Aotearoa v Police
[2024] NZHC 2539
•5 September 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-17
[2024] NZHC 2539
BETWEEN ANAHERA AOTEAROA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 August 2024 Appearances:
M J Phelps for Appellant
L M Marshall for Respondent
Judgment:
5 September 2024
JUDGMENT OF McQUEEN J
[1] On 5 July 2024, in the Napier District Court, Ms Aotearoa was sentenced to nine months’ supervision and disqualified from holding or obtaining a licence for six months for a charge of failing to permit a blood specimen to be taken.1 Ms Aotearoa was found guilty of three charges, but on the other charges of failing to remain stopped and obstructing police, she was convicted and discharged.2
[2] Ms Aotearoa appeals against the sentence of supervision imposed on her on the basis there was no proper basis for its imposition and that it is manifestly excessive. The Police oppose Ms Aotearoa’s appeal and say that a sentence of supervision was appropriate.
1 Police v Aotearoa [2024] NZDC 15846. Land Transport Act 1998, ss 60(1)(a) and subs (2), and 72(1)(e): maximum penalty three months’ imprisonment or a $4,500 fine, and the court must order disqualification from holding or obtaining a driver licence for six months or more.
2 At [22]. Land Transport Act 1998, ss 52A(1)(b), 53(1) and 114: maximum penalty is a $10,000 fine for each charge.
AOTEAROA v NEW ZEALAND POLICE [2024] NZHC 2539 [5 September 2024]
[3]For the reasons below, I consider that Ms Aotearoa’s appeal should be allowed.
Factual background
The offending
[4] Ms Aotearoa was found guilty on the three charges following a judge-alone trial on 11 March 2024. The summary of the offending is drawn from the reserved judgment following that trial.3
[5] On 28 July 2022, Ms Aotearoa was driving her van at the Maraenui shops in Napier. Police were alerted by members of the public to the van because of Ms Aotearoa’s erratic driving. Ms Aotearoa’s position was that a rock had been thrown at her van, which broke the windscreen and that was why she pulled over at the Maraenui shops. A police officer pulled up in his vehicle nearby where Ms Aotearoa was parked. The officer approached the van and observed Ms Aotearoa, the only occupant in the van, in the driver’s seat. He observed smoke emitting from the driver’s window, which he says smelt like cannabis smoke. He also observed her doing something with her hands. He said she appeared to have been smoking something with her left hand, which she moved down to the centre of the vehicle on his approach, presumably to put it away.
[6] The officer asked Ms Aotearoa to get out of the vehicle and she refused to do so, saying she did not feel safe. He described her demeanour as “erratic”, “jittery” and that she “seemed nervous”. He said he spent three to five minutes trying to calm Ms Aotearoa and convince her to exit the vehicle. He then required Ms Aotearoa to exit the vehicle to undergo a roadside screening test. Ms Aotearoa refused to comply with the request, giving no explanation for the refusal. Ms Aotearoa then started the van, backed out of the carpark and drove off. Ms Aotearoa drove to the Napier police station, where she parked her vehicle. Police again asked her to get out of her vehicle. Other police officers became involved, and Ms Aotearoa was removed from the van and arrested.
3 Police v Aotearoa [2024] NZDC 11289.
[7] Ms Aotearoa was then required to undertake a compulsory impairment test, which she failed. Ms Aotearoa was then required to permit a blood specimen to be taken but she refused to do so.
Criminal and traffic history
[8] Ms Aotearoa has 34 previous convictions (excluding the conviction under appeal) which date back to 1999. The more recent convictions from between 2014 and 2017 relate to breaching conditions of supervision and community work, driving while suspended or revoked, unlawful possession of firearms, threatening to do grievous bodily harm and contravening a protection order.
Pre-sentence report
[9] A Provision of Advice to Courts (PAC) report was prepared for Ms Aotearoa on 20 June 2024. Ms Aotearoa is a 44-year-old who considers Napier home. Ms Aotearoa has lived in her vehicle for the past 10 years. She has three children aged between 14, 17 and 22 years old who live with their father. Ms Aotearoa has had supervised visits with her children in the past, but she has not seen them since the latter part of 2023. Ms Aotearoa has no close family as she says she “parted” from her family in 2011 and now lives an independent, solitary life. Ms Aotearoa has received weekly payments from ACC since 1998. She told the report writer that during 1998 she was stabbed multiple times during an attempted murder by her partner who committed suicide during the event. She says her health is declining, and she is having trouble walking and balancing. Ms Aotearoa also reported that she suffers anxiety and depression but declined to answer the report writer’s screening questions about suicide. Ms Aotearoa stated that she does not use alcohol or drugs. In 2017, she self- reported using cannabis daily as a medical intervention to deal with her past and the loss of her children. At that time she reported having no willingness to address her drug use.
