Cant v Police

[2024] NZHC 1911

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-000101

[2024] NZHC 1911

BETWEEN

JESSE MAAKA EVAN CANT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 July 2024
Appearances:	B S T Moore for Appellant B W D Alexander for Crown
Judgment:	11 July 2024

ORAL JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CANT v POLICE [2024] NZHC 1911 [11 July 2024]

Introduction

[1]    On 4 April 2024, Jesse Maaka Evan Cant was sentenced to six months’ community detention, 100 hours’ community work, and 15 months’ disqualification from driving1 following his guilty plea to a charge of dangerous driving causing injury.2

[2]    Mr Cant appeals that sentence. He says the appropriate sentencing outcome was one of community work, reparation and disqualification. He seeks leave to adduce as fresh evidence on appeal a letter dated 27 June 2024 from his employer, Downer, outlining the impact of the community detention component of his sentence for his employment.

Facts

[3]    On 30 June 2023, Mr Cant drove from Tauranga to Invercargill with a friend who was in the front passenger seat. At about  7:35  pm,  he  was  driving  on  Queens Drive, Invercargill. The street had a speed limit of 50 kilometres per hour. Traffic flow was moderate. The weather was poor, the roads were wet and there were strong winds. Mr Cant was driving in excess of the speed limit at a speed that he estimated to be at around 70 kilometres per hour.

[4]    Mr Cant lost control of his vehicle and crossed the centre line. He crashed head-on into an oncoming vehicle. The impact spun the other vehicle around and into a concrete wall. Both vehicles were extensively damaged and the driver of the other vehicle had to be cut free by fire service responders. That driver suffered serious leg injuries, requiring hospitalisation and surgery. A passenger in that other vehicle suffered minor sprains and bruising. Mr Cant and his passenger suffered only minor injuries.

[5]    Mr Cant remained at the scene where he attended on the injured victim and was compliant with emergency staff. When spoken to by the police, he said he believed his vehicle had aqua-planed, causing him to lose control.

1      Police v Cant [2024] NZDC 9362 at [14]–[16].

2      Land Transport Act 1998, s 36(1)(b).

Victim impact statements

[6]    The victim impact statement of the other driver confirms that as a result of the crash, he broke his right femur and dislocated his right knee. Surgery was required. He was off work and lost a couple of weeks’ wages before ACC commenced. In a second updating statement, he confirms he has since returned to work full-time and has a new job as a forklift driver. He says his injuries have affected his work in that he struggles to get in and out of the truck and lift heavy freight, but it has not affected his everyday life, although he does suffer some discomfort in his right leg when he wakes up. He reports the psychological impact of the crash as being a “minor depression”.

District Court decision

[7]    The Judge in the District Court considered that Mr Cant’s driving fell a long way short of that of a prudent motorist, labelling the driving as not merely careless or reckless, but dangerous. The Judge considered that it was only good fortune that no-one was killed.

[8]    The Judge observed that given the poor driving conditions, a speed of around 30 and 40 kilometres per hour, in the Judge’s opinion, would have been more appropriate. The Judge described Mr Cant’s decision to drive continuously from Tauranga to Invercargill without taking rest stops, aside from crossing the Cook Strait as adding to his offending substantially.

[9]    The Judge took a starting point of 18 months’ imprisonment without reference to any case law. A deduction of 25 per cent was allowed for Mr Cant’s prompt guilty plea and a further 10 per cent deduction for remorse, recognising his participation in a positive restorative justice conference. The Judge then allowed a further 5 per cent deduction for Mr Cant’s good character, that good character being reflected in a letter from his employer, Downer, and from him having an unblemished criminal record.

[10]   The Judge considered the gravity of Mr Cant’s offending, and particularly the harm to the victims meant the least restrictive sentence was a combination of community detention and community work, rather than community work alone as had

been recommended in the pre-sentence report. Having read a letter from Mr Cant’s employer, the Judge was conscious that the proposed sentence would cause inconvenience. The employer had referred to a particular overseas project that was scheduled to commence shortly after the sentence and required Mr Cant’s involvement. The Judge deferred the start date of the community detention component of the sentence to 9 May to accommodate that project.

