Fitzgerald v Police
[2013] NZHC 2527
•26 September 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2013-425-000034 [2013] NZHC 2527
BETWEEN FRANCIS DAVID FITZGERALD Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 24 September 2013 Appearances:
K L McHugh for Appellant
S N McKenzie for RespondentJudgment:
26 September 2013
JUDGMENT OF D GENDALL J
[1] The appellant appeals his sentence of four months, two weeks imprisonment, indefinite disqualification and confiscation of his motor vehicle, valued at $47,000 for refusing to permit a blood specimen to be taken pursuant to s 60(1)(a) and s 60(3) of the Land Transport Act 1998.
[2] Essentially with this appeal this Court is being asked to consider whether the District Court Judge who passed sentence on 9 September 2013 erred in arriving at the above sentence and whether the Court agrees that a different sentence, namely home detention should have been imposed instead of imprisonment.
Background facts
[3] The appellant here pleaded guilty to the charge of refusing to permit a blood specimen to be taken. It was his third drink driving offence and rendered him liable to a maximum of two years imprisonment.
[4] The offending occurred on 9 May 2013. The accused had been drinking at a local bar in Queenstown. He says he became angry with a friend with whom he was
FITZGERALD v NEW ZEALAND POLICE [2013] NZHC 2527 [26 September 2013]
appellant but was unsuccessful. The appellant started his vehicle and drove off. A security officer saw what was happening and became so concerned that he rang the police. The police saw the accused driving the vehicle with no lights on and swerving. He was stopped when the vehicle stalled. He stumbled from the car and then refused to undergo a breath test. The accused’s explanation at the time was that he did not hurt anyone and that he was a “good guy”.
[5] The accused had two previous drink driving convictions. The first in 2010 related to driving with excess breath alcohol of 1098 micrograms of alcohol per litre of breath. He was sentenced on 31 May 2010 to a fine and six months’ disqualification. The facts of that offence were slightly unusual. In that case the accused had got into a tourist bus which had stopped on the side of the road with its engine still running, he released the handbrake and it started rolling back. His explanation was that whilst drinking with his mates in a bar when they saw the bus arrive and then be left unattended, he had been “egged on” by his associates. He contended this was really only a mere prank. The bus driver however made a complaint to the police and these charges were brought.
[6] The second conviction occurred on 28 November 2011. Here, the accused was convicted on another charge of driving with excess breath alcohol of 1194 micrograms of alcohol per litre of breath. On this the appellant was fined and given one year’s disqualification.
[7] The offending which is the subject of the present appeal occurred about five months after the accused had got his licence back following his conviction for the second offence.
Grounds of appeal
[8] This appeal relates only to the sentence of imprisonment. (The appellant accepts the confiscation of his vehicle and the indefinite disqualification.)The principal grounds of appeal here are:
sentence that can meet the purposes of deterrence;
(b)that the Judge erred by not imposing home detention, the least restrictive outcome open to him having regard to the circumstances of the offence and the offender in this case; and
(c) that the Judge erred in principle in not considering the totality of the impact of the overall sentence.
District Court decision
[9] In reaching the end sentence here of four months and two weeks’ imprisonment the District Court Judge noted that this was the appellant’s third alcohol related conviction within three years and that there was a gap of only about
18 months between each offence. The levels of alcohol in each case were high, being over 1000 micrograms of alcohol per litre of breath, approaching three times the legal limit.
[10] The District Court Judge described the appellant as a recidivist drink driver who had not learned and was a danger to himself and other road users. He noted that deterrence was a significant factor in the sentencing outcome here.
[11] His Honour considered a starting point of six months imprisonment to be appropriate in this case, given the appellant’s history and the circumstances of the offending. When taking account of mitigating factors, including limited remorse and the guilty plea, the District Court Judge came to an end sentence of four months and two weeks’ imprisonment. In doing so, he noted the real issue was whether that should be commuted to a sentence of home detention. On this he suggested that the factors in favour of home detention were that there was a suitable address that would be appropriate for an electronically monitored sentence, that the appellant consented to such a sentence, and that he appeared to be a contributing member of society in other aspects of his life. This latter aspect included the fact that the appellant owned and operated his own house building business employing a number of people, he had
a good work history and a number of people were dependent upon him for employment and sub-contract work.
[12] But, the District Court Judge then noted again that the defendant had three convictions for driving with high breath alcohol levels or refusing to permit a blood sample to be taken within three years. On all of this, he considered there was no, or limited, insight by the accused into his drinking and driving behaviour and that he continued to be a significant risk to other road users. The Judge noted that the accused had expressed views in 2011 that he was remorseful but the current offending, less than five months after the defendant’s licence was returned, was suggested as just “glib talk” and indicated there was no or limited insight here.
[13] The District Court Judge concluded that he was not satisfied that the purposes or principles of the Sentencing Act 2002 could adequately be met by commuting the sentence to one of home detention. He stated that he placed particular reliance on the fact that deterrence is important and the defendant’s behaviour was illegal, socially unacceptable and dangerous.
