Hayes v Police
[2012] NZHC 1360
•15 June 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-470-000019 [2012] NZHC 1360
BETWEEN JOSEPH CHARLES HAYES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 June 2012
Appearances: A C Balme for Appellant
N Belton for Respondent
Judgment: 15 June 2012
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Tauranga
Copy to: A C Balme, Tony Balme Law, Tauranga
HAYES V NEW ZEALAND POLICE HC TAU CRI-2012-470-000019 [15 June 2012]
Introduction
[1] The appellant was convicted of driving with excess breath alcohol (third offence) and failing to stop and dangerous driving.
[2] Judge Everitt sentenced him to nine months’ imprisonment. He also disqualified him from driving for a period of 18 months. Mr Hayes appeals against the imposition of the sentence of imprisonment but, subject to a minor matter to which I shortly refer, does not challenge the disqualification of 18 months.
Background
[3] In the early hours of 11 March this year the appellant was driving his Mitsubishi motor car on Eleventh Avenue, Tauranga. As he approached an alcohol check point he stopped and executed a u-turn driving off in the opposite direction at speed. The police followed in a car with activated red and blue flashing lights and siren. The appellant drove into Devonport Road, then left into Tenth Avenue and left into Cameron Road reaching speeds of 80 kilometres per hour. The appellant then turned right into Twelfth Avenue and right into Christopher Street crossing the centre line into the other lane. He then continued to travel at speed left onto Eleventh Avenue and failing to stop at a stop sign. The appellant then drove into Edgecumbe Road, again at such a speed his car crossed the centre line. He then turned right into Tenth Avenue and right on to St John Street. He then travelled at speed onto Eleventh Avenue where he again failed to stop at a stop sign. The appellant then turned left into Cameron Road, left into Tenth Avenue and right into Edgecumbe Road again. He then stopped his car and ran from it. He was caught by the police hiding behind some bushes.
[4] A breath test gave a reading of 777 micrograms of alcohol per litre of breath. The area the appellant had driven around was a built up residential area with a speed limit of 50 kilometres an hour. The weather was poor. It was drizzling and the road was wet and slippery.
[5] The appellant has two previous convictions for driving with excess breath or blood alcohol, one in 2001 and a more recent one from April 2009. In addition, in September 2001 he was convicted for driving whilst disqualified. On the occasion of his second offence in 2009 the appellant was sentenced to community work.
The sentencing in the District Court
[6] Judge Everitt considered a sentence of imprisonment rather than home detention was required to reflect the seriousness of the offending and to meet the principles of deterrence and denunciation. The pre-sentence report had recommended a sentence of supervision and community detention because the report writer suggested home detention might be considered too restrictive. The Judge rejected the recommendations in the pre-sentence report and stated that his principal concern was the safety of the community, not the appellant’s interests. The Judge said:
[4] This was offending of the highest order of the most dangerous kind and the recommendation in the probation officer’s report misses the mark by a long way. You are a danger to the public when you drive in this fashion. I consider that an almost purely deterrent sentence is required, so that other young men, who think they are going to get drunk and drive like a maniac around the streets of Tauranga, will find that they go to jail. That is where you are going today.
[5] The report in my view, does not address the public safety. It is more concerned about you. While I am not concerned about you, I am concerned about the public safety. In my view, the offending was so bad. You were drunk. You were driving in a highly dangerous manner and you failed to stop for the police. It is getting to epidemic proportions around the country, with people fleeing the police and causing all sorts of horrendous collisions with innocent members of the public. That is why I think a deterrent sentence is required to call you to account, to denounce your conduct. There will be a small area of rehabilitation imposed at end of sentence.
[7] On the issue of home detention the Judge said:
[7] The sentence of imprisonment, in my view, will not be commuted as it were to one of home detention. I do not consider that a sentence of home detention sends the right message to people convicted of this type of offending, nor to the community. The general public see home detention for this type of offending as a ‘slap on the wrist with a wet bus ticket’ to use that sort of cliché. And I agree, my view is in agreement with that of the general public, that home detention does not serve any purpose for people like you. You need to have the shock of incarceration to turn you around.
[8] After taking a starting point of 12 months for the offending the Judge reduced that to nine months to reflect the guilty pleas. He disqualified the appellant from driving for 18 months. He then imposed concurrent sentences of imprisonment for two months on the charge of dangerous driving and concurrent disqualifications of
18 months on the charges of dangerous driving and failing to stop.