[11]   Over and above community detention and community work, the Judge imposed a disqualification of one year and three months and ordered Mr Cant to pay reparation for economic loss and emotional harm in the sum of $1,000.

Principles on appeal

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

[13]   Section 335 of the Criminal Procedure Act 2011 grants courts special powers on appeals involving conviction, sentence, or contempt. The principles governing the admission of new evidence on appeal were recently restated by the Court of Appeal in Mark v R, where the Court outlined:6

The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be

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

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

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

6      Mark v R [2019] NZCA 121 at [16].

made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

[footnotes omitted]

Submissions

Appellant’s submissions

[14]   Mr Moore, for the appellant, submits the community detention component of the sentence was either not appropriate or alternatively was manifestly excessive. He submits that the Judge understated the consequences of a sentence of community detention to Mr Cant and to Downer. He submits that imposing that sentence will mean Mr Cant will lose his employment as a team leader in Downer and that Downer will not readily be able to replace Mr Cant. Mr Moore submits that hardship and “financial turmoil” will result to Mr Cant and his family unit if he loses his job as he has a newborn baby and is the sole income earner.

[15]   In his oral submissions, Mr Moore informs the Court that Mr Cant has recently been on parental leave from his employment and the sentence of community detention has been suspended pending determination of the appeal. The sentence is therefore yet to bite.

[16]   Counsel says that in the circumstances that arise, the more appropriate outcome was for the Judge to impose additional community work and perhaps raise the level of reparation payable in order to ensure Mr Cant is able to maintain his employment.

[17]   Mr Moore submits that the principles and purposes of sentencing would be better achieved through a significant community work sentence. He refers to

Zhang v R and Hessell v R and submits that the sentence must involve a “full evaluation of the circumstances to achieve justice in the individual case”.7

[18]   He submits the sentencing Judge failed to take into account the other driver’s position which was confirmed in a restorative justice conference report. Mr Moore refers particularly to the observations of the other driver at the end of that conference where he said:

Thank you for giving me the time to help me understand, you’re a good guy and as long as the insurance covers everything, I hope the Judge lets you off.

[19]Mr Moore seeks to offer as fresh evidence a second letter from Downer dated

27 June 2024 in which the  employer  addresses  the  potential  consequences  for  Mr Cant’s employment of the imposition of the community detention sentence, raising a very real possibility his ongoing employment is in jeopardy.

Respondent’s submissions

[20]   Mr Alexander on behalf of the Crown opposes both the appeal against the sentence and the application that the Court consider the June letter on appeal. He submits the Judge in the District Court gave due consideration to the need to impose the least restrictive sentence available, observing that the Judge stepped down the hierarchy of sentences to what, he described, is the least restrictive sentence.

[21]   Mr Alexander submits that the outcome as imposed in the District Court was appropriate for a number of reasons as follows:

(a)the nominal  end  point  for  sentencing,  prior  to  conversion,  was  11 months’ imprisonment;

(b)the principle that a “drop down” of two levels in the sentencing hierarchy from imprisonment to community detention is unusual and generally requires compelling grounds to justify. He says to go further would be to go too far;

7      Zhang v R [2019] NZCA 507 at [120] citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].

(c)a sentence of 100 hours community work could also impact on the appellant’s ability to travel domestically and internationally given he would be required to complete 100 hours every six months. He makes that submission in response to Mr Moore’s proposal that the number of community work hours could be increased;

(d)the concerns arising from the pre-sentence report indicating the appellant maintained the belief his driving experience qualified him to drive long distances without resting for 12 hours or more at a time; and

(e)the need to deter and denounce dangerous driving offending.

[22]   As regards the application to adduce the 27 June letter, Mr Alexander observes that this employer took advantage of the opportunity to inform the District Court as to Mr Cant’s possible employment consequences at his sentencing. He submits that it is only following what must have been considered to be an undesirable outcome that the appellant now seeks to adduce further evidence raising new and more significant consequences. Mr Alexander queries whether there is not some disparity between the two letters. He also highlights neither is in sworn form and raises doubts as to whether the Court should accept the June letter as credible. He submits in any event the latter letter is not fresh because it could easily have been obtained with reasonable diligence at sentencing. There has been no explanation as to that failure.

