Stewart v Police

[2016] NZHC 2943

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000304 [2016] NZHC 2943

BETWEEN

DAVID JOHN STEWART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Counsel:	D G Young for Appellant T C Clark for Respondent
Judgment:	7 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 7 December 2016 at 9.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

D G Young, Auckland.

Meredith Connell, Auckland.

STEWART v POLICE [2016] NZHC 2943 [7 December 2016]

The issue

[1]      The only issue in this appeal is whether Judge Fraser erred in imposing imprisonment rather than home detention.   The appellant contends the Judge did. The respondent contends otherwise.  My assessment of an otherwise simple issue is made difficult by the absence of sentencing notes and the parties’ inability to recall what the Judge said.  So, in the context of an appeal directed at error, I am asked to approach the matter afresh.  Time is of the essence.  A bed is available at Odyssey House tomorrow. That may not be the case for much longer.

Background

[2]      On 7 July 2015, the appellant stole three bottles of beer from an unlocked storage room of a Sandringham shop.  He was disturbed by staff and ran from the scene. The appellant was arrested shortly thereafter.

[3]      While on bail for that offence (of burglary), the appellant stole an electric toothbrush from a department store, clothing and an electric shaver from a different outlet of the same store, and twice drove having consumed alcohol while holding a zero-alcohol  licence.    The  first  Land  Transport Act  offence  was  committed  on

31 October 2015.   The  appellant’s  breath  alcohol  level  was  156  micrograms  of alcohol  per  litre of  breath.   The  appellant  said  he was  en  route to  “pick up  a prostitute”.   The second Land Transport Act offence occurred on 22 March 2016. The appellant’s breath alcohol level was 177 micrograms of alcohol per litre of breath.

[4]      By the time the appellant appeared for sentence before Judge Fraser, he also faced two charges of breaching bail.

[5]      In the absence of sentencing notes and contemporaneous records, little more is known than the outcome: a term of 16 months’ imprisonment.   However, it is common ground leave to apply for home detention was sought in the event a bed became available at Odyssey House.   The Judge declined to accede to that submission.

The appellant’s case

[6]      The appellant contends the Judge erred in not doing so and the appeal should be  allowed—now  a  bed  is  available.    Mr Young  for  the  appellant  submits  the offending was not particularly serious.   And, home detention would advance the appellant’s rehabilitation, especially given the appellant’s alcohol problem.

Analysis

[7]      It is likely the Judge was troubled by the appellant’s criminal history and his apparent propensity to disregard Court orders.  The appellant twice breached bail in April 2016, and four of the five offences in question were committed on bail.  In the last four years, the appellant has twice contravened a protection order, driven while disqualified and breached conditions of community detention.   Older offending betrays the same characteristic.   The appellant has convictions for violence.   In October 2012 he assaulted a female and a victim with intent to injure (whether the victim was the same or another female is unclear).   In September 2013 he spoke threateningly. And, the appellant has an extensive criminal history.

[8]      It  is  also  likely  the  Judge  was  troubled  by  the  pre-sentence  report.    It considers the appellant:

(a)       Is at high risk of re-offending.

(b)      Has offered little evidence of insight into his offending.

(c)       Remains undeterred from offending notwithstanding the completion of at least two drug and alcohol courses.

[9]      The report observes the appellant was “exited” from one programme due to “his behaviour”.   The appellant was found on a fire escape, as if leaving the programme unilaterally.  Staff thought he was under the influence of cannabis.  The appellant denied that.

[10]     There was no suitable home detention address before the Judge.

[11]     I have considerable sympathy for Mr Young’s submission home detention in the context of an Odyssey House placement would further the appellant’s rehabilitation.  Indeed, it may address at least one of the factors contributing to the appellant’s offending.

[12]     However, it is incumbent on an appellant in this context to demonstrate error on the part of the Court below.  This is clear from s 250 of the Criminal Procedure Act 2011:

250  First appeal court to determine appeal

(1)   A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)   The first appeal 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.

(3)   The first appeal court must dismiss the appeal in any other case.

[13]     It is also clear from any number of judgments of the Court of Appeal.1

[14]     I am not satisfied the Judge erred.  My reasons can be briefly stated:

(a)      While the appellant’s history did not exclude the possibility of home detention, it was open to the Judge to place weight upon that factor, which in all probability, His Honour did.   The same is true of the appellant’s propensity to breach Court orders and bail.

(b)The pre-sentence report did not provide support for a sentence of home detention.

(c)      The appellant’s eviction  or early departure from one rehabilitative course does not further his cause in seeking admission to another.

1      One example will suffice: Poi v R [2015] NZCA 300.

(d)      Overall, the offending was moderately serious, particularly given the

appellant’s record.

[15]     The appeal is dismissed.

……………………………..

Downs J