IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000128 [2015] NZHC 147

BETWEEN	GRANT TURNBULL
Plaintiff	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	5 February 2015	

Appearances:	
P N Allan for Appellant
D L Elsmore and N A Pointer for Respondent	

Judgment:	
12 February 2015	

JUDGMENT OF GENDALL J

Introduction

[1]       On 31 October 2014 Judge Garland1  sentenced Mr Turnbull to 12 months’ imprisonment on five charges of receiving stolen property and one charge of being found  unlawfully in  possession  of  ammunition.    Reparation  of  $1000  was  also ordered.  Standard conditions of release until six months after the sentence end-date were also imposed.     His Honour also made an order for the destruction of the ammunition and rifle bolts concerned here. The sentence arose from Mr Turnbull’s guilty plea to the charges in question following the giving of a sentence indication by Judge Garland.

[2]       Specifically, the detail of those charges was:

(a)	three charges of receiving where the value of the property received exceeds $1,000, respectively occurring between 12 May 2014 and 10

1 Police v Turnbull DC Christchurch CRI-2014-009-006590, 31 October 2014.

July 2014, one between 19 May 2014 and 10 July 2014, and one between 23 May 2014 and 10 July 2014;2

(b)       one charge of receiving where the value of the property received exceeds $500 but does not exceed the sum of $1,000, which occurred between 13 May 2014 and 10 July 2014;3

(c)       one charge of receiving where the value of the property received does not exceed $500, which occurred between 28 May 2014 and 10 July
2014;4 and

(d)       one charge of being in possession of explosives, without some lawful, proper, and sufficient purpose.5

[3]	Mr Turnbull now appeals against the sentence on the grounds that a sentence of home detention should have been imposed.

Background

[4]	The  facts  giving  rise  to  these  charges  were  set  out  in  Judge  Garland’s

31 October 2014 sentencing notes:

[3]        The facts relating to your offending are these.  On 12 May this year the  complainant  Shi’s  address  in  Havana  Gardens  in  Christchurch  was burgled and a 42 inch Panasonic television valued at $1000 was stolen.  On
13 May the complainant Currie’s residential address at Aldwins Road in
Christchurch was burgled and a Toshiba laptop, three rifle bolts, two magazines  and  303  and  7.9 millimetre  ammunition  valued  at  $600  was
stolen.    On  19  May  the  complainant  Ferguson’s  residential  address  in
Havelock Street, Christchurch was burgled.  His Toshiba laptop and suitcase valued at $2000 were taken from the address.  On 23 May the complainant Tomkins address in Linwood Avenue, Christchurch was burgled and her Compac and Acer laptops valued at $1200 were stolen.   On 28 May the complainant Voorhoeve’s residential address in Mackworth Street, Christchurch was burgled and his NEC laptop valued at $400 was stolen.

2 Crimes Act 1961, ss 246(1) and 247(a). Each offence is punishable by imprisonment for a term not exceeding seven years.
3  Sections 246(1) and 247(b). Each offence is punishable by imprisonment for a term not exceeding one year.
4  Sections 246(1) and 247(c). Each offence is punishable by imprisonment for a term not exceeding three months.
5 Arms Act 1983, s 45(1)(b). Each offence is punishable by imprisonment for a term not exceeding four years or by a fine not exceeding $5,000, or both.

[4]        On 10 July this year the police executed a search warrant at your address in Havelock Street in Christchurch.  During the search they found three  rifle  bolts,  60 rounds  of  303  ammunition  and  15  rounds  of  9.7 millimetre ammunition.   Those items were located in your dresser drawer beside your bed. Also located in your bedroom was the complainant Currie’s Toshiba laptop.   The complainants Voorhoeve, Currie, Tomkins and Ferguson’s laptop computers were also located in your bedroom.   The complainant Shi’s 42 inch Panasonic television was located in a dog kennel at the rear of your address. That television set had been broken.

[5]        When you were spoken to by the police you stated that an associate tried to sell you the items for $20 and you knew they were likely to be in your bedroom.  In relation to the laptop computers you stated you knew one of the laptops was in your bedroom but you did not know about the other items.  Reparation of $1000 is sought for the damaged television.

