Henderson v Police
[2017] NZHC 2219
•13 September 2017
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 RespondentJudgment:
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 six months later. She also received head injuries which have caused ongoing tinnitus and vision difficulties. Another passenger required sixteen stitches above his eye and lost part of his eyelid, along with moderate concussion. Other passengers suffered whiplash and back strain. I have read the victim impact statements, and it is clear their injuries have had a real impact on their lives. Their car was also written off.
Personal circumstances
[9] Mr Henderson is 27 years of age. Until the present offending, he had an unblemished criminal record. He was living with his parents in the Awanui area and had ongoing employment in the forestry industry.
[10] After finishing year 13 he attended Auckland University and completed three out of four years of an electrical degree before returning to the north to work in the forestry business. I am told he now has only one more paper to complete before graduating.
[11] A number of references have been produced that reflect well on Mr Henderson. He is described as a quiet natured, gentle, polite, sensible, and hardworking young man. His actions that night appear to have been very much out of character.
[12] Since the offending, Mr Henderson has made steps to address the causes of the offending and take responsibility for his actions. At his request, his father contacted the victims the next day to enquire of their well-being and to offer support and reparations. Shortly after, Mr Henderson wrote a letter to the victims in which he apologised and acknowledged his actions and the pain and suffering he caused. Significantly, he then referred himself to drug and alcohol counselling and has completed a number of sessions. I have today reviewed a report from the Northland District Health Board dated 29 August 2017 which annexes an earlier report dated 18
May 2017. The latest report confirms that, in the opinion of his assessor, he will not drink and drive again and that he has “changed his criminological thinking from “its okay to drink and drive” to “its never okay to drink and drive””. The report is in that sense very encouraging in terms of his rehabilitation.
[13] In addition he has paid $10,000 in emotional harm reparations. That is a sum paid from his own earnings and without assistance from his parents. Given that
Mr Henderson is only 27 years old I accept that as a significant demonstration of his remorse.
[14] I note that Mr Henderson initially entered a not guilty plea to his offending, however, his counsel at the District Court sentencing said this was on legal advice and shold not be considered a reflection of his contrition. After this, he requested a restorative justice conference, but it appears that his victims were unwilling to participate on account of his not guilty plea. After pleading guilty on 12 April 2017,
Mr Henderson requested another conference, though this did not occur for reasons outside his control.
District Court sentencing
[15] At sentencing, Judge Davis noted that there is no guideline case for the most serious of the charges which Mr Henderson faced, namely dangerous driving causing injury. But he took into account the list of aggravating factors typically relevant to a charge of dangerous driving causing death, as approved by the Court of Appeal in
Gacitua v R.4 He found the following matters aggravated Mr Henderson’s offending:
4 Gacitua v R [2013] NZCA 234.
(a) Consumption of alcohol: by conviction standards, Mr Henderson was one-and-a-half times the legal limit. By the legal standard (i.e. for an infringement), he was about two-and-a-third times the legal limit.
(b)Excessive speed: Mr Henderson was driving at 80 km/h above the open-road speed limit.
(c) Aggressive driving: Mr Henderson chose to overtake when the road was wet, in the path of oncoming vehicles.
(d)Serious injury: the Judge detailed the injuries of the passengers in the car which Mr Henderson had hit and noted the ongoing impact the offending had had on their lives. He said their injuries were “serious” in that sense.
(e) Avoidance of police: Mr Henderson was avoiding the police, and the pursuit continued for a number of kilometres.
[16] Comparing Mr Henderson’s offending to that in Gacitua (whilst also recognising that that case involved the more serious charge of reckless driving causing death), Judge Davis adopted a starting point of three years and six months’ imprisonment.
[17] In terms of mitigating factors, the Judge noted Mr Henderson’s age, the fact that he had never been before the court, had a good driving record, and was recognised to be a good worker. Accepting that he was of good character, the Judge deducted two months from his starting point.
[18] The Judge then considered Mr Henderson’s remorse. He found that
Mr Henderson had a genuine desire to participate in restorative justice, but had not been able to for reasons outside his control and gave a two month discount in that respect. He then deducted a further four months on account of Mr Henderson’s offer of $10,000 in emotional harm reparations.