[10] The report writer did not have the benefit of a summary of facts, but Ms Aotearoa provided her account of the events that took place on 28 July 2022. When questioned about her refusal to do the blood test Ms Aotearoa took limited responsibility for her offending, blaming Police for her situation. Ms Aotearoa told the
report writer, “I was concerned they were going to steal my blood. I believe I have royal blood in my body. This is something that I have been researching”. She also indicated she does not like needles. The report writer recorded that these reasons point to other underlying attitudes and beliefs that shape Ms Aotearoa’s decision making.
[11] The report writer identified the key offending related factors for Ms Aotearoa as her offending supportive attitudes. The report writer assessed Ms Aotearoa’s likelihood of reoffending as low based on the length of time since she last offended. Her risk of harm to others was also assessed as low due to not being convicted of driving with excess breath alcohol since 2000.
[12] The report writer noted that Ms Aotearoa has had several incidents of non- compliance with community-based sentences. Her compliance with a sentence of supervision in 2017 was poor. Ms Aotearoa stated in the past that she does not want to attend counselling or programmes because she prefers natural ways of healing on her own terms. An alcohol and drug screening tool assessment assessed Ms Aotearoa as at a low risk of experiencing health or wellbeing issues due to her use of alcohol and drugs but as Ms Aotearoa refused to answer many of the questions the report writer concluded that this rendered the results somewhat unreliable.
[13] Ms Aotearoa was unable to provide an address for an electronically monitored (EM) based sentence. She said she had no family or friends with whom she could live if subject to a sentence of this type. Ms Aotearoa told the report writer she had been living in her van for the past 10 years and it was her home.
[14] Given the length of time since Ms Aotearoa’s last offence, the report writer said a community-based sentence would be appropriate. They said that a sentence of supervision or intensive supervision would be suitable to provide oversight and support to address Ms Aotearoa’s needs. Community work was assessed as being unsuitable for Ms Aotearoa given her physical health and previous non-compliance with this type of sentence.
[15] The report writer said that a rehabilitation pathway for Ms Aotearoa would be to complete a short motivational programme with the view of encouraging her to
undertake a Kowhiritanga medium intensity rehabilitation programme. The recommended sentence was for supervision so Ms Aotearoa can address her underlying offending behaviours.
District Court sentencing decision
[16] As noted, on 5 July 2024, Ms Aotearoa was sentenced to nine months supervision and disqualified from holding or obtaining a licence for six months for a charge of failing to permit a medical officer to take a blood specimen. Ms Aotearoa was convicted and discharged for her charges of failing to remain stopped and obstructing police.
[17] The sentencing Judge considered defence counsel’s submission that s 81 of the Land Transport Act 1998 applies in this case as Ms Aotearoa’s vehicle represents her independence and home. The Judge was not persuaded by this argument, stating that the special circumstances required by that section must relate to the offence rather than to the offender.
[18] The Judge also considered s 94 of the Land Transport Act, which gives the Court a discretion to not disqualify the defendant if certain circumstances are met. However, the Judge was not satisfied that those circumstances could be made out here given Ms Aotearoa’s poor compliance with community-based sentences and having a history of driving while suspended in 2016.
[19] Overall, the Judge came to what he considered was a compromise on a sentence for Ms Aotearoa, having acknowledged her as a person with some eccentricities, as described by her counsel. The Judge did not grant the s 94 discharge. He disqualified Ms Aotearoa from holding a driver licence as required by s 60(2) of the Land Transport Act but backdated it to by five months. Therefore, Ms Aotearoa would only be disqualified from driving for one month from the date of sentencing. The Judge said that the sentence is meant to reinforce that Ms Aotearoa cannot choose to ignore the lawful directions of the Police, and it is designed to deter her from not following lawful directions of the Police in the future. The Judge also sentenced Ms Aotearoa to supervision for nine months on the conditions set out in the pre-sentence report, which require her to attend an assessment for a Corrections rehabilitation programme, attend
and complete it to the probation officer’s satisfaction and undertake any further counselling/treatment/programmes as directed.
