Arrow v Police

[2016] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000117 [2016] NZHC 3069

BETWEEN

SARAH JANE ARROW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Appearances:	K Gray for the Appellant D J Matthews & P A Norman for the Respondent
Judgment:	15 December 2016

JUDGMENT OF NATION J

[1]      At about 2.14 pm on Friday 25 March 2016, the appellant (Ms Arrow) was driving along Main Road in Redcliffs, Christchurch.  She had been swerving over the road.   Her driving caused members of the public to contact the Police.   She eventually failed to navigate a corner and struck a roadside barrier.   The impact threw two pedestrians off a two metre bank onto rocks below.  Both of them were injured, one severely.   Police attended.   An evidential breath alcohol test gave a reading of 1009 mcg/L, almost three times the legal limit.

[2]      On 3 September 2014, Ms Arrow had been convicted on an excess breath alcohol charge where the reading had been 1352 mcg/L.  She was then indefinitely disqualified until such time as she obtained an alcohol interlock licence and then a zero-alcohol licence.  On 20 January 2016 Ms Arrow was issued with a zero-alcohol licence.   She received a sentence of intensive supervision on 3 September 2014.1

That sentence only ended on 3 March 2016, approximately three weeks prior to her

offending on 25 March 2016.

1      New Zealand Police v Arrow DC Auckland CRI-2013-009-011554, 3 September 2014.

ARROW v POLICE [2016] NZHC 3069 [15 December 2016]

[3]      On 13 May 2016, Ms Arrow pleaded guilty to two charges.  On a charge of driving with excess breath alcohol, the maximum term of imprisonment was five years.   On the charge of driving contrary to a zero-alcohol licence, the maximum term of imprisonment was three months.

[4]      On 28 September 2016, Ms Arrow was sentenced by Judge O’Driscoll in the District Court to two years and six months’ imprisonment.2     She was also made subject to a number of disqualification orders3 and ordered to pay reparation to one of the victims in the order of $2,500.

[5]      The appellant appeals against her sentence on the basis that it was manifestly excessive.

Principles on appeal

[6]      Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and, in that event, a different sentence should be imposed.4

[7]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the

Judge’s discretion. As Toogood J said in Larkin v Ministry of Development:5

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

2      Police v Arrow [2016] NZDC 19199 at [38].

3      The appellant was disqualified indefinitely under s 65 of the Land Transport Act 1998 and made subject to a finite 13 month disqualification for breach of the zero alcohol licence charge.

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Larkin v Ministry of Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

The District Court decision

[8]      The Judge took as the lead offending the charge of driving with excess breath alcohol causing injury.  Prior to determining the appropriate starting point, the Judge identified  four  primary  aggravating  factors  relevant  to  the  offending.     These included:6

(a)  the high breath alcohol level of 1009 mcg/L, which was toward the upper end of the scale;

(b)  at the time she was apprehended driving with alcohol in her system, the appellant was subject to a zero-alcohol licence;

(c)  the causation of extensive injuries to one of the victims (Mr Appleton);

and

(d)  the presence of relevant previous driving-related convictions.

[9]      After an extensive analysis of these and other relevant factors, including the appellant’s circumstances and various reports, offers of reparation, and victim impact statements, the Judge addressed his mind to some of the relevant case law7  and resolved upon a starting point of two years and six months’ imprisonment.

[10]     He then referred specifically to the fact that the appellant should not have been driving at all with alcohol in her system and that she was in breach of a court order in doing so.  In the circumstances, that warranted an uplift of six months.  A further uplift of six months was applied to reflect the appellant’s three previous

convictions.8     The appellant had only recently completed an earlier rehabilitative

sentence of 18  months’ intensive  supervision  before,  within  a matter  of weeks,

committing the present offending.  That brought the end starting point to three years

and six months’ imprisonment.

6      Police v Arrow, above n 2, at [12]-[16].

7      Including  R  v  Fallowfield  [1996] 3 NZLR 657 (CA); Morris  v  Police  [2008]  DCR  716;

Matheson v Police HC Christchurch CRI-2007-409-32, 1 June 2007.

8      The first in 1997, 759 mcg/L; the second in 2011, 609 mcg/L; the third in 2013, 1,352 mcg/L.

[11]     From that end starting point, the Judge gave a global discount of two months, which took into account the appellant’s remorse, steps to address her offending, offers of reparation and other factors relevant to the appellant.

[12]     From the adjusted sentence of 40 months, a full credit of 25 per cent for guilty pleas was given, reducing the end sentence imposed to one of two years and six months’ imprisonment.

