IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-000254
[2019] NZHC 2037	

UNDER	Sentencing Act 2002 and the Criminal Procedure Act 2011	

BETWEEN	
JAMES MAKEA-CROUTH
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 August 2019	
Counsel:	HB Leabourn for Appellant TH Stuart for Respondent	
Judgment:	20 August 2019	

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 20 August 2019 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
HB Leabourn, Auckland. Crown Solicitor, Auckland.

MAKEA-CROUTH v POLICE [2019] NZHC 2037 [20 August 2019]

[1]	On 30 May 2019, Judge K J Glubb sentenced Mr Makea-Crouth to a term of 17 months’ imprisonment.1 Mr Makea-Crouth appeals. He contends the Judge erred by not imposing a sentence of home detention. No other issue is raised. The appeal must be allowed if, and only if, the Judge erred and a different sentence should have been imposed.2

[2]	Mr Makea-Crouth pleaded guilty to four charges: burglary; unlawful interference with a car; obtaining by deception; and refusing to provide a blood specimen.

[3]	On 20 January 2019 at about 3 am, Mr Makea-Crouth walked onto private property and  opened  the  unlocked  door  of  a  car. He searched the glovebox. Mr Makea-Crouth was then subject to a sentence of supervision for receiving stolen property and causing loss by deception.

[4]	On 6 March 2019, Mr Makea-Crouth walked onto private property, entered a shed, and took a lawnmower, two mountain bikes, a weedeater, an electric hedge trimmer, and a leaf blower. Some were sold later the same day. Mr Makea-Crouth was then on bail for the 20 January offence.

[5]	On 31 March 2019, Mr Makea-Crouth  was driving.  His car broke down.   Mr Makea-Crouth’s behaviour attracted Police attention. Mr Makea-Crouth refused to provide a blood specimen. This offending was also committed on bail.

[6]	Mr Makea-Crouth is 22 years old. Judge Glubb described his history as “troubling”.3 Mr Makea-Crouth has eight convictions for theft, two for burglary, two for receiving stolen property, one for fraud, and one for unlawfully getting into a car. Mr Makea-Crouth has an extensive Youth Court history. Dishonesty is the stand out feature.

[7]	Mr Makea-Crouth contends the Judge “failed to take sufficient notice of the personal circumstances surrounding the appellant and his family”. Mr Makea-Crouth

1	Police v Makea-Crouth [2019] NZDC 10426.
2	Criminal Procedure Act 2011, s 250(2). See also Manikpersadh v R [2011] NZCA 452.
3	Police v Makea-Crouth, above n 1, at [9].

has a new partner and a five-month-old child. His partner is here on a visitor’s visa. She hopes to remain  in  New Zealand.  It  is  not  clear  whether  she  may  do  so. Mr Makea-Crouth has a child from a previous relationship “with whom he has regular and consistent contact”.4 Mr Makea-Crouth had “significant family support at the time of his sentencing”.5 Mr Makea-Crouth would live with his father if home detention were imposed.6 His address is considered suitable.

[8]	Mr Makea-Crouth also invites attention to ss 16 and 17 of the Sentencing Act 2002. Both emphasise the desirability of sentences other than imprisonment.7

[9]	The Department of Corrections recommended a sentence of imprisonment. It noted Mr Makea-Crouth had not complied with a sentence of supervision, and said he “shows no signs of desisting from re-offending”. Mr Makea-Crouth has previously served home detention—for burglary—without incident. Actuarial assessment implies a high risk of re-offending.

[10]	Mr Makea-Crouth also contends a sentence other than imprisonment would promote his rehabilitation, because meaningful programmes are unavailable to prisoners serving short terms of imprisonment, and a term of intensive supervision would provide much-needed counselling.8

[11]	Judge Glubb considered these factors. He referred to “an impassioned plea” for   home   detention   based   on   personal   circumstances.9   The   Judge   said    Mr Makea-Crouth had been the beneficiary of every possible community-based sentence aside from community detention, but none had worked. The Judge held a sentence of imprisonment was required, and the least restrictive outcome in the circumstances. The Judge faced a difficult choice. Mr Makea-Crouth’s personal circumstances supported home detention, but other considerations did not, including the seriousness of the offending, his history, inability to comply with the most recent

4	Appellant’s submissions para 15.
5	Appellant’s submissions para 17.
6	Mr Makea-Crouth’s father attended the hearing of the appeal. So too Mr Makea-Crouth’s partner.
7	Section 16(2) precludes a sentence of imprisonment unless sentencing principles and purposes cannot be achieved by any other sentence.
8	The  pre-sentence  report  is  unclear   as  to   what  programmes,   if  any,   are   available   to   Mr Makea-Crouth in prison or other settings.
9	Police v Makea-Crouth, above n 1, at [24].

sentence (supervision), and commission of offences while subject to that sentence— and bail.

[12]	The Court of Appeal’s observations in R v D are apposite:10

In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[13]	Mr Makea-Crouth’s arguments amount to a recapitulation of those rejected by the Judge. The Judge’s reasoning discloses no error.

[14]	The appeal is dismissed.

……………………………..
Downs J

10	R v D [2008] NZCA 254 at [66].