Approach to appeal
[20] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. An appeal against a sentence is an appeal against the exercise of a discretion. For Ms Aotearoa to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.4 If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.5 When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.6 It must be shown that there has been an error made by the sentencing Judge.7 The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.8
Positions of the parties
[21] Counsel for Ms Aotearoa, Mr Phelps, accepts that the Judge had a challenging task in sentencing Ms Aotearoa, given what he says is the combination of Ms Aotearoa’s idiosyncrasies and the low-level offending. Mr Phelps nonetheless submits that the Judge erred in imposing a sentence of supervision. He says that the sentence of supervision was imposed in circumstances where the Court could not have been satisfied that rehabilitation and reintegration were necessary to reduce the likelihood of Ms Aotearoa reoffending, as required under s 46 of the Sentencing Act 2002. Therefore, that sentence was manifestly excessive. Mr Phelps submits that the key purpose of supervision is rehabilitation, and its objective is to reduce the risk of further offending through the supervised rehabilitation and reintegration of the offender: it is not intended to be punitive.9 Mr Phelps invites this Court to quash the
4 Criminal Procedure Act 2011, s 250(2).
5 Section 250(3).
6 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
7 At [27].
8 R v Boyd (2004) 21 CRNZ 169 at [38].
9 Sherley v Police [2012] NZHC 1499; Creegan v Police [2015] NZHC 1513; and Le Marquand v Police [2015] NZHC 3171.
sentence of supervision and impose either a conviction and discharge or a fine in the range of $500.
[22] Counsel for the Crown, Ms Marshall, submits that to require sentencing Judges, who operate in a busy District Court environment, to articulate the specific rehabilitative needs that a sentence of supervision is intended to address would impose an impractical burden. Ms Marshall submits that it is sufficient for there to be an identifiable basis for the sentence. In the present case, Ms Marshall says that the Judge explicitly referred to the recommendation in the pre-sentence report, which clearly identified that Ms Aotearoa had rehabilitative needs, which, if addressed, would reduce the likelihood of reoffending. Ms Marshall submits there is no error in the judgment.
Analysis
[23]Section 46 of the Sentencing Act provides:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[24] Although the section heading refers to “guidance”, the phrase within the section “only if the court is satisfied” makes it clear that the section imposes a requirement that must be met if supervision is to be ordered.10 The sentencing Judge did not expressly address this section in his sentencing remarks. The Judge did, however, note the recommendation in the pre-sentence report that the appropriate sentence for Ms Aotearoa was one of supervision. This appears to be the basis of his decision to impose a sentence of supervision.
[25] That the Judge did not expressly refer to s 46 of the Sentencing Act is not fatal (nor surprising). However, it is certainly the case that the requirements of the section must be met in the imposition of the sentence of supervision.
10 Sherley v Police, above n 9, at [14].
[26] Mr Phelps says that the report does not identify why or how a sentence of supervision might reduce the likelihood of further offending. Mr Phelps says this was particularly important given the report writer’s assessment that Ms Aotearoa poses a low risk of reoffending. He notes that it has been 23 years since she faced a charge of excess blood alcohol and seven years since there has been anything to do with non- compliant behaviour.
[27]The report relevantly states:
The key offending related factors identified for Ms Aotearoa are her offending supporting attitudes. Ms Aotearoa’s likelihood of re- offending is assessed as low based on the length of time since she last offended. Her risk of harm to others is assessed as low due to not being convicted of driving with excess breath alcohol since the year 2000.
…
A rehabilitation pathway for Ms Aotearoa would be to complete a short motivational programme with the view to encouraging her to undertake a Kowhiritanga medium intensity rehabilitation programme. A sentence of Supervision or Intensive Supervision would be suitable to provide oversight and support to address Ms Aotearoa’s needs.
…
The recommended sentence of this report is for Supervision so Ms Aotearoa can address her underlying offending behaviours.
…
[Ms Aotearoa’s] reasons for not providing a blood sample to Police, due to having royal blood and not liking needles, points to other underlying attitudes and beliefs that shape her decision making.