[14] As to his overall sentencing assessment, the District Court Judge sentenced the appellant to four months and two weeks’ imprisonment with no leave to apply for substitution of sentence. Conditions were imposed for six months after the sentence expiry date. The special conditions were attendance at an assessment for alcohol counselling together with any other counselling, treatment or programme as directed by the probation officer. The Judge ordered the defendant to attend an assessment centre under s 65 of the Land Transport Act 1998 and disqualified him from driving indefinitely. An order was also made authorising the defendant to apply for a zero alcohol licence at the end of his disqualification. Finally, the defendant’s motor vehicle, a Range Rover said to be valued at $47,000, was also confiscated.
Discussion
[15] The proper approach by a Court on sentencing when determining whether a sentence should be imprisonment or home detention was reviewed by the Court of Appeal in Manikpersadh v R.1 Relevant passages in that judgment are as follows:
[9] Section 15A(1) of the Sentencing Act 2002 authorises the imposition of home detention if:
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short- term sentence of imprisonment.
[10] This Court in Osman v R supported William Young P’s comments in
R v Vhavaha (in a dissenting judgment) when he said:
[29] Eligibility for home detention depends upon the sentencing Judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (i.e. of two years or less): s 15A of the Sentencing Act
2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss7 and 8 of the Sentencing Act.
(Emphasis added.)
...
[45] So, coming back to this case again, I do not see the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention. That being so, and the appellant being in all respects a good candidate for home detention, I see the least restrictive outcome principle (see s 8(g)) as the primary consideration, with the result that I would allow the appeal and sentence the appellant to nine months home detention.
[11] This Court identified the appropriate approach in James v R in this way:
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the
1 Manikpersadh v R [2011] NZCA 452.
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? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.
(Footnotes omitted)
[16] And:
[14] ...in exercising the discretion whether to commute a sentence of imprisonment to home detention, the ss7 and 8 purposes and principles of sentencing, relevant to the particular case, must be considered by the sentencing Judge.
[22] ...the closer the appropriate prison sentence is to the two year maximum, the more likely home detention will be inappropriate and the lower the appropriate prison sentence is the more likely home detention will be appropriate. The four month sentence, therefore, favours home detention.
(Footnotes omitted)
[17] With this in mind I turn now to consider each of the three principal grounds of appeal noted at paragraph [8] above.
The Judge erred in principle by not regarding home detention as an effective deterrent sentence
[18] On this, counsel for the appellant submitted that the present case is not one where deterrence is of such significance that it should be considered to the exclusion of all other sentencing principles. She noted also that the position is settled by the authorities that home detention does constitute a significant sentence that meets deterrence.
[19] In response counsel for the respondent contended that an important consideration in the appellant’s sentencing was the extent of his criminal conduct in this instance and his driving while heavily intoxicated here. The seriousness of this offending and public safety issues demanded that deterrence was a particularly important purpose in sentencing in this case. As such, the respondent maintained that the sentence of imprisonment imposed was entirely within the District Court Judge’s sentencing discretion in all the circumstances.
[20] As I see the position, it is clear from the authorities that in exercising the discretion whether to commute a sentence to home detention those relevant purposes and principles of sentencing outlined in s 7 and 8 of the Sentencing Act 2002 must be considered by the sentencing Judge. Section 7 dealing with the purposes of sentencing includes deterrence, denunciation, accountability, promoting a sense of responsibility, providing for the interests of the victim and the protection of the community. It also, however, includes assistance to an offender’s rehabilitation and re-integration.
[21] Section 8 of the Sentencing Act requires the Court in sentencing to take into account a range of matters set out in subs (a) – (j). Section 8 factors include the gravity of the offending and the culpability of the offender, the seriousness of the offence and victim impact. Section 8, however, also requires the Court to have regard to the least restrictive appropriate outcome, the offender’s personal circumstances including his personal and family background and relevant rehabilitation.
[22] In this case, the District Court Judge placed particular reliance on the fact that deterrence was important in his decision to refuse a sentence of home detention. Little mention was made of the ss 7 and 8 factors. I am satisfied that in doing so, the learned District Court Judge fell into error in not recognising home detention as a deterrent sentence and, further, that he also failed to take into account in any real way all relevant ss 7 and 8 considerations when assessing whether or not to impose a sentence of home detention.
That the Judge erred by not imposing home detention, the least restrictive outcome open to him, having regard to the circumstances of the offence and the offender
[23] At this point it is useful to note the recent comments of the Court of Appeal noted at [15] and [16] above (repeated in a number of cases) to the effect that, in considering whether home detention is appropriate, the primary consideration is to be the least restrictive outcome that is appropriate – the principle contained in s 8(g) of the Sentencing Act.
[24] In this case the District Court Judge in his sentencing notes did refer to s 8(g) (at paragraph [26]) but as I see the position he did no more, nor as I see it did he fully consider the issues in this case involving this principle.