[19] Finally, the judge gave a deduction of five months’ imprisonment to recognise
Mr Henderson’s guilty plea, which was, he said, not entered at the first available opportunity.
[20] The Judge said this resulted in an end sentence of 25 months’ imprisonment, and so imposed that on the charges of dangerous driving causing injury. I note, however, that this involved an arithmetical error. Based on the Judge’s own figures, the end sentence should have been 29 months’ imprisonment. Given this arithmetical error, the approach I intend to adopt is firstly to examine the appropriateness of the Judge’s starting point and, if satisfied it was too high to recalculate the sentence having regard to what I consider to be the appropriate discounts available to Mr Henderson.
[21] In respect of the charge of driving with excess breath alcohol, the Judge imposed a concurrent sentence of one-month imprisonment. He convicted and discharged Mr Henderson on the charge of failing to stop when requested. The judge also disqualified Mr Henderson from driving for 21 months and ordered him to pay emotional harm reparations totalling $10,000.
Submissions on appeal
[22] Ms Cull, who appears for Mr Henderson submits the District Court Judge erred by adopting a starting point that was excessively high, and also by failing to give adequate discounts for Mr Henderson’s personal mitigating factors. She submits that an appropriate starting point for the dangerous-driving charges would have been around 18 months to two years’ imprisonment, with an additional uplift being given for the excess breath alcohol charge. From this, she submits a discount of 40 to 45 per cent should have been given in respect of mitigating factors.
[23] In light of these matters, Ms Cull submits the end sentence of 25 months’ imprisonment was manifestly excessive. Given the principle that the least restrictive outcome should be applied, she says Mr Henderson should receive a sentence of home detention.
[24] In his written submissions, Mr MacNeil for the Crown submits that
Mr Henderson’s offending represents a moderate to high level of culpability, and that
the starting point of three years and six months’ imprisonment was therefore available on the facts. He does, however, acknowledge the Judge’s arithmetical errors and accepts that such starting point may be seen as a “stern response”. Acknowledging that Mr Henderson was a young man of unblemished character and obvious potential, he submitted that the public interest in discouraging dangerous and grossly irresponsible driving must nevertheless prevail even if that involved a custodial sentence. In his oral submissions today, however, Mr MacNeil does not demur from the end result which I reach in relation to this appeal and which was traversed in a provisional way during the course of exchanges with counsel.
Discussion
The aggravating factors
[25] Ms Cull says the Judge erred when assessing the aggravating factors for the following reasons:
(a) The Judge should not have considered Mr Henderson’s speed and the vicitms’ injuries as aggravating factors, as these are essential elements of the offence.
(b) The Judge was wrong to take into account the failing to stop charge and
Mr Henderson’s alcohol reading. Ms Cull says these were separate charges, and should have been considered by way of uplift.
(c) The references to a “prolonged persistent and deliberate course of very bad driving” and “aggressive driving” are not substantiated on the summary of facts.
[26] I agree that the mere presence of “dangerous driving” and “injury” should not be seen as aggravating factors.5 These are essential elements of the offence. But when setting the starting point, the judge was entitled to consider how dangerous the driving was and the seriousness of the victims’ injuries. Both matters clearly affected culpability. In the present case, Mr Henderson was driving at over 180 kilometres per
hour on a wet and dark road with other traffic present. That was very dangerous driving by any measure. It is clearly an aggravating feature of his offending.
[27] As to the vicitms’ injuries, Mr Henderson’s offending has had a marked impact on their lives. But without detracting from the pain and inconvenience that he has obviously caused them, the victims’ injuries were not “serious injuries” as that term is typically understood to mean. It does not appear, for example, that any of the victims required overnight hospitalisation. I therefore agree that the Judge over-emphasised this as an aggravating factor.
[28] Turning then to Ms Cull’s second point, Mr Henderson’s separate charges were closely interrelated with Mr Henderson’s lead offending. When sentencing for multiple offences, it is the final sentence that matters, not how it is constructed.6 That the Judge imposed a concurrent sentence on the breath alcohol charge and discharged him on the failing to stop charge demonstrates that they were not double counted.
