Baillie v Police
[2021] NZHC 1132
•20 May 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-000017
[2021] NZHC 1132
BETWEEN JAMIE ADSLEY BAILLIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 May 2021 Appearances:
N Bourke for the Appellant
L A Blencowe for the Respondent
Judgment:
20 May 2021
JUDGMENT OF NATION J
[1] The appellant, Mr Baillie, was sentenced to 13 and a half months’ imprisonment for driving while disqualified with at least two previous convictions for similar offending. He had five previous convictions for driving while disqualified and seven previous convictions for excess alcohol or related driving offences. Mr Baillie appeals the sentence.
Subject offending
[2] On 7 November 2018, Mr Baillie was disqualified from driving any motor vehicle for an indefinite period.
[3] At about 6.25 pm on 29 December 2020, Mr Baillie drove a Mercedes Benz motor vehicle north of Wanganui, near Okawa. He overtook a vehicle on a bridge, travelling at approximately 130 kilometres per hour. Approaching upcoming blind corners, he cut across the centre line and crashed into a hedge on a 35 kilometres per hour advisory corner. He exited the driver’s seat and ran away. He was found by the
BAILLIE v POLICE [2021] NZHC 1132 [20 May 2021]
Police a short time later. Police smelt alcohol on his breath and required him to undergo a breath screening test. He refused to blow into the breath testing device. At the Hawera Police station, Mr Baillie refused to provide a sample of breath when requested and subsequently refused to allow a blood sample to be taken. In explanation, he said he was not driving and named someone else as the driver.
Previous offending
[4] On 29 November 2017, Mr Baillie was stopped by Police and forbidden to drive any motor vehicle until he had obtained a driver’s licence. At that time, he had been convicted of alcohol impaired driving related offences five times previously for offences committed in 2003, 2007, 2009, 2012 and 2015.
[5] On 21 March 2018, he drove on the state highway. An evidential breath test gave a reading of 0442 micrograms of alcohol per litre of breath.
[6] On 5 August 2018, Mr Baillie was driving in Marton. The vehicle ran out of petrol and came to a stop on the side of the road. Mr Baillie was on the side of the street. The Police enquired who was the driver. Mr Baillie gave false information as to his identity. At the Police station, Mr Baillie refused to undergo breath testing or provide a blood specimen.
[7] On 7 November 2018, Mr Baillie was convicted of being an unlicensed driver and failing to comply with a prohibition, and the excess breath alcohol offence of 21 March 2018. He was also convicted for refusing a request for a blood specimen (third or more offence) on 5 August 2018. He was sentenced to home detention for three months, indefinite disqualification and subject to a zero alcohol licence.
[8] On 11 October 2019, Mr Baillie had been driving on the main state highway through Hawera. He intentionally drove through an intersection, then ploughed into a fence and fled the scene on foot. He told the Police he was not driving.
[9] On 26 May 2020, Mr Baillie was convicted of driving while disqualified (third or subsequent) and operating a motor vehicle recklessly. He was disqualified from driving for nine months, sentenced to supervision with special conditions and six months’ community detention.
District Court decision
[10] On 9 February 2021, Mr Baillie pleaded guilty to the three charges arising out of his driving on 29 December 2020. He was denied bail and remanded for sentence on 14 April 2021.
[11] He appeared before the Court on 23 March 2021, initially to apply for electronically monitored bail. A Provision of Advice to Courts (PAC) report was available. He asked to be sentenced on that day.
[12] Judge Harrison referred to his history of convictions. She noted he had the benefit of rehabilitative sentences in 2015, 2018 and 2019. She said the PAC report indicated that Mr Baillie was at high risk of repeat driving offences but he was motivated to address his drug and alcohol addiction issues. The report referred to his undergoing drug and alcohol counselling at the time of the latest offending.
[13] Consistent with the submission made for Mr Baillie, the Judge adopted a starting point of 18 months’ imprisonment for the driving offending, allowed 25 per cent discount for a guilty plea to bring the sentence down to 13 and a half months. She then considered and rejected home detention. She noted that the rehabilitative aspect of previous sentences had neither helped Mr Baillie nor deterred him. She said these latest offences had occurred within one month of the expiration of his community detention sentence imposed on 26 May 2020 for similar offending and when he was still subject to a nine months supervision sentence. The Judge had particular regard to the nature of his driving and assumed that, with his failure to give a blood sample, he had a high level of alcohol in his system. She expressed regret that residential rehabilitation was not available and referred to the PAC report telling her that short rehabilitative programmes were frequently available in prison but only occasionally so in the community. She said she needed to keep the public safe. For those reasons, she rejected home detention as a possibility.
