Henderson v Police
[2015] NZHC 3249
•16 December 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000046 [2015] NZHC 3249
BETWEEN CRISTY MAREE HENDERSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
K L McHugh for Appellant
M G McClenaghan for CrownJudgment:
16 December 2015
JUDGMENT OF DUNNINGHAM J
[1] The appellant appeals against her sentence of 13 months’ imprisonment
imposed on the following charges:
(a) driving with excess blood alcohol (third or subsequent);1
(b) driving in a dangerous manner;2 and
(c) driving contrary to a zero alcohol licence.3
Grounds of appeal
[2] The grounds of appeal relied on are that:
(a) the Judge erred in the adoption of a starting point that was too high and erred in adopting a three month uplift regarding two features of
1 Land Transport Act 1995, ss 56(1) and 56(4).
2 Section 35(1)(b).
3 Sections 32(1)(b) and 32(3).
HENDERSON v NEW ZEALAND POLICE [2015] NZHC 3249 [16 December 2015]
the offending (driving conduct and two previous convictions) which was effectively “double counting”;
(b)the Judge erred in his application of deductions from the overall starting point and, in particular, did not adequately recognise the appellant’s efforts at rehabilitation (s 7(h) of the Sentencing Act
2002), meaning that the overall percentage of credit given was inadequate; and
(c) the Judge erred in principle and in the exercise of his discretion to not impose home detention on the basis that the appellant consumed alcohol at her home prior to the offending (R v Hill), and also in determining that home detention “is to send the wrong message”. 4
The facts of the offending
[3] The offending occurred on 6 May 2015. The appellant was observed on Marama Avenue, Invercargill, driving north and crossing the centre line in the face of oncoming traffic. Drivers heading in the opposite direction had to take evasive action, by braking and swerving to avoid the appellant.
[4] A driver heading in the opposite direction to the appellant attempted to get her attention by flashing his headlights, as he braked hard to avoid her. This failed, and she simply continued driving.
[5] As the appellant continued down Dunns Road, she was observed to be continuing to swerve and cross the centre line. She briefly stopped on the side of Dunns Road, before dangerously pulling out into traffic, forcing a van driver to swerve and avoid a collision.
[6] On Ettick Street the appellant was stopped by Police. It was clear that she had been drinking. She immediately stated that she was an alcoholic. She was breath tested, which recorded that she had 1438 micrograms of alcohol per litre of
breath. At the time, she was on a zero alcohol licence.
4 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
District Court sentencing
[7] When sentencing the appellant, the Judge noted her previous convictions, which were both for drunk driving and occurred in 2011 and 2012. He also noted her identified problem with alcohol, and her attempts at abstinence and rehabilitation. He also made reference to the Probation Services report which recommended community detention and intensive supervision as the appropriate sentence, noting that the appellant was in employment, and was married, with two school aged children. The recommendation in the report was based on the need to maintain her current supports to assist her in her recovery from alcohol dependency.
[8] After reciting the principles and purposes of sentencing, the Judge considered the aggravating factors of the offending, citing her two previous convictions, their chronological proximity to the present offending and the high level of breath alcohol. The Judge observed that the defendant’s level of intoxication while driving was one of the highest the Court had seen in some time.
[9] While acknowledging her drug and alcohol assessment said she was “successfully maintaining abstinence” and “highly focused on recovery”, he then asserted that the Probation Service’s proposal for community detention, coupled with supervision was inappropriate. His reasoning was that, as the defendant had previous convictions, had undergone residential alcohol treatment programmes and was subject to a zero alcohol licence, but still had not been deterred sufficiently to prevent her reoffending, a sentence short of prison was inappropriate. Further, the Judge said that to sentence the defendant to anything less than imprisonment would
“send the wrong message”.5
[10] He nominated a starting point of 15 months’ imprisonment on which he then imposed a three month uplift for “the driving that was actually involved… coupled with the defendant’s previous convictions”.6 From that 18 month figure he subtracted five months for the defendant’s guilty plea and for her attending a drug and alcohol assessment subsequent to her plea.