[25] Several significant practical factors in my view arise here:
(a) the pre-sentence report before the District Court considered the appellant was able to comply with an electronically monitored sentence, in fact saying he would “do whatever is required”;
(b)the appellant had signed a consent form and his address for electronically monitored sentence was considered suitable; and
(c) there is nothing to indicate the appellant would not fully comply with a home detention sentence – on this, significantly in the past he does not appear to have breached any Court orders such as disqualification nor defaulted on fines imposed.
[26] The appellant is 28 years of age, is single, and is the sole director and operator of a house building development company which employs a number of parties and subcontractors. A number of favourable references for the appellant from work associates and others are before the Court. The appellant’s personal circumstances, and particularly the reliance on him of his employees and subcontractors would seem to support a sentence of home detention here.
[27] But for the probation services misinformed position on the appellant’s immigration status (assuming this will now take some 18 months to resolve) it is understood an electronically monitored sentence was likely to be promoted by them.
[28] In terms of the appellant’s culpability here, without in any way to minimise his current offending which is serious and potentially dangerous to the community, there is some substance in the argument advanced by his counsel that the appellant’s first drink driving conviction noted at paragraph [5] above was unusual and not within the usual circumstances the Court commonly sees for this type of matter. In essence I accept that this was a rather foolhardy “prank” which went seriously wrong when the appellant was once again heavily impacted by the effects of alcohol. Different weight in my view could well have been given to this conviction as noted
in R v Stone.2
[29] Although I accept that the offending here was serious with significant public safety concerns, it is my view that the District Court Judge erred in not assessing home detention as a real alternative and the least restrictive outcome available to him in this case. It cannot be said in my view that under the circumstances prevailing here, no other sentence in terms of s 16 of the Sentencing Act, would be consistent with the application of the principles set out in s 8 of the Act, but a sentence of imprisonment. Prison is always to be a measure of last resort as the Court of Appeal
noted in R v Rawiri.3
[30] I conclude that the District Court Judge here erred in not properly considering home detention as the least restrictive outcome open to him, when this would have been an entirely appropriate sentence in the circumstances of this offending.
The Judge erred in principle in not considering the totality of the impact of the overall sentence
[31] Given my findings above, I do not need to consider this ground in any detail. Suffice to say however that, with the imprisonment sentence imposed by the District
Court Judge, I am of the view that the overall sentence (which included six months
2 R v Stone [2009] NZCA 539.
3 R v Rawiri [2011] NZCA 244.
standard and special release conditions from sentence end date, indefinite disqualification, a s 65B order and the significant financial loss involved in the order for confiscation of the appellant’s $47,000 motor vehicle) would in total be disproportionate to the total offending here.
[32] In saying that, it must be acknowledged however that the disqualification components of the sentence were mandatory as was the confiscation of the appellant’s vehicle under s 129.
[33] Nevertheless, standing back and considering the overall effect of the sentence imposed, in my view the District Court Judge erred in not properly considering the totality of the impact of this overall sentence.
Outcome
[34] In weighing up all these matters I have come to the conclusion that the learned District Court Judge did err in the exercise of the discretion available to him in sentencing to decline home detention in favour of a sentence of imprisonment. Generally it seems to me that with due respect to the Judge he placed undue emphasis on deterrence in particular in this case and erred when he failed to take into account all the relevant considerations under ss 7 and 8 of the Sentencing Act when assessing whether or not to impose a sentence of home detention. The absence of an express weighing of these countervailing factors in my view tends to indicate that a sufficient error has occurred for this appellate Court to intervene.
[35] For all these reasons the appeal is allowed and the sentence of imprisonment is quashed.
[36] A sentence of home detention is to be substituted. In setting the period of home detention I take into account all the factors noted above, including the personal circumstances of the appellant.
[37] I consider here the appropriate sentence is one of three months home detention. Making allowance for the period the appellant has already spent in prison that is reduced to two months, two weeks home detention.
[38] Accordingly the sentence of four months, two weeks imprisonment is quashed. In its place there will be a sentence of two months, two weeks home detention.
[39] That sentence is imposed with the following special conditions, namely that:
(a) the appellant is upon release to travel directly to 4 Ellen Johnson Terrace, Lake Hayes, Queenstown, and await the arrival of a probation officer and security officer;
(b)the appellant is to reside at 4 Ellen Johnston Terrace, Lake Hayes, Queenstown, for the duration of the sentence;
(c) the appellant is to abstain from the consumption of alcohol and illicit drugs as directed by a probation officer;
(d)the appellant is to undertake and complete an appropriate alcohol and drug assessment programme to the satisfaction of the probation officer and service provider;
(e) the appellant is to attend such counselling programme/treatment to address his identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.
[40] The standard and special release conditions imposed by the District Court for six months after the home detention expiry date, the indefinite disqualification, the order under s 65(b) of the Land Transport Act and the order for confiscation of the appellant’s motor vehicle contained at paragraphs [33], [34], [35] and [36] of the sentencing notes of the District Court Judge dated 9 September 2013 are to remain.
........................................................
D Gendall J
Solicitors:
AWS Legal, Invercargill
Preston Russell Law, Invercargill
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