[29] As to the final point, I agree that the summary of facts places no time frame on the period of driving. But it can be readily inferred that the distance was several kilometres. Indeed, Ms Cull’s written submissions say the period was approximately
10 minutes. While this length of time is not seriously aggravating, it was more than a short “burst” of bad driving.
[30] I agree with Ms Cull, however, that the Judge should not have regarded
Mr Henderson’s “aggressive driving” as a discrete aggravating factor.
Mr Henderson’s attempt to overtake at speed does not significantly increase his culpability beyond the fact that his driving was, as mentioned above, very dangerous.
Overall starting point
[31] The Judge referred to three cases in his judgment but did not discuss them in detail. Ms Cull says that when the facts of those cases are considered, it is clear that the starting point was too high:
(a) Gacitua v R involved charges of reckless driving causing death and reckless driving causing injury.7 The offender in that case had driven in a persistently dangerous manner for more than 10 minutes, driving
80 km/h in excess of the speed limit and dangerously overtaking vehicles. The offender had consumed alcohol but was not over the (then) legal limit. He travelled through an intersection at speed without giving way, colliding with another vehicle, killing one occupant and causing moderate injuries to another. Venning J at first instance adopted a starting point of five years on the charge of reckless driving causing death. A concurrent end sentence of two years was imposed on the charge of reckless driving causing injury. The Court of Appeal did not disturb these sentences.
(b)Richards v R involved one charge of reckless driving causing death and three of reckless driving causing injury.8 The offender was on a learner licence, had just stolen petrol and, against the warning of his passengers, had driven at speed, driving the wrong way down a one- way street and heading through an intersection without giving way. He collided with another car. A passenger in his own car died, and three others had injuries ranging from serious to moderate. The Court of Appeal approved the High Court’s starting point of five years’ imprisonment.
(c) Begg v Police involved a charge of driving with excess breath alcohol causing injury, and nine charges of reckless driving causing injury.9
The offender was a disqualified driver, had been driving dangerously for over an hour, sometimes at speeds of more than 180 km/h through the Invercargill city streets. He had ignored warnings of fellow passengers and had a breath alcohol level of 630 mcg/L. He crashed into the rear of a car with eight occupants, causing its fuel tank to
explode into flames. All eight occupants received injuries, with one
7 R v Gacitua [2012] NZHC 2542; Gacitua v R [2013] NZCA 234.
8 Richards v R [2017] NZCA 232.
9 Begg v Police [2016] NZHC 2639. Driving with excess breath alcohol causing injury has the same maximum penalty as dangerous driving causing injury: Land Transport Act, s 61(3).
victim having their pelvis snapped in half. The driver had no remorse. On appeal, the High Court found no error in the District Court’s overall starting point of four years’ imprisonment
[32] Although Gacitua v R and Richards v R have some aggravating factors common with Mr Henderson’s offending, they both involved the more serious offence of reckless driving causing death. That has a maximum penalty of 10 years’ imprisonment, double that of Mr Henderson’s most serious charge. Although the Judge acknowledged that the offences were different to Mr Henderson’s, it does not appear that the different penalties were given particular consideration.
[33] The Judge did not discuss Begg v Police in any detail. It has elements of similarity with Mr Henderson’s offending, in that it also involved driving while intoxicated and excess speed. But it also involved a much longer period of more dangerous driving, against the warning of others, and resulting in more serious injuries to a greater number of people. The charge was reckless driving causing injury. Although that charge has the same maximum penalty as dangerous driving causing injury, the mental element of recklessness indicates a higher level of culpability.10
That said, I do not think the Judge was wrong to use it as a touch point when sentencing
Mr Henderson.
[34] Ms Cull referred me to a number of other cases. I have read and considered all of them. Although some are not closely comparable, I agree that their general tenor indicates that Mr Henderson’s starting point was too high. I set out the two most relevant decisions:11
(a) In Kahukura v Police, the offender faced a number of driving relating charges, the most relevant of which was driving with excess breath alcohol causing injury.12 The disqualified offender had failed to stop
for police, resulting in a 4.8 km pursuit in which the offender drove at
10 D’Almeida v Auckland City Council (1984) 1 CRNZ 281 (HC) at 282.
11 The other decisions were Kerr v Police HC Invercargill CRI-2011-425-37, 25 October 2011; Manikpersadh v R [2011] NZCA 452; Williams v Police [2014] NZHC 2666; Bregman v Police HC Gisborne CRI-2011-416-4, 5 April 2011; Ko v Police [2012] NZHC 3312.
