Henderson v Police - [2017] NZHC 2219

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000030 [2017] NZHC 2219

BETWEEN
DANIEL HENDERSON

Appellant

AND

NEW ZEALND POLICE Respondent

Hearing: 13 September 2017

Appearances:

C Cull for the Appellant
K J MacNeil for the Respondent

Judgment:

13 September 2017

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
C Cull, Catherine Cull Limited, Kerikeri
K J MacNeil, Crown Solicitor, Whangarei

HENDERSON v NEW ZEALND POLICE [2017] NZHC 2219 [13 September 2017]

Background

[1] Daniel Renata Henderson pleaded guilty to four charges of dangerous driving causing injury, a charge of driving with excess breath alcohol, and a charge of failing to stop when required. The maximum penalty for the most serious of these charges, dangerous driving causing injury, is five years’ imprisonment.1

[2] On 14 July 2017, Judge G L Davis in the District Court at Kaitaia sentenced

Mr Henderson to 25 months’ imprisonment, along with $10,000 in emotional harm reparations and 21 months’ disqualification from driving.2

[3] Mr Henderson now appeals the imprisonment aspect of his sentence. He says the Judge adopted a starting point that was too high and failed to properly account for his personal mitigating factors. I must allow Mr Henderson’s appeal if I am satisfied that:3

(a) For any reason, there is an error in the sentence imposed on conviction;

and

(b) A different sentence should be imposed.

Facts

[4] The offending occurred around 11 pm on 16 December 2016. The police observed Mr Henderson driving his vehicle at excessive speed. After completing a u- turn, they attempted to stop him by activating their red and blue flashing lights and siren.

[5] Mr Henderson did not stop. He drove onto State Highway 1 and pulled away from the police unit with his vehicle reaching speeds in excess of 180 km/h.

[6] At one point, Mr Henderson attempted to overtake another vehicle. Due to oncoming traffic, however, he pulled back into his lane. When he did so, he struck the

1      Land Transport Act 1998, s 36(2).
2      Police v Henderson [2017] NZDC 15491.
3      Criminal Procedure Act 2012, s 250(2).

rear of the other vehicle, causing it to spin out of control. It ended up off the road, in a drain. Three of the passengers and the driver sustained injuries that had to be assessed by ambulance staff.

[7] Mr Henderson stopped several hundred metres down the road and left his vehicle before being arrested by police. He was taken to the police station. An evidential breath test revealed that his breath-alcohol level was 605 mcg/L of breath. In explanation, Mr Henderson said he had seen the police vehicle, knew it was stupid to flee, but did so anyway.

[8] The vehicle which Mr Henderson hit was driven by a seventeen-year-old. She was driving her parents and two of their friends home from a work Christmas party. One of the victims suffered lacerations to her head and whiplash, for which she was still receiving physiotherapy treatment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2219
Decision Date: 13 September 2017

CaseChat Overview and Summary

Daniel Renata Henderson appealed the imprisonment aspect of his 25-month sentence for dangerous driving causing injury. The appeal was heard in the High Court of New Zealand at Whangarei on 13 September 2017. Henderson argued that the District Court Judge had adopted a starting point that was too high and failed to properly account for his personal mitigating factors. The High Court allowed the appeal, substituting a sentence of seven months' home detention for the 25 months' imprisonment previously imposed by the District Court. The High Court held that the starting point of 3 years and 6 months' imprisonment was too high and that the mitigating factors had not been properly taken into account. In particular, the High Court held that Henderson's payment of $10,000 in emotional harm reparations should have been considered as part of an overall discount for exceptional remorse. In light of the reduced starting point and the appropriate discounts, the High Court held that a sentence of 21 months' imprisonment was appropriate but that a sentence of home detention would be the least restrictive outcome. The High Court imposed a sentence of 7 months' home detention, to be calculated from the date of Henderson's release from prison. The conditions of the home detention sentence were that Henderson was to reside at a specified address, not to change address without the prior written approval of a probation officer, and not to possess, consume or use alcohol or drugs except for those prescribed to him. The Court also ordered Henderson to undertake appropriate counselling and any further assessment, treatment, or counselling as directed by, and to the satisfaction of, his probation officer. The High Court did not disturb the District Court's orders as to Henderson's disqualification from driving, the reparation order, and the conviction and discharge for failing to stop.

Orders