[11] The end sentence was 13 months’ imprisonment, with post sentence conditions for a period of six months after the sentence’s end. A special condition was attached requiring that the defendant attend a drug and alcohol rehabilitation programme as directed by her probation officer. She was disqualified from driving for a period of 18 months commencing on the day of sentence, and was disqualified from holding or obtaining a driver’s licence until the Director of Land Transport
removes that disqualification.7
Starting Point
[12] Using the criteria articulated in Clotworthy v Police,8 Ms McHugh for the appellant, set out the various characteristics of the appellant’s offending. While acknowledging the aggravating features, including the very high breath alcohol level, the reasonable proximity to the last two convictions, the dangerous driving, and the fact that she was driving when subject to a zero alcohol licence, she also noted the appellant’s lack of previous convictions for other offences, her diligent completion of her previous sentences and the fact she had maintained a period of abstinence until the relapse that preceded this offending.
[13] In light of those factors she argued that the decision in Clotworthy dictated a shorter starting point should have been imposed. In support of that submission a range of other cases were also cited. Most helpful to the appellant are Edie v Police,9
Tarei v Police,10 Black v Police11 and Telfer v Police.12
[14] Edie concerned a third excess blood alcohol offence. Three months’ home detention was imposed on appeal, after three months’ imprisonment had been initially imposed. The appellant had two previous convictions, had breached previous community sentences and was regarded by the Judge as a danger to the
public.
7 At [18].
8 Clotworthy v Police CRI-2003-483-13, 25 September 2015, Wilde J.
9 Edie v Police [2012] NZHC 3518.
10 Tarei v Police [2012] NZHC 3393.
11 Black v Police [2012] NZHC 2527.
12 Telfer v Police [2012] NZHC 349.
[15] Tarei involved a sentence of seven months’ imprisonment being reduced on appeal to four months’ home detention. This was the appellant’s fourth offence, one of which was committed before he was 18. He also had convictions for driving whilst disqualified.
[16] The appellant in Black had a blood alcohol level of 1247 micrograms per litre of breath. The sentencing judge adopted a 15 month starting point and an end sentence of nine months’ home detention. This was overturned on appeal. Woolford J thought a starting point of eight months’ imprisonment appropriate. The
15 month period nominated by the sentencing judge had been manifestly excessive. Three months’ home detention was settled as the final sentence, with 100 hours of community work.
[17] In Telfer, the appellant was initially sentenced to two years’ and three months’ imprisonment, on two charges of driving with excess blood alcohol and one of driving whilst suspended. Cumulative sentences were imposed - seven months for excess blood alcohol, 13 months for the second charge of excess blood alcohol (committed two days after the first) and seven months for driving whilst suspended. The blood alcohol offences were Ms Telfer’s tenth and eleventh. While Gendall J only reduced the sentence by two months (to two years’ one month imprisonment), he did not displace the Judge’s imposition of seven and 13 month sentences for the respective blood alcohol charges.
[18] Mr McClenaghan, for the Crown, acknowledged the relevance of the factors in Clotworthy but pointed out that this case had several aggravating features when assessed using those criteria. In support of the starting point adopted she also referred to Bechan v Police, which involved a fifth excess blood alcohol offence in four and a half years and where the alcohol level for the most recent offence was
1,048 micrograms of alcohol per litre of breath.13 In that decision Whata J observed
that a starting point of 14-16 months would appear to be commensurate with the features of the offending in light of recent authority, although he did not disturb the starting point of 18 months.14
[19] The Crown submitted that Bechan is comparable because, although it involves the fifth driving offence, the alcohol level of the appellant in this case was substantially higher than it was in the Bechan case.