[5]       Judge   Garland   then   proceeded   to   consider   sentencing.   He   noted Mr Turnbull’s  youth  (19  years  of  age),  his  short  history  of  offending  over  the previous  two  years,  his  reluctance  to  cooperate  with  the  probation  officer  in interviews or with his general practitioner in conducting alcohol and drug-screening tests, and his refusal to take responsibility for his offending. Citing the report of the probation officer, His Honour noted that Mr Turnbull was at high risk of re- offending, and that his uncooperative attitude and reluctance to address issues of rehabilitation and responsibility precluded the recommendation  of a community- based sentence.   He also specifically addressed the issue of the appellant’s 90 outstanding hours of community work. He dismissed the application for cancellation
of this sentence, instead suspending it during the term of imprisonment.6

[6]       On the matter of rehabilitation, which counsel urged as necessary for the appellant, Judge Garland commented:

[9]        Of course, imprisonment is not just about rehabilitation.  Sometimes the community needs a rest from people who offend.   Other times imprisonment is imposed simply as a deterrent sentence.  It is well known and understood that imprisonment of itself does not rehabilitate. That is why the Court strives to find sentences short of imprisonment when offenders adopt the right sort of attitude and the Court thinks that rehabilitative initiatives  have  some  real  chance  of  success.    Unfortunately,  given  the attitude that you have shown in this report the same cannot be said about you.

[7]       Given Mr Turnbull’s attitude, and the correspondingly unlikely success of

any rehabilitative initiative, Judge Garland identified “denunciation and deterrence”

6 Police v Turnbull, above n 1, at [17]. The appellant is to complete this sentence upon release.

as the main purposes of sentencing in this case.   He also specified however the following principles of sentencing which he was taking into account:

[11]      …  the gravity of your offending, the seriousness of the charges to which you have pleaded guilty, the need to sentence you in a way which is consistent with the sentences imposed on other offenders for like offending and, finally, particularly given your age, the need to impose the least restrictive outcome appropriate in all the circumstances.

[8]       His Honour expressed concern at the clear evidence that Mr Turnbull had received valuable stolen property from five separate burglaries, all committed over a period of 16 days, and that this “unhappy coincidence” indicated that the appellant was “very close to the burglar.” Based on this evidence, Judge Garland concluded also that the appellant “must have been well aware of what he or she [the burglar] was doing” and “you were clearly willing to take possession of those items and gain
the benefit of those stolen items.”7

[9]       Bearing  in  mind  the  totality  of  the  appellant’s  offending  and  his  prior conviction for a dishonesty offence (burglary) in 2012, Judge Garland adopted a starting point of 18 months’ imprisonment.  His Honour then allowed a reduction of six months, in recognition of the appellant’s guilty pleas and youth. Given the “very negative” nature of the pre-sentence report and the appellant’s simultaneous application to cancel his existing sentence of community work, Judge Garland dismissed the viability of both an electronically monitored sentence and/or more community work.

[10]    The 12-month total reflects the imposition of three concurrent terms of imprisonment: 12 months for the “lead offences” against ss 246 and 247(a) of the Crimes Act and s 45(1)(b) of the Arms Act, six months relating to ss 246 and 247(b) of the Crimes Act,  and one month relating to ss 246 and 247(c) of the Crimes Act.8
All terms were to be served concurrently

[11]     As I have noted above, Mr Turnbull now appeals against that sentence on the ground that a sentence of home detention should have been imposed, which would
enable him to complete community work and an anger management course. In the

7 At [13].
8 At [16].

alternative, it is submitted that Judge Garland ought to have given the appellant an opportunity to vacate his guilty plea.

Jurisdiction

[12]     Mr Turnbull is able to appeal the sentence imposed as of right.9   This Court, as first appeal Court,10 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence  should  be  imposed.11      In  a  recent  judgment  the  Court  of Appeal  has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).12

Counsel’s submissions

[13]     Turning  first  to  the  submissions  advanced  before  me  by  Mr  Allan  for Mr Turnbull,  while  he  does  not  take  issue  with  the  starting  point  adopted,  he challenges Judge Garland’s ability to sentence the appellant to imprisonment in the circumstances prevailing here.  In particular, submissions advanced for Mr Turnbull are that:

(a)       The appellant had pleaded guilty following Justice Garland’s sentence indication, which had been for a sentence of home detention, provided the  pre-sentence  report  was  “favourable.”  In  terms  of  both  the common law position and under the Criminal Procedure Act 2011, that indication was binding on the Judge.

(b)       The pre-sentence report was not prepared with an understanding of the sentence indication. Further, the appellant’s chosen address for home detention was found to be unsatisfactory it is said due to matters
outside the appellant’s control.

9 Criminal Procedure Act 2011, s 244.
10 Section 247.
11 Section 250.
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

(c)       The Judge cannot be taken as meaning the decision as to whether home detention was to be imposed was to be made by the report writer.

(d)       The Judge ought to have given the appellant an opportunity to obtain another address given the circumstances.

(e)       In the alternative, the Judge ought to have given the appellant an opportunity to vacate his plea.13

[14]	In response, submissions were advanced by Ms Elsmore on behalf of the respondent as follows:

(a)       Judge Garland did not err in refusing to exercise his discretion to sentence  the  appellant  to  home  detention.  His  Honour  correctly rejected this sentence in light of the appellant’s uncooperative attitude and anger issues.

(b)       The stolen goods were stored in the appellant’s home, and precedents suggest that home detention in these circumstances would undermine the necessary deterrent purpose of a sentence.14 Judge Garland would therefore have been entitled to refuse leave in any event on the basis that the offending occurred within the appellant’s home.

(c)       The appellant’s stated reasons for seeking home detention are (i) to complete his community work; and (ii) to receive anger management counselling.  Judge  Garland  specifically addressed the issue of the outstanding community work, noting that this earlier sentence was suspended during the term of imprisonment, to be served upon the appellant’s release.

(d)	The  appellant’s  desire  to  attend  an  anger  management  course  is

commendable,  and  the  Crown  would  support  a  variation  to  the

13 R v Smail [2008] NZCA 6.

sentence to include a special release condition that such a course is

attended by the appellant on release.

Analysis

Judicial adherence to sentencing indication

[15]     The  first  ground  of  appeal  ultimately  turns  on  whether  Judge  Garland followed his sentence indication, issued 9 September 2014,15 to which he was statutorily bound.   In his sentencing notes, Judge Garland accurately records this indication if there was a guilty plea as “a starting point of a short term of imprisonment but I would consider in the alternative a sentence of home detention coupled with community work if there was a favourable pre-sentence report.”16 The Crown’s submissions advanced before me accord with this version of the conditional sentence indication.  The appellant’s submissions however, as I understand them, are premised on a different recollection of the sentence indication, one which mentioned home detention (again, contingent on the favourability of the pre-sentence report) but without reference to imprisonment.

[16]     Subject to a proviso, s 116(2) of the Criminal Procedure Act 2011 states that a sentence indication is binding on the issuing judicial officer. Section 115(2)(a) then provides that, if the circumstances described in s 116(2) apply and the court proposes to impose a sentence of a different type, or of the same type but a greater quantum than  that  specified  in  the  sentence  indication,  the  court  must  grant  leave  to  a defendant to withdraw a plea of guilty.

[17]     Whether inadvertently or otherwise, the appellant’s submission is premised essentially on an inaccurate or incomplete version of the Judge’s sentencing indication. Judge Garland  did posit a short term of imprisonment alongside the alternative of home detention (conditional on the nature of the pre-sentence report) in his sentencing indication. There has been no departure from the original sentencing
indication, and therefore ss 116(2) and 115(2) do not apply. Judge Garland was not

15 Police v Turnbull DC Christchurch CRI-2014-009-6590, 9 September 2014 [Sentence Indication].

statutorily required to grant the appellant leave to withdraw his plea of guilty. This ground advanced for the appeal must fail.

Home detention

[18]     I now turn to consider the appellant’s alternative ground for appeal.  Despite the  submissions  of  Mr Allan  for  the  appellant  to  the  contrary,  in  my  view  by preferring a sentence of imprisonment, in reliance on the information contained within the pre-sentence report, Judge Garland cannot be said to have delegated the discretionary powers of sentencing to the report writer. His Honour had said in his sentencing indication that his consideration of a home detention sentence was contingent upon the contents of the pre-sentence report, but this is not synonymous with stating that sentencing was contingent upon the opinion of the probation officer. Indeed, Judge Garland was statutorily obliged to take the pre-sentence report into consideration before imposing the prospective sentence of home detention.

[19]     Further,  in  his  sentencing  decision,  Judge  Garland  was  not  required  to provide the appellant with an opportunity to obtain an alternative, suitable address for home detention.  Nor was the Judge necessarily required to grant the appellant leave to make a subsequent application under s 80K of the Sentencing Act 2002 for the prison sentence to be substituted with a sentence of home detention, if a suitable residence were found.

[20]     In certain circumstances, at the time of sentencing, a court must make an order granting an offender leave to apply to the court for cancellation of a short term sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.17  However, this provision only applies where the court would have sentenced the offender to a sentence of home detention, but instead imposed imprisonment because a suitable residence was not available.18  Judge Garland’s decision to impose a sentence of imprisonment, rather than home detention, was not based on the appellant’s lack of a suitable residence, but specifically on substantive matters including the appellant’s attitude, the gravity
of the offending and the fact it occurred within the appellant’s home.  Now that the

17 Section 80I(2).

sentence  has  been  imposed,  the  appellant  here  cannot  apply  for  leave  under  s

80K(1).19

[21]     Under s 15A of the Sentencing Act 2002, a sentence of home detention may be imposed  only if  the court  is  satisfied  that  the sentencing purpose  cannot  be achieved by any less restrictive sentence or combination of sentences, and the court would otherwise have imposed a short-term sentence of imprisonment. This accords with the general principle of sentencing in s 8(g), which requires the court to impose the least restrictive outcome that is appropriate in the circumstances.

[22]     Home detention has been recognised as a sentence carrying a considerable measure of denunciation and deterrence, sufficient to supplant a short-term sentence of imprisonment.20  However, even in cases where home detention is available, the sentencing  purposes  of  denunciation  and  deterrence  can  sometimes  be  met  by nothing less than a sentence of imprisonment.21 Indeed, when determining whether a sentence of home detention is appropriate, the offender’s personal characteristics, demonstrated  efforts  towards  rehabilitation  and  the  likelihood  of  rehabilitative success are important considerations.22

[23]     In the present case as I see it, Judge Garland was entitled to give some focus to the sentencing purposes of denunciation and deterrence. His Honour was equally entitled to conclude that a sentence short of imprisonment is only appropriate where “offenders adopt the right sort of attitude and the Court thinks that rehabilitative initiatives have some real chance of success.”23  In this case, Judge Garland found that the appellant’s uncooperative attitude, prior conviction for a dishonesty offence, and inferred awareness of, and willingness to benefit from, the primary offending (burglary)  meant  that  rehabilitation  was  not  primarily  a  viable  outcome  of sentencing.  Instead,  he  focused  on  deterring  and  denouncing  the  appellant’s
recidivist behaviour, and on protecting the community, which “sometimes … needs a

19 Dalton v Police [2014] NZHC 1335.
20 R v Iosefa [2008] NZCA 453, at [41]; Fairbrother v R [2013] NZCA 340 at [29].
21 See, for example, R v Taiepa [2009] NZCA 120 (receiving a stolen vehicle where the circumstances of the offending and the history and attitude of the offender afforded no realistic alternative).
22 R v Ford [2008] NZCA 64; R v Hill [2008] 2 NZLR 381 (CA); R v Hall [2008] NZCA 207.
23 Police v Turnbull, above n 1, at [9].

rest from people who offend.”24  These conclusions justified His Honour’s decision that  only  a  short  period  of  imprisonment  could  properly  promote  the  general purposes and principles of sentencing, as set out in ss 7 and 8.

[24]     In my view Judge Garland was also clearly entitled to refuse home detention here on the basis of the appellant’s attitude and the fact that the offending occurred within the appellant’s home. While there is no legal principle that home detention can never be carried out at the residence in which the offending occurred (where offending occurred at an offender’s residence), the courts have often been reluctant to impose home detention at that address.25  In R v Holden, the appellant received many of the stolen goods into his own home, and continued doing so whilst he was on bail. In those circumstances, the Court of Appeal held that “home detention would
undermine the necessary deterrent purpose of a sentence, and leave was rightly refused.”26      In  the  current  case,  the  deterrent  effect  Judge  Garland  intended  to achieve with sentencing in my view might be potentially undermined by granting the appellant home detention at the scene of his offending.

Special release conditions

[25]   The appellant here has expressed a desire to attend anger management counselling.  The respondent has therefore suggested a variation to the sentence to include a special release condition that such a course is attended by the appellant on release.  Section 93(1) of the Sentencing Act 2002 empowers the court to impose any such “special conditions on the offender”, provided that it specifies when these conditions expire.

Conclusion

[26]     For all the reasons I have outlined above, I find here that Judge Garland did adhere to his sentencing indication of 9 September 2014. Consequently, ss 116(2)
and 115(2) of the Sentencing Act 2002 do not apply. Judge Garland was neither

24 Sentencing Act, s 7(1)(g); Police v Turnbull, above n 1, at [9].
25 R v Hill, above n 23, at [41]; R v Paki CA165/05, 5 September 2005 at [12]; R v Morunga [2013] NZHC 1935.
26 R v Holden, above n 14, at [21].

prohibited  from  imposing  a  sentence  of  imprisonment,  nor  was  he  statutorily required to grant the appellant leave to withdraw his plea of guilty.

[27]     Further, the respondent’s submissions advanced here in my view provide a convincing justification for the District Court sentencing decision, correctly recognising that Judge Garland was entitled to decline home detention either on the basis of the appellant’s attitude and personal characteristics, or on the basis of the offending having occurred within his home (the proposed home detention residence).

[28]     This appeal is therefore dismissed.

[29]     The  standard  conditions  of  release  until  six  months  after  Mr  Turnbull’s sentence end-date imposed by Judge Garland at [17] of his 31 October 2014 sentencing are varied to provide that during this six month period after his sentence end-date Mr Turnbull is to undertake a suitably approved anger management course, such course to conclude within that six months period.

...................................................
Gendall J

Solicitors:
Phillip Allan, Christchurch
Raymond Donnelly & Co, Christchurch