[28] However, the report does not explain what those programmes are and how they would contribute to Ms Aotearoa’s rehabilitation and reintegration through addressing her underlying needs and behaviours. Nor is there any discussion of the effectiveness of or prospects of compliance with a sentence of supervision in light of Ms Aotearoa’s previous compliance issues with community work and supervision, and the express statements from Ms Aotearoa that she does not want to attend counselling or Corrections programmes “because she prefers natural ways of healing on her own terms”.
[29] Ms Marshall submits that even without the pre-sentence report, the Judge was entitled to draw conclusions as to Ms Aotearoa’s rehabilitative needs based on the fact that the charges arose in the context of her being suspected of driving whilst under the
influence of cannabis—with the only reason that this could not be confirmed being her lack of compliance with the requirement to provide a blood sample. Ms Marshall says that the Judge had the advantage of conducting Ms Aotearoa’s trial. Ms Marshall highlights that Ms Aotearoa herself said the lack of compliance stemmed from past traumatic experiences. Therefore, Ms Marshall submits that a sentence capable of assisting Ms Aotearoa to access counselling for trauma and to address any substance abuse issues would reduce the risk of reoffending.
[30] I accept that this could be the case in principle. But I am not convinced this is what happened here. As with the pre-sentence report, there is no express recognition in the sentencing remarks of Ms Aotearoa’s past experience and performance with supervision and community sentences or her clear unwillingness to engage with Corrections programmes.
[31] Mr Phelps suggests that the Judge’s statement that the sentence was intended to “deter” Ms Aotearoa from not following the lawful directions of the Police reflects a punitive purpose rather than a rehabilitative one. Ms Marshall says that reference to deterrence is plainly to the disqualification aspect of the sentence. When the Judge turned to setting out the sentence he was going to impose, he said he had decided to reach a sentence that reflects “a compromise of sorts”. I do not consider I need to resolve this difference between counsel, although certainly a sentence of supervision is not designed to be punitive.
[32] Rather, the real point is that the Court must be satisfied that a sentence of supervision would reduce the likelihood of further offending through rehabilitation and reintegration of the offender.
[33]In Sherley, Asher J stated:
[17] A sentence of supervision is a significant sentence. It ranks as more serious than fines and reparation. It can involve a very considerable imposition on personal liberty. The offender is required to report, to live and to take employment where directed, and not to move without permission.11 There can be a requirement imposed by the probation offer on the offender not to associate with any specified person, and a requirement to take part in a rehabilitative or reintegrated needs assessment.
11 Sentencing Act 2002, s 49(1).
[18]A sentence of supervision cannot be imposed if the s 46 is not met…
[34] In Ms Aotearoa’s circumstances, I do not consider that it is established that a sentence of supervision will reduce Ms Aotearoa’s risk of re-offending. I consider that the reality in this case is that a nine-month sentence of supervision will likely set up Ms Aotearoa to offend further. It seems to me clear that Ms Aotearoa is very unlikely to comply with directions to participate in the programmes identified in the pre- sentence report, given her longstanding attitudes and past engagement with Corrections in various contexts. She has already been convicted for breach of an earlier sentence of supervision. Further non-compliance may see a repeat of this, all in the context of an assessment that her likelihood of re-offending is low. In these circumstances, I consider that the Judge erred in concluding that a sentence of supervision will reduce the likelihood of Ms Aotearoa re-offending and that a different sentence should be imposed.
[35] There has been no suggestion of further offending by Ms Aotearoa since July 2022, and she has not been subject to supervision during that time. I agree with Mr Phelps that Ms Aotearoa’s experience on 28 July 2022 together with the length of time the case took to resolve may be characterised as having a deterrent effect on Ms Aotearoa.
[36] In all the circumstances, including the passage of time since the offending, I conclude that the sentence of supervision should be quashed, and a conviction and discharge entered on the charge of refusing to provide a blood sample.
Result
[37] For the reasons above, the appeal is allowed, and the sentence of supervision is quashed. Ms Aotearoa is convicted and discharged on the charge of failing to permit a blood specimen to be taken.
[38]The remainder of the District Court judgment stands.
McQueen J
Solicitors:
Crown Solicitor, Napier for Respondent
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