Proper consideration of victims of the offending

[13]     One of the aggravating features of this offending was the serious harm done to one of the victims.  Mr Appleton suffered an extensive left sided skull fracture, several fractured ribs and internal injuries.  These injuries required ongoing surgery and treatment.  It is clear the Judge was acutely aware of the way Mr Appleton and, through him, others had suffered as a result of Ms Arrow’s offending.  He referred to the serious nature of the physical, psychological and emotional consequences of Mr Appleton’s injuries at several points in his sentencing remarks.  He also referred to the raw emotions that others had in relation to the matter.  Those consequences were set out in detail in the victim impact statement read for Mr Appleton at sentencing.

[14]     Ms Arrow’s appeal is against the sentence which was imposed in all the circumstances which were relevant to the Court on 28 September 2016.  It was not necessary for me to have updated victim impact reports.  Subsequent to my hearing the appeal, I was however provided with a statement dated 8 December 2016 from Mr Appleton’s mother.  Consistent with the information originally before the District Court Judge when Ms Arrow was sentenced, the statement speaks of the physical, psychological and emotional consequences on Mr Appleton and others close to him.

[15]     Judges have to arrive at an appropriate sentence which has regard to the actual charge which has been brought against the offender, the maximum penalty that can be imposed for any such charge, the purposes and principles of sentencing, as set out in legislation enacted by Parliament, and such guidelines for sentencing as have been provided by courts of higher authority.  In the Sentencing Act 2002, one purpose of sentencing is “to provide for the interests of the victim of the offence”,

but that is only one of seven such purposes.9   Another is to “assist in the offender’s rehabilitation and reintegration”.10    The principles of sentencing referred to in the Sentencing Act require the Court to “take into account any information provided to the Court concerning the effect of the offending on the victim”.11   But, again, that is only one of ten principles that the Act refers to.  It was appropriate for the sentencing Judge to clarify at the outset of his sentencing remarks that he was required to

sentence Ms Arrow “without emotion” and “in a transparent way so that she and

others in the community know what sentence” the Court had imposed and why.12

[16]     In the statement which Mr Appleton’s mother provided to the Court, she said Mr Appleton did not have a lawyer fighting for him, just an angry mother.  I have read her statement with care.  I accept she is angry but, on this appeal, I am required to consider the arguments raised in relation to this appeal, again without emotion and in the objective manner which is required of a Judge.

[17]     I need to specifically record that I have disregarded the mother’s statement that “Ms Arrow tried to kill my son”.  She was not charged on that basis and there is no information in the summary of facts on which it could be suggested this was her intention. All facts, as presented to the Court, are to the contrary.  She did, however, consciously decide to drive in circumstances where that decision put others seriously at risk.   Mr Appleton and those close to him are bearing the consequences of Ms Arrow’s decision and actions.

First ground of appeal – double counting for prior offending

[18]     In careful and articulate submissions for the appellant, Ms Gray said no issue was taken with the Judge’s adoption of a two and a half years’ imprisonment starting point for the offending, before aggravating factors referred to earlier.  However, she submitted the uplift of a further 12 months on account of Ms Arrow’s previous convictions and the fact this offending occurred while she was subject to a zero- alcohol licence, had resulted in a double counting of those aggravating factors and

ultimately led to a sentence which was manifestly excessive.

9      Sentencing Act 2002, s 7(1)(c).

10     Section 7(1)(h).

11     Section 8(f).

[19]     Having carefully read the sentencing notes of Judge O’Driscoll, I do not accept there has been a double counting in the way Ms Gray submitted.  It is clear the Judge was mindful of the need to avoid such double counting.  He referred to this expressly at two points in his sentencing remarks.13

[20]     I accept that, before arriving at an initial starting point for the sentence, the Judge  referred  to  the  four  main  aggravating  features  already  mentioned.    It  is however  clear  from  his  sentencing  remarks  that  he  was  following  the  Taueki approach prescribed by the Court of Appeal in arriving at an appropriate sentence.14

Firstly, setting an appropriate sentence having regard to the gravity of the offending. This included a consideration of the consequence the offending had on its victims. Secondly, adjusting that sentence on account of any aggravating or mitigating circumstances relating to the offender personally and, thirdly, allowing such a credit as might be appropriate having regard to an offender’s guilty plea and the circumstances in which it was entered.

