Allen v The King
[2023] NZHC 2871
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-53
[2023] NZHC 2871
BETWEEN SAMANTHA (MEREPEKA) ALLEN
Appellant
AND
THE KING
Respondent
Hearing: 4 October 2023 and further memoranda received 10 and 11
October 2023
Appearances:
P Cornegé and MSC Rollason for the Appellant A Alcock for the Respondent
Judgment:
13 October 2023
JUDGMENT OF GAULT J
This judgment was delivered by me on 13 October 2023 at 4:30 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr P Cornegé and Mr MSC Rollason, Barristers, Hamilton
Ms A Alcock, Hamilton Legal, Office of the Crown Solicitor, Hamilton
ALLEN v R [2023] NZHC 2871 [13 October 2023]
[1] Ms Allen appeals against her sentence of two years and seven months’ imprisonment imposed by Judge P P Crayton in the Hamilton District Court on 3 May 2023,1 after Ms Allen pleaded guilty to charges of dangerous driving2 and driving with excess blood alcohol causing death.3
[2] The principal ground of appeal relates to Ms Allen’s medical condition. In support of her appeal, Ms Allen seeks leave to adduce affidavits from herself and her partner, and a letter from the Department of Corrections.
The offending
[3] On 30 March 2022, at approximately 8:20pm, Ms Allen was driving south on State Highway 3. As she approached the roundabout at Hangatiki, her vehicle failed to remain in its lane and drove briefly onto the kerb. Ms Allen continued driving south and weaved over the centreline into the right lane at least three times. At one point she crossed the centre line into the northbound lane and continued to drive on the wrong side of the road for approximately 100 metres.
[4] As Ms Allen continued travelling south, the vehicles in front were travelling at approximately 90km/h. Ms Allen caught up to a large truck. The victim, Abigail Johns, was travelling north. Ms Allen approached a moderate left turn, but she failed to make the turn and crossed the centre line. As Ms Allen did so, her vehicle collided head on with the victim’s vehicle. The victim died as a result of the injury sustained in the crash.
[5] Ms Allen’s vehicle landed on its side in the south bound lane, facing north. Ms Allen suffered serious injuries.
[6] Ms Allen’s blood was found to contain 167 milligrams +/- 8 milligrams of alcohol per 100 milligrams of blood, and to contain tetrahydrocannabinol (THC), the active constituent of cannabis.
1 R v Allen [2023] NZDC 8648.
2 Land Transport Act 1998, s 35(1). Maximum penalty three months’ imprisonment or $4,500 fine, with a disqualification from holding or obtaining a driver licence for at least six months.
3 Section 61(1)(b), (3AA) and (3A). Maximum penalty 10 years’ imprisonment or $20,000 fine, with a disqualification from holding or obtaining a driver licence for more than 1 year.
[7] Prior to this offending, Ms Allen already had three previous convictions for driving with excess breath alcohol. Her first excess breath alcohol conviction was on 7 November 2007 involving 712 milligrams of alcohol per litre of breath. Her second conviction was on 18 April 2012 involving 758 milligrams of alcohol per litre of breath. Her third conviction was on 14 February 2013 involving 687 milligrams of alcohol per litre of breath.
District Court sentencing
[8] After acknowledging the loss of Ms Johns’ life and summarising the facts and approach to sentencing, the Judge identified the aggravating features of Ms Allen’s offending as:
(a)the breach of the trust of other road users;
(b)the loss of life that had been caused;
(c)the nature of Ms Allen’s driving – a high degree of poor driving, not a single lapse but prolonged in that every time she crossed the centre line she put others at risk;
(d)a degree of premeditation in that Ms Allen must have decided to drive, notwithstanding that she had a bed for the night, had consumed a considerable amount of alcohol, and continued to drive when she knew she was incapable of driving having hit the kerb and crossed the centre line; and
(e)the very high level of alcohol involved, given Ms Allen was only 1 milligram from being twice the criminal limit, three times the legal limit and was also under the influence of cannabis.