Discussion
[20] The cases discussed above all help characterise the Court’s approach to drink driving offending. Further guidance is obtained from the framework provided by Whata J in Samson v Police, based on his Honour’s reading of relevant case law.15
He formulated the following guide to setting starting points:16
(a) no seriously or only moderately aggravating factors, 9 -12 months;17
(b) one or more seriously aggravating factors, 12-18 months;18
(c) multiple offences with seriously aggravating factors, 18-20 months;19
and
(d)multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.20
(Certain citations omitted.)
[21] While I accept that the starting point of 15 months was high when compared with the sentence ranges in Clotworthy, it fits readily within the starting points identified in Samson. It also reflects the aggravating features of this offence, being the extremely high alcohol level, the reasonably extended period of dangerous driving where a number of vehicles had to take evasive action, and the fact this
driving occurred when she was on a zero alcohol limit. Having regard to all these
15 Samson v Police [2015] NZHC 748.
16 At [15].
17 Fonoti v Police [2015] NZHC 200; Matkovich v Police [2013] NZHC 872; Bidois v Police HC Hamilton CRI-2006-419-123, 1 November 2006; Phillipson v Police HC Invercargill CRI-2004-
425-32, 10 September 2004.
18 Vitali v R [2013] NZHC 1944; Toetoe v Police [2013] NZHC 2686; Te Papa v Police [2013] NZHC 3218 Hart v Police [2014] NZHC 429; Tutahi v Police [2014] NZHC 3334.
19 Dick v Police [2014] NZHC 434; Sands v Police [2012] NZHC 3011; R v Fair [2007] NZCA
282.
20 McGee v Police HC Whangarei CRI-2010-488-47, 8 December 2010; Police v Tawhara HC Whangarei CRI-2010-488-044, 9 September 2010; Hughes v R [2012] NZCA 388.
factors, a 15 month starting point is high, but not excessive, and I do not interfere in
the Judge’s decision.
Uplift
The appellant also submits that the uplift of three months on account of her previous convictions and the manner of the driving during her offending was unreasonable. All persons convicted of a third or subsequent blood alcohol offence will, by definition, have previous convictions, and that fact is inherent in the penalty for a third and subsequent offence. Similarly, as the aggravating features of the offending were taken into account in setting the starting point, it would be double counting to also uplift for them. Furthermore, it is important there is some proportionality between the starting point sentencing and the uplift, and here, the appellant submits the 20 per cent uplift is too high.
[22] The Crown acknowledges that caution must be taken in regard to “double counting” as the manner of the appellant’s driving is one of the key considerations when adopting a starting point for the excess breath alcohol charge, as outlined in Clotworthy. It accepts in these circumstances that the uplift of three months was not required.
[23] I agree the high breath alcohol reading, and the dangerous manner of driving are clearly taken into account in the starting point sentence of 15 months, and the two earlier convictions are not relevant to penalty in this case as the charge itself recognises that there have been at least two earlier such offences. The Judge was in error to take these matters into account in both the starting point and the uplift. There should therefore have been no uplift on the starting point.
Credit for rehabilitation
[24] Ms McHugh notes that prior to sentencing, the appellant committed to residential treatment for her alcoholism. Indeed her sentencing was adjourned pursuant to s 25(1)(d) of the Sentencing Act 2002 to allow her to complete the Salvation Army Bridge Programme. The appellant submits that it is unclear from the sentencing notes whether the Judge fully appreciated this, even though there was a
full report from her specialist clinician, Mr Pleasance, which confirmed that she “appears to have taken every practical step to reduce the chances of relapse and reoffending. Sentencing that maintains these supports is recommended”.
[25] It is also submitted, and the Crown does not dispute, that the guilty pleas were entered to all three charges at the first available opportunity by the defendant and she therefore should have been entitled to a full 25 per cent credit for those.21
[26] The appellant argues that had the full 25 per cent credit for the guilty pleas to all charging documents been applied, this would have meant that credit for all rehabilitative efforts and other personal mitigating features amounted to some
2.78 per cent from the starting point and that this was “simply inadequate
recognition of the rehabilitative steps that the appellant had taken pre-sentence”.