[21]     The Judge began his sentencing remarks by discussing key features of the case in relation to all three steps.  So, the four most seriously aggravating features of the  case  related  both  to  the  gravity of  the  offending  and  Ms Arrow’s  previous convictions.  He also went on to mention various mitigating factors relating to Ms Arrow personally, including any support she had in the community, particularly from her employer, an offer of reparation and expressions of remorse.

[22]     The Judge referred to some of these matters in greater detail.  In doing so, he

again mentioned the way the offending had “devastated the life of Mr Appleton”.15

He referred again to Ms Arrow’s previous convictions.

[23]     Against that background, the Judge arrived at an appropriate starting point of

two and a half years’ imprisonment and then made the adjustments referred to earlier.

[24]     To avoid double counting, the Judge imposed a one month concurrent prison sentence on the charge of driving contrary to a zero-alcohol licence.

13     Police v Arrow, above n 2, at [27] and [39].

14     R v Taueki [2005] 3 NZLR 372 (CA).

[25]     Having regard to all the Judge’s sentencing remarks, I consider that the initial starting point of two years and six months was arrived at having regard to the gravity of  the  offending  itself,  and  that  he  brought  into  account  Ms Arrow’s  previous offending and the fact this offending occurred while she was subject to a zero- alcohol licence constraint when arriving at a total uplift of 12 months for aggravating factors relating to Ms Arrow personally.   Consistent with the Taueki approach, he then  considered  mitigating  factors  relating  to  her  personally  in  decreasing  the sentence  by  two  months  to  take  account  of  the  offer  of  reparation  and  other mitigating factors that had been referred to by her counsel.

Second ground of appeal – inadequate recognition of mitigating factors as to Ms

Arrow personally

[26]     The second ground for contending the sentence was manifestly excessive was that the two month reduction in a potential sentence did not adequately recognise the mitigating factors relating to Ms Arrow personally, including her offer to pay reparation of $2,500, her offer to take part in restorative justice, her remorse for her offending, her rehabilitative efforts, particular difficulties she faced in her personal circumstances which were a factor in her alcohol problems, strong support from the community and her employer, and her acceptance of full responsibility for the offending.

[27]     The Judge referred to all these matters.  He had clearly read and considered the written material which was placed before him.  An addictions advocate and peer support worker for Mental Health Advocacy Peer Support confirmed to the Court that Ms Arrow recognised she had major addiction issues around her use of alcohol, that she realised the way she had tried to manage life challenges had been unhealthy and that her behaviour and mindset needed to change.  The letter referred to her wish to attend restorative justice with her victims and to her concern that she had hurt another human being, and the support she had from the Board of Trustees at school where she was seen as  well able to help the special needs children that she is involved with.

[28]     The Judge also referred to the personal letter she had written to Mr Appleton expressing  her  sense  of  deep  shame  and  guilt  over  what  happened  and  her

appreciation that what she had done “had stopped Mr Appleton’s day to day life, his

wellbeing, and enjoyment of things and experiences in general”.

[29]     The Judge, however, had to balance against all of that the information in the probation officer’s advice to courts that she had told the Police that, despite the high reading,  she  had  only  drunk  two  glasses  of  wine  before  driving  although  she conceded she had drunk a bottle and a half the night before.  The report mentioned that the factors leading to her offending included a major problem with alcohol, relationship  difficulties,  a  lifestyle  apparently  spiralling  downwards  and  “an engrained  sense  of  entitlement”.    The  probation  officer  referred  to  Ms Arrow’s statement that she was ashamed about what she had done and felt that everyone would judge her in a poor light but also appeared “somewhat embittered by the fact she has been caught drink/driving again, stating “lots of my friends do the same thing, i.e.; drink/driver, and never get stopped”.

[30]     On sentencing, the Judge had to assess the weight to be given to the matters advanced as being in her favour.  He was entitled to be sceptical as to the expressions of remorse and shame.   Had she been totally genuine  in all the expressions of remorse, shame and desire to address her underlying problems, it could have been expected that she would have learnt from her apprehension for the 29 November

2013 offending, and the sentence imposed for that offending.  Her choosing to drive in breach of her zero-alcohol licence within just three weeks of completing a period of supervision and her actions in driving with such a high alcohol level on 20

January 2016, were also consistent with her having a “sense of entitlement” as

referred to in the probation officer’s report.

[31]     At the time of sentencing, Ms Arrow offered to pay $2,550 in reparation.  I note she has now paid that sum, but not until 5 December 2016, just prior to the hearing of her appeal.

[32]     In all the circumstances, the Judge was entitled to conclude that, while there were some positive mitigating factors for which Ms Arrow was entitled to credit, a significant part of her remorse was for the circumstances she found herself in rather than for her actual offending.