Material before the Judge

[23]   The Judge had the benefit of a letter dated 22 March from Mr Cant’s manager at Downer. Further, the author of the pre-sentence report had spoken directly to that manager. That confirmed that Mr Cant  has been employed  at  Downer  for  about  11 years. His employment involves a reasonable amount of travel with the delivery of strategically important projects across New Zealand and the Pacific. The manager confirmed that the present outlook for Mr Cant’s continued employment involves a reasonable amount of travel to Niue, Tuvalu and Nauru for work on projects described as making a real difference to the communities in which Downer operates.

[24]   In both the pre-sentence report and the manager’s letter reference was made to a pre-arranged employment project for four weeks commencing 8 April in Niue. It was for that reason the Judge saw fit to defer the commencement of the sentence of community detention sentence until 9 May. It was therefore clear that a sentence of community detention would potentially pose significant difficulties for Mr Cant’s ongoing employment in that it would prohibit overseas travel, or indeed travel away from the curfew address over the duration of the sentence.

Analysis

[25]   I deal firstly with the “fresh” evidence. I agree with Mr Alexander that the June letter does not add significantly to what was before the District Court Judge. I acknowledge it is crafted in what might be described as more robust terms than the March letter in that it describes the sentence of community detention as putting     Mr Cant’s ongoing employment with Downer in “significant jeopardy” however, that was more broadly implied in the March letter where Mr Cant’s ongoing employment was described as “challenging” and there were references to the difficulties that Downer would face if “replacement” was necessary.

[26]   However, I agree that the Judge was not aware that dismissal or a formal employment process, as has been referenced in the June letter, is now said to be a possible employment outcome. The Judge only foresaw inconvenience to Downer. The June letter also details further overseas projects that Mr Cant would otherwise be required to attend. The particular project would be impacted by the current sentence of community detention is one in Tuvalu scheduled to commence in September 2024.

[27]   I infer that Downer have undertaken a further review of Mr Cant’s ongoing employment with a greater appreciation of the consequences of the sentence imposed and has consequently shifted its position adversely for Mr Cant. I am therefore, by a fine margin, satisfied the further material is fresh.

[28]   Mr Alexander has cast doubt as to the credibility of the assertion that Mr Cant’s employment is in significant jeopardy. In the earlier letter Mr Cant was described as irreplaceable and it was said that it would take many years to train a replacement. It does seem unlikely that a reasonable employer would dismiss an employee when that

employee will be able to resume duties in a matter of months. Nevertheless, I am not able to find that the letter lacks credibility. I accept the new material could impact the sentence and that to exclude the evidence could give rise to a manifestly excessive sentence. I therefore admit the June letter as evidence to be considered on this appeal.

[29]   Mr Moore’s primary submission on behalf of Mr Cant is that the sentence of community detention coupled with a sentence of community work was inappropriate or manifestly excessive. The Judge had determined that a sentence of community detention in combination with community work was the least restrictive appropriate sentence because a community work sentence alone “would not sufficiently reflect the gravity of your offending, in particular the harm to your victims”.8

[30]   Section 69C of the Sentencing Act provides guidance on the use of a sentence of community detention. That section provides as follows:

69C     Guidance on use of sentence of community detention

(1)A court may impose a sentence of community detention if the court is satisfied—

(a)that a sentence of community detention—

(i)would reduce the likelihood of further offending by restricting the offender’s movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or

(ii)would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f); and

(b)that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.

