Hindrup v Police

[2012] NZHC 1173

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-0005 [2012] NZHC 1173

BETWEEN  JOHN HINDRUP Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 May 2012

Counsel:         ME Harris for Appellant

K Laurenson for Respondent

Judgment:      29 May 2012

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Woodward Chrisp, P O Box 347, Gisborne for the Appellant

(Email:  [email protected] )

Elvidge & Partners, P O Box 609, Napier for the Crown

(Email:  [email protected] )

JOHN HINDRUP V NEW ZEALAND POLICE HC GIS CRI-2012-416-0005 [29 May 2012]

Introduction

[1]      Mr Hindrup appeals against a sentence of 18 months imprisonment imposed on him by Judge Wade on charges of excess blood alcohol (third or subsequent offence) and driving while disqualified (third or subsequent offence).  There is no challenge to a term of three years disqualification also imposed.

[2]      Mr Hindrup had been apprehended in September 2011 driving with a breath alcohol reading of 874 micrograms, over twice the legal limit.  It was his thirteenth conviction for driving over the limit and his twentieth conviction for driving while disqualified.  He explained to the police that he was driving after going out to watch a rugby game.

Judge’s decision

[3]      The Judge was less than impressed with Mr Hindrup’s reason for driving and with expressions of remorse.   The offending had occurred while Mr Hindrup was subject to a sentence of intensive supervision imposed when he was convicted of driving with excess blood alcohol in November 2010.   He tendered references to show that since his apprehension he had enlisted the assistance of a church group to help him address his alcohol problems and had been attending meetings regularly for four months.

[4]      The Judge essentially saw this as too little too late, given that the offending had gone back three or four months earlier.  He saw the protection of the public as of paramount importance.  By reference to the factors in the R v Clotworthy[1] he adopted a starting point of two years imprisonment which he discounted by 25 per cent to

take account of Mr Hindrup’s guilty plea.

Grounds of appeal

[1] R v Clotworthy [2003] 20 CRNZ 439.

[5]      Ms Harris submits the Judge erred in two respects.  First, he gave insufficient weight to mitigating factors and, secondly, she said he failed to consider the availability of a sentence of home detention.  She argues that Mr Hindrup has made real and significant progress in changing his life around and is genuinely remorseful. She refers to a reference from the pastor of his church attesting to his making “remarkable  progress”  and  having  gained  significant  insight  into  his  offending. While acknowledging that he struggled with the counselling associated with the previous sentence of intensive supervision, Ms Harris says that the church has succeeded by providing him with counselling three times a week and providing him with a mentor.

[6]      Ms Harris points out that the home detention report assessed the address at which it was proposed Mr Hindrup serve a sentence as being suitable for an electronically monitored sentence.

Crown’s position

[7]      Ms  Laurenson  submits  that  the  Judge  was  entitled  to  treat  with  some suspicion Mr Hindrup’s claim that he is now remorseful and has made significant progress towards addressing his offending-related issues.  She notes that his recent course of treatment is a very short period in the context of 33 years of recidivist offending.  She draws my attention also to the probation officer’s reservations about Mr Hