Brown v Police
[2017] NZHC 1039
•18 May 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-34
CRI-2017-409-35 [2017] NZHC 1039
BETWEEN JACQUELINE GABRIELLE BROWN
Appellant
AND
NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondent
Hearing: 26 April 2017 Appearances:
S Teki-Clark and P Johnson for Appellant
E J Henderson for RespondentJudgment:
18 May 2017
JUDGMENT OF NICHOLAS DAVIDSON J
This appeal
[1] The appellant, Ms Brown, was sentenced to 21 months imprisonment in the
District Court on 23 February 2017, on the following charges:
· driving while disqualified (third or subsequent) x 3;
· giving false details;
· breach of community work;
· driving while disqualified (third or subsequent) –re-sentencing;
· possession of utensils –re-sentencing.
BROWN v NZ POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 1039 [18 May 2017]
[2] The grounds of appeal are that the sentence was manifestly excessive, and home detention ought to have been imposed.
Approach on appeal
[3] 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 that a different sentence should be imposed.1
[4] 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 (citing Ripia v R2) in Larkin v Ministry of
Development:3
[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.
[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,4
the Court of Appeal held that:5
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
[6] A decision to grant home detention in lieu of a short sentence of imprisonment is discretionary. On appeal the Court’s primary focus is on the identification of any error, bearing in mind the discretionary nature of such
a decision.6 Such an error may be failure to take into account a relevant
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Ripia v R [2011] NZCA 101 at [15].
3 Larkin v Ministry of Development [2015] NZHC 680.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 At [36].
6 Doolan v R [2011] NZCA 542 at [39].
consideration or taking into account an irrelevant consideration, however, the weight to be given to each factor is properly at the discretion of the Court below.7
Sentencing
[7] The circumstances of offending are as follows:
(i)On 9 December 2015, the appellant was sentenced to community work for driving while disqualified (third or subsequent) and possession of utensils.
(ii)She did not engage with the community work sentence which led to a charge of breach and an application to cancel the community work sentence, which was granted. The appellant was disqualified from driving for one year.
(iii)On 30 March 2016, she was again charged with driving while disqualified (third or subsequent).
(iv)On 8 May 2016 she again drove, which led to another charge of driving while disqualified (third or subsequent). Sentencing was delayed, primarily to assist the appellant, but she did not appear for sentencing on 15 November 2016.
(v)On 17 November 2016, she again drove and when stopped she gave false details to attempt to persuade the Police she was not a disqualified driver.
[8] The Judge first addressed the three charges of driving while disqualified (third or subsequent) and the provision of false details. As the appellant had not co-operated with community probation to prepare an updated pre-sentence report, he used earlier reports. He regarded the gravity of the offending as serious. These were three blatant offences of driving while disqualified, at a time when the appellant was
subject to sentences of community work and supervision. The second and third
7 McConnel v R [2013] NZCA 303 at [15].
instances of driving were in breach of specific bail conditions not to drive. The third was aggravated by the attempt to deceive the Police. The Judge adopted an overall starting point of 18 months imprisonment.
[9] The Judge then uplifted by three months to reflect that this offending occurred while the appellant was on bail and subject to a sentence of community work. Although it was not addressed by counsel, the Judge’s sentencing notes indicate that there may have been a double-counting for the fact that much of this offending occurred while the appellant was on bail. The Judge’s notes record:
[7] I have to regard the gravity of your offending as serious. You were disqualified for driving while disqualified. You then committed these three blatant offences with no good reason for driving. That was aggravated by the second and third of those offences being in breach of specific bail conditions not to drive. The third was further aggravated by your attempting to deceive police by giving false details.
[8] For these offences, I take a starting point of 18 months’ imprisonment. All of this offending occurred while you were subject to sentences of community work and supervision. The second and third driving while disqualified were while you were on bail for the first one. For those, I would apply an uplift of three months.
(emphasis added)
[10] This Judgment returns to the potential implications of this under Discussion.