[27] Ms McHugh’s submissions also noted that the appellant was in fulltime employment, had the staunch support of her parents, family, husband and two dependent children and no other previous convictions of any other kind. In those circumstances, it was submitted that a credit as high as 25 to 30 per cent should be applied for the appellant’s efforts and prospects for rehabilitation and family circumstances.
[28] The Crown accepts that a greater discount could have been provided to the appellant for these matters, again referring to Bechan as authority.
Discussion
[29] While the Judge refers to the fact that the appellant had successfully completed residential treatment, and remained engaged with supportive treatment, it is not clear he appreciates she has undertaken a full rehabilitative programme since offending. He simply states she has completed an “assessment and he goes on to order her to attend an appropriate programme when her prison sentence is completed. It is not clear what weight, if any, he has given to the fact she has already completed such a programme, when, as counsel points out, the credit given
in total is barely more than would be given solely to reflect a 25 per cent discount for an early guilty plea.
[30] While the Judge may have treated her commitment to rehabilitation with some scepticism as she had previously undertaken a short detoxification programme in 2014 but had not succeeded in maintaining abstinence, I am satisfied that the rehabilitation she has currently completed is more comprehensive than the earlier programme.
[31] The completion of residential rehabilitation and her commitment to address her alcohol problem should be given appropriate credit. In the circumstances, I would apply a 20 per cent discount for rehabilitative prospect to take the total sentence to 12 months’ imprisonment. From that I would then deduct the discount of
25 per cent for the early guilty pleas, to arrive at a total end sentence of nine months’
imprisonment, before the question of home detention is considered.
Home detention
[32] The third ground of appeal is that the Judge erred in principle and in the exercise of his discretion in not imposing home detention.
[33] Ms McHugh submitted that this was not a case where the need for deterrence was of such significance that it should be considered to the exclusion of all other sentencing principles, and that the Judge was in error when he discounted home detention as not addressing the principle of deterrence.
[34] In support of this argument, counsel referred to R v Iosefa22 and Osman v R.23
Both cases emphasised that a sentence of home detention does achieve the principles of deterrence and denunciation and “[o]nce it is accepted that home detention can be a deterrent sentence, then we think that in this case the arguments against home detention falls away. Sentencing to home detention is still holding the appellants
accountable and sending a signal of deterrence”.24
22 R v Iosefa [2008] NZCA 453.
23 Osman v R [2010] NZCA 199.
24 At [25].
[35] The appellant also submitted that the Judge did not fully consider or adhere to the principle of imposing “the least restrictive outcome” that is appropriate in the circumstances. In Manikpersadh, the Judge was held to be in error when he did not analyse whether a sentence of less than imprisonment was appropriate, having regard to the requirement to impose the least restrictive appropriate outcome.25
[36] Here, it is submitted that the Judge erred in not regarding home detention as a real alternative to imprisonment, and therefore the least restrictive outcome available for the defendant.
[37] The Crown, in contrast, submits that the Judge did not err in imposing a term of imprisonment rather than home detention. He specifically turned his mind to the relevant sentencing principles and considered them in the context of the appellant’s offending. Given the aggravating features of the offence, including the fact that it was drinking at home which led to the offending, a sentence of imprisonment was an available and appropriate outcome.
Discussion
[38] The Judge’s decision to reject the pre-sentence report recommendation for community detention and supervision appears motivated by the aggravating features of the offending, saying “the driving was appalling and coupled with the attitude you displayed in the pre-sentence report that I have read, you do not accept that you cannot drink and drive”.
[39] It is quite clear that the aggravating features of the offending engage the principles of denunciation and deterrence in a significant way. However, I do not accept that the Judge was correct to conclude that the appellant did not accept that she could not drink and drive. The report acknowledges that on the day in question she “thought she would be alright to drive”, but goes on to say the appellant “accepts full responsibility for her offending”, and accepts alcohol is the major contributing factor to her current offending which is why she immediately self-referred to drug and alcohol specialist service. Following these events her actions do show
recognition that she cannot drink and drive and she must address her drinking problem to ensure that does not occur.
