Blackburn v Police
[2023] NZHC 3780
•19 December 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-172
CRI-2023-409-174 [2023] NZHC 3780
BETWEEN STEPHEN THOMAS BLACKBURN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 November 2023 Appearances:
A C Trinder for the Appellant
B W D Alexander for the Respondent
Judgment:
19 December 2023
Reissued:
19 December 2023
JUDGMENT OF PRESTON J
This judgment was delivered by me on 19 December 2023 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
BLACKBURN v NEW ZEALAND POLICE [2023] NZHC 3780 [19 December 2023]
Introduction
[1] Stephen Blackburn was sentenced to 27 and a half months’ imprisonment on the following charges:
(a)driving while suspended (third or subsequent);1
(b)driving with excess breath alcohol (third or subsequent);2
(c)refusing to provide a blood specimen (third or subsequent);3
(d)failing to accompany police;4 and
(e)failing to answer bail.5
[2] Mr Blackburn was convicted and discharged on the refusing to accompany and failing to answer bail charges.
[3] He appeals this sentence on the basis that a s 27 report, not before the District Court, is now available and justifies a discrete discount.
[4] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.6 I must dismiss the appeal in any other case. The appellate court does not simply substitute its own view for that of the sentencing judge.7 Rather, it must be shown the sentence is manifestly excessive or
1 Land Transport Act 1998, s 32(1)(c) and (4); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
2 Land Transport Act, s 56(2) and (4); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
3 Land Transport Act, s 60(1)(a) and (3); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
4 Land Transport Act, s 59(1)(b); maximum penalty of a fine not exceeding $4,500 and the Court may disqualify the person from holding or obtaining a driver licence for such period as the Court thinks fit.
5 Bail Act 2000, s 24; maximum penalty 3 months’ imprisonment or a $1,000 fine.
6 Criminal Procedure Act 2011, s 250(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
wrong in principle.8 The focus is on the end sentence, rather than the process by which the sentence was reached.9
Facts
[5] Just before midnight on 22 December 2021, Mr Blackburn was driving in Rangiora. He was stopped by police and asked to undergo a breath screening test. Mr Blackburn refused that request and refused again when police required him to accompany them to the Rangiora police station. He was arrested and taken to the station where he refused to provide a blood specimen.
[6] Mr Blackburn was issued a 3-month suspension on 23 December for excess demerit points. On 22 January 2022, Mr Blackburn was again driving in Rangiora when police stopped his vehicle. When bailed by police on the consequent driving while suspended charge, Mr Blackburn did not appear in court on the required day.
[7] On 16 April 2023, Mr Blackburn was driving on State Highway 8 near Tekapo. He was observed hugging the yellow centre line and following the vehicle in front of him too closely. Police stopped Mr Blackburn who admitted to recently consuming alcohol. Breath and blood tests were conducted, and a blood result returned of 116 mg of alcohol per 100 ml of blood.
District Court Decision
[8] Judge Couch took the December offending as the lead. He considered that refusing to provide a blood sample must be regarded as towards the top end of the scale for alcohol driving offences as it deprives police and the courts of evidence of the true extent of the appellant’s intoxication and includes an element of defeating the course of justice. It was aggravated by the failure to accompany and as it was Mr Blackburn’s sixth alcohol driving offence. The Judge adopted a starting point of 18 months.
8 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, above n 7, at [30] – [35].
9 Tutakangahau v R, above n 7, at [36].
[9] The driving while suspended charge was Mr Blackburn’s eighth instance of license-related offending. Viewed in isolation, it would have attracted a 12-month starting point. The final driving charge would have received a 10-month starting point.
[10] Recognising that the sentence stood at 40 months’ imprisonment, the Judge made an adjustment for totality down to 30 months’ imprisonment.
[11] An uplift of 10 per cent was applied for Mr Blackburn’s January and April offending having occurred while he was on bail. The April charge was in breach of a bail term.
[12] Mr Blackburn’s guilty pleas, which came at several points and were not all entered at the earliest opportunity, received a discount of 18 per cent.
[13]This led to an end-sentence of 27 and a half months’ imprisonment.
The appeal
Appellant submissions
[14] The appeal is brought 44 days out of time. Ms Trinder, counsel for Mr Blackburn on the appeal, explains this was due to the timing of being assigned by Legal Aid, receiving disclosure from previous counsel, reviewing the file, taking instructions, corresponding with previous counsel, and organising a cultural report. She submits there is no prejudice to the Crown in granting leave to appeal out of time.
[15] Mr Blackburn’s previous counsel had not organised a cultural report because, she says, there was nothing in their discussions causing her to think a cultural report was required. Ms Trinder says that the report obtained provides cogent, in-depth background information and that the Crown will not be prejudiced by its admission on appeal. She submits further that admitting the report is in the interests of justice as it may justify a discount leading to a short-term sentence of imprisonment.
[16] Ms Trinder says the cultural report reveals a disconnection from te ao Māori and lack of support from whānau. Further, Mr Blackburn was exposed to violence
from his father which eventually resulted in his mother leaving the family when Mr Blackburn was five. He was then exposed to his father’s drinking and gang affiliation.
[17] Mr Blackburn’s mother eventually regained custody of him and his sister but suffered from alcohol addiction. The family environment remained unstable.
[18] Mr Blackburn was exposed to alcohol from age eight, the use of which was reinforced as Mr Blackburn self-medicated to address a serious leg injury received at age 12. He subsequently developed a methamphetamine addiction.
[19] At age 14, Mr Blackburn left school and was unable to complete an apprenticeship. He also began offending at a young age.
[20]Ms Trinder advocates for a 15 per cent discount.
[21] Ms Trinder, in written submissions, acknowledged home detention is not available given the recidivist nature of the offending. However, she changed that submission in oral argument, advocating for the possibility of home detention. I return to this later.
Respondent submissions
[22] The Crown takes a neutral stance on the appeal. Mr Alexander acknowledges that the cultural report contains mitigatory factors given the range of criminogenic elements present and submits determining the appropriate percentage of discount is a matter for the Court.
[23] Counsel notes a discount of 12 per cent or more would yield a short-term sentence of imprisonment. He suggests the Court could either vary the end sentence or remit the matter back to the District Court.
Analysis
Leave to appeal
[24] Pursuant to s 248 of the Criminal Procedure Act 2011, a notice of appeal must be filed within 20 working days after the date of the sentence appealed against. The sentencing decision was given on 7 June 2023, and the appeal was filed on 4 September, well out of time.
[25]The leading decision on the approach to be taken in determining leave is
R v Knight:10
The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 238).
[26] The Court must balance the public interest in the finality of decisions against the interests of the appellant. Other relevant factors include the strength of the proposed appeal and practical utility of the remedy sought, the length of the delay and the reasons for it, the extent of the impact on others similarly affected and on the administration of justice (a floodgates consideration), and the absence of prejudice to the Crown.11 The appellant bears the onus of satisfying the court that granting leave to appeal out of time is in the interests of justice.12
[27] I am satisfied Ms Trinder has provided a reasonable explanation for why the delay occurred, and there is no apparent prejudice to the Crown. Whether there is merit to the appeal will likely be determinative.
10 R v Knight [1998] 1 NZLR 583 (CA) at 587.
11 R v Davis [2007] NZCA 577 at [10].
12 At [13].
New evidence on appeal
[28] Generally, s 27 reports will not be admitted for the first time on an appeal.13 Whether such evidence will be admitted normally depends on the report being credible and fresh, but the overriding criteria is the interests of justice.14 The Court of Appeal in Carroll noted that the proper course, where a report was not produced at first instance but may make a difference to sentence, is to remit the matter for re-sentencing. In that case, however, both parties wanted the Court to proceed with the appeal and it did.
[29] In Mr Blackburn’s case, both parties are willing for the Court to address the appeal, and the scope of the appeal is narrow and straightforward. There would be further delay in remitting the matter to the District Court, and I decline to do so.
[30] Mr Blackburn’s s 27 report reveals a number of relevant criminogenic factors and provides information significantly beyond that available at sentencing in the pre- sentence report. This includes information as follows:
(a)A considerable history of drug and alcohol addiction which has led to previous encounters with police and sentences of imprisonment. Mr Blackburn was introduced to alcohol from the age of eight, and his mother struggled with a severe alcohol addiction; the report indicates a possible intergenerational factor in Mr Blackburn’s alcohol addiction. He developed an addiction to OxyContin after suffering a serious injury and eventually attempted to wean himself off using methamphetamine, which he became addicted to.
(b)The several consequences of Mr Blackburn’s drinking, which is linked not only to offending but to other criminogenic factors. After he left school at 14, he failed to complete an apprenticeship due to his drinking. Both he and his stepfather spoke in the report to the
13 Carroll v R [2019] NZCA 172 at [8].
14 Salt v R [2022] NZCA 611.
connection between Mr Blackburn’s drinking and anti-social behaviour/offending.
(c)Exposure to serious violence in his childhood. When their parents split, Mr Blackburn and his sister were initially left with their father who was abusive. His mother eventually regained custody of him. While the new family was more positive, it was unstable due to his mother’s alcohol addiction. Mr Blackburn’s sister, in particular, was combative with their mother and took this out on Mr Blackburn. There is corroborative evidence for the impact of his mother’s addiction on the family.
(d)A disconnection from Māori culture.
(e)That for a period of a year during his childhood, there were associations with the Mongrel Mob by way of his father who hosted parties at his residence with people drinking most nights. However, there is no nexus established in the report between exposure to gang members and Mr Blackburn’s offending.
[31] The alcohol and drug information in the report is of particular significance. Mr Blackburn is recorded as accepting his alcohol addiction is at the core of his past and present offending. That information contrasts with the recollection of his previous counsel that at the time of his sentencing, the appellant did not accept any substance abuse issues but asserted these were “one off’ instances of poor judgement, and his alcohol use was “under control”. Notwithstanding, it is apparent that there is a complex suite of factors, including the possible intergenerational influence, which are relevant to the nature and extent of Mr Blackburn’s alcohol addiction and to his offending.
[32] Given the extensive information provided which was not available at sentencing in the District Court, I am satisfied it is in the interests of justice to admit the s 27 report on appeal despite it not being fresh.
Appropriate discount
[33] As noted, Mr Blackburn’s background contains a range of criminogenic factors. When this is the case, without countervailing protective elements to an individual’s upbringing, offending is more likely. I consider there is a nexus between the identified background factors (which were not before the District Court Judge) and Mr Blackburn’s offending, justifying a 10 per cent discount.
[34] Neither party argued on appeal that any other component of the sentencing Judge’s approach warranted adjustment, and I do not consider it does.
[35] Applying the further discrete discount for the personal background factors leads to an end-sentence of 24 and a half months’ imprisonment. This is a reduction of three months and is more than tinkering.
Further submission on appeal
[36] In her written submissions, Ms Trinder conceded home detention was not appropriate if the sentence was reduced to 24 months (or lower). However, in oral argument, counsel changed that submission and suggested that home detention may be appropriate.
[37] If a short-term sentence results on appeal, the Court is required to consider whether home detention (or, as applicable, leave to seek it) is appropriate.15
[38] As discussed above, applying credit for the additional factors set out in Mr Blackburn’s s 27 report results in a sentence greater than 24 months, therefore the issue does not arise. However, I record for completeness that given the highly recidivist nature of Mr Blackburn’s offending, his past unwillingness to engage in rehabilitation in relation to his alcohol use, and the lack of information on current rehabilitative attitudes, prospects, or plans, I would not consider home detention as an
15 Pahulu v Police [2020] NZHC 153; and Papa v Police [2019] NZHC 1309. If it is, but no suitable address is available, leave to seek home detention must be reserved: Sentencing Act 2002, s 80I.
appropriate sentence even had the result of the appeal been a short-term sentence of imprisonment.
Conclusion
[39]Leave to appeal out of time is granted.
[40] The s 27 report is admitted on the appeal. Having the benefit of the further information within the report, which was not available to the lower court, I consider a discrete discount of 10 per cent is warranted for the appellant’s personal background, giving an adjusted end-sentence of 24 and a half months’ imprisonment.
[41]The appeal is allowed.
[42] The sentence is quashed and a substituted sentence of 24 and a half months’ imprisonment imposed.
Addendum
[43] This judgment, when initially released, omitted to identify the particulars of the substituted sentence imposed, which are as follows:
(a)On the charge of refusing blood, Mr Blackburn is sentenced to 16 months’ imprisonment.
(b)On the charge of driving while suspended, third or subsequent, a sentence of imprisonment for eight months and 14 days, cumulative.
(c)On the charge of driving with excess blood alcohol (16 April 2023), a sentence of nine months’ imprisonment, concurrent.
[44] For the avoidance of doubt, I confirm that Mr Blackburn’s convictions and discharge, on the charges of refusing to accompany and officer and failing to answer police bail, are not disturbed.
[45] Further, the related disqualifications and notice under s 129B of the Sentencing Act 2002 imposed by Judge Couch at sentencing are undisturbed.
………………………………………
Preston J
Solicitors:
AJA Trinder Barrister, Christchurch Crown Solicitor, Christchurch
5
6
1