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High Court of New Zealand Decisions |
Last Updated: 8 March 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000403 [2016] NZHC 113
BETWEEN
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TIMOTHY JAMES BROWN-HAYSOM
Appellant
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AND
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NEW ZEALAND POLICE Respondent
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Hearing:
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3 February 2016
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Counsel:
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B Murphy for Appellant
K Lummis and G Woods-Child for Respondent
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Judgment:
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3 February 2016
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JUDGMENT OF ASHER
J
Solicitors/Counsel:
B Murphy, Auckland.
Meredith Connell,
Auckland.
BROWN-HAYSOM v NZ POLICE [2016] NZHC 113 [3 February 2016]
Introduction
[1] Timothy Brown-Haysom appeals against a decision of Judge K J Glubb
on
8 December 2015 sentencing him on six charges to community detention for
three months and to supervision for a period of nine months.1 The
appeal is against only the sentence of community detention. The supervision
part of the sentence is not challenged.
[2] Mr Brown-Haysom faced three charges of obtaining a
document for pecuniary advantage and three charges of using
a document.
There were three incidents. The first arose between 1 and 13 July 2014 when Mr
Brown-Haysom was carrying out cleaning
work at a company in Albany. He was
self-employed. There was a cheque book in the building which he located, and
without permission
he took out a cheque. He filled that cheque in, endorsing it
to pay cash to the value of $250, and presented it and obtained the
cash.
[3] The second incident occurred between 22 and 29 July 2014 when he
was cleaning a different business. Again he came across
a cheque book and took
out a single cheque. He cashed that cheque for $150.
[4] The third incident occurred between 25 July and 4 August
2014 when Mr Brown-Haysom was cleaning a third premises.
He found another
cheque book, took out a cheque and made it out for cash for $250, which he
presented.
[5] When confronted by the Police with his wrongdoing Mr
Brown-Haysom admitted it and stated he had a problem that when
everything was
going well in his life he would “stuff it up” intentionally. He did
not know why.
The sentence
[6] The Judge considered the background circumstances, the facts of the offending and the pre-sentence report. He noted the recommendation in the report of
community work with supervision. In the crucial part of his decision he
stated:2
1 Police v Brown-Haysom [2015] NZDC 24588.
The way I propose to deal with it, taking into account all matters that have
been advanced, noting that you have this very limited
history, I do not want you
going and mixing with other offenders in community work. The way I propose to
deal with it is today is;
I convict you and sentence you on all six of these
charges to community detention for a period of three months. ... I also
sentence
you to supervision for a period of nine months and the terms of that
supervision, it is as detailed in the pre-sentence report.
I do not propose to
go through those now. ...
[7] As can be seen, the Judge acknowledged that the pre-sentence report
recommended supervision and community work and not community
detention, but
stated that he “...did not want [the appellant] going and mixing with
other offenders in community work”.
He referred later to Mr
Brown-Haysom’s conduct as a “blip on the radar”, and noted his
mature age and that he
should not be making these sorts of
decisions.
[8] The key to the submission of Ms Murphy in support of the appeal is
that the sentence was manifestly excessive, in that the
consequence of having to
serve community detention was that Mr Brown-Haysom would lose his employment.
It was accepted that the
sentence of community detention was in theory an
available sentence, but that in the particular circumstances it was
manifestly
the wrong sentence and excessive.
Approach
[9] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal if satisfied that for any reason there is an error in the sentence imposed on conviction, and a different sentence should be imposed. The Court of Appeal in Tutakangahau v R3 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. The principle that an error must be shown applies, although the overarching issue is whether the sentence is manifestly excessive in all the circumstances, and if a sentence is manifestly excessive the appeal may be allowed even if there is no identifiable error in the sentence reasoning.4 On the other hand even if an error is shown, if the sentence is plainly within the range the appeal may
not be allowed.
3 Tutakangahau v R [2014] NZCA 279.
General analysis
[10] There was and is no suggestion that imprisonment was appropriate in
this case. Nevertheless it is useful to follow the
usual sentencing approach,
and to consider first the culpability of the offending and then factors specific
to Mr Brown- Haysom personally.
[11] In terms of culpability, the charges are serious, involving a
maximum term of seven years’ imprisonment. As the Judge
noted, there must
have been some element of premeditation given there were three separate
offences. Not only were the
cheques taken, but they were cashed, which
involved a later and deliberate act. Having said that, it is my overwhelming
impression
is that Mr Brown-Haysom’s decisions to take the cheques arose
out of his depression at the time and had an element of spontaneity
about
them.
[12] Nevertheless, it must be also recognised that as a cleaner Mr
Brown-Haysom had been given access to private premises on trust,
and he breached
that trust.
[13] The amounts involved were modest, the total being $650. On any
overall assessment this is relatively minor offending for
charges of this nature
given the small amounts involved. There was also in my assessment, a lack of
any real commerciality or desire
for significant gain or to inflict deliberate
hurt. Thus in assessing culpability, the offending must be seen as towards the
bottom
of the range.
[14] In terms of his personal circumstances Mr Brown-Haysom
immediately admitted the charges. It appears that he was then
offered diversion
by the Police but failed to complete the requirements for diversion. Then on
instruction from the Duty Solicitor
he entered pleas of not guilty, which
he later changed to guilty after Ms Murphy had started acting for
him.
[15] It is clear from the pre-sentence report that he is genuinely and remorseful and understands his moral culpability. As he observed to the Probation Officer “I would be pissed off if someone did this to me and I have let a lot of people down”. He has offered to participate in a restorative justice programme.
[16] The Probation Officer assessed him in the report as being at a low
risk of offending and in relation to his risk of harm,
that was assessed at low.
It is to be observed that Mr Brown-Haysom has no previous convictions of note.
As a 49 year old he is
entitled to have his good character taken into account as
a mitigating factor. He is also entitled to have taken into account as
a
mitigating factor the complete reparation he has provided.
[17] I have been referred to a number of precedents, but I have not found
any of them of particular help. A case like this must
be assessed on its
particular facts. In my assessment Ms Murphy is correct when she submits that
community detention and supervision
was an available sentence. She is also
correct when she says that community work combined with supervision was also
within the range.
[18] I note that under s 10A of the Sentencing Act 2002 in the hierarchy
of sentences community work and supervision are below
intensive supervision and
community detention.
[19] It is possible for a sentence that is within the notional
range to be nevertheless the wrong sentence in the
particular circumstances.
Sections 8(g) and (h) are of relevance:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
...
(g) must impose the least restrictive outcome that is appropriate in the
circumstances [, in accordance with the hierarchy of sentences
and orders set out in section 10A]; and
(h) must take into account any particular circumstances of the offender
that mean that a sentence or other means of dealing with
the offender that would
otherwise be appropriate would, in the particular instance, be
disproportionately severe; and
[20] In general terms community work is a less restrictive outcome than community detention. Further, if there are particular circumstances relating to Mr Brown-Haysom that mean that a sentence of community detention would in the particular instance be disproportionately severe, then the less restrictive but available
alternative should be imposed. It is Ms Murphy’s submission that
community detention was disproportionately severe as it will
result in Mr
Brown-Haysom losing his job.
Loss of job
[21] This was not a matter specifically referred to before the Judge.
However, in the pre-sentence report it was observed that
Mr Brown-Haysom had
taken fulltime employment with a truck cleaning company which operated 24 hours
a day, seven days a week, and
was on call and could be expected to travel long
distances. This was a statement which in itself indicated that community
detention
might not be the right sentence because it would preclude Mr
Brown-Haysom being on call. It does not appear to have been given any
emphasis
by counsel in the sentencing process.
[22] It is a term of community detention that the offender is on curfew
to a particular address and may not leave it unless circumstances
set out in s
69E(2) apply. In particular, Mr Brown-Haysom would only be able to leave his
curfew address with the permission of
the Probation Officer. On its face this
is inimical with the on-call employment outlined in the pre-sentence
report.
[23] There is an explanation for the matter not being referred to during
the District Court sentencing. It had been counsel’s
expectation during
sentencing that there would be no difficulty with imposing a sentence of
community work as the Police had not
indicated any opposition to that sentence.
Therefore the difficulty that would result from a sentence of community
detention was
not traversed in submissions and the Judge may not have been aware
of the need for 24 hour availability.
[24] Now on appeal, the problem has been elaborated on in submissions. I have also received a letter from Mr Brown-Haysom’s employer confirming his importance as an employee, and that it is a requirement that Mr Brown-Haysom be available after hours on call for mechanical breakdowns. There has been no objection to the admission of the letter. It does not go so far as to categorically assert that Mr Brown-Haysom will lose his job if there is a sentence of community detention, but I infer that he would most likely have to change his role, and this would impose
significant inconvenience on his employer. I accept it is possible he would
lose his job, as has been submitted to me.
[25] In all these circumstances, not all of which were fully traversed
before the Judge, I am satisfied that the term of community
detention was
disproportionately severe. With the benefit of all the information I have, this
job loss should have been a factor
taken into account in the sentencing process
and it was not.
[26] The Judge also relied on the negative aspect of community work,
which would involve Mr Brown-Haysom having contact with
persons who the
Judge appeared to think might influence him for the worse. I must say I see
little risk of that given Mr Brown-Haysom’s
mature years, his
immediate remorse and what appears to be a significant amount of
self-awareness as to the foolishness of
his actions. His good record to date
would indicate that usually he is able to find his own lawful way through the
pressures and
temptations of adult life.
[27] Further, I am informed by Ms Murphy that there is an option for
those sentenced to community work known as agency
placement, where Mr
Brown- Haysom if regarded as an appropriate person, might do work on his own for
community organisations away
from other offenders.
[28] In all the circumstances, the possibility of Mr Brown-Haysom mixing
with other offenders does not appear to be a strong reason
for refusing a
sentence of community work.
[29] I should add that counsel for the Police have been most
helpful in submissions and have not sought to argue that
community work was not
an available sentence.
[30] I accept Ms Murphy’s submission that the appropriate amount of community work is 100 to 150 hours. In the circumstances 150 hours is appropriate, given the three instances and the breach of trust.
[31] Therefore, I will allow the appeal and substitute the sentence of
three months’ community detention on each of the
six charges by a sentence
of 150 hours community work on each of the six charges. The sentence of
supervision for nine months on
the terms set out in the pre-sentence report
remains unaffected by this order.
Result
[32] The appeal is allowed. The sentence of three months’
community detention on each charge is quashed and substituted
for a sentence of
150 hours community work on each charge (concurrent). The sentence of
supervision imposed by the District Court
remains.
...................................
Asher J
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