Hampton v Police

[2014] NZHC 2423

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000062 [2014] NZHC 2423

PAUL ANDREW HAMPTON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	1 October 2014
Appearances:	Rebecca Plunket for the Appellant Nicholas Belton for the Respondent
Judgment:	3 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by  on 3 October 2014 at 11:30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

HAMPTON v NEW ZEALAND POLICE [2014] NZHC 2423 [3 October 2014]

[1]      Mr  Hampton,  aged  46  years,  was  sentenced  in  the  District  Court  at Whakatane to one year’s imprisonment on a charge of driving with excess breath alcohol (third and subsequent offence) and one charge of driving while disqualified.

[2]      These charges arose out of a car accident which resulted in the Police being called  and  breath  testing  procedures  being  undertaken  on  Mr  Hampton.      Mr Hampton was well in excess of the lawful limit.  He admitted he had been drinking but denied being a disqualified driver, claiming that he believed his disqualified period had expired.

[3]      Mr Hampton has an extensive list of previous convictions.   Of particular relevance are convictions for driving with excess breath alcohol in 1993, 2006, 2007,

2010 and 2011. This makes the present offending Mr Hampton’s sixth conviction for driving with excess breath alcohol.   He is correctly described as a recidivist drink driving offender.

District Court decision

[4]      The   sentencing   Judge   noted   that   the   pre-sentence   report   assessed Mr Hampton as posing a medium risk of re-offending.   His Honour recited the relevant   sentencing   principles   and   purposes,   particularly   the   need   to   hold Mr Hampton accountable for his offending and promoting a sense of responsibility in him.  He also considered that there was a need for deterrence and denunciation when dealing with recidivist drink drivers but also acknowledged that regard needed to be had to Mr Hampton’s personal circumstances.

[5]      His Honour noted that Mr Hampton’s counsel accepted that a sentence of imprisonment was inevitable but asked that it be commuted to home detention.  In this context his Honour turned his mind to the impact which a sentence of imprisonment would have on his family given that he was the sole income earner.

[6]      However,  his  Honour  noted  that  the  aggravating  factors  were  that  the offending occurred whilst Mr Hampton was on bail in relation to the driving charges and that there was a combination of not only drinking and driving but also being

disqualified,  noting  that  issues  of  road  safety  were  engaged.    In  particular,  his

Honour noted that this was Mr Hampton’s sixth drink driving conviction.

[7]      His Honour regarded that the mitigating factors present were his plea and a level of remorse with, perhaps, the dawning of some insight into the offending.  In recognition of the guilty pleas and remorse, his Honour gave a discount of 30 per cent which he properly described as “pretty generous in the circumstances”.

[8]      His Honour considered the central issue before him, namely whether the sentence of imprisonment should be commuted to one of home detention as recommended in the pre-sentence report.   This, his Honour acknowledged, would allow Mr Hampton to maintain his employment, continue to meet his family responsibilities and provide him the opportunity to address his alcohol-related issues.

[9]      Against this his Honour weighed the fact that Mr Hampton had only three years before been sentenced to home detention for drink driving.  This sentence was breached and as a result Mr Hampton served a short sentence of imprisonment.

[10]     His Honour noted that he had, yet again, re-offended in the same way.   In rejecting home detention as a viable sentencing option his Honour commented that Mr Hampton had had his chance at home detention and had breached it.

[11]     In addition to the standard release conditions his Honour imposed a variety of special post release conditions which focused on alcohol rehabilitation.

Approach to appeal

[12]     This is an appeal against the exercise of a judicial discretion.  Section 250 of the Criminal Procedure Act 2011 applies.  Pursuant to that provision the Court must allow the appeal if it is satisfied that:

(a)       for  any  reason  there  was  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[13]     In any other case the Court must dismiss the appeal.1   This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: 2

(a)      There must be an error vitiating the lower Court’s original sentencing discretion:  the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[14]     This Court will not intervene where the sentence is within the range that can be properly justified.

Discussion

[15]     As noted earlier, the sole issue for determination on this appeal is whether his Honour erred  by declining to  impose a sentence of home detention  rather than imprisonment.

[16]     In the context of home detention the Court of Appeal described this issue in the following way: 3

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.   The question is whether Judge Tuohy 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?

1 Criminal Procedure Act 2011, s 250(3).

2 Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.

3 James v R [2010] NZCA 206 at [17].

[17]     Before imposing a sentence of home detention the Court must consider s 15A

of the Sentencing Act 2002 which provides as follows:

15A     Sentence of home detention

(1)       If  a  court  is  lawfully  entitled  under  this  or  any  other enactment to impose a sentence of home detention, it may impose a sentence of home detention only 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.