12 Kahukura v Police [2014] NZHC 3254.
150 km/h in a 70 km/h zone. After dangerously overtaking three vehicles, he crashed into the rear of a parked car, causing a chain reaction that resulted in another driver being knocked semi- unconscious and receiving minor injuries. The offender’s breath alcohol level was 558 mcg/L, and he was belligerent with police. The starting point for all offences was 21 months’ imprisonment. The appeal was against the District Court Judge’s refusal to impose home detention, which the High Court did not disturb.
(b)May v Police also involved multiple charges, the most serious of which was driving with excess blood alcohol causing injury.13 Against the warning of fellow passengers, the offender drove at speeds in excess of
160 km/h before colliding with two vehicles, causing four people serious injuries. The offender’s blood alcohol level was 172 mg/100 ml. On appeal to the High Court, Collins J agreed with the “starting point” of three years’ imprisonment, which also took into account the offender’s lengthy list of prior driving-related convictions.
[35] Kahukura v Police involved offending quite similar to Mr Henderson’s. The offender fled from police over some distance at excess speed, while drunk. The starting point adopted was much lower than Mr Henderson’s, at 21 months’ imprisonment. However I do consider that particularly lenient.
[36] The offending in May v Police appears to be more serious than Mr Henderson’s in that it caused more serious injuries (one victim spent six days in the Intensive Care Unit), and the offender had a lengthy list of prior driving-related convictions. I acknowledge, however, that it did not involve a police pursuit. The starting point affirmed on appeal (which took into account the offender’s prior convictions) was three years’ imprisonment.
[37] The Crown has not referred me to any cases which, on the present facts, would support the Judge’s starting point of three years and six months’ imprisonment.
13 May v Police [2012] NZHC 624.
[38] Taking these authorities into account and the relevant aggravating circumstances the appropriate starting point for Mr Henderson’s lead charges of dangerous driving causing injury was, in my view, two years, nine months’ imprisonment. I agree therefore that the Judges starting point was too high.
Mitigating factors
[39] I further agree with Ms Cull that there is little more that Mr Henderson could do to show remorse and to take responsibility for his offending. I accept his statements of contrition as genuine and as demonstrating insight into his offending and empathy with his victims. More significantly he has taken practical steps to address the cause of his offending by self-reference to drug and alcohol counselling and has made a very significant payment of $10,000 by way of emotional harm reparation. It was open to the Judge to take into account such payment as an exceptional expression of remorse in a practical and material way by considering it under ss 7(1)(d), 9(2) and 10(1)(a) of the Sentencing Act 2002. However, as the Court of Appeal observed in R v Johnson14 discounts for such payments are generally limited. They may not necessarily be indicative of remorse but simply a strong desire not to go to prison and a willingness to pay such sum as is necessary to achieve that goal. The Court should be wary of what is sometimes called “cheque book” justice. However, on the other hand such payments should not be discouraged because they often mean much to a victim and can be restorative and remedial. In this case I am satisfied that the payment reflects a genuine demonstration of remorse.
[40] The Judge applied separate discounts for remorse (two months) and for the payment (four months).15 The better approach would in my view have been to consider the payment as part of an overall discount for exceptional remorse, (for which discounts of up to 15 per cent are recognised in the authorities),16 – that is a discount for remorse above that inherent in the discount for a guilty plea. Applying a discount of 15 per cent to my reduced starting point of 33 months’ imprisonment equates to a
reduction of five months.
14 R v Johnson [2010] NZCA 168 at [28].
15 Making for total discounts of approximately 19 per cent on his starting point of 42 months imprisonment.
16 As was the case in R v Johnson.
[41] Mr Henderson was also entitled to a discount reflecting his previous good character and blemish free life. The Judge allowed five per cent on his starting point of 42 months’ imprisonment. That was appropriate. Rounding the discount up on my reduced starting point I likewise allow two months.