(2)A court may sentence an offender to community detention if—

(a)the court is satisfied that—

(i)the proposed curfew address is suitable; and

(ii)the relevant occupants (as defined in section 26A(4)) of the proposed curfew address—

(A)  understand the conditions of the curfew that will apply to the offender; and

8 At [13].

(B)   consent to the offender remaining at the address in accordance with the curfew; and

(C)   have been informed that they may withdraw their consent, at any time, to the offender serving the sentence at the curfew address; and

(iii)the offender has been made aware of and understands all the conditions that will apply during the sentence and he or she agrees to comply with them; and

(b)the proposed curfew address is in an area in which a community detention scheme is operated by the chief executive of the Department of Corrections.

(3)Before imposing a sentence of community detention on an offender, a court must consider the pre-sentence report prepared by a probation officer in accordance with section 26A.

[31]   The essential purpose of a sentence of community detention is, either to reduce the risk of further offending by restricting an offender’s movements during particular times by means of a curfew or alternatively to achieve one or more of the three sentencing purposes as specified — that is to hold the offender accountable for the harm done by the offending; to promote a sense of responsibility in the offender; or to denounce or deter the offending. The first purpose does not arise on this appeal.

[32]   The sentencing purposes (s 69C(1)(a)(ii))) were not expressly referenced by the Judge. As I have noted the Judge focussed on what was described as the particular harm to the victim. The difficulty with that approach is that although it is clear that the primary victim suffered a nasty injury and consequential challenges, he says he has made a very good recovery and there was what I would describe as a very successful restorative justice conference wherein the victim forgave Mr Cant, expressed his forgiveness and expressed his hope that “the Judge lets you off”.

[33]   Having reviewed the restorative justice report, I have no doubt that the victim would feel aggrieved to learn that Mr Cant’s employment could be in jeopardy as a consequence of the sentence imposed.

[34]   Mr Moore has acknowledged that the starting point of 18 months’ imprisonment adopted by the sentencing Judge was within range, albeit describing it as stern. There is therefore some merit in Mr Alexander’s submission that powerful

mitigating factors were required to reduce that sentence down the sentencing hierarchy to a sentence of community detention. I accept that a sentence of community detention was available and appropriate. Mr Moore’s submission to the contrary is, in my view, more applicable in a case where the offender has been convicted of careless driving causing injury.

[35]   The sentencing purposes of denunciation and deterrence being one of the relevant factors in considering whether a sentence of community detention can be imposed did, in my view, support imposing such a sentence. I do not think that such  a sentence was necessary or appropriate to personally denounce or deter Mr Cant. However, offending of this nature does gives raise issues of public denunciation and deterrence. I do not think the sentence of community detention was necessary or appropriate in order to either hold Mr Cant accountable for the harm caused by his offending or to promote in him a sense of responsibility. I have no doubt that enduring the criminal process for the first time in his life and participating fully in a restorative justice conference will have achieved those purposes. He is a first offender and the primary cause of the accident was fatigue as opposed to any other aggravating factor. Consequently, in my view the real question is whether the term of the sentence of community detention was manifestly excessive balanced against the community work hours imposed. Mr Cant was sentenced to the maximum term available of six months. The Judge did not explain why he considered the maximum term was appropriate.

[36]   Mr Cant’s offending did not involve the commonly seen aggravating factors in similar cases, such as very high speed, the influence of drugs or alcohol, the failure of a driver to act appropriately following the crash, or being an unlicensed or disqualified driver. It is not alleged that the offending involved prolonged dangerous driving. This was a momentary failing.

[37]   In those circumstances and accepting that a community work sentence will have very real consequences of Mr Cant’s ongoing employment, I consider that to impose the maximum sentence alongside community work, a lengthy disqualification and reparation gave rise to a manifestly excessive sentence.

[38]   Having regard to the specialist nature of Mr Cant’s employment and the risks that I perceive to be posed to that employment by a sentence of community detention, I consider a sentence of three months’ community detention to be the least restrictive appropriate sentence in combination with the other sentences imposed by the Judge.

Result

[39]   The appeal is therefore allowed. The sentence of six months’ community detention is quashed and substituted with a sentence of three months’ community detention to commence tomorrow, 12 July 2024. The relevant address and hours imposed by the Judge remain in place as do the other aspects of the sentence.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch

Public Service Defence Service, Christchurch