[9] The Judge then considered Ms Allen’s three previous excess breath alcohol offences, and another occasion, in 2018, when Ms Allen drove over the legal breath alcohol limit but below the level for criminal charges.
[10] The Judge referred to other cases referred to by Crown and defence counsel, particularly N v R where Brewer J upheld an end sentence of three years’ imprisonment.4 The Judge considered the aggravating features of this case to be more serious.
[11] The Judge adopted a starting point of four years and eight months’ imprisonment.
[12] No uplift was made for Ms Allen’s driving and criminal history, which the Judge considered to be encapsulated in the starting point adopted.
[13] As for mitigating factors, the Judge noted from the reports that Ms Allen had endured historic trauma and said it was sadly unsurprising that she had turned to drugs and drink to black out harm. While noting that the Crown accepted that the s 27 report identified matters which could provide a link or nexus with the offending, the Judge said it was not just the use of alcohol which led to the offending. Ms Allen decided to drive when she had a bed for the night. While it was a decision which she could not remember, the Judge said it must have been a conscious one that was selfish and self- interested with terrible consequences.
[14] The Judge acknowledged that Ms Allen intended to engage in rehabilitation and had started this work. The Judge also acknowledged Ms Allen’s expression of remorse.
[15] The Judge accepted that Ms Allen’s injuries would make it more difficult for her within the prison system for as long as she remained unable to move easily and without other people’s assistance.
[16] The Judge adopted a 10 per cent discount for the s 27 report linkage to alcohol and drug abuse, intention to engage in rehabilitation and remorse. The Judge allowed a further 10 per cent for Ms Allen’s injuries and the impact these would have on her ability to serve her sentence, and a 25 per cent discount for her guilty pleas.
4 N v R [2019] NZHC 2083.
[17] With a total 45 per cent discount, the Judge imposed an end sentence of two years and seven months’ imprisonment and disqualified Ms Allen from driving for a period of three years and six months. The Judge also imposed shorter concurrent sentences in respect of the dangerous driving charge.
Approach on appeal
[18] To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 The error can be intrinsic in the decision or shown as a result of additional material submitted on appeal.6 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.7 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.8
Further evidence on appeal
Ms Allen’s affidavit
[19] Ms Allen explains that, as a result of her offending, she completely shattered her right ankle, broke her left leg, and sustained serious injuries to her legs and spine. She says that when originally sentenced, her injuries were largely healing and spinal surgery was to occur once her right ankle was fully healed. However, Ms Allen says that her current medical prognosis is that she has been advised that an infection in her leg is now septic and that, as at the time of swearing the affidavit on 11 September 2023, she has two weeks to decide whether to have her leg amputated in order to prevent the spread of her infection; otherwise the infection will kill her. She also requires spinal surgery to address one of the snapped rods inserted into her back to stabilise her spine.
5 Criminal Procedure Act 2011, s 250(2).
6 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
[20] Ms Allen explains that she lost feeling in her lower back two days after commencing her prison sentence and that this eventually led to her becoming a paraplegic secondary. Because of her paralysis and isolation in segregation due to her mental health, Ms Allen says that it has been extremely difficult to get support from prison staff. She refers to occasions where she has soiled herself and been unable to change until three days later and of falling out of her wheelchair while trying to pick up mail or trying to transfer herself to the shower seat. Ms Allen explains that these falls led to a further fracture to her right ankle which required treatment in June, and that she returned to prison with an open wound which is the cause of her sepsis.