[11] The appellant’s history, reaching further back, included a conviction for driving while disqualified in each of 2008 and 2011, and two in 2012. There were five convictions for drink-driving, and other driving offences. For that history the Judge applied an uplift of four months. Guilty pleas allowed a discount of six months, leading to an end sentence of 19 months imprisonment.
[12] The Judge then re-sentenced the appellant in respect of the sentence of community work which was cancelled. She was sentenced to two months imprisonment cumulative with the 19 months imprisonment. There was no re-sentence on the charge of possession of utensils. She was convicted and discharged for providing false details to the Police, and for breach of community work she was sentenced to one month imprisonment, concurrent. This led to a total of 21 months imprisonment. The Judge declined to give leave to apply for home
detention, on the basis that even if a suitable address was available, it would not be
appropriate in the appellant’s case.
[13] There were notices ordered under s 129B of the Sentencing Act 2002 to the owner of a Nissan vehicle CAS606 and a Ford vehicle DNH459. Standard release conditions and special release conditions were imposed to last until six months after the sentencing date.
Submissions on appeal
For the appellant
[14] Mr Teki-Clark submits that the sentence was manifestly excessive because the uplifts were incorrectly applied to reach the end starting point before discounting, and otherwise the overall sentence does not fairly compare with sentences for similar offending. He otherwise submits that home detention was the appropriate sentence.
[15] He refers to the judgment of Wylie J in Whitley v Police,8 to support the submission that the Judge was wrong to impose an uplift of three months for offending while on bail and subject to another sentence. In that case, uplifts of six months each had been applied to a starting point of 10 months imprisonment, for offending which occurred when on bail and which represented the tenth and eleventh occasions of such offending. Wylie J accepted that uplifts for such were appropriate, but that they should be four months each.9 Wylie J also had reservations regarding a six months uplift to reflect previous criminal history. Fogarty J in O’Docherty v Police,10 held an uplift of three months was appropriate to reflect previous criminal history, which was rather less serious than the present case. Accordingly, Mr Teki-Clark considers four months uplift for that to be broadly appropriate.
[16] Mr Teki-Clark submits that the correct approach was to adopt a provisional starting point of 18 months, apply an uplift of four months to reflect previous criminal history, then a 25 per cent discount for early guilty pleas, to reach an end
sentence of 16 months imprisonment. The accepted cumulative two months
8 Whitley v Police [2016] NZHC 1025.
9 At [31].
10 O’Docherty v Police [2012] NZHC 3043.
imprisonment on re-sentence matters meant the appropriate end sentence was 18 months imprisonment. A reduction of three months on appeal is submitted significant and not mere tinkering. In effect this submission is to take out of calculation the uplift of three months for offending while subject to a sentence imposed, and while on bail.
[17] Focus also fell on the refusal of the Judge to impose home detention. Mr Teki-Clark referred to the Court of Appeal in Jones v R:11
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?
[18] The submissions were based on insufficient weight being given to the appellant’s undoubted need for rehabilitation and integration. Home detention is sought on this appeal, in order that the appellant may attend a residential rehabilitation treatment centre. That was not put before the District Court Judge, so in that sense the sentencing cannot be said to be wrong. In fact, sentencing was deferred for the appellant to attend St Marks Addiction Residential Treatment Centre in Blenheim. She had self-discharged from Kennedy Detox Unit before being admitted to St Marks. She says she discharged herself because of custody issues about her infant son, and contact problems.
[19] The pre-sentence report said Ms Brown could engage with recommended intervention, that she had voluntarily engaged, and “continues to display occasional motivation to address her serious addiction issues”. This reflects a lukewarm motivational attitude at best.
[20] Mr Teki-Clark rightly recognised that the appellant’s 2013 conviction for breaching home detention conditions counted against her, but he submits that she was then in a volatile setting, only 21 years old, and that home detention in a residential treatment centre represents a different and promising rehabilitative
course. The birth of her son has motivated her to address her addiction issues. In
11 Jones v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
short, Mr Teki-Clark submitted that home detention at an appropriate treatment centre strikes an appropriate balance between denunciation and deterrence, and would assist her rehabilitation, with benefit to her and the community.
