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High Court of New Zealand Decisions |
Last Updated: 25 November 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2016-419-000053 [2016] NZHC 2518
BETWEEN
|
ADRIAN WILLEM SMIT
Appellant
|
AND
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NEW ZEALAND POLICE Respondent
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Hearing:
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20 October 2016
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Appearances:
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L Wilkins for the Appellant
T Tran for the Respondent
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Judgment:
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20 October 2016
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ORAL JUDGMENT OF MUIR
J
Counsel/Solicitors: L Wilkins,
T Tran, Crown Solicitor,
Hamilton
SMIT v NEW ZEALAND POLICE [2016] NZHC 2518 [20 October 2016]
Introduction
[1] The appellant, Mr Adrian Smit, pleaded guilty in the District Court at Hamilton to one charge of injuring with intent to injure, two charges of male assaults female, two charges of possession of a firearm without a licence and one charge of wilfully ill-treating a child. He was sentenced by Judge Wilson QC on 9 August
2016 to a period of 20 months’ imprisonment.
[2] No issue is taken with the Judge’s approach to formulation of
that sentence and counsel responsibly accepts that the
term of 20 months was
appropriate. The only question on the appeal is whether the Judge erred in
refusing to commute Mr Smit’s
sentence to one of home
detention.
Factual background
[3] The charges against Mr Smit are the result of two separate attacks
on his former partner. The first occurred around 1 September
2012. Mr
Smit’s partner was eight months pregnant at the time. She had taken issue
with Mr Smit being out late at night drinking.
He became angry, picked her up
and threw her off the bed and on to the floor. He then kicked and punched her
at least once causing
her to suffer a black eye and a swollen lip.
[4] The second assault occurred on 1 November 2015 by which time the victim was separated from Mr Smit. She had dropped their two young children at his home. An argument broke out. She endeavoured to disengage by getting into her car. Mr Smit followed her, remonstrating loudly before grabbing her and throwing her to the ground. He then punched and kicked her a number of times about the face and the head. When she tried to escape, Mr Smit pushed her down and punched her again. At one point, after she had regained her feet, he grabbed her hair and slammed her face first into the ground. He then followed her as she began to crawl away, kicking and punching her to the back and torso. When she attempted to return to her car he removed her keys from the ignition before punching her again in the head. Finally he grabbed her by the throat and threw her on to the ground and then straddled her and punched her further. The victim’s younger sister who was 15 years old at the time was present and, somewhat heroically, attempted to intervene. Mr Smit
punched her in the head, knocking her to the ground. When she managed to get
up and attempted to pull him off her sister, he punched
her in the face. These
assaults were witnessed by Mr Smit’s two young children who were
understandably distressed
at the violent assault administered on their
mother.
[5] As Judge Wilson noted the effect on children of witnessing domestic
violence is well recognised and potentially profound
and this aspect of the
offending led to the charge of wilfully ill-treating a child.
[6] In respect of the second offending, the victim suffered heavy
bleeding from the nose and a cut lip. She was hospitalised
for something over
24 hours and was found to have deep muscular and skeletal bruising to her neck
and shoulders. A CT scan revealed
a concussion and minor head injury. The
victim impact statement also spoke of the long term psychological effects and
the pain that
she suffered as a result of the assault.
[7] There followed a police search of Mr Smit’s address which
located a .308 calibre rifle and a 12 gauge shotgun. Mr
Smit did not have a
firearm’s licence although I note that the District Court Judge accepted
the weapons were under lock and
key and were not involved in any of the domestic
violence charges.
Personal circumstances
[8] Mr Smit has a series of previous convictions including two for
possession of firearms without a licence, one for common
assault, and one for
threatening to kill or cause grievous bodily harm.
[9] The pre-sentence report identified him as presenting a medium risk
of re- offending and medium risk of harm to others.
[10] However, there were a number of mitigating factors noted by the report writer and recorded in the Judge’s sentencing notes. He had expressed remorse and a sense of responsibility for his actions and had supported that with an offer of reparation of
$5,000 to each of his victims. By the date of sentencing he had also begun efforts to address his behaviour. He had referred himself to the Hamilton Abuse Intervention
Project. Judge Wilson noted that he had attended a number of sessions and
that he was also minded to engage in a programme aimed
at managing separation
and parenting issues. The report noted that there was a suitable address for
home detention should that
be ordered by the Court. The sentence recommended
was that of imprisonment, however.
The District Court decision
[11] The Judge took the charge of injuring with intent to
injure as the lead offending and adopted a starting point
of two years
imprisonment. This was uplifted to 29 months to recognise the male assaults
female charge from 2012, the assault on
the victim’s sister and the charge
of wilfully mistreating a child. Reductions were then made for the mitigating
factors I
have already identified and for Mr Smit’s ultimate guilty pleas
bringing the final sentence to one of 20 months imprisonment.
As I have
indicated, there is no challenge to that aspect of the sentencing.
[12] Having arrived at a sentence which could be commuted to home
detention his
Honour addressed that issue in the following terms:
[17] The question for me is whether the least restrictive penalty that I
can impose on you is a sentence of imprisonment of whether
that can be a home
detention sentence. It is recognised that home detention is in itself a serious
restriction on personal freedom.
The principles of sentencing require an
element of deterrence here. After giving it anxious consideration I do not
consider that
a home detention sentence would adequately reflect the deterrence
and denunciation as required in a case like this.
Approach on appeal
[13] The appeal is governed by s 250(2) of the Criminal Procedure Act
2011, which states that the 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.
[14] In any other case the Court must dismiss the
appeal.1
[15] An appeal against a refusal to grant home detention is an appeal
against discretion. The approach to be taken was reviewed
by the Court of
Appeal in James v R where the Court held that:2
[17] ... 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?
[16] A Judge’s discretion in this respect is not, however,
unfettered. Whether to grant home detention is an evaluative
exercise to be
conducted with regard to all of the relevant purposes and principles of
sentencing set out in ss 7 and 8
of the Sentencing Act 2002.3
There is no presumption that either imprisonment or home detention is to
be preferred,4 and it is well established that a sentence of home
detention is a real alternative to imprisonment carrying with it significant
elements
of denunciation and deterrence in itself.5
[17] An appellate court will, however, rarely interfere with the
exercise of a discretion provided it is satisfied that
it was exercised having
regard to the relevant purposes and principles in the Act.
Discussion
[18] It has been accepted in a number of cases in respect of home detention that the purpose of deterrence cannot eclipse other relevant purposes and principles in the context of this assessment. As Lang J very recently observed in the decision of Anderson v R:6
[12] ... Any other approach would risk creating a hierarchy of
sentencing purposes and principles. There is nothing in the
Sentencing Act
2002 to suggest that such an approach is either appropriate or
authorised.
1 Criminal Procedural Act 2011, s 250(3).
2 James v R [2010] NZCA 206.
3 Manikpersadh v R [2011] NZCA 452 at [15]- [16].
4 R v Vhayha [2009] NZCA 588.
5 R v Iosefa [2008] NZCA 453 at [41].
6 Anderson v R [2016] NZHC 2386.
[19] That case had many similar features to the present one. It likewise
involved offending against a relative, being the son
of the appellant’s
sister who had at age 9 come to live with the appellant and her partner, after
his mother had died of cancer.
[20] In that case Judge Snell having acknowledged his discretion in
respect of home detention, stated:
This offending needs a strong deterrent sentence and in my view home
detention would not send the appropriate message for this type
of
offending.
[21] He recorded he was deeply concerned about the fate of the
appellant’s children if she was sent to prison
and that he had wrestled
with what he described as a “very difficult situation” but that, in
the end, he was not granting
home detention because of the need “for a
significant and strong deterrent message to be sent to the
community”.
[22] Lang J held that he regarded the District Court Judge’s
remarks as addressing general deterrence but that the Judge’s
earlier
reference in his sentencing notes to all the relevant sentencing purposes and
principles clearly informed his overall assessment.
He held that the Judge was
entitled to take a wider view and to exercise his discretion in a way that gave
effect to principles
of general deterrence. For that reason he declined to
interfere with exercise of the Judge’s discretion.
[23] In this case Mr Wilkins pursues a similar argument to that advanced
by Ms Anderson to the extent he says the Judge
focused solely on the
issues of denunciation and deterrence and in doing so erred by giving excessive
weight to those factors
at the expense of the other mandatory
considerations.
[24] In particular he submits that the Judge erred in not taking into account the mitigating features which he had earlier identified in his judgment as relevant to the term of imprisonment, namely the appellant’s rehabilitative efforts and his remorse as demonstrated by his offers of reparation. Mr Wilkins submits that having regard to those efforts, his personal family circumstances and the obligation to impose the least restrictive outcome appropriate, the sentence of imprisonment ought to be quashed and home detention substituted.
[25] He refers me to the decision of Wills v Police in which the
Court allowed an appeal against a refusal to grant home detention following what
he says is broadly similar offending.7 Like Mr Smit, Mr Willis
had seriously assaulted his former partner repeatedly hitting her in the head
with closed fists and had attacked
a third party attempting to intervene. I
note, however, that in that case there was expert evidence before the Court
regarding
the offender’s mental health and a previous traumatic brain
injury, which could not be effectively treated in the prison context.
For that
reason I find the case of relatively limited assistance.
[26] The central question I must address is whether taking Judge
Wilson’s sentencing notes as a whole, he became
inappropriately focused on
denunciation and deterrence to the exclusion of other relevant considerations
and that in so doing he
fell into what has been recognised as appealable
error.
[27] At least in respect of the s 8(g) requirement that the court must
impose “the least restrictive outcome appropriate
in the
circumstances” it is clear that his Honour was mindful of the wider
context necessary. That is obvious from the introduction
to the paragraph I
have quoted.
[28] As in the case before Lang J, his sentencing notes also
carefully and thoroughly consider, at an earlier point
in the analysis, all
relevant ss 7 and 8 factors such as the gravity and seriousness of the
offending, the defendant’s culpability
and mitigating factors such as
remorse and rehabilitation. Then when he addressed the issue of home detention
his Honour referred
to having given it “anxious consideration”.
Against that background he said that he did not consider home detention
would
adequately reflect the level of deterrence and denunciation required in a case
such as this.
[29] I would not want it to be thought that the phrase “anxious consideration” of itself and in all cases substitutes for reference to relevant considerations in a home detention context. However, reading his Honour’s decision in full, I am satisfied that what he was invoking, in his use of that phrase, was his consideration of all of the
relevant matters in a s 7 and s 8.
7 Willis v Police [2015] NZHC 2818.
[30] Because of the gravity of the offending and the fact that it
occurred in a domestic context, denunciation and deterrence,
if his exclusive
focus, would have pointed inexorably to declining home detention. That he
gave “anxious consideration”
to whether that remained an appropriate
outcome satisfies me that he turned his attention to such other relevant
considerations.
A counsel of perfection would have sentencing judges review in
the context of their home detention analysis all of the ss 7 and
8 matters they
were bringing to account. But I do not consider that necessary in every case.
What this Court must be satisfied
of is that there has been no inappropriate
focus on one consideration to the exclusion of others. I do not consider that
to be
an error into which Judge Wilson fell.
[31] Moreover I accept that deterrence8 and denunciation were
highly relevant considerations in the context of this very serious
offending.
[32] The courts have consistently recognised the “scourge”
which is domestic violence in this country and in the recent
decision of Kohu
v Police 9 it was held that sentences towards the upper end of
the available range for domestic violence offending would not generally be
interfered
with. That reflects the extent to which deterrence is appropriately
reflected in any ultimate sentence.
[33] This is a case therefore where, even if I had been persuaded that his Honour did not adequately take into account all of the relevant considerations (and I was therefore required to re-sentence Mr Smit), I would likewise not have commuted his sentence to home detention. Weighing his acknowledged rehabilitative efforts and his expression of remorse against the necessity for general deterrence in respect of crimes as serious as this I would have considered the scales tilted in favour of a sentence with a strongly deterrent focus which I would not have considered
adequately reflected in a sentence of home
detention.
8 Like Lang J I infer that his Honour’s remarks were directed to general deterrence.
9 Kohu v Police [2013] NZHC 944.
Result
[34] For the foregoing reasons I dismiss the
appeal.
Muir J
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