[21] Ms Allen says that after returning back to the standard branch of the prison following this medical assessment, she had numerous issues managing the open wound on her leg, largely because of difficulties with having dressings changed by the prison medical team. While Ms Allen eventually took it upon herself to do this, she says that as she is not a healthcare practitioner this should not be her responsibility. She also says that by this time, the infection in her leg became even more serious and was assessed again by a doctor at Middlemore Hospital, Dr Marinus Stowers, who prescribed antibiotics. However, Ms Allen has also been advised that her leg may need to be amputated so her spinal surgery can happen. Appended to her affidavit is an email from Dr Stowers confirming that antibiotics were prescribed and that amputation would be considered if the prescribed antibiotics failed to provide the necessary treatment.
[22] Ms Allen expresses serious concern about the prospect of navigating prison with one leg and dismay that the prison medical team have not facilitated or provided her with dressings. She says that in addition to mobility issues, she has also experienced considerable pain due to the snapped rod in her spine, that she takes a range of pain management medication to treat this, which she is not always able to receive, and that she also faces challenges using diapers as prison staff do not assist with this.
[23] Because of her physical condition and time spent in segregation, Ms Allen says that she has not yet been able to engage in any alcohol and drug courses and that she will seek help in the community if she is unable to complete these in custody. She
also explains that she has engaged with the prison counselling service, and that she believes this has taught her patience and acceptance. Ms Allen says that, while not seeking to unfairly criticise Corrections’ staff, she does not feel that she is compatible with a custodial sentence given her physical ailments, and that she knows she will have a supportive network in Te Kuiti, comprising her partner and partner’s whānau, her doctor, ACC nurses, district nurses and other caregivers.
Letter confirming Ms Allen’s engagement with Corrections’ counselling services
[24] Ms Allen also seeks leave to adduce a letter from Dr Emma Yeadon, a Forensic Psychologist with whom Ms Allen has been attending weekly psychologist sessions. Dr Yeadon explains that Ms Allen has attended weekly sessions with her since 2 August 2023 after an initial referral was made given Ms Allen was struggling with low mood and trauma. Dr Yeoden explains that the focus of counselling has been on supporting Ms Allen to adjust to her custodial environment and to advocate for her physical care, and that Ms Allen has also been supported to relay incidents of previous abuse to police. Dr Yeoden says that Ms Allen has been engaging well in these sessions and has demonstrated a strong willingness to engage in self-reflection and to develop adaptive coping strategies. Once these have been put in place, Dr Yeoden explains that her focus will then be on narrative exposure therapy to treat Ms Allen’s trauma symptoms.
Affidavit from Ms Allen’s partner
[25] Finally, Ms Allen also seeks leave to adduce an affidavit from her partner, Mr Roa. Mr Roa explains that he has known Ms Allen for over 15 years and that they entered a partnership around five years ago. He says that he does not consume alcohol and does not allow this at home. Mr Roa also says that his house is close to the medical centre in Te Kuiti, that his family and Ms Allen’s family are also in Te Kuiti and that he will be able to assist with her care. Mr Roa says that prior to her sentence of imprisonment, district nurses would routinely come to change Ms Allen’s dressings and there is a strong network of support available for her there, from personal to medical care. Mr Roa emphasises that if Ms Allen is granted home detention, the Court can be assured that she will be cared for, and that given he works only a five-to- ten-minute drive away, he will be able to attend to Ms Allen at short notice as required.
Discussion
Further evidence
[26] The Crown does not oppose admitting the further evidence. The principles for assessing the admissibility of fresh evidence for an appeal against sentence are the same as for appeals against conviction, as the Court of Appeal explained in Mark v R:9
Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
[27] I admit the further evidence. The evidence relating to Ms Allen’s medical condition since sentencing is clearly fresh. While Mr Roa’s affidavit explaining his ability to care for Ms Allen arguably could have been adduced at sentencing, the need to raise it arises given the deterioration in Ms Allen’s condition. The further evidence is sufficiently credible.
Was the sentence manifestly excessive having regard to further evidence?
[28] Mr Cornegé, for Ms Allen, accepted that the Judge’s starting point was within the available range. The focus of Ms Allen’s appeal is on the Judge’s discounts for Ms Allen’s injuries; personal circumstances, remorse, rehabilitation; and the hardship that she faces in custody (totalling 20 per cent, excluding the guilty plea discount).