[42] I do not, however, accept Ms Cull’s submission that he should receive a further youth discount. He was 27 at the time of the offending. Although within the current vernacular he was “youth adjacent”, society can expect from 27 year olds greater maturity than the youth discount is designed to accommodate.
[43] Finally, Mr Henderson was entitled to a discount for his guilty plea. It was not entered at the first available opportunity but I accept the advice of counsel to the District Court that this was on legal advice and should not be considered reflective of any absence of personal responsibility on Mr Henderson’s part. Nevertheless the belated entry of a not guilty plea caused some additional inconvenience to the Crown and clearly some distress to the victims. The Judge allowed a five month discount on his adjusted starting point of 32 months’ imprisonment which represented a 15 per cent discount. However, because of the arithmetical error in his judgment the total final adjustment to his sentence was in fact 28 per cent.
[44] In my view a discount of 20 per cent was appropriate with the result that I consider a sentence of 21 months’ imprisonment was the correct sentence, before consideration of home detention. The Judge’s sentence was approximately 20 per cent higher than that. I consider that manifestly excessive.
Home detention
[45] Ms Cull submits that if the point provisionally arrived at is a sentence of 24 months’ imprisonment or less then a sentence of home detention should be substituted. A pre-sentence report indicates Mr Henderson’s mother’s address is technically suitable for home detention and that his mother is a suitable occupant. That has been confirmed to me today.
[46] Mr Henderson’s offending was serious, and it has caused ongoing harm to his victims. A moment’s intelligent reflection should have alerted him to the likelihood
of serious injury or death to innocent road users from his conduct. Deterrence and accountability are, therefore, highly relevant considerations. Having said that, I must also keep in mind the need to reintegrate and rehabilitate Mr Henderson17 and the principle that I must impose the least restrictive outcome appropriate in the circumstances.18 This was a first time offender who has already taken substantial ownership of his actions. I consider his further appearance before the Courts on any criminal charges unlikely.
[47] I take into account, as the Court of Appeal has recognised, that an end sentence of home detention nevertheless has a significant component of denunciation and deterrence and imposes significant restrictions on the offender’s liberty.19
[48] Weighing all those matters I am persuaded that a sentence of 11 months home detention is appropriate. However, given that Mr Henderson has already spent two months in custody an allowance is necessary in that respect. The final sentence I therefore impose is seven months’ home detention, such period to be calculated from the date of his release from prison.
Conclusion
[49] I allow the appeal.
[50] The sentences of 25 months’ imprisonment (concurrent) on the charges of dangerous driving causing injury are quashed. The sentence of one-month imprisonment for driving with excess breath alcohol is also quashed.
[51] In substitution for those penalties, Mr Henderson is sentenced to seven months’ home detention (concurrent) on the charge of dangerous driving causing injury, and two weeks’ home detention (concurrent) on the charge of driving with excess breath alcohol, such sentence to be calculated from the date of his release from prison.
[52] I impose the following conditions:
17 Sentencing Act s 7(1).
18 Sentencing Act s 8(g).
19 R v Iosefa [2008] NZCA 453 at [41], Fairbrother v R [2013] NZCA 340 at [49].
(a) Upon release from prison, Mr Henderson is to travel by the most direct route, and without any unnecessary stops, to the home detention address specified in the probation officer's advice to the Court dated
12 July 2017. He is to there await the arrival of the Department of
Corrections EM bail team for fitting of his EM bail bracelet.
(b)Mr Henderson is not to move to any new residential address without the prior written approval of a probation officer.
(c) Mr Henderson is not to possess, consume or use alcohol or drugs, except for those prescribed to him.
(i)Mr Henderson is to undertake and complete appropriate one-on- one counselling with Community Mental Health and/or Addiction Services as directed by his probation officer.
(d)Mr Henderson is to undertake any further assessment, treatment, or counselling, as directed by, and to the satisfaction of, his probation officer.
[53] Mr Henderson’s disqualification from driving, the reparation order and the conviction and discharge for failing to stop are not disturbed.
Muir J
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