Sadlier v Police [2018] NZHC 993 (8 May 2018)

Last Updated: 21 May 2018

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2018-44-9 [2018] NZHC 993

BETWEEN	TREVOR TEREWA SADLIER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 May 2018 (via AVL)
Counsel:	W Hawkins for Appellant F E Cleary for Respondent
Judgment:	8 May 2018

_{JUDGMENT OF ELLIS J}

[1] Mr Sadlier appeals his sentence of six months’ imprisonment following his guilty plea to, and conviction on, one charge of common assault.¹ In essence he says that the eight month starting point adopted by the sentencing Judge was manifestly excessive and/or that the Judge did not, and was unable properly to, consider a sentence of home detention because a home detention appendix had not been prepared.

Background

[2] By way of background I can do no better than set out Judge Adeane’s sentencing notes more or less in full. He said:

[2] The summary of facts informs the Court that Mr Sadlier is in a relationship with the victim's mother. In the early hours one Saturday morning, he went into the victim's bedroom where the victim was to be found and without warning began punching him in the face with a closed fist. He was punched four or five times and the summary of facts says that his nose was split causing significant loss of blood.

¹ _{Laid under s 196 of the Crimes Act 1961.}

SADLIER v POLICE [2018] NZHC 993 [8 May 2018]

[3] When spoken to, the defendant attempted to offer an explanation that the complainant had damaged his letterbox the night before.

[4] Crimes Act assault is punishable by a maximum of 12 months' imprisonment. There is certainly no tariffs for assault at this level because the circumstances vary so widely.

[5] The probation report in the case is highly instructive as to Mr Sadlier’s attitude. He has no real remorse for the offending and continues to justify his behaviour by reference to the behaviour of the complainant. It is suggested in the report that Mr Sadlier has a sense of entitlement to use violence to settle disputes and that proposition is certainly supportable when one looks at his previous criminal history which is regrettably marked by instances of violence, so that his recent history reads "contravention of protection order, wilful damage, threatening behaviour, contravention of protection order, common assault, common assault, assault with intent to injure" and that is simply the entries since 2009. The same theme is to be found further back in time with breaches of protection order, common assaults, assaults on females being a well-established pattern of behaviour on the part of this defendant over a period of 25 years.

[6] The time has now come where deterrence and denunciation loom large in sentencing Mr Sadlier. This was completely uncalled-for violence and a sentence of imprisonment is the least that can be imposed to mark society's disapproval of this sort of ongoing behaviour. That is the recommendation of the probation officer also.

[7] I adopt a starting point of eight months' imprisonment. Mr Sadlier has pleaded guilty at an early stage and a sentence of six months' imprisonment is imposed accordingly. That is to be followed by six months of release conditions as set out in the probation officer's report.

[8] The case would not be adequately by a sentence of home detention and the Court does not proceed in that direction at this time.

[3] The only point it is necessary to add is that, at the time of taking Mr Sadlier’s guilty plea Judge Courtney made the standard direction for a pre-sentence report and handwrote beside it “Address offending causes and all options”. It is unclear whether this was intended to mean that a home detention appendix was required. In any event, one was not provided.²

Discussion

[4] In terms of the starting point, there are, of course, many cases with different facts to which reference could be made.³ I do not regard those cases as overly helpful.

² The PAC Report writer noted “Electronic Monitoring was not requested by the Courts ...”.

³ Amongst the cases to which I was referred were Dooley v Police HC Christchurch

CRI-2008-409-1, 21 February 2008, Dempsey v Police [2015] NZHC 2589, R v Sheppard [2014] NZHC 2302; Kapene v Police [2014] NZHC 41 and Mihaka v Police [2015] NZHC 1318.

[5] Rather, I agree with Ms Cleary that a starting point of eight months’ imprisonment cannot be said to be outside the available range. Such a starting point can, in my view, be justified, in light of the following aggravating features:

(a) the fact that Mr Sadlier entered the victim’s home early on a Sunday morning when the victim was still in bed;

(b) multiple blows directed at the head (Mr Sadlier punched the victim up to five times to the head with a closed fist, causing the victim's nose to split and bleed profusely); and

(c) an element of vigilantism in the sense that Mr Sadlier sought to justify his behaviour to police (and later to the PAC report writer) by saying that the victim was “cheeky” and had provoked him.⁴

[6] It can also be inferred that the eight month starting point included (or could have included) an uplift for Mr Sadlier’s quite numerous and similar previous convictions. And I record for completeness Ms Cleary’s observation that, had

Mr Sadlier been charged with injuring with intent to injure (which attracts a maximum penalty of five years imprisonment) then an application of Nuku would render eight months imprisonment a very lenient sentence.⁵ I agree with her that the availability of such a charge is a further indicator that Mr Sadlier’s offending is at the higher end of the “common” assault spectrum.

[7] In terms of the question of home detention, Mr Hawkins relied, in particular, on Woodhouse J’s statement that:⁶

On this point, as on other relevant points, I acknowledge that a Judge sentencing in the District Court, and possibly in a busy list Court, cannot be expected to articulate every point that may be relevant. However, giving that consideration proper weight, I do not consider it is possible to infer that the Judge gave consideration to home detention. A sentencing Judge is bound to consider home detention, if it is technically available in terms of s 15A of the

4. Even if vigilantism of any kind could be countenanced (which it cannot) Mr Sadlier’s response was out of all proportion to the victim’s perceived wrong.

⁵ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

6. Fomai v Police [2014] NZHC 377 at [18]. He also relied by analogy on those cases which have held that it is wrong in principle to proceed to a sentence of imprisonment without a pre-sentence

report: Fowler v R [2016] NZCA 233.

Sentencing Act, notwithstanding that there is no submission for a defendant that home detention should be imposed. ...

[8] For the Crown’s part, Ms Cleary accepted that the PAC report should have included appendices. But, she said, the Judge nonetheless had adequate material before him to make a properly informed decision about all sentencing options. The only information missing was advice as to the suitability of an address for electronic monitoring. Given that Mr Sadlier had previously been bailed to his home address in Napier, that option could have been directed to be explored if the Judge had thought that appropriate or necessary.

[9] Again, I agree. By contrast with Fomai, the Judge’s notes expressly record that he did, in fact, consider home detention but formed the view that imprisonment was the only sentence that adequately met the relevant purposes and principles of sentencing. It seems to me that that conclusion was open to the Judge in light of both the facts of Mr Sadlier’s past and present offending and the contents of the PAC report. As regards the former, the present offending was, as I have said, at the more serious end of the spectrum. As to the latter, Mr Sadlier’s criminal history shows that he has previously received sentences of imprisonment for assault and breaching protection orders and, in 2010, was sentenced to 21 months’ imprisonment for assault with intent to injure. As well, the PAC report writer’s fairly negative assessment was based on Mr Sadlier’s continued sense of entitlement, his apparently total lack of remorse and his relative poor prognosis in terms of risk. It seems to me highly unlikely that a home detention appendix would have added to the writer’s assessment in any material way.

[10] I am unable to discern any error in the Judge’s sentencing approach or in the result. The appeal is dismissed accordingly.

Rebecca Ellis J