[29] Mr Cornegé submitted the Judge should have awarded a separate 10 per cent reduction for the injuries she sustained during her offending, a higher 20 per cent reduction for her background circumstances, remorse and prospects of rehabilitation and a 15 per cent reduction for her hardship in a custodial setting (totalling 45 per cent). He also submitted her injuries are worse than known at the time of sentencing in May. In particular, the paraplegic secondary diagnosis occurred in June. With the 25 per cent guilty plea discount, he submitted the total discount should be 70 per cent
9 Mark v R [2019] NZCA 121 at [16].
and would reduce Ms Allen’s starting point to 17 months’ imprisonment. Then, Mr Cornegé submitted, the final sentence should have been commuted to home detention.
[30] Mr Cornegé acknowledged that the further evidence in relation to Ms Allen’s medical conditions needed to be updated. Despite the reference on 11 September to having two weeks to decide on amputation, there was no updating evidence.
[31]In the circumstances, counsel agreed that the Court would be assisted by:
(a)further updating evidence in relation to Ms Allen’s medical conditions (including the need for surgery and other ongoing care); and
(b)a response from Corrections in relation to their ability to ensure Ms Allen’s medical care in custody.
[32] I made timetable orders for updated evidence to be filed and granted leave for counsel to file a memorandum with their further evidence.
[33] On 9 October 2023, Mr Cornegé filed a memorandum with further material. This included a letter from an Orthopaedic Consultant at Middlemore Hospital dated 22 September 2023 which had been posted to Ms Allen at the prison on 26 September but was not available at the hearing. The letter indicates that at her most recent review one week before 22 September Ms Allen’s wound was doing reasonably well. There was discussion with her that if she has persisting infection and her medical team cannot get it under control, the only treatment option would be amputation, but at this stage they are continuing to treat her in an attempt to cure or have long term suppression of her leg infection. Mr Cornegé acknowledged that the infection is presently under control. Nevertheless, until the infection is settled, Ms Allen cannot receive surgery to repair the metalware in her spine.
[34] While discounts for injuries and hardship in a custodial setting serve different purposes, Mr Cornegé acknowledged that at least in this case there is a degree of overlap or risk of double counting between the discount sought for injuries and the
discount sought for hardship in a custodial setting because of those same injuries. However, he submitted that an increased discount to reflect these, together with a materially greater discount to reflect the s 27 report, genuine remorse and prospects for rehabilitation, leads to an end sentence of two years or less. He submitted that given Ms Allen is at no risk of reoffending and has served five months in prison, home detention is the appropriate sentence.
[35] Mr Cornegé also provided a memorandum from Community Corrections dated 9 October 2023 stating that they would support any health plan developed by Ms Allen’s medical team and an alcohol and drug counsellor would be willing to conduct home visits for Ms Allen’s alcohol and drug sessions if required.
[36] In response, Ms Alcock for the Crown filed a memorandum dated 11 October 2023. It includes the Department of Corrections’ response in relation to Ms Allen’s medical conditions. The Department says it is able to manage Ms Allen’s current medical condition whilst in custody, including in the event she is required to have her leg amputated unless there is unforeseen acute deterioration in her condition. The Department says that Ms Allen is currently housed in a wheelchair accessible medical cell. ACC is providing equipment to ensure she can independently care for her activities of daily living (shower chair and toilet seat). A district nurse comes onsite to attend to urinary catheter changes. ACC is also providing her supplies which she has been given to access at her own discretion. Registered nurses are providing nursing care and change of dressings to her wounds regularly. There is psychological and cultural support as requested by Ms Allen. GPs onsite see Ms Allen for any medical requests and she is booked in to see a physiotherapist weekly. Assisted transport is provided for any necessary external appointments.
