where the defendant does not wish to
vacate the plea the situation is different.
[22] There is some difference of view in this Court as to the approach to
be taken on appeal when a different sentence is imposed
from that which had
previously been formally indicated to a defendant. In Te Tau v Police
and Te Namu v Police the original sentence was amended to conform
with the sentence indication.8 However, in Wilson v R and
Appuhamilage v Police, Wylie and Moore JJ each took the view the Court
must first be persuaded the sentence under appeal was wrong and that a different
sentence
should be imposed before disturbing the sentence.9 This
approach is consistent with s 250 of the Act which requires the Court to be
satisfied a different sentence should be imposed
before an appeal against
sentence can be allowed. The issue for the appellate Court in the absence of an
appellant wishing to take
the opportunity to re-plead is whether the ultimate
sentence imposed is correct.
[23] In the present case, when the sentencing Judge became aware
of the seriousness of the previous injuring conviction
she concluded
that a custodial sentence was the only appropriate response. The sentencing
Judge gave very close consideration
to whether Mr Scoles-Young’s
background and personal circumstances might allow her to substitute a sentence
of home detention.
In the exercise of her discretion, she concluded,
understandably, that she was precluded from taking such a course.
[24] Mr Scoles-Young’s submissions do not provide grounds which would support a conclusion that the Judge erred in that assessment, nor that the length of the prison term was excessive. Unlike the previous cases cited, the term of imprisonment was
entirely consistent with the sentence indicated. It follows that the
appeal cannot
7 Criminal Procedure Act 2011, ss 115-116, 250 and 252.
8 Te Tau v Police [2015] NZHC 1716; Te Namu v Police [2013] NZHC 3443.
9 Wilson v R [2015] NZHC 298; Appuhamilage v Police, above n 6.
succeed. The merit of any complaint that there was “some shifting of
the ground” between the sentence indication and
the sentencing itself
which precluded a sentence of home detention falls away.
[25] Mr Scoles-Young sought to identify as a separate ground that the
sentencing Judge should not have taken into account the
further information
provided by the police, in particular the photograph of the previous
victim’s injury. However, that information
was relevant to the sentencing
exercise and the Court could not be estopped from taking such material into
account which better informed
it of the seriousness of the past offending. As I
have already observed, the only potentially valid complaint links to whether the
fresh information changed the basis on which Mr Scoles-Young understood he was
entering his plea after the completion of the sentence
indication.
[26] It is not strictly necessary for me to comment about whether the
sentencing Court, after having received the further information
which
effectively prevented the Court from being able to realistically entertain a
sentence of home detention, ought to have provided
Mr Scoles-Young with the
opportunity to consider vacating his plea. However, I note the sentencing Judge
had made it very clear
in her sentence indication that she was not prepared to
include the possibility of home detention as part of her formal sentence
indication. The availability of home detention was observed as depending
upon a very positive pre-sentence report, and
that such matters could not
be presumed. In such a vacuum and without the full benefit of the report, the
Judge was not prepared
to indicate whether such an option would be available,
although equally it was not ruled out.
[27] It is apparent therefore that while home detention did not form part
of the sentence indication, the possibility of home
detention remained. As
matters turned out and as the sentencing Judge herself concluded at sentencing,
because of the seriousness
of the previous similar offending, home detention was
not an option.
[28] In Taylor v R the Court of Appeal examined whether a sentence differed sufficiently from the sentence indication to warrant the appellant being afforded the
opportunity to vacate his guilty pleas.10 That was another case
where further information became available to a Judge at the sentencing hearing
that had not previously been
provided. Importantly in the present context, the
Court of Appeal observed that where a sentence indication generates an
expectation
and that for whatever reason the expectation is not met, the
defendant should be given the opportunity to vacate his or her plea.
The focus
should therefore be on what the defendant’s expectation was as a result of
the sentence indication process.
[29] The Judge made it clear that she was unwilling to formally indicate
that home detention would be substituted should potential
mitigating factors be
confirmed, but the door was not shut on such a possible outcome.
Whether, therefore, an expectation
on Mr Scoles-Young’s part was
created by the sentence indication process which subsequently proved to be
illusionary
upon greater detail of the prior offending coming to hand is
moot.
[30] Given the position taken by the appellant it is not necessary for me
to come to any conclusion as to whether the sentencing
Judge should have
provided an opportunity to Mr Scoles-Young to vacate his plea; this was not his
complaint.
Decision
[31] The appeal is dismissed.
Solicitors:
Quentin Hix Legal, Timaru
Crown Solicitor,
Timaru
10 Taylor v R [2013] NZCA 55.
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