[9] In relation to the last matter, the Crown accept that the Judge was not entitled to impose a sentence of disqualification for the failing to stop charge.
The appeal
[10] The grounds of the appeal are:
the Judge erred in his approach to sentencing;
the sentence imposed was manifestly excessive; and the sentence imposed was wrong in principle.
[11] Mr Balme submitted that the Judge erred when he focused solely on the principles of denunciation and deterrence and failed to take into account the relevant circumstances relating to the appellant of the Sentencing Act 2002, the need to assist in the rehabilitation and reintegration of the appellant, and the need to impose the least restrictive sentence appropriate.
[12] He also submitted the Judge fell into error in concluding that a sentence of home detention would not adequately address the sentencing principles of denunciation and deterrence. Mr Balme submitted that a sentence of home detention would have been an appropriate alternative in this case.
The police response
[13] The police oppose the appeal. While accepting that imprisonment for nine months was a stern sentence, Mr Belton submitted it was open to the Judge in the
circumstances of this case. He submitted that the appellant could not show that the
Judge was wrong to have imposed imprisonment.
Decision
[14] A number of features of the present case were also present in the case of Manikpersadh v The Queen. In that case the Court of Appeal allowed an appeal from the High Court (in turn on appeal from a sentence imposed in the District Court by Judge Everitt).[1] In allowing the appeal the Court was satisfied that the District Court Judge had been wrong to focus solely on the issue of deterrence. The Court said in that case:
[1] Manikpersadh v The Queen [2011] NZCA 452.
[17] In the District Court the Judge focussed solely on deterrence. No mention was made of the other relevant purposes and principles of sentencing that we have identified [in ss 7 and 8].
[18] In the High Court, the Judge acknowledged that the appellant would have to identify an error by the District Court Judge if there was to be a successful challenge on appeal. However, the High Court Judge did not then go on to analyse whether the District Court Judge, at sentencing, had taken into account all relevant ss 7 and 8 matters in the exercise of his discretion relating to imposing a sentence of imprisonment or home detention.
[19] We, therefore, are satisfied that the High Court Judge erred when she failed to recognise that the Judge in the District Court had failed to take into account all the relevant considerations when assessing whether or not to impose a sentence of home detention.
[15] In this case the Judge has again fallen into error by his focus upon deterrence and the need to protect the community which, although both important considerations, do not necessarily carry greater weight than other relevant considerations: s 7(2) or exclude the requirement for the Court to consider them. While I accept the Judge referred to rehabilitation and imposed special release conditions, he failed to properly consider and analyse the need to impose the least restrictive outcome appropriate in the circumstances, particularly when home detention was available as a sentencing option. In doing so the Judge was in error which requires this Court to consider the issue of the appropriate sentence afresh, and particularly whether a sentence of home detention was appropriate as opposed to
imprisonment.
[16] I start by considering an appropriate starting point for the offending. In Clotworthy v Police Wild J reviewed the sentencing for multiple drink driving offences.[2] The Judge identified the following factors as relevant to informing the
[2] Clotworthy v Police (2003) 20 CRNZ 439.
starting point for sentencing:
the breath or blood alcohol level;
the length of time that had elapsed since the last drink driving conviction; the conviction for two or more drink driving offences in close succession; the manner of the driving – was it innocuous or dangerous?
whether the offender was disqualified at the time;
[17] In terms of the personal aggravating and mitigating factors Wild J identified
the following relevant considerations:
previous sentences and in particular whether they included imprisonment;
the offender’s record, if any, of convictions for other types of offending;
genuine remorse or willingness to confront contributing alcohol and/or personal problems;
any mitigating personal or family circumstances contributing to the
offending.
[18] In the present case the first particularly relevant factor informing the appropriate starting point for sentence was the alcohol reading at 777 micrograms.
That was a relatively high level.
[19] Next, the driving itself was extremely dangerous as is recognised by the additional charge of driving in a dangerous manner. The aggravating features of the
driving were:
the appellant was driving deliberately to avoid apprehension by the police;
the conditions on the night were not good – it was raining, the roads were wet and slippery;
the appellant’s car crossed the centre line on more than one occasion;
on more than one occasion the appellant failed to stop at stop signs; and
duringthe course of the chase the appellant drove at a speed estimated to be at up to 80 kilometres per hour.
This was a case of appallingly bad and dangerous driving. The Judge was correct to take as the lead offence the driving with an excess breath alcohol and, in fixing the starting point it was appropriate for him to take into account the other charges the appellant faced.