[37] Ms Alcock submitted Ms Allen’s position is more positive than thought at the time of the appeal hearing. Given the updated medical information and Corrections’ response, Ms Alcock submitted the appeal ought to be dismissed and reiterated that the overall sentence was not manifestly excessive.
[38] I accept the Judge gave a 10 per cent discount for the injuries that Ms Allen suffered and its impact on her ability to serve her sentence, not for Ms Allen’s injuries
alone. Given this, and the acknowledged overlap between the discount sought for injuries and the discount sought for hardship in a custodial setting because of those same injuries, I deal with these factors together albeit first referring to the submissions that addressed them separately.
[39] In relation to a discount for injuries, Mr Cornegé referred to R v Potter,10 Paikea v Police,11 R v McGrath12 and R v Afakasi,13 where discounts were given in recognition of the injuries that defendants sustained from their offending. Ms Alcock, for the Crown, submitted the Judge did this, and that by comparison with R v McGrath, the Judge’s discount was appropriate.
[40] In Potter, the defendant was sentenced for a breach of s 55(1) of the Arms Act 1983 after he intended to light an explosive and scare a victim, with whom he had a grudge, but lost his right hand and lower forearm when it detonated before he managed to throw it clear of himself. Allowing the appeal, the Court of Appeal held that a 50 per cent discount from a three year starting point was appropriate to take account of the defendant’s injuries, pain and discomfort and evidence of rehabilitative progress.14 Mr Cornegé acknowledged this was a combined discount and the discount for injuries was not separated out.
[41] In Paikea, the defendant pleaded guilty to third or subsequent offences for driving while disqualified and with excess blood alcohol, after losing control of his motorcycle and sustaining numerous broken ribs, punctured lungs, a fractured right shoulder and multiple fractures to his right foot. On appeal, the defendant provided a report from an orthopaedic surgeon explaining that further surgery was required, and an explanation from the defendant as to why he had refused surgery while in prison. While the sentencing Judge did not define a specific starting point, Toogood J inferred that a starting point of 18 months’ imprisonment must have been adopted at
10 R v Potter (1994) 12 CRNZ 109 (CA).
11 Paikea v Police [2014] NZHC 2609.
12 R v McGrath [2014] NZHC 1583.
13 R v Afakasi [2014] NZHC 2907.
14 R v Potter (1994) 12 CRNZ 109 (CA) at 113.
sentencing,15 and that in light of the information on appeal and the defendant’s injuries, a 15 month starting point was appropriate (equating to a 17 per cent discount).16
[42] In McGrath, the defendant pleaded guilty to charges of manslaughter, dangerous driving causing injury and driving with excess blood alcohol, third or subsequent, after losing control of a vehicle while drink driving and crashing into a residential property where one passenger died and the other suffered extensive rib and spine injuries. The defendant was also seriously injured, including by being impaled through the stomach by a piece of wood from the house. At sentencing, Mander J reduced the defendant’s 7 year starting point by 9 months (equating to a discount of just over 10 per cent) in recognition of the defendant’s significant injuries and genuine remorse.17 Here too, this was a combined discount.
[43] In Afakasi, one of the defendants who had assisted other co-defendants in the production of pseudoephedrine suffered third-degree burns to his legs as a result of an explosion, resulting in ongoing discomfort and heightened risks of blood clots and infection. Against a starting point of eight years’ imprisonment, Toogood J allowed a reduction of six months (equating to a six per cent discount) to account for the defendant’s upbringing, remorse and injuries.18 Again, this was a combined discount. The Judge said that while a discount should not readily be given for injuries that offenders brought on themselves by their own criminal misconduct, some allowance was appropriate in that case.19
[44] Mr Cornegé submitted that Ms Allen’s injuries were greater than those in Afakasi and McGrath, and comparable to those in Potter. He submitted that Paikea also involved comparable offending and injuries, but that there was no loss of life in Paikea.