[14] The Judge sentenced Mr Baillie to imprisonment for 13 and a half months with special release conditions. These included conditions that he attend an assessment for alcohol and drug counselling as directed by his probation officer and that he attend and complete any counselling treatment or programme or any departmental short
rehabilitative programme as might be recommended. She imposed a further disqualification period of some 21 days, noting he was a disqualified driver and that he was subject to an alcohol interlock sentence.
Appellant’s submissions
[15] Mr Baillie accepted that the global starting point of 18 months’ imprisonment was appropriate.
[16] For Mr Baillie, Mr Bourke argued that Mr Baillie’s criminal history was consistent with him having ongoing substance abuse issues, that his difficult upbringing could be linked to Mr Baillie’s ongoing depression, alcohol and drug use and other self-destructive behaviour. He said these were the sort of factors that, had they been obtained through a s 27 report, could have warranted a discount of between five to 10 per cent on an appropriate starting point.
[17] Mr Bourke argued that s 8(g) of the Sentencing Act 2002 required the Court to impose the least restrictive outcome that was appropriate in the circumstances. He argued the Judge had properly recognised there was a need for Mr Baillie to be involved in a residential rehabilitative programme but had rejected home detention as a possible sentence in the mistaken belief that a short rehabilitative programme would be available in prison but only occasionally available in the community.
[18] He argued that rehabilitative programmes are frequently provided by the Department of Corrections when offenders are subject to sentences such as supervision, intensive supervision or home detention. He submitted that, with home detention, conditions could have been imposed prohibiting Mr Baillie from consuming alcohol and/or controlled drugs. With the constraints of home detention, the public could be protected through his not being able to drive. Mr Baillie had in the past demonstrated he could comply with electronically monitored sentences and community detention. He argued that Mr Baillie had demonstrated a real desire to address his drug issues through his involvement, before his conviction, with the South Taranaki Whānau Centre for counselling.
[19] Mr Bourke argued a sentence of home detention could have been coupled with significant community work. He suggested the Judge could also have promoted Mr Baillie’s rehabilitation through ordering Mr Baillie to be subject to judicial monitoring.
[20] Mr Bourke referred to other cases where the High Court had substituted rehabilitative sentences of intensive supervision and community work, in which the High Court and District Court had approved sentences of intensive supervision or community detention with community work in situations where there was repeated similar offending by offenders with alcohol addiction issues.1
Submissions for the respondent
[21] For the Crown, Ms Blencowe argued that background matters such as might have been addressed in a s 27 report would not have required a discount on the starting point because there was no nexus between those aspects of Mr Baillie’s background and the offending for which he was to be sentenced.2
[22] Ms Blencowe referred to the helpful and succinct explanation of the principles relating to appeals against the refusal of home detention of Brewer J in Kanuta v R.3 She also referred to statements from the Court of Appeal and the High Court as to how appeals against the refusal of home detention are to be considered.
Analysis
[23] I do not consider there was any error in the Judge failing to discount that starting point for personal matters relating to Mr Baillie. Mr Baillie was 42 at the time of the relevant offending. His addictions have been a significant factor in his offending however the information put before me does not establish there was such a nexus between the aspects of Mr Baillie’s family life or even a potential head injury to establish that those matters have caused his alcohol addiction. His first drink driving conviction was in 2003. Despite that, he has chosen to drink and drive on the numerous occasions since then when he has been apprehended and ultimately
1 Martin v Police [2019] NZHC 353; Ranford v Police [2021] NZHC 132.
2 Similar to the situation in Toohey v Police [2020] NZHC 635.
3 Kanuta v R [2016] NZHC 436.
convicted of drink driving offences. On a number of occasions, he has been sufficiently conscious of the risks he was taking so as to try to evade the Police after crashing and/or provide false information to the Police about whether he was driving the vehicle at the time and/or refuse to cooperate with either breath or blood testing. He has also, on repeated occasions, chosen to ignore the fact he was a disqualified driver or had been prohibited from driving.
[24] Mr Baillie’s offending on this last occasion, and on at least two earlier occasions of which the Court had specific information, was also the more serious because the manner of his driving put actual or potential road-users at risk of serious harm.
[25] It was not suggested that Mr Baillie’s addiction problems were, of themselves, reason to reduce the starting point or that matters of accountability and deterrence were less important because his offending was closely connected to his alcohol and/or drug addiction. Such an assessment would not have been appropriate given the extent of Mr Baillie’s offending and the number of convictions he had for not complying with court orders. These were not just in relation to drink driving offences. He had convictions for breaching protection orders from 2015. He had a conviction from 2008 for obstructing the course of justice for which he was sentenced to two years and three months’ imprisonment.
[26]In Kanuta v R, Brewer J said:4
[37] The principles in considering an appeal of this nature are well- established. When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety. It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act. The Court cannot impose a sentence of imprisonment unless it is satisfied:
(a) that the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or to protect the community;
4 Kanuta v R, above n 3 (footnotes omitted).
(b) that those purposes cannot be achieved by a sentence other than imprisonment; and
(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.
