H v New Zealand Police HC Auckland CRI-2005-404-419

[2006] NZHC 107

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-419

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 February 2006

Appearances: P T Eastwood for the Appellant

H P Retzlaff for the Respondent

Judgment:      21 February 2006

JUDGMENT OF FRATER J

Solicitors:   P T Eastwood P O Box 4362 Shortland Street Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

H V POLICE HC AK CRI-2005-404-419  21 February 2006

[1]      Mr  H    was  convicted  after  a  defended  hearing  in  the  High  Court  at Auckland on a charge of being the driver of a vehicle involved in an accident where a person was injured, who, without reasonable excuse, failed to render assistance after the accident.

[2]      He was also convicted of driving while his licence was suspended.

[3]      On 25 November 2005 His Honour Judge Thorburn sentenced him to a term of nine months imprisonment and disqualified him from holding or obtaining a driver’s licence for a period of four years.  Leave to apply for home detention was declined.  The Judge said that:

“I do not reserve any leave for a home detention application because of what I have said about your age, stage and station in life and because of what you are doing now by way of medical assistance for your impulsivity, I will leave you to look after your own reintegration.”

[4]      Mr H   is now  41  years  old.    He has  a  considerable list  of  previous convictions amassed since 1994:  30 to be exact.  The list includes three for driving while disqualified, driving with excess breath alcohol, dangerous driving, cultivation and selling cannabis, and various offences of dishonesty.   There are also four convictions, in 1999, for breach of periodic detention.

[5]      Unfortunately counsel did not, as he is required by the practice note to do, file  written  submissions  in  support  of  the  appeal  five  working  days  before  the hearing – or, indeed, at all.

[6]      The sole ground of appeal recorded in the Notice of Appeal concerns the

Judge’s failure to grant leave to apply for home detention.

[7]      In his oral submissions today Mr Eastwood endeavoured to raise, for the first time, a question about the appropriateness of the four year period of disqualification. However, in the absence of any prior notice, or application to amend the grounds of appeal, I did not allow him to pursue the point.   Accordingly the only issue for consideration is that of home detention.

[8]      Mr H   has now effectively served six months of his sentence.   He has only six weeks or so to serve.  In these circumstances, the application is somewhat academic:  for one thing, the Parole Board would be unlikely to be able to hear the application much before the expiry of the sentence.   But even if it were heard immediately, six weeks is hardly sufficient time for a proper home detention programme to operate.

[9]     In these circumstances Mr Eastwood applied for leave to withdraw the application so that he could discuss the matter further with his client, and, if so instructed, re-apply.  I declined to allow him to do so.  In my view the appeal should be dismissed.  Quite apart from the time issue, it is without merit.

[10]     The provisions in relation to the granting of leave to apply for home detention were changed in 2004.  Whereas the previous s 97(3) of the Sentencing Act 2002 made it more or less inevitable that a Judge would grant leave to apply for home detention, the current position is that in cases where sentences of two years of less imprisonment are imposed the Court will only grant leave if it is satisfied that it would be appropriate to do so, taking into account the following three factors:

“(a)     the nature and seriousness of the offence;  and

(b)     the circumstances and background of the offender;  and

(c)      any relevant matters in the victim impact statement in the case.”

[11]     While not as serious as a charge of motor manslaughter, or even a hit and run charge, the charge on which Mr H   was convicted is certainly a serious one.

[12]     The Judge held that Mr H  ’ actions in leaving the scene were

“an extremely serious breach of a legal obligation”.

They were aggravated by two factors:  first, the fact that he ought not to have been driving at  all,  as  he did  not  hold  a  current  licence;    secondly,  there  was  what Judge Thorburn described as the appellant’s

“very self serving and quite depraved decision to decamp from the scene”,

which was not mitigated by handing himself in, many hours later.

[13]     This was a tragic event for the victim’s family.  They continue to grieve for the loss of their only daughter.  It is apparent from the victim impact statement that they sought the imposition of the maximum sentence.  I am sure that they would not support Mr H  ’ release on home detention.

[14]     However, in my view the most significant issue in determining whether or not to grant leave concerns the circumstances and background of the offender.  In his careful and compassionate sentencing notes, the Judge commented:

“[25]    There is one final matter and I do not want to gratuitously offend Mr H  .   He is at an age and stage in life where he ought not to be appearing before the Court.  He has quite an unenviable history of criminal offending including bad driving.   He has convictions for non-compliance with Court orders, and so suffers from a profile which cannot be classed as good  character.    He  has  recently  been  diagnosed  in  his  adulthood  as suffering from personality disorder of attention deficit hyperactivity and is under medication for that.   This is a syndrome which is frequently being placed before the Court nowadays as a hint of what might explain impulsive behaviour that leads people into offending and bad judgement.”

[15]     He also noted that:

“[26]    The  probation  officer  also  had  some  concerns  about  this  man’s humility to truly see his contribution to other people’s grief and sadness that flows from his very bad response in leaving the scene.  The officer reports that Mr H  , in his view, is narcissistic and absorbed with himself ...”

[16]     I  accept  Mr  Retzlaff’s  submission  that  the  Judge  clearly  considered Mr H  ’ particular circumstances, and articulated this in a manner which could not be misunderstood.

[17]     I therefore endorse Judge Thorburn’s decision to decline leave to apply for home detention.

[18]     The appeal is dismissed.

M A Frater J