[45] In relation to hardship in a custodial setting, Mr Cornegé submitted that had the Judge been aware of the extent of the hardship that Ms Allen would face in custody
15 Paikea v Police [2014] NZHC 2609 at [34].
16 At [37].
17 R v McGrath [2014] NZHC 1583 at [27]-[30].
18 R v Afakasi [2014] NZHC 2907 at [49]-[55].
19 At [54].
as indicated in the further evidence, a greater credit in the region of 15 per cent would have been available. While the Judge appreciated that Ms Allen would face hardship in custody for as long as she remained in custody being unable to move easily and without other people’s assistance, Mr Cornegé submitted that Ms Allen’s condition subsequently took a significant downward turn that justifies a greater discount.
[46] Ms Alcock submitted the Judge was aware of the difficulties that Ms Allen would face and that while she acknowledged that Ms Allen’s condition had deteriorated since being in custody, she submitted there was nothing to suggest that any further discount would have been appropriate on the material available at the hearing. She also noted there is no medical opinion that the prison environment is an unsuitable place for Ms Allen in her present condition.
[47] On the evidence available to the Judge, I accept Ms Alcock’s submission that the 10 per cent discount was within range to account for Ms Allen’s injuries and the resulting hardship for her in custody. However, Ms Allen’s medical condition has deteriorated since sentencing especially in terms of her paralysis, even though her current condition does not require amputation due to sepsis. In terms of the consequential hardship in custody, such hardship must be assessed by reference to the Department’s obligation to ensure those in custody are adequately provided for and receive adequate medical care, not by reference to possible instances of inadequate care. The Department advises that it is able to manage Ms Allen’s current medical condition whilst in custody. In light of the further material indicating Ms Allen’s medical conditions and the resulting hardship for her in custody, I consider that a combined discount of 15 per cent is appropriate.
[48] Turning to the discount for Ms Allen’s background, remorse and potential for rehabilitation, Mr Cornegé submitted that a 20 per cent discount was warranted. Ms Allen’s s 27 report explains that she was raised in a whānau and environment devoid of any meaningful cultural connection and that her dominant childhood memories are of physical abuse exacted by [REDACTED] against [REDACTED], [REDACTED] serious substance abuse and [REDACTED] abuse that she suffered as a child, including from [REDACTED]. The report explains that she spent considerable time in foster care, including in a foster home where she was deprived of
food, prohibited from wearing shoes and locked in her room, and that she used alcohol and other substances as a coping mechanism. Her education was deeply impacted by her experiences of trauma, abuse and constant relocation, and she left school in the third form and has worked relatively consistently since then.
[49] The report explains that Ms Allen’s initial description of herself was that she is the daughter of [REDACTED] and that drugs and alcohol were omnipresent in her life, from starting smoking cigarettes at 9 years old to being a “full on alcoholic and drug addict” from 10. The report explains that Ms Allen became introduced to methamphetamine aged 12, and that during her adolescence, she would use methamphetamine and marijuana every day and drink every second to third day. Watching [REDACTED], if something went wrong, if she couldn’t get marijuana or if she “felt like a piece of shit”, she would drink alcohol.
[50] The report explains that since her offending, Ms Allen has not had any alcohol or used any drugs, and that despite deep cravings for methamphetamine, she has maintained full sobriety since March, without any professional input or guidance. The report also explains that she has intensely struggled with her mental health since her offending, exacerbated by unsupportive messages from her mother, but that she is genuinely remorseful and has a desire to participate in restorative justice, and to continue seeking help for her mental health and her history of trauma and addiction.