For the Crown
[21] Ms Henderson for the Crown refers to the sentencing approach to recidivist offending for driving while disqualified discussed by Dunningham J in Keenan v Police.12 Her Honour identified two approaches: where previous convictions are
built into the starting point, per Maxwell;13 and where a nominal sentence is
allocated to the driving offence, before an uplift, as per the Peterson14 approach. Ms Henderson submits that it probably does not make much, if any, difference but the Peterson approach is more orthodox.
[22] Ms Henderson refers to Finch v R.15 There the appellant was sentenced to
18 months imprisonment on a charge of perverting the course of justice, and three charges of driving while disqualified (third or subsequent), which were the fifth, sixth and seventh such convictions. The Judge adopted a six months starting point for perverting the course of justice, and uplifted this by 14 months for the driving offences, with a further six months to take into account the history of offending, including while on bail. The overall starting point of 26 months was reduced for the appellant’s youth and guilty pleas to 22 months imprisonment, and in totality
18 months imprisonment was imposed. Home detention was found not to meet the need for denunciation and deterrence. The Court of Appeal upheld the sentence.
[23] In Wilson v Police,16 the appellant was sentenced on four charges of driving while disqualified (third or subsequent) which represented his thirteenth to sixteenth charges for such offending. The Judge took a starting point of nine months imprisonment for each charge, imposed cumulatively. The total starting point of
36 months was not further increased because it already encompassed the aggravating
feature of criminal history as per the Maxwell approach. With a 20 per cent discount
12 Keenan v Police [2014] NZHC 1894.
13 Maxwell v Police [2013] NZHC 3172; see also Drinkwater v Police [2013] NZHC 1036.
14 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
15 Finch v R [2012] NZCA 446.
16 Wilson v Police [2016] NZHC 506.
for guilty pleas a sentence of 28 months imprisonment was reached. On appeal to this Court, Nation J did not consider that to be manifestly excessive. Further, driving while disqualified offences had been committed when the appellant was on bail on a previous charge of driving while disqualified, committed over a period of five months, and the appellant tried to pretend he was not the driver when stopped by the Police. Overall, a starting point of 36 months imprisonment was consistent with the starting points adopted in comparable cases.
[24] In this case, the charge of driving while disqualified on 16 September 2015 was the subject of re-sentence, and reflected the appellant’s fifth such conviction. The subsequent charges were her sixth, seventh and eighth convictions. She also had four convictions for alcohol driving offences in the District Court and one in the Youth Court, four convictions for being an unaccompanied learner driver, and three convictions for failure to comply with a non-operation order. Ms Henderson submitted that the starting point and uplifts were within range, and that overall the sentence of 19 months imprisonment on the fresh charges of driving while disqualified was open to the Court, considering the 18 months end sentence in Finch. The cumulative two months for the re-sentence charge was appropriate. Thus,
21 months imprisonment for all charges was not manifestly excessive.
[25] Relevant to the question of home detention, Ms Henderson referred to the appellant’s history of offending. Her youth was recognised as a relevant factor, and the prospects of (and need for) rehabilitation led to the previous sentence of home detention which she breached. Special conditions were imposed requiring her to attend and complete intervention for drug and alcohol abuse, and a residential programme if that was directed by Probation. Seven days later the appellant cut off her electronic monitoring bracelet and left the home detention address. Sentence on the original charges was reviewed by Judge Somerville on 24 January 2013. Her counsel said that if a sentence of imprisonment was imposed, there was no point in imposing post-release conditions because he doubted she would honour them. There seemed little for it, as the Judge recorded, but to send her to prison. Home detention was cancelled and replaced with six months imprisonment.
Discussion
The starting point and uplifts
[26] The appeal as to the length of imprisonment is not on the face of it promising. The offending is very serious. The provisional starting point, in my view, cannot be criticised in any way. There is no sentencing authority which indicates that the provisional starting point here was wrong. In the same way, the uplifts applied were in my view within range. The three month uplift for the circumstances in which the appellant offended was appropriate for such contemptuous disregard of her legal status, and the Court process. The same disregard was evident when she responded dismissively to the community work sentence. The uplift for her previous criminal history was, if anything, at the lenient end of the range available. Whilst the sentencing notes indicate that the Judge perhaps factored in the offending on bail in both the starting point and uplift, the uplift also reflected the fact the appellant was already subject to a sentence, which the Judge has plainly not double-counted. Overall, the sentence is not manifestly excessive. That is, the end starting point of 18 months was within range even without regard to the aggravating feature of offending whilst on bail.
[27] In the circumstances and in totality, I consider the end sentence imposed to be within range. However, that led, paradoxically, to much closer focus on the appeal against refusal to grant home detention.
Home Detention
[28] I do not consider for a moment that the Judge erred by not ordering home detention, or granting leave to apply for such, on the information before the Court. The law requires an error to be identified in the exercise of sentencing discretion, according to the application of incorrect principle, insufficient or excessive weight given to a particular factor, or that it was plainly wrong.
[29] Somehow Ms Brown must break the cycle of what is very serious offending, which creates serious risks of an accident, potentially with disastrous results for her, her child and members of the public. The rehabilitation of the appellant and the
protection of the public, along with deterrence and denunciation, are relevant factors. These principles and purposes might be served by a sentence of home detention in a rehabilitative residential setting.
[30] The history of the appellant’s offending is such that she is, on the face of it, undeserving of such a sentence of home detention. There was simply insufficient information to know whether what is proposed would be effective, as to where she would go, to serve a rehabilitative sentence of home detention, whether she would be accepted, whether her motivation was such as to warrant such a step, then for how long she would remain at such a centre before she reverted to another suitable address.
[31] Ms Henderson’s submissions emphasised the authority of James v R, that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. Ms Henderson submits that the appellant’s failure to comply with community-based sentences and Court orders tipped the balance in favour of imprisonment for deterrent reasons, as in Hampton v Police.17
[32] The degree of non-compliance and in particular her breach of a previous home detention sentence demonstrates a contempt for authority, and for Court orders. The appellant has refused to engage with rehabilitative sentences. Hence, the seriousness of the offending, and the sentencing principles of denunciation, deterrence, accountability and responsibility are submitted to resonate strongly in this context, in particular, with the overarching concern for public safety. Ms Henderson submits that the Judge was right, that other sentencing options have been exhausted, leading to the irresistible conclusion that imprisonment is the least restrictive outcome appropriate here.
Further information
[33] I made it clear to counsel for the appellant, Mr Teki-Clark, that the prospects of success on the appeal against refusal to grant home detention were poor. The
17 Hampton v Police [2014] NZHC 2423.
appellant’s motivation towards rehabilitation appears scant, and the Crown is quite
right to point to the appellant’s contempt for the authority of the Court.
[34] Counsel reported back following inquiries into the feasibility of a sentence of home detention in a residential setting. That would necessarily be in a residential alcohol treatment programme, as without that home detention would not be contemplated. The appellant’s case manager was consulted, who liaised with the Alcohol and other Drug Assessment and Treatment (ADAS) Team leader, but it transpires that the appellant requires an assessment review before a referral to a treatment centre is made, which could not be carried out before the week of
26 June 2017. An admission date would be provided following referral. There was correspondence associated with a memorandum to the Court provided by Mr Teki-Clark. The case manager referred to an assessment to gauge Ms Brown’s motivation, and if residential AOD treatment was recommended, then a comprehensive assessment would be completed. There would be a wait time of some two months, if a comprehensive assessment were sought from the outset.
[35] I put it to counsel that without clear evidence of proper motivation, the Court would not entertain home detention under a residential programme. The reasons for the appellant’s lack of motivation are not apparent. I consider it a prerequisite that anyone who seeks the advantage of home detention, specifically to address addiction issues, must demonstrate some intent and motivation. The persistent defiance of the sentences imposed for very serious offending, and the lack of any real purpose and intent towards rehabilitation, count decisively against the appellant. While the Court would rather it were otherwise, there is no other course than to dismiss the appeal.
[36] This Judgment constitutes an endorsement of the approach taken, and sentence imposed, in the District Court.
Disposition
[37] The appeal is dismissed.
……………………………………….
Nicholas Davidson J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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