Beattie v Police

[2020] NZHC 1831

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000067

[2020] NZHC 1831

BETWEEN

SHANNON CLIVE BEATTIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 July 2020
Appearances:	A J McKenzie for the Appellant S L Dayal for the Respondent
Judgment:	28 July 2020

JUDGMENT OF NATION J

Introduction

[1]    On 19 May 2020, Shannon Beattie was sentenced to 18 months’ imprisonment, and three years and one day’s disqualification from driving for driving while disqualified, dangerous driving, failing to stop, failing to assist with a computer search, driving while impaired by methamphetamine and breaching a sentence of home detention.1 Standard and special conditions of release were also imposed for six months. He appeals against his sentence of imprisonment.

Facts

[2]    At the time of the offending, Mr Beattie had eight previous convictions for driving while disqualified, or while his licence was suspended or revoked. He also

1      Police v Beattie [2020] NZDC 8723.

BEATTIE v POLICE [2020] NZHC 1831 [28 July 2020]

had three previous convictions for failing to stop. He was serving a sentence of home detention at the time.

[3]    At about 8.10 am on 4 April 2020, Mr Beattie was driving north on Godley Quay in Lyttelton with a passenger accompanying him. Police were driving in the opposite direction. Mr Beattie accelerated in an attempt to evade police. Police turned around to follow Mr Beattie and activated their lights and siren. Mr Beattie did not stop and continued to accelerate heavily as he travelled north. In a victim impact statement, his passenger said she told him to stop but he didn’t. He continued driving over 50 km/h through the residential streets of Lyttelton while heading west towards Corsair Bay. Police lost sight of him due to his speed.

[4]    At about 8.30 am, Mr Beattie turned onto Old Tai Tapu Road. Police again followed him and activated their lights and sirens. Again, he did not stop. Mr Beattie continued travelling west on Lincoln Tai Tapu Road, reaching speeds of up to 150 km/h. Police abandoned the pursuit due to his driving and because he was approaching the Lincoln township. He continued speeding through Lincoln. He approached a roundabout at speed, failed to navigate it properly and lost control, causing the vehicle to collide with a wooden power pole, finally bringing the vehicle to a stop. Mr Beattie exited the vehicle and attempted to flee.

[5]    Police arrested Mr Beattie and a blood specimen was taken. His blood was found to contain evidence of methamphetamine. He was also required under s 130 of the Search and Surveillance Act 2012 to provide passcodes for three mobile phones found in his possession. He failed to do so.

[6]    Mr Beattie therefore breached his home detention by leaving his house for a time between about 6.30 am and 9 am on 4 April 2020.

District Court decision

[7]    Judge Mark Callaghan noted Mr Beattie’s extensive history of driving offending, including failing to stop, driving while disqualified (but not taking into account driving while prohibited), dangerous driving and breath alcohol offences.

[8]    The Judge observed that the pre-sentence report said home detention was not appropriate due to Mr Beattie being at a high risk of causing harm.

[9]    In arriving at a starting point, the Judge took the (ninth) disqualified driving as the lead offence. He adopted a starting point of 18 months on that charge. For the breach of home detention, he made an uplift of two months. He rejected Mr Beattie’s explanation that he was going to check on his daughter, who was in isolation with someone who had tested positive for COVID-19, because he went to Lyttelton, which was not where his daughter was.

[10]   The Judge then made an uplift of one month for the dangerous driving charge, noting the three-month maximum penalty. He made a three-month uplift for the driving while impaired by methamphetamine (third or subsequent), thus arriving at an overall starting point of 24 months. The Judge was satisfied there was no need for a totality adjustment, and 24 months was appropriate for the offending as a whole. There were no relevant personal aggravating or mitigating features relating to Mr Beattie.

[11]   The Judge made a full discount of six months (25 per cent) for Mr Beattie’s early guilty pleas. This indicated a sentence of 18 months’ imprisonment.

[12]   The Judge considered intensive supervision was inappropriate because Mr Beattie had already been given many community-based sentences in the past (home detention in 2019 and 2016, community detention in 2016 and intensive supervision in 2014), all of which he breached or did not take advantage of. For those reasons, home detention was also inappropriate. The Judge said there could have been an uplift for the offending occurring while Mr Beattie was on home detention but chose not to provide for such an uplift. In any event, he said the fact all the latest offending had occurred while Mr Beattie was subject to that sentence meant home detention was inappropriate as a sentence for the current offences.

[13]   On that basis, the Judge sentenced Mr Beattie to 18 months’ imprisonment. On the disqualified driving charge (third or subsequent), he sentenced Mr Beattie to one year and one day’s disqualification. On the failing to stop charge (third or subsequent), he imposed a cumulative minimum two years’ disqualification (as required by the

Land Transport Act 1998). Thus, he imposed a total disqualification period of three years and one day.

Principles on appeal

[14]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5

Submissions

[15]   For Mr Beattie, Mr McKenzie submitted, while Mr Beattie going for a drive was not permitted by his home detention conditions, it was not inherently criminal.6 He took no issue with the way the nominal sentence of 18 months’ imprisonment was reached. Rather, he submitted the type of sentence imposed was wrong and Mr Beattie should have been sentenced to a community-based sentence.

[16]   The thrust of Mr McKenzie’s submissions was that the Judge adopted a “you had your chance” approach in determining the appropriate type of sentencing, rather

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

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Skipper v R [2011] NZCA 250 at [28].

6      I note in addition to being breach of Mr Beattie’s home detention conditions (the breach of which is a statutory criminal offence) it was, given the occurrence of the offending on 4 April 2020, in clear breach of cl 1(a) of the Health Act (COVID-19 Alert Level 4) Order 2020 and therefore an offence under s 72 of the Health Act 1956. The seriousness of the Alert Level 4 lockdown and the consequences of breaching it were widely broadcast and advertised across all mainstream mediums at the time.

than considering Mr Beattie’s need for treatment and his good fortune in having positive family support available to him.

[17]   The Court of Appeal has indicated appellate courts should, in certain circumstances, hesitate before interfering with a lower court’s assessment as to whether a prison sentence should be converted to a community-based sentence. Mr McKenzie submitted there should no longer be such reticence given the later Austin Nicholls approach to appeals.7 He also submitted an appellate court should be more willing to interfere when the court is faced with an appeal against an unreasoned decision.

[18]   Mr McKenzie referred to Mr Beattie having been diagnosed previously with bipolar illness but said he was unable to point to information linking this offending with that illness. He stressed the availability of the pro-social support through his being able to live with his mother, a matter for which, as Mr McKenzie noted and which the Court recognises, he is most fortunate.

[19]   For the Police, Ms Dayal submitted Mr Beattie’s history of non-compliance rendered home detention inappropriate in his case. She noted the Police Summary of Facts as recording an admission to smoking methamphetamine “a few days” before the driving incident on 4 April 2020. She further highlighted that Mr Beattie admitted to the pre-sentence report writer that he “us[ed] methamphetamine at the time of his offending”. Ms Dayal suggested this was concerning as it shows Mr Beattie was using methamphetamine while serving a sentence of home detention.

[20]   Ms Dayal submitted Mr Beattie’s history shows a propensity on his part to drive dangerously and fail to stop for Police. She noted his most recent sentence was one of home detention which was imposed for similar offending. While she acknowledged Mr Beattie’s need for rehabilitation, she said he continues to reoffend despite having the benefit of rehabilitative sentences in the past and is assessed as being at a high risk of causing harm and reoffending. She also pointed to two Court of Appeal decisions which state that a sentencing judge rather than an appeal court is

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

often best placed to determine whether home detention should be imposed instead of imprisonment, particularly in cases “closer … to the dividing line”.8

[21]The respondent’s submissions are further reflected in my analysis below.

Analysis

[22]   Mr Beattie has a significant criminal driving and non-compliance conviction history, relevantly:

(a)eight for driving while disqualified, or while licence suspended or revoked;

(b)six for failing to comply with driving prohibition as an unlicensed driver;

(c)three for failing to stop;

(d)three for driving while impaired by drug (alcohol);

(e)two for dangerous driving;

(f)one for reckless driving;

(g)one for careless driving;

(h)two for breaching a sentence of community work; and

(i)one for breach of bail.

[23]   He also has an extensive history of failing to comply with bail conditions. While on bail he has committed a total of 22 offences and has breached his bail conditions on six occasions.

[24]   At the time of committing the index offending, Mr Beattie was serving a sentence of home detention for dangerous driving and other property offending (although by the time the two-month home detention sentence for dangerous driving had ceased, he remained on home detention for the property offending).

8      R v D (CA253/2008) [2008] NZCA 254 at [66]; and R v Taiepa [2009] NZCA 120 at [20].

[25]   There is no statutory guidance on when a sentence of home detention will be appropriate. However, the Court of Appeal has clearly said, where the offences in question are frequently tried in the jurisdiction of the sentencing judge, their determination as to the appropriateness of home detention as an alternative sentence assumes greater weight.9 That is clearly the case with driving charges such as the present. Additionally, where denunciation and specific and general deterrence are of particular significance, the Court of Appeal has said an appeal court will seldom interfere with a sentencing judge’s assessment of the appropriateness of home detention.10

[26]   Despite Mr McKenzie’s suggestion that the Court should be more willing now to depart from those indications, I will not do so because the Court’s justification for the approaches they referred to remains appropriate. In any event, I note those Court of Appeal decisions were decided after Austin, Nichols.

[27]   Mr Beattie’s offending was more serious because it occurred through his being in breach of a sentence of home detention. It was also more serious because of the way his refusal to stop for the Police and dangerous driving put other road users at risk, evident in his ultimately crashing at a roundabout.

[28]   The pre-sentence report confirmed that Mr Beattie’s mother and step-father had consented to his residing at their home. At the time of the sentencing, Community Corrections were not in a position to assess whether the address was technically feasible for home detention but considered it would not be appropriate for an electronically monitored sentence. This was because, in the probation officer’s view, if Mr Beattie was confined to the address, it could put further pressure on the family given his complex mental health issues and current family circumstances, with a sister’s poor health requirements including frequent hospitalisation and intensive medical monitoring.

[29]   With the suggested sentence of intensive supervision, Mr Beattie would have been residing at that address. If confined there, there would still at particular times

9      R v Taiepa, above n 8, at [20].

10     R v D (CA253/2008), above n 8, at [66].

have been stress for the family. If not confined, then, at times when his mental state might be most likely to put him and others in the community at risk, he would be free to leave. When away from the home, his family would no longer be able to influence his behaviour and would not be in a position to ensure he received the care he needed or that otherwise there was no risk of his being a danger to himself or to others.

[30]   In the pre-sentence report, the probation officer advised the District Court that Community Corrections was not equipped to address Mr Beattie’s mental health issues. The report therefore suggested he be encouraged by his probation officer to seek appropriate treatment through his family health doctor or the District Health Board’s mental health services.

[31]   In Mr Beattie’s letter to the District Court there was what appeared to be an expression of heartfelt remorse for the upset he had caused his mother and his wish to be able to help her in caring for his sister. His mother also explained in her letter why the family wanted to have Mr Beattie at home to assist in caring for his sister. There was nothing however in those letters to indicate Mr Beattie recognises he needs to re- engage with mental health treatment and appropriate services to address the mental health issues which seem likely to have been a significant factor in his offending, much of the troubles he has faced in his life and the trouble and sadness he has caused his family.

[32]   I do not accept that the Judge refused to impose a sentence of intensive supervision without giving adequate reasons. The Judge carefully went through the details of the offending. He referred to the letters he had received from Mr Beattie and his mother, and the information in the pre-sentence report.

[33]   The Judge carefully and without error arrived at an appropriate end prison sentence.11 He then said he did not consider interim intensive supervision a proper response for Mr Beattie’s actions and summarised why. He referred to Mr Beattie’s history of offending, his non-compliance with previous community-based sentences

11 Due to the absence of any aggravating and mitigating features of Mr Beattie’s personal circumstances, the Court of Appeal’s recent decision, changing the application of a guilty plea discount in Moses v R [2020] NZCA 296, does not affect the appropriate end sentence here.

and non-compliance with conditions that were imposed to assist in his receiving treatment or appropriate counselling.

[34]   The Judge also said home detention was not appropriate. He noted this was the sentence Mr Beattie had breached when all the offending occurred and summarised why he had reached that view.

[35]   The Judge was justified in taking the view that a community-based sentence was inappropriate, especially when Mr Beattie had repeatedly shown himself incapable of complying with sentences designed to help and rehabilitate him. Under the Sentencing Act 2002, a court only has discretion to impose a sentence of intensive supervision if it is satisfied it would reduce the likelihood of reoffending through rehabilitation and reintegration.12 The Judge was clearly entitled to find himself not so satisfied in relation to Mr Beattie’s circumstances.

[36]   In all the circumstances, there was no error in the Judge sentencing Mr Beattie to imprisonment rather than imposing a sentence of home detention.

[37]Mr Beattie’s appeal against the sentence of imprisonment is dismissed.

Solicitors:

A J McKenzie, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.

12     Sentencing Act 2002, s 54C.