Carnell v The the Queen

[2022] NZHC 630

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-0020 [2022] NZHC 630

BETWEEN

MARK KHALEB TIPENE CARNELL

Appellant

AND

THE QUEEN

Respondent

Hearing:	29 March 2022
Appearances:	R E Webby and R M G Duncan for Appellant A J Pollett for Respondent
Judgment:	30 March 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 March 2022 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Webby & Associates, Tauranga

Pollett Legal Ltd, Crown Solicitor, Tauranga

CARNELL v R [2022] NZHC 630 [30 March 2022]

Introduction

[1]    The appellant, Mr Carnell, appeals against sentence on one charge each of driving whilst disqualified1 and driving whilst under the influence of drugs, causing death.2

[2]    Mr Carnell pleaded guilty to the offending. He was sentenced to two years’ imprisonment on the driving whilst under the influence charge and to one month’s imprisonment on the driving whilst disqualified charge. Mr Carnell was also disqualified from driving for two years, together with standard and special release conditions. These sentences were imposed by Judge Bidois in the District Court at Whakatane on 21 January 2022.

[3]    Mr Carnell appeals against sentence on the basis that the Judge erred in declining to impose a sentence of home detention, as the least restrictive outcome and most appropriate sentence under s 8(g) of the Sentencing Act 2003 (“Act”).

[4]    The Crown opposes the appeal on the basis that an end sentence of imprisonment was the least restrictive outcome appropriate in the circumstances.

Background

[5]    Around 5:45 pm on 14 May 2021,  Mr  Carnell  was  driving  west  on  Bridge Street, Opotiki.

[6]    Mr Carnell cut the corner as he turned right onto Goring Street, drove on the wrong side of the road, and collided with the victim, being a 14-year-old boy riding a mini chopper motorcycle who was approaching the same intersection from the south. The victim sustained serious head and chest injuries and died at the scene.

[7]    Subsequent testing of Mr Carnell’s blood revealed the presence of methamphetamine (at a low reading of 0.01 milligrams per litre of blood) and cannabis.  Mr Carnell told the Police that he had smoked two “cones” prior to driving

1      Land Transport Act  1998, ss  32(1)(a)  and 32(3):  maximum  penalty 3 years’ imprisonment  or

$4500 fine.

2      Sections 61(2) and (3AA): maximum penalty 10 years’ imprisonment or $20,000 fine.

but denied ever using methamphetamine. He attributed the methamphetamine found in his system to the cannabis he had consumed, which he said may have been laced with methamphetamine. However, even if the methamphetamine is put to one side, Mr Carnell was clearly under the influence.

[8]    At the time of the offending, Mr Carnell was aged 29 and disqualified from driving.

[9]This brings me to Mr Carnell’s history of driving-related offending.

[10]   On 9 October 2020, Mr Carnell was apprehended for driving with excess breath alcohol, returning a reading of 768 micrograms per litre of breath, nearly twice the  permitted maximum  of 400.  Mr Carnell  was sentenced for this offending on  22 October 2020, and was disqualified from driving for one year and one day, and ordered to undertake 60 hours of community work.

[11]   Accordingly, when Mr Carnell drove in May 2021, he was some seven months into his period of disqualification, was driving in breach of that disqualification and, to compound matters, he was under the influence of drugs.

[12]   Mr Carnell has two earlier convictions for driving with excess breath alcohol. Mr Carnell’s first offence was committed on 4 September 2009 when, under the age of 20, he exceeded the breath alcohol limit, recording a reading of 302 micrograms per litre of breath. Mr Carnell ought to have returned a nil reading. Mr Carnell was disqualified from driving for that offending.

[13]   In May 2011, still under the age of 20, Mr Carnell drove with excess breath alcohol, being 228 micrograms per litre of breath. Again, the reading should have been nil. On that occasion Mr Carnell was disqualified from driving for a further three months, and his vehicle confiscated.

[14]    Accordingly, just prior to the current offending, Mr Carnell had three convictions for driving with excess breath alcohol. I accept that two were some ten

years old, but the most recent  had been committed only seven months prior when  Mr Carnell had returned a very high breath alcohol reading.

[15]   Before the Judge, counsel for Mr Carnell, Ms Webby, sought a sentence of home detention. She submitted that home detention satisfies all purposes and principles of sentencing, would assist Mr Carnell’s rehabilitation — which he had already commenced of his own volition — and was the least restrictive sentence available. The Crown contended for a term of imprisonment, on the ground that home detention in this particular instance would not sufficiently meet the need for deterrence and denunciation.

[16]   The Judge accepted the Crown’s submission and imposed a term of imprisonment. In doing so, the Judge was taking the same view as has been taken in many other cases such as McMillan v Police, Bowlin v Police, and Edmonds v R.3 In all of those cases, the Judge took the view that the particular circumstances of the offending and offender required a term of imprisonment as opposed to home detention.

Discussion

[17]   I accept Ms Webby’s submission that, as a matter of principle, a sentence of home detention is capable of meeting all of the purposes and principles of sentencing. I also accept, of course, that there is an obligation to impose the least restrictive sentence available in the circumstances.

[18]Despite that, I decline this appeal.

[19]   First, I am not persuaded the Judge made an error in imposing a term of imprisonment as opposed to one of home detention. That was the view the Judge took on the facts of this particular case, and it was open to him to do so.

[20]   Secondly, to impose a sentence of home detention in this case would require any Judge to be satisfied that Mr Carnell could be relied upon to refrain from driving.

3      McMillan v Police [2014] NZHC 150; Bowlin v Police [2014] NZHC 2635; and Edmonds v R

[2020] NZHC 662.

This is what would be required to protect the community from Mr Carnell, as required by s 7(1)(g) of the Act.

[21]   The information available does not give rise to any degree of confidence. As someone old enough to know better, Mr Carnell committed two serious offences in close succession, the result of one of which is that a 14-year-old boy lost his life. Nothing in the information before me comes close to precluding the possibility of a repeat of such offending, if a sentence of home detention was substituted.

Result

[22]The appeal is dismissed.

Peters J