Godfrey v Police [2018] NZHC 920 (3 May 2018)

Last Updated: 21 May 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2018-488-000005 [2018] NZHC 920

BETWEEN	STEVEN MAURICE GODFREY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 April 2018
Appearances:	N S Leader for the Appellant J Scott for the Respondent
Judgment:	3 May 2018

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Thursday, 3 May 2018 at 10:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

_{Counsel: N S Leader, Whangarei}

GODFREY v NZ POLICE [2018] NZHC 920 [3 May 2018]

[1] On 22 February 2018, Steven Godfrey was sentenced by Judge D G Harvey to

17 months imprisonment on one charge of assault with intent to injure and one charge of driving with excess breath alcohol, being a third or subsequent offence.

[2] He now appeals against sentence on the sole ground that the Judge should have commuted the sentence of imprisonment to one of home detention.

Factual background

[3] The victim of the assault was his brother, Darren Godfrey. A second brother, Craig Godfrey, was also charged in relation to the assault. Craig was charged with a more serious offence, that of wounding with intent to injure on the basis of his primary role in the assault of their brother.

[4] On the evening of 24 November 2016, the three brothers were together at the Otaika Sports Park situated on State Highway One. They were consuming alcohol in parked vehicles. There was then a verbal altercation between Craig and Darren over a historic personal matter. That escalated to Craig punching Darren six to seven times. Craig told his brother that he was going to kill him. Darren fell to the ground and Craig then kicked him in the face and upper body approximately three to four times. It was at that stage that the appellant became involved by also kicking Darren, mainly in the head, front and side about five or six times.

[5] Craig then went to his vehicle and retrieved a baseball bat, which he used to hit Darren in the head and back twice. Darren stood up and Craig hit him again in the mouth using the baseball bat. Craig then used the baseball bat to smash the front passenger window of Darren’s car. Craig told Darren that he was never going to go home, swore at him and continued to hit him a few more times. Prior to leaving, Craig demanded Darren’s rings. Darren complied and handed these over, as well as a necklace. Craig then left with the appellant in Craig’s vehicle. As a result of the assault, Darren received a cut to his right temple, bruising to his lower back, a cut lip, chipped teeth, and bleeding from his lips and head.

District Court decision

[6] The appellant was sentenced together with his brother Craig. After reviewing the facts of the assault and the pre-sentence reports which had been compiled for both Craig and Steven, the Judge adopted starting points for the offending before giving consideration to any discounts which might be available. The Judge commented that he had given some “very anxious consideration” to the appropriate discount for the brothers’ guilty pleas because he said the assault was a “very ugly incident”. He accepted that the brothers had entered pleas of guilty, but commented that was at the very last minute and only when, effectively a deal was offered, which benefited both of the brothers quite considerably.

[7] In the case of Craig, the primary perpetrator of the assault, the Judge adopted a starting point of three years imprisonment, which he discounted by four months for his plea of guilty, leading to an end sentence of two years and eight months imprisonment.

[8] As for Steven, the appellant, the Judge adopted a starting point of 16 months imprisonment, to which he added four months for the excess breath alcohol charge. He gave Steven full credit for his plea of guilty and thus reached a total term of imprisonment of 17 months, being one year and two months on the assault charge and three months on the excess breath alcohol charge.

[9] The Judge accepted that technically a sentence of home detention was available for Steven, but he said that the Court was “dealing almost daily with this type of random vicious, violence” and he was “simply not prepared to send a message to the community that you can get away with this type of behaviour then expect a sentence of home detention.”

[10] The Judge acknowledged that the Court of Appeal had said that a home detention sentence does carry with it a deterrent aspect, but the fact remained for this type of violence the community has to get, what he said was, a very clear message.

Appellant’s submissions

[11] No issue was taken with the starting points or the adjusted end points of the terms of imprisonment. No issue was taken with the cumulative sentences, the offending being different in kind and occurring over a year apart. The sole issue on appeal is whether or not the Judge erred by failing to commute the sentence of imprisonment to one of home detention.

[12] Counsel draws the Court’s attention to the Court of Appeal decision in

Manikpersadh v R where the Court stated:¹

We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such 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”.

[13] The Court of Appeal went on to state:²

We endorse the observations of William Young J in Vhavha that in exercising the discretion whether to commute a sentence of imprisonment to home detention, those ss 7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing judge.

Section 7 deals with the purposes of sentencing. It includes deterrence, denunciation, accountability, promoting a sense of responsibility, providing for the interests of the victim and the protection of the community. However, it also includes assistance to an offender’s rehabilitation and reintegration.

Section 8 of the Act requires the Court in sentencing to take into account those matters set out in subss (a) to (j). Those factors will be relevant in deciding whether a sentence of imprisonment initially is appropriate. They are also relevant in deciding whether or not, in a particular case, a sentence of home detention might be imposed. The s 8 factors include the gravity of the offending and culpability of the offender, the seriousness of the offence and victim impact. But s 8 also requires the Court to have regard to the least restrictive appropriate outcome, the offender’s personal circumstances including his personal and family background and relevant rehabilitation.

[14] The appellant submits that an error of law has occurred because the Judge focussed solely on deterrence without any regard to the countervailing purposes of sentencing.

¹ Manikpersadh v R [2011] NZCA 452 at [12].

² At [14]–[16].

[15] The appellant submits that the following factors ought to have been considered in the exercise of the Court’s discretion:

(a) The appellant had pleaded guilty. The downgrading of the charge reflected the fact that Steven was not acting in concert with his brother.