[40] The sole reason given by the Judge for refusing a sentence of less than imprisonment is because it would “be sending completely the wrong message” when the offending occurred as a consequence of drinking in the home environment.
[41] However, I accept the appellant’s submissions that the Courts have recognised that both home detention and prison have a denunciatory and deterrent value. The question which is not addressed is why home detention should not be treated as the least restrictive outcome, when the combination of Probation Services oversight and continuing support as recommended by her drug and alcohol clinician, provide reasonable assurance that drinking in the home would not occur during the period of home detention.
[42] I also bear in mind that for someone who has never been sentenced to any form of detention before, let alone imprisonment, a sentence of 13 months’ imprisonment will be a more significant penalty than might otherwise be the case. The Judge gave no real analysis as to why an intermediate step in the sentence hierarchy would not adequately achieve the sentencing principles in the Act.
[43] As was said by Whata J in Bechan:26
But, I have come to the view that closer consideration should have been given in this case the fact that this is the first sentence of imprisonment to be imposed on Mr Bechan. This reflects two important features. First, that Mr Bechan’s prior conduct has not previously demanded a sentence of imprisonment. Second, the escalation to a sentence of imprisonment of
10 months did not immediately present itself as proportionate to the escalation in the offending.
[44] Of course, in Bechan, Whata J, in the end, was not persuaded that home detention was appropriate, but that was a consequence not just of the aggravating features of Mr Bechan’s offending, but that “a lengthy sentence of home detention (10 months) for prior offending plainly had not been a sufficient “signal of deterrence”.
[45] That is not the position in the present case. Prior to this point the appellant has only received sentences involving fines and a modest level of community work. She has not received a sentence of community or home detention.
[46] I therefore consider that no, or insufficient, weight was given to the least restrictive outcome principle in s 8(g). When that is taken into account, as it must be, the requirements of holding the appellant to account, to denounce her behaviour, and to deter her and others, can still be served by converting a prison sentence to home detention.
[47] That being the case, I would allow the appeal and sentence the appellant to home detention. Although a sentence of four and a half months home detention would normally be imposed, having regard to the prison term she has served, and will serve before she can avail herself of home detention, I sentence the appellant to three and a half months’ home detention. The balance of the penalties imposed by
the District Court Judge remain unaltered.27
The conditions of home detention
[48] In addition to the standard conditions of a sentence of home detention, which will require the appellant to reside at the address proposed in the pre-sentence report, I also impose the following special conditions under s 80D of the Sentencing Act 2002:
(a) the appellant is not consume any drugs or alcohol, except medication prescribed for her by a practising health professional;
(b)the appellant is to observe a curfew between 9.00 pm to 4.00 am daily from Monday to Sunday (inclusive);
(c) the appellant is to attend and/or engage with such drug and alcohol interventions as are determined by a probation officer, taking into account the recommendations of the appellant’s drug and alcohol
specialist clinician, Mr Pleasance; and
27 Police v Henderson [2015] NZDC 20425 at [18].
(d)the appellant is to engage with any mental health counselling that the probation officer deems appropriate, taking into account the recommendations of the appellant’s drug and alcohol specialist clinician, Mr Pleasance.
[49] As the proposed home address does not currently have a landline as required to meet the technical requirements for home detention, the commencement of the sentence is deferred until a landline is installed which meets the requirements of the Department of Corrections. It is understood this will likely take around 14 days. However, for the avoidance of doubt, the sentence of home detention will commence on the next working day following advice to the Department of Corrections that a suitable landline for the purpose of electronic monitoring has been installed. Leave is reserved to revert to the Court for further directions if any practical difficulties arise with the implementation of the sentence of home detention.
Solicitors:
AWS Legal, Invercargill
Preston Russell, Invercargill
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