Francis v Police
[2018] NZHC 2307
•4 September 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-488-000028
[2018] NZHC 2307
BETWEEN ROSEMARY JAN FRANCIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 September 2018 (via AVL) Appearances:
A Harvey for the Appellant
J Johnson-Aufa’i for the Respondent
Judgment:
4 September 2018
JUDGMENT OF WOOLFORD J
Solicitors: Thomson Wilson, Whangarei
Marsden Woods Inskip Smith (Office of the crown Solicitor), Whangarei
FRANCIS v NZ POLICE [2018] NZHC 2307 [4 September 2018]
[1] On 13 July 2018, having pleaded guilty to driving with excess blood alcohol on a third or subsequent occasion and dangerous driving, Rosemary Jan Francis was sentenced to six months home detention and six months post-release conditions. Ms Francis was also ordered to pay reparation in the sum of $1500 and medical expenses and analysts fees in the sum of $209.25. In addition, Ms Francis was disqualified from driving for a period of 12 months and one day on the blood alcohol charge and 12 months on the dangerous driving charge. Finally, the Judge ordered that once Ms Francis regained her licence, it was to be a zero alcohol licence for a period of three years.
[2] Ms Francis now appeals against sentence, in particular against the length of the sentence of home detention on the basis that it deviated from a sentence earlier indicated by another Judge.
Sentence indication
[3] On 15 May 2018, Judge GL Davis gave Ms Francis a sentence indication. He stated that if Ms Francis pleaded guilty he would adopt a starting point of around eight months imprisonment. Ms Francis would also receive credit for guilty pleas, which meant that the Court would be prepared to commute the sentence of imprisonment if there was a favourable pre-sentence report and an electronically-monitored address available. Judge Davis stated whether it would be community detention or home detention would be a matter that could be debated on sentencing, but that his instinct, given Ms Francis’ three convictions in a little over five years, would be home detention rather than community detention. It was on the basis of this sentencing indication that Ms Francis pleaded guilty to the two charges.
District Court sentencing
[4] On 13 July 2018, Ms Francis appeared before Judge DJ Sharp for sentencing. Judge Sharp was obviously aware of the sentence indication of an electronically- monitored sentence, but appears to have overlooked the indication given by Judge Davis that he would adopt a starting point of about eight months imprisonment. After reviewing the facts of the case, Judge Sharp stated that the starting point to him would be something in the vicinity of 14 months imprisonment. He then gave credit
for Ms Francis’ pleas of guilty and commuted the otherwise appropriate sentence of imprisonment to one of six months home detention, which is said to be the equivalent of 12 months imprisonment.
Appellant’s submissions
[5] Ms Francis submits that Judge Sharp erred by not first indicating to her that the sentence indication was not to be followed and then by failing to provide an opportunity for counsel to seek instructions on whether the guilty pleas were to be maintained. Given this error, Ms Francis submits that her convictions should be quashed and the matter remitted to the District Court. Alternatively, she submits that this Court on appeal could impose the sentence that was initially indicated.
Respondent’s submissions
[6] The respondent submits that while it does appear that an error has occurred in the sentencing process, the sentence ultimately imposed is not otherwise manifestly excessive. The respondent submits that the matter could be remitted back to the District Court to provide the opportunity for Ms Francis to confirm her wish to plead guilty to the charges. Alternatively, the sentence imposed should be upheld on the basis that it is not manifestly excessive.
Discussion
[7] The sentence of six months home detention imposed on Ms Francis was approximately double what Ms Francis could have expected following the sentence indication. Section 115 of the Criminal Procedure Act 2011 requires a Court to grant leave to a defendant to withdraw a plea of guilty if the Court proposes to impose a sentence of the same type or types, but a greater quantum than that specified in a sentence indication. Judge Sharp unfortunately did not do so.
[8] The focus in this appeal is not on whether the sentence is manifestly excessive, but on the expectation of the appellant. As explained by the Court of Appeal in Taylor v R:1
1 Taylor v R [2013] NZCA 55 at [23].
[23] Finally, in relation to challenges such as the present, regardless of whether the challenge is made to the sentencing judge or on appeal, it is necessary to keep the correct focus. It is not a protracted inquiry into fault, nor into the merits of the accused, nor into the merits of the sentence actually imposed. A sentence indication generates an expectation. If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas. What is in issue is the integrity of the sentence indication system.
[9] The respondent submits, however, that the sentence imposed is not manifestly excessive and therefore if the matter is not remitted back to the District Court, the sentence should be upheld. Counsel submits that a starting point of 14 months imprisonment is consistent with the decision of Samson v Police,2 where Whata J, with reference to the continued applicability of Clotworthy v Police,3 identified the generalisations as to the appropriate starting points for excess breath/blood alcohol offending. One of those generalisations was that a starting point of 12 – 18 months imprisonment was appropriate for offending with one or more seriously aggravating factors. In this case, the respondent submits that the level of intoxication (being over double the legal limit),and the dangerous driving are features that would increase the starting point, such that a starting point of 14 months imprisonment was appropriate.
[10] However, I adopt the approach of McKenzie J in Te Tau v Police in which he stated:4
[13] In the circumstances, I consider that the Judge ought not to have departed from the indicated discount without giving a prior indication of her intention to do so. In those circumstances, I consider that, whether or not the end sentence was within the available range, the sentence needs to be adjusted on this appeal to conform with the indication.
[11] I am of the view that quashing the sentence and remitting the matter back to the District Court for Ms Francis to confirm her pleas of guilty is not in the interests of the parties or of justice. A starting point of eight months imprisonment is, in my view, also within the available range. The approach adopted by Judge Davis should be given effect to as that is the basis on which Ms Francis pleaded guilty.
2 Samson v Police [2015] NZHC 748.
3 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
4 Te Tau v Police [2015] NZHC 1716.
[12] Accordingly, the sentence of six months home detention is quashed and replaced with a sentence of three months home detention. All other orders are confirmed.
Woolford J
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