[27] There has been judicial recognition in both the Court of Appeal and High Court that, where denunciation and specific and general deterrence are of particular significance, an appeal Court will seldom interfere with a sentencing Judge’s assessment of the appropriateness of home detention.5 In such cases, an appellant will need to show that, in exercising a discretion to decline home detention, the sentencing Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor or had been plainly wrong.6
[28] The Judge considered whether it was necessary to impose a sentence of imprisonment to hold Mr Baillie accountable for his offending, to denounce the offending, to deter him from further offending and to protect the community. In that respect, she referred to the way this offending occurred when Mr Baillie was still subject to a nine month supervision sentence and just a month after his community detention sentence had expired, those sentences having been imposed only 10 months after similar offending for which he had been sentenced in August 2018. She expressly referred to the manner of his driving which, self-evidently, put others at risk.
[29] The Judge did consider the possibility of involving him in rehabilitative programmes. She indicated that, if a residential rehabilitation programme had been available, she might have been willing to sentence him in a way that would have allowed him to participate in such a programme. There is no dispute that, at the time of sentencing, committal in some way to such a residential programme, whether as a condition of a home detention sentence, intensive supervision or otherwise, was not available as an option. Corrections had advised in the PAC report only that Mr Baillie had begun a formal application for residential treatment. His counsellor had also advised the report writer that, while residential treatment was theoretically an option,
5 Kanuta v R, above n 3.
6 Beattie v Police [2020] NZHC 1831, with reference to R v D [2008] NZCA 254; R v Taieba [2000] NZCA 120; Hampton v Police [2014] NZHC 2423; James v R [2010] NZCA 206.
there was a waitlist and she could not confirm that Mr Baillie would be accepted as this would be dependent on the assessment interview.
[30] I do not accept the Judge was in error in saying that short rehabilitative programmes were frequently available in prison. That was the information Corrections had provided in the PAC report. Mr Bourke said such a programme had not been available in the Whanganui prison but probably would have been at the Rimutaka prison. However, Mr Baillie had not wanted to be at the Rimutaka prison because he wanted to be close to his family. The PAC report also advised that a short departmental rehabilitative programme would only occasionally be available in the community. Mr Bourke suggested that was an error. The report had referred to Mr Baillie attending alcohol and drug counselling through the South Taranaki Whānau Centre at the time of his offending. It was to Mr Baillie’s credit that he had been attending that counselling, but it was while he was doing that and still subject to his sentence of supervision that he committed these further offences. The Judge had noted this.
[31] The Judge also rejected home detention as being likely to achieve the purposes for which a sentence of imprisonment could be imposed only after referring to earlier occasions on which sentences short of imprisonment had been imposed for rehabilitative purposes but had not been successful in protecting the community or deterring Mr Baillie from further offending. There was no error in that regard.
[32] Mr Baillie had been sentenced to nine months’ supervision with special conditions and six months’ community detention on 26 May 2020. He was still subject to that sentence when this further offending occurred. He had been sentenced to three months’ home detention on 7 November 2018 with special post-detention conditions for the offending that occurred on 5 August 2018 and 21 March 2018. He had been fined for failing to comply with a prohibition on 8 June 2018 and was sentenced to 100 hours’ community work on 2 November 2017 for driving while disqualified.
[33] The PAC report advised that Mr Baillie had received counselling to address his substance use in 2015, 2018 and 2019.
[34] The PAC report assessed him as being at high risk of alcohol impaired driving and at high risk of causing harm through alcohol use.
[35] The PAC report did say that his compliance with prior sentences of home detention had been satisfactory but counselling in association with those sentences had not successfully reduced the risk of further offending.
[36] There was thus no error in the Judge deciding that the statutory purposes of holding Mr Baillie accountable, inducing in him a sense of responsibility, denouncing the offending, deterring him from further offending and protecting the community could not, in all the circumstances, be achieved through a sentence other than imprisonment.
[37] Mr Baillie’s alcohol addiction and driving puts the public at risk. It also puts him at risk of further offending and further prison sentences. He needs to address his alcohol addiction issues but he should have an opportunity to do this with the sentence imposed if, on release, he is accepted for a residential alcohol addiction treatment programme or if he takes advantage of a non-residential programme that he is required to attend in accordance with the release conditions of the sentence imposed. It will not be easy for Mr Baillie to deal with his addiction issues. However, he needs to do this to avoid further offending of the sort that led to the sentence of imprisonment on this occasion.
[38] This is not a situation where it would be appropriate for an appeal court to interfere with the sentencing Judge’s assessment of the inappropriateness of home detention.
[39]Mr Baillie’s appeal is dismissed.
Solicitors:
N Bourke, Barrister, New Plymouth Crown Solicitors Office, New Plymouth.
0
9
0