Manikpersadh v R [2011] NZCA 452, 14 September 2011
- Court
- Court of Appeal
- Judgment
- 14 September 2011
- Neutral
- [2011] NZCA 452
Areas of law
Judgment analysis
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Facts
In February 2010, the appellant, aged 19, failed to stop at a red light and collided with another vehicle. He was found to have a breath alcohol level of 223 milligrams of alcohol per 100 millilitres of blood, where the maximum allowable level for him was 30 milligrams. The collision caused injuries to two people in the other car. One victim sustained a fractured right ankle, a serious cut to her right knee, and a fractured left leg. The other victim suffered multiple cuts to the face and a minor head injury.
Held
- When deciding whether to commute a short-term sentence of imprisonment to home detention under the Sentencing Act 2002, a sentencing judge must undertake a holistic exercise of discretion considering all relevant purposes and principles of sentencing set out in ss 7 and 8 of the Act.
- A sentencing judge's exclusive focus on deterrence, to the exclusion of other relevant factors such as rehabilitation and the offender's personal circumstances, constitutes an error of law.
- An appellate court errs in law if it fails to recognise and correct a lower court's error of failing to take into account all relevant considerations when deciding between imprisonment and home detention.
The appeal against sentence is allowed. The sentence of four months’ imprisonment is quashed. A sentence of five months’ home detention is imposed on each charge, with special conditions.
Key passages8
Section 15A(1) of the Sentencing Act 2002 sets the conditions for imposing a sentence of home detention.
“Section 15A(1) of the Sentencing Act 2002 authorises the imposition of home detention if: (a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and (b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.”
There is no presumption for or against commuting a short-term prison sentence to home detention; the decision is an exercise of sentencing discretion that must give effect to the purposes and principles in ss 7 and 8 of the Sentencing Act.
“[29] Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act 2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.”
The requirements of accountability, denunciation, or deterrence do not logically control the decision to commute a prison sentence to home detention; the least restrictive outcome principle can be the primary consideration.
“[45] So, coming back to this case again, I do not see the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention. That being so, and the appellant being in all respects a good candidate for home detention, I see the least restrictive outcome principle (see s 8(g)) as the primary consideration...”
An appeal against a refusal to grant home detention requires the appellant to demonstrate that the sentencing judge erred in exercising their discretion.
“[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?”
The decision whether home detention will meet the objectives of deterrence and denunciation is a strictly evaluative exercise for the sentencing Judge.
“We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.”
The proper approach for an appellate court reviewing a choice between home detention and imprisonment is to focus on identifying any error made by the court below.
“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”.”
The closer the appropriate prison sentence is to the two-year maximum for home detention eligibility, the more likely home detention will be inappropriate, and vice-versa.
“This Court has also observed that the closer the appropriate prison sentence is to the two year maximum, the more likely home detention will be inappropriate and the lower the appropriate prison sentence is the more likely home detention will be appropriate.”
Home detention is, by itself, a deterrent sentence.
“However, as this Court has observed, home detention by itself is a deterrent sentence.”
Cases mentioned in judgment
Legislation mentioned
- Land Transport Act 1998, s 61(1)(b)
- Sentencing Act 2002, s 7, s 8, s 8(g), s 15A, s 15A(1)