[33]     The Supreme Court, in Hessell v R, has made it clear that, where there is genuine remorse, credit should be given for that independent of the credit for a guilty plea and the remorse inherent in such a plea.16   In Rowles v R, the Court of Appeal went so far as to adjust the credit for remorse and personal factors from 4.8 per cent to 10 per cent of the starting point.17

[34]     In Poi v R, the Court of Appeal was considering a challenge to a sentence where it was argued there had been an inadequate credit for remorse.18    The Court considered there could have been some recognition of tangible evidence of genuine remorse which was not self-pity and, in the circumstances of that case, there could have been some recognition of the defendant’s willingness to pay reparation for medical expenses and lost income and to participate in a restorative justice conference.  While the Court of Appeal said some credit might have been given for such matters, it referred to that as being “five per cent or so”.19

[35]     Ms Gray submitted the discount of just two months and the brief eventual mention of matters for which Ms Arrow was to be given credit was indicative of a “dismissive” approach to the personally mitigating matters which had been advanced for Ms Arrow.  I do not accept the Judge’s decision, with regard to those matters, can reasonably be categorised in that way.  The Judge referred expressly and separately to all matters which had been advanced in favour of Ms Arrow.  In the end, the credit he gave her for those matters was five per cent of the starting point he had arrived at before taking such matters into account.  While some Judges may have given her a greater credit, in all the circumstances of this case, I have not been persuaded that there was an error in this regard.  The ultimate credit on account of such matters, together with the credit for guilty pleas, was 12 months and thus 30 per cent of the starting point.  I do not accept he made an error in that regard.

[36]     Ultimately,  however,  whether  this  appeal  should  be  allowed  depends primarily on whether the end sentence was within a range reasonably available to the

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

17     Rowles v R [2016] NZCA 208.

18     Poi v R [2015] NZCA 300.

19 At [8].

Judge having regard to all the circumstances associated with the offending and the offender.

[37]     In R v Fallowfield, the Court of Appeal said the consequences of offending are but one aspect to be taken into account in assessing the culpability of someone charged with driving while affected by alcohol and causing injury.20    The Court of Appeal said it was beyond question “drunken driving causing death or injury constitutes serious offending”.21  Also:

It is the more so when there is involved recklessness, bravado, stupidity, exhibitionism or other particular irresponsibility.  Deliberate use of a motor vehicle after drinking, especially after long bouts of heavy drinking, has the element of wilfulness that is repugnant and reflects disregard for the law and for the safety of others.   That wilfulness takes on an added dimension of culpability when the driving is by a person who has been disqualified from driving – particularly for previous drink – or drug – related offending.

[38]     The Court also said:22

Just as the recent cases reflect an increase in the level of sentences where death has resulted, so that trend should be reflected where serious injuries result.  This is the course to be expected from the Courts in recognition of a significant social problem increasingly unacceptable in the community.

…

There can be no fixed tariff because of the range of conduct covered by the offences and the range of circumstances in which it occurs.  However, where the consumption of drink or drugs is heavy, the conduct reckless or worse and the consequences are serious terms of imprisonment up to three years, and more in very bad cases, should be expected.

[39]     The Court thus indicated there should be an increase in sentence where there are additional factors, such as previous convictions or some indication of wilfulness in the conduct.  Again, that was the case here where the driving was in breach of a zero-alcohol licence.

[40]     Ms Arrow was entitled to some credit for the mitigating matters relating to her personally, including the positive references provided by her employer and the

particular contribution she made to the community through her employment in a

20     R v Fallowfield, above n 7.

21     At 662.

22     At 662-663.

position which is of considerable assistance in caring for young people with serious particular needs.   The Judge had to weigh against that her record of previous offending and a probation officer’s assessment that the risk of her causing harm to others was high given her continuing propensity to drive while intoxicated and the serious injury she had inflicted on the victim as a result of the offending for which she was being sentenced.

[41]     I have had regard to the four primary aggravating factors which the Judge regarded as the most serious but also the mitigating factors relating to Ms Arrow personally.    Given  the  comments  of the Court  of Appeal  in  R  v Fallowfield,  I consider   that   the   Judge’s   adjusted   starting   point   sentence   of   40   months’ imprisonment before credit for the guilty pleas was within range.   Ms Arrow then received the maximum discount of 25 per cent on account of the guilty pleas.

[42]     I have thus not been persuaded there was an error in the imposition of the sentence or that, in any event, a different sentence should have been imposed.  The appeal is accordingly dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch.