Edmonds v R
[2020] NZHC 662
•31 March 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-12
[2020] NZHC 662
BETWEEN TUI KATHLEEN EDMONDS
Appellant
AND
THE QUEEN
Respondent
Hearing: 31 March 2020 (by telephone) Counsel:
G Boot for Appellant
A S Alcock for Respondent
Judgment:
31 March 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 31 March 2020 at 3:00 pm Registrar/Deputy Registrar
Solicitors:
Gavin Boot Law, Hamilton, for Appellant Crown Solicitor, Hamilton, for Respondent
EDMONDS v R [2020] NZHC 662 [31 March 2020]
Introduction
[1] Ms Edmonds appeals her sentence of one year and nine months’ imprisonment imposed by Judge SD Otene on 23 January 2020.1 Her contention is that the Judge should have sentenced her to a term of home detention.
Background
[2] Ms Edmonds pleaded guilty to a charge of driving a motor vehicle causing death while under the influence of alcohol to such an extent as to be incapable of having proper control of her vehicle.2 The maximum penalty is 10 years’ imprisonment. Ms Edmonds also pleaded guilty to a charge of refusing to permit a blood specimen to be taken without delay after having been requested to do so by a medical officer.3 The maximum penalty is three months’ imprisonment.
[3] The summary of facts records that on 21 April 2019 Ms Edmonds consumed alcohol with her friend, Mrs Emery, at a rugby club. At about 8:35 pm Ms Edmonds drove away from the rugby club in her car, accompanied by Mrs Emery. As she approached a 65 kmh advisory right-hand bend, her car went towards the left-hand side and on to the gravel shoulder. Ms Edmonds attempted to correct the vehicle by steering towards the right – that caused the vehicle to begin turning in a clockwise direction. Ms Edmonds attempted to regain control by steering sharply to the left, which caused her car to cross both the southern and northern lanes before sliding back into the southbound lane. Ms Edmonds’s car then left the road, went down a short bank, struck a fence post and rolled on to the passenger’s side. The impact of the crash broke Mrs Emery’s neck and she died at the scene.
[4] When the police arrived Ms Edmonds refused to give any details to them. She had herself sustained moderate injuries and was taken to hospital for treatment. At the hospital Ms Edmonds was required to provide a medical blood sample for alcohol and drug analysis. Ms Edmonds refused to provide a sample, swearing at the medical professionals.
1 R v Edmonds [2020] NZDC 1224.
2 Land Transport Act 1998, s 61(2)(a).
3 Land Transport Act 1998, s 60(1)(b).
[5] A blood sample was taken from Ms Edmonds as part of her medical treatment. Analysis of that sample showed a blood alcohol content of approximately 245 milligrams of alcohol per 100 millilitres of blood, almost five times the legal blood alcohol limit.
[6] Ms Edmonds has relevant previous convictions. In 2002 she operated a vehicle carelessly and refused to give a blood specimen. In 2003 she drove with excess breath alcohol. For both instances of offending she was fined and disqualified from driving.
The Judge’s sentence
[7] The Judge, having set out the facts, acknowledged the tragic outcome of the accident for the family of the deceased. The Judge then went on to set out her approach to the sentencing:
[7] So he aiutā nei. And whatever we do today will be inadequate for Mrs Emery, for her whānau, I imagine inadequate too for you Ms Edmonds and for your whānau as well. But my task today is to impose a sentence that achieves as much as possible these things: making you accountable for the harm; bringing from you some acknowledgement of that harm; providing for the victims; denouncing your conduct and stopping you and others from this type of behaviour; and trying to do that in the least restrictive way possible and also trying to do something that will assist with your rehabilitation.
[8] Judge Otene adopted a starting point of three-and-a-half years’ imprisonment for both offences. The Judge then reduced the starting point as follows:
(a)Five months for what the Judge accepted to be genuine remorse.
(b)Three months for pre-existing health difficulties. The Judge said:4
You have described in the letter that you have provided for me the personal hygiene cares that are required to manage your condition, and which can be restrictive, embarrassing for you and for which you have ongoing specialist care. Whilst I do not have the independent medical evidence of that it has been verified by the pre- sentence report writer and I do take it into account. I am satisfied that it will make a sentence of imprisonment more difficult for you to serve though, as Mr Boot accepts, it is not beyond management.
4 At [12].
(c)Three months to recognise the insight Ms Edmonds had lately exhibited to the factors behind her offending, namely her attitude and alcohol use. The Judge said she was “a little bit careful” about this factor because nine months had passed since the offending and no concrete steps had been taken.5
(d)A 25 percent discount for early pleas of guilty.
[9] I pause here to note that the Judge said the end sentence, allowing for these discounts, was one year and 11 months’ imprisonment. For whatever reason, the actual sentence imposed by the Judge was one year and nine months’ imprisonment. For myself, I would have said the starting point was somewhat high when compared to the case I considered in McCullough v Police,6 but I am satisfied that the end point of one year and nine months’ imprisonment was not manifestly excessive. Indeed, Mr Boot does not challenge it.
[10]As to the issue of home detention, the Judge said:
[15] That does bring the sentence within the range for which home detention may be considered and again when I consider whether home detention is appropriate I need to take into account some of those principles and purposes that I talked about at the outset. Home detention is a sentence that is available in practical terms, there is an address to which you could be sentenced. It is one of the recommendations that is made by Corrections in light of your health issues, the trauma that you have experienced, your level of remorse and because it would allow you to engage in programmes to address your offending. In all those respects home detention would be consistent with the principles I need to take into account that go to assistance for rehabilitation and reintegration and, as I have already observed, a prison sentence will be difficult for you to serve given your health issue.
[16] But Ms Edmonds there are also principles that require sentencing to denounce and to deter offending conduct. It is accepted by Courts that home detention can serve those purposes – home detention is not an easy sentence to serve. But someone has died because you were grossly intoxicated and made a decision to drive. It is behaviour that provided not only the greatest of risk to yourself and to Mrs Emery that was realised, but to any member of the public that you might have encountered and in those circumstances Ms Edmonds I simply cannot see that the requirement for denouncement and deterrence allows me to apply home detention in these circumstances.
5 At [13].
6 McCullough v Police [2013] NZHC 279.
Discussion
[11] My task is to decide whether the Judge made an error in the sentence such that a different sentence should be imposed. 7
[12] Mr Boot’s submissions are to the effect the Judge put too much emphasis on deterrence and denunciation. In his submission, the Judge should have placed greater emphasis on:
(a)The offending was not aggravated by bad or dangerous driving prior to the accident;
(b)Ms Edmonds has been dealt with for her previous offending by fines and periods of disqualification from driving; Ms Edmonds has no convictions for driving while disqualified;
(c)Ms Edmonds’s medical condition.
[13] The decision to commute a short-term sentence of imprisonment to a sentence of home detention is a discretionary one. It requires a Judge to evaluate all the relevant circumstances and to reach a decision as to what is appropriate in order to do justice. An appellate court should not intervene unless there is an error of approach which means the refusal to sentence to home detention was wrong and should be corrected.
[14] Here, the Judge took into account the relevant circumstances and did not take into account any irrelevant circumstances. The Judge considered carefully the weight to be given to the factors personal to Ms Edmonds. Sentencing is not a scientific exercise so for each case there is a range of sentences available to the sentencing Judge.
[15] In this case, I cannot say the Judge was in error not to commute the sentence to one of home detention. The Judge made appropriate allowances for the mitigating factors personal to Ms Edmonds, including her medical condition. This was offending
7 Criminal Procedure Act 2011, s 250.
that required deterrence and denunciation, particularly given Ms Edmonds’s high blood alcohol content.
[16] The gravamen of the charge is that Ms Edmonds chose to drive when, because of drinking alcohol, she was incapable of having proper control of her vehicle. As a result, she caused the death of Mrs Emery.
[17] In McMillan v Police,8 Cooper J considered that the fact that the appellant’s blood alcohol level at the time of the offending was over twice the legal limit militates against home detention as an appropriate sentencing response. The Judge did not consider a sentence of home detention would be sufficient to denounce the appellant’s conduct and deter others.9
[18] Similarly, in Bowlin v Police,10 Gilbert J considered that sentences of home detention are the exception rather than the rule where alcohol impaired driving causes death. I respectfully agree.
[19] I conclude that the imposition of a sentence of imprisonment rather than home detention was not manifestly excessive in this case.
[20]The appeal is dismissed.
Brewer J
8 McMillan v Police [2014] NZHC 150 at [64].
9 The charge was brought under s 61(1)(b) of the Land Transport Act 1998.
10 Bowlin v Police [2014] NZHC 2635.
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2
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