[20] I also note the appellant’s most recent conviction for drink driving was relatively recent, less than three years before this offending.
[21] In the circumstances I accept that the Judge was entitled to take, as a starting point for the totality of the offending in this case a sentence of imprisonment. On my review of the relevant authorities, and bearing in mind the second breath alcohol conviction was less than three ago and taking account of the dangerous driving in this case, while stern, I accept that the starting point of 12 months was or would have been available to the sentencing Judge and is available to this Court. The reduction of 25 per cent for the guilty pleas is appropriate.
[22] However, the real issue in this case is whether the home detention was an available sentence, in particular having regard to the principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances of the
case in accordance with the hierarchy of sentences set out in s 10A of the Sentencing
Act.[3]
[3] Sentencing Act 2002, s 8(g).
[23] Mr Balme referred to the comments of the Court of Appeal in R v Rawiri that the statutory hierarchy of sentencing options:[4]
... is a blunt affirmation that prison is a measure of last resort.
[4] R v Rawiri [2011] NZCA 244 at [18].
[24] In that case the Court went on to note the importance of sentencing principles and purposes:[5]
... Judges will generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation, unless other sentencing principles or purposes operate to rule out that option.
[5] At [22].
[25] Mr Balme also relied on the judgment of the Court of Appeal in Manikpersadh v The Queen on this point where the Court said that while the appropriate starting sentence was one of imprisonment the issue is whether in the circumstances it is appropriate to commute that sentence to home detention or whether a sentence of imprisonment was appropriate and justified. The statute identifies no presumption either way.[6]
[6] R v Vhavaha [2009] NZCA 588.
[26] I turn to consider the particularly relevant factors bearing on that issue in this case. While home detention itself can be a deterrent sentence, as recognised by the Court of Appeal in Osman v R,[7] in the present case the seriousness of the offending and the appellant’s past offending supports a need for denunciation and deterrence which favours or supports imprisonment.
[7] Osman v R [2010] NZCA 199.
[27] I can then consider the appellant’s personal circumstances. There is nothing in particular about them which points strongly towards a sentence of home detention as was the case for instance in Manikpersadh. Again, that case provides a useful comparison. In Manikpersadh, the appellant was still a relatively young man aged
19. He had no previous convictions. He had pleaded guilty immediately and had
tangibly shown remorse by paying $9,000 by way of full reparation. Further Mr Manikpersadh had not drunk alcohol since the offending and had attended Alcoholics Anonymous meetings voluntarily. The trauma of his offending and imprisonment for a short period had caused him depression. In those particular circumstances the Court of Appeal was satisfied that the sentence of home detention was sufficient to meet the principles of deterrence and denunciation.
[28] The appellant’s personal circumstances are, however, quite different. He is a mature 30 year old man. He has previous relevant convictions.
[29] The pre-sentence report notes the appellant is in a positive relationship and his partner could be considered a positive factor in reducing his risk of offending. But it has to be observed that the strength of that relationship has not deterred the offending in this particular case even though the appellant apparently moved to Tauranga in December 2011 to be with his partner. The pre-sentence report also records that the appellant has been assessed at a low risk of reoffending. I have to say that like the District Court Judge, I see no basis for that particular observation by the probation officer. The best test of whether he is a risk of re-offending must be his actions in the present case and his actions in the past. Given this is his third conviction for driving with excess breath alcohol and the second within three years, it is difficult to see how he could be assessed at a low risk of re-offending of this nature.
[30] Mr Balme emphasised the appellant’s willingness and motivation to change and the insight demonstrated by him to the consequences of his offending but again it has to be observed that he has himself had the opportunity to address his behaviour and what leads to his offending in the past but has failed to do so.
[31] While the appellant has expressed remorse, given his past offending and the apparent failure to address the issues he faces, limited account can be taken of that. It cannot be said that there is anything in the appellant’s personal circumstances that would make a sentence of imprisonment disproportionately severe.
[32] I conclude that a sentence of home detention would not satisfy the requirements of sentencing having regard to the relevant principles and purposes of the Sentencing Act. The balance must in this case come down in favour of denunciation and deterrence which supports the sentence of imprisonment.
[33] For those reasons the appeal against the sentence of imprisonment is dismissed. The appeal insofar as it relates to the disqualification of 18 months concurrently on the charge of failing to stop is allowed. The disqualification for 18 months on that charge is quashed. On the charge of failing to stop the appellant is convicted and discharged. The disqualification for 18 months on the other charges
remains in place. That is all.
Venning J
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