(b) Although he had one previous conviction for violence, it was 10 years prior to this offending, and was not so relevant or recent to result in an uplift of the starting point.

(c) Darren’s injuries were not at the higher end of the scale.

(d) The majority of the injuries cannot be attributed to Steven, given the lesser role he played in the offending, and given the more serious charge faced by his brother Craig.

(e) Although he was not intoxicated on this night, he was prepared to attend counselling to address his alcohol issues. He had insight into how alcohol caused him problems and was motivated to complete further counselling.

(f) He was remorseful for his actions and regretted his part in the offending.

(g) He had no previous convictions for breaching community-based sentences.

(h) He suffers from anxiety, which is possibly a by-product of a violent, abusive upbringing.

(i) He had been in steady employment for a year. That employment was available to him if he was sentenced to home detention.

(j) There no longer appeared to be any issues between the appellant and his brother, Darren.

(k) There was a technically suitable address, and the appellant was suitable for home detention.

(l) The Crown sentencing submissions noted that the end sentence for Steven would be within range for consideration of home detention or other community-based sentences.

[16] In conclusion, the appellant submits that the Judge erred by failing to weigh up all of these factors, and instead focussed solely on deterrence. He submits that once all of the relevant factors are assessed, and having regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community, then the least restrictive outcome ought to have been one of home detention.

Discussion

[17] In Manikpersadh, the District Court Judge had focussed solely on deterrence. The Judge had said:³

[10] I consider whether any form of home detention is appropriate for you and I do not believe it is. Home detention and community detention for that matter do have deterrent aspects but it would be inviting the public, in my view, to lose confidence in the Court if you were sentenced to home detention.

[11] The public of Auckland is outraged and rightly so by drunks like you crashing through red lights and causing serious injury. I do not believe that home detention is a sufficient deterrent for people like you and others who are likeminded to do that and I decline to sentence you to a sentence of home detention.

[18] The Court of Appeal was satisfied that the District Court Judge was in error when he focussed solely on deterrence when considering whether he could impose a sentence of home detention instead of imprisonment. The Court of Appeal then carried out its own assessment of the relevant ss 7 and 8 factors and concluded that overall those clearly favoured a sentence of home detention.

[19] In Brittin v New Zealand Police, Woodhouse J summarised the principles relating to a sentencing Judge’s choice between imprisonment and home detention:⁴

(a) Imprisonment is a measure of last resort.

(b) A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.

(c) When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(d) When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.

(e) A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.

(f) It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.

(g) One of the purposes of sentencing is to assist in the offender’s rehabilitation.

(h) The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[20] Woodhouse J also held that the District Court Judge in that case had erred by giving paramountcy to deterrence, denunciation and holding the offender to account, on the basis that deterrence was a stated purpose of the Act.

[21] With all due respect to Judge Harvey, I am of the view that he fell into error in focussing solely on deterrence when considering whether to commute the otherwise appropriate sentence of imprisonment to one of home detention.

[22] The Judge referred to violence in the appellant’s background without analysing his criminal record to properly assess his risk of reoffending. The appellant has

11 convictions over a six year period when he was aged 18–24 years. He is now

30 years of age and has not been convicted of any criminal offence in the last six years. His convictions, which could be characterised as involving violence or potential violence, are wilful damage in 2012, disorderly behaviour in 2010, assault with a weapon in 2008 and possessing a knife in a public place in 2006. He has never been sentenced to a term of imprisonment previously.

[23] The current offence did not involve the public, being a dispute between brothers. The appellant’s involvement was much less than that of his brother, Craig, who is serving a term of imprisonment for his primary role in the offending. The pre-sentence report noted the advice of their mother that Stephen and Darren no longer had issues and were on friendly terms.

[24] The pre-sentence report also recorded the appellant’s regret for his part in the offending and remorse for his actions. It further noted that the appellant was prepared to attend counselling to address his alcohol use, which he believed was a major factor in the offending.

[25] The Judge made no reference to the fact that the appellant was in full-time employment with Fresh to the Chef operating out of Tauranga, which supplies a wide range of freshly prepared products to restaurants and catering establishments. That employment would be available to him if he was sentenced to home detention.

[26] The pre-sentence report also noted that the appellant had no convictions for breaching community-based sentences so he was considered suitable for further sentences of this nature.

[27] I am, therefore, of the view that the requirement of holding the appellant to account, denunciation or deterrence should not have dictated the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention. That being so, and the appellant being a good candidate for home detention, I see the

principle that the least restrictive outcome that is appropriate in the circumstances must be imposed as the primary consideration with the result that I would allow the appeal.

Outcome

[28] The sentences of one year and two months imprisonment on the assault charge and three months imprisonment on the excess breath alcohol charge are quashed. Taking into account the 10 weeks the appellant has been in custody, I impose instead cumulative sentences of five months home detention on the assault charge and one months home detention on the excess breath alcohol charge.

[29] I am advised by counsel that the proposed home detention address remains available. Accordingly, I impose the following conditions:

(a) Upon release from prison, travel directly to the nominated address and await the arrival of a field officer.

(b) To reside at that address for the duration of the sentence.

(c) Not to purchase, possess or consume alcohol and/or illicit drugs for the duration of home detention.

(d) To report to a probation officer as directed.

(e) Undertake alcohol and other drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of the probation officer and programme provider.

(f) To attend and complete such counselling/programme/treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.

(g) Post detention conditions with the following special condition:

(i) To undertake and complete any remaining rehabilitative programme, counselling, treatment and maintenance follow up

_{programme as directed by the probation officer.}

Woolford J