[51] Mr Cornegé submitted that Ms Allen’s upbringing, as set out in the s 27 report, is directly correlated to her offending and that along with her potential for rehabilitation and remorse, the Judge’s discount was insufficient. In support, he referred to Solicitor-General v Heta,20 Poi v R21 and Williams v R.22
[52] In Heta, Whata J dismissed an appeal against a sentencing Judge’s 30 per cent discount for matters raised in a s 27 report. The report explained that the defendant’s background was characterised by, among other things, alcohol abuse by her parents, parental absenteeism and a disconnection with te ao Māori, but that the defendant had
20 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
21 Poi v R [2020] NZCA 312.
22 Williams v R [2023] HZCA 156.
also stopped drinking and smoking and had been more positive and well-organised in prison.23 In Poi, the Court of Appeal considered that a discount of 20 per cent was appropriate to recognise a defendant’s background,24 which included a disconnection from te ao Māori, whānau dysfunction and family violence, intermittent foster care, limited education, early entry into the criminal justice system, alcohol and drug addictions from a young age and gang affiliation as a youth.25 In Williams, the Court of Appeal considered a total 25 per cent discount for the defendant’s background factors, remorse and rehabilitative potential was warranted.26
[53] Ms Alcock acknowledged that there was a nexus between Ms Allen’s upbringing and her substance abuse. However, Ms Alcock submitted that the comparisons to Poi and Williams are inapposite because, while the offending in those cases was serious, Ms Allen’s offending involved the loss of life. Referring to the Supreme Court’s observation in Berkland v R that the seriousness of a defendant’s offending may temper the discount given for s 27 factors,27 Ms Alcock acknowledged that the Judge’s 10 per cent discount was stern but submitted it was within range.
[54]As the Supreme Court said in Berkland:
[111] The causative contribution of background may also be displaced, in whole or in part, where the offending is particularly serious. Complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency. The contribution of background to offending with this level of agency may therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may become more important. Such assessment will depend very much on the facts, however.
[112] Finally, it is appropriate to acknowledge that background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community-based sentence. In commercial drug dealing the latter is more likely to be a prospect for lesser roles and the lower end of the significant role category. But that does not mean background will be irrelevant in relation to more significant roles. Where imprisonment is unavoidable, background factors that contribute causatively to an offender’s degree of culpability may still mitigate sentence length.
23 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [14]-[19].
24 Poi v R [2020] NZCA 312 at [39].
25 At [34].
26 Williams v R [2023] NZCA 156 at [42].
27 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [111].
[55] Here, the offending was serious – especially in terms of the tragic outcome – but it is difficult to compare the seriousness of different types of offending other than by reference to starting points. As Ms Alcock acknowledged, the offending here was not highly premeditated. It was only premeditated in the limited sense described by the Judge.
[56] There was a clear causative contribution between Ms Allen’s background and her drug and alcohol issues and therefore her offending. This is tempered by the seriousness of the offending involving loss of life, but a greater discount was warranted especially considering background, genuine remorse and potential for rehabilitation together. Ms Alcock acknowledged that Ms Allen was remorseful. Dr Yeoden’s letter also indicates that Ms Allen has reasonable rehabilitation prospects, which should be encouraged. Taking these factors together as the Judge did, I accept Mr Cornegé’s submission that the discount should have been higher. I consider a combined discount should be in the 15-20% range.
[57] Total discounts, including 25 per cent for guilty pleas, of 55 per cent would lead to an end sentence of 25 months’ imprisonment whereas total discounts of 60 per cent would lead to an end sentence of just under 22 and a half months’ imprisonment. Given that discounts in this range mean that the potential sentence is at the margin between imprisonment and a community-based sentence, I acknowledge that background factors are meaningful. Overall, within this range, the combination of Ms Allen’s background and her other personal mitigating factors including her injuries and the resulting hardship for her in custody, her remorse and rehabilitation prospects, leads me to an end sentence of 24 months’ imprisonment.
[58]Accordingly, it is open to the Court to consider a sentence of home detention.
Is home detention appropriate?