(2)      This section is subject to any provision in this or any other enactment that—

(a)       provides  a  presumption  in  favour  of  or  against imposing a sentence of home detention in relation to a particular offence; or

(b)      requires  a  court  to  impose  a  sentence  of imprisonment in relation to a particular offence.

[18]     The Court of Appeal in R v Iosefa noted that home detention provides a real alternative  to   imprisonment   because  it   carries   with   it   significant   levels   of denunciation and deterrence.4

[19]     Ms Plunket, for Mr Hampton, submits that the Judge placed excessive weight on denunciation and deterrence in determining that home detention was not appropriate  and  insufficient  weight  on  the  obligatory  consideration  of  a  less restrictive  sentence.  She  submits  that  a  sentence  of  imprisonment  is disproportionately severe given the consequence to innocent third parties, his wife and four children, given that Mr Hampton is the sole financial provider for the

family.

4 R v Iosefa [2008] NZCA 453 at [41].

[20]     Ms Plunket referred me to Doolan v R where the Court of Appeal stated:5

… In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act.   Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender.   The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing Judge in all the circumstances of the case.

[21]     I  am  not  satisfied  that  Judge  Bidois  erred  in  imposing  the  term  of imprisonment rather than home detention.   His judgment is both reasoned and principled.  He specifically turned his mind to the relevant sentencing principles and considered each in the context of Mr Hampton’s offending.

[22]     As the Court of Appeal observed in Doolan it is up to the sentencing Judge to weigh the principles and purposes of the Sentencing Act and to determine how much weight these should be given in the particular circumstances of the case.

[23]     As Katz J observed in Vitali v R:6

The  Judge  had  a  sentencing  discretion  as  to  whether  to  impose  home detention  rather  than  imprisonment.    There  is  no  apparent  error  in  the exercise of that discretion.   It was relevant to the exercise of the Judge’s discretion that a previous home detention sentence was revoked and a term of  imprisonment  substituted.   As  the  Court  of Appeal  observed  in  R  v McQuillan, imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of recidivist drink driving offending.   Given the need for deterrence and also protection of the community, a sentence of imprisonment was justified in all the circumstances of this case.

(Footnotes omitted)

[24]     His Honour specifically turned his mind to the relevant sentencing principles of holding Mr Hampton accountable and promoting a sense of responsibility in him. He also observed the need for deterrence and denunciation when dealing with recidivist drink drivers.  In that way it is plain he expressly turned his mind to the

relevant purposes and principles of sentencing.

5 Doolan v R [2011] NZCA 542 at [38].

6 Vitali v R [2013] NZHC 1994 at [41].

[25]     It is also evident from the sentencing notes that his Honour was especially conscious of Mr Hampton’s duties and responsibilities towards his family.  Indeed, he made reference to this feature on three separate occasions.7

[26]     His Honour expressly balanced Mr Hampton’s domestic responsibilities with

the need to protect the public.  He expressed it in this way:8

[11]      Not only are your family affected by this but any potential road user, when there is a drink driver on the road, is at risk.

[27]     It is not uncommon that a sentence of imprisonment will cause hardship to third  parties.    However,  that  consequence  can  carry only limited  weight  in  the sentencing process. As stated by the Court of Appeal in R v Williams:9

…society cannot overlook serious offending by parents in order to save distress to their children. The principles of denunciation, deterrence and accountability cannot be ignored.

[28]     The factor which his Honour concluded was determinative in imposing a sentence of imprisonment rather than home detention was the fact that Mr Hampton has previously served a sentence of home detention following a drink driving conviction in 2011 at a time when Mr Hampton was also disqualified.  He breached the sentence of home detention and received a short sentence of imprisonment.

[29]     I agree with the Judge that it would have been inappropriate for deterrent purposes  to  impose  home  detention  again  given  Mr  Hampton’s  recent  previous breach of that sentence in very similar circumstances.  Nor can it be ignored that Mr Hampton has previous convictions for other failures to comply with Court orders.

[30]     It follows that I conclude that Judge Bidois did not fall into error in the exercise of his sentencing discretion.  Indeed, the circumstances of the offending and Mr Hampton’s previous history left the sentencing Judge with no effective option but

to impose a term of imprisonment rather than home detention.

7 Police v Hampton DC Whakatane CRI-2013-087-001849, 2 September 2014 at [4], [6] and [10].

8 At [11].

9 R v Williams CA23/05, 15 March 2005.

Result

[31]     The appeal is dismissed.

Moore J

Solicitors:

Ms Plunket, Whakatane

Crown Solicitor, Tauranga