[59] Mr Cornegé submitted, on the basis that the proper end sentence would have allowed the Judge to consider whether to impose home detention, that home detention should have been imposed, notwithstanding the loss of life in this case. He submitted that in this case, it is relevant that it will not be physically possible for Ms Allen to offend again as she will likely never drive again, and that her injuries are an inherent
deterrent. Mr Cornegé referred to two cases where defendants who caused loss of life as a result of driving while under the influence of alcohol or drugs were sentenced to home detention.28
[60] Ms Alcock submitted that regardless of whether an end sentence in which home detention could have been considered should have been reached, a sentence of home detention is not appropriate. She referred to Edmonds v R29 where Brewer J dismissed an appeal against sentence on the basis that home detention should have been imposed in a case of drunk driving causing death. Brewer J considered that the sentencing Judge made appropriate allowances for the defendant, including for her medical condition, and that there was no error in not commuting the sentence to home detention considering the deterrence and denunciation required in that case.30
[61] Edmonds was an appeal against a decision not to impose home detention, that is an appeal against the exercise of a fettered discretion.31 Here, the Judge’s higher end sentence meant there was no consideration of exercising the discretion to impose home detention. Having considered further evidence and applied higher discounts, I need to consider whether to impose a sentence of home detention giving effect to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.32 These include the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances. This is reinforced in relation to imposing home detention rather than imprisonment by s 16 of the Sentencing Act which contains, as a mandatory consideration, the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
[62] I exercise my discretion taking into account the further evidence. The safety of the community is not a factor given Ms Allen’s injuries. Ms Alcock acknowledged that she is very unlikely to drive again. As Mr Cornegé submitted, Ms Allen’s injuries will live with her for life. A sentence of home detention can serve the important
28 Kinita v R [2020] NZHC 1008 and R v Pan [2020] NZHC 2342.
29 Edmonds v R [2020] NZHC 662.
30 At [15].
31 Fraser v R [2013] NZCA 250 at [20].
32 Doolan v R [2011] NZCA 542 at [37]-[38].
principles of denunciation and deterrence.33 It is a serious sentence. As well as depriving liberty, it can include conditions that address rehabilitation. The purposes and principles of sentencing in this case are best reflected in a sentence of home detention.
[63] Ms Allen has already spent five months in custody, which should be reflected in a substituted sentence of home detention. Mr Cornegé referred to Beaven v R and Diaz v R.34 As the Court of Appeal noted in Diaz, under s 86(1) of the Parole Act 2002, an offender who is sentenced to a short term of imprisonment becomes eligible for parole after he or she has served one half of the sentence imposed. Accordingly, when commuting a sentence of imprisonment to home detention, it is appropriate to give credit for this. This would reduce Ms Allen’s sentence of imprisonment to nineteen months. Applying the same rationale, such an end sentence commutes to nine and half months’ home detention, which I consider is the appropriate end sentence.
Result
[64] The appeal is allowed. Ms Allen’s sentence is quashed and substituted with a sentence of nine and half months’ home detention on the special conditions (including post-release conditions for six months) as recommended in the Department of Corrections’ Provision of Advice to Courts Report dated 18 September 2023. Given the need to make arrangements for Ms Allen’s release and transfer directly to the home detention residence, this decision is to take effect from 11:00 am on Monday 16 October 2023.
Gault J
33 Fairbrother v R [2013] NZCA 340 at [30].
34 Beaven v R [2018] NZHC 2401 at [65] and Diaz v R [2021] NZCA 426 at [50].
ADDENDUM
[65] The appeal focused on the sentence imposed on the charge of driving with excess blood alcohol causing death. However, the District Court Judge also imposed a concurrent sentence of one month’s imprisonment on the dangerous driving charge. The judgment did not separately address the substituted home detention sentence in relation to that charge. The sentence of 9 ½ months home detention was not intended to apply to that charge. On the dangerous driving charge, the sentence of imprisonment is also quashed and substituted with a sentence of 14 days’ home detention, to be served concurrently. Also, there was no challenge to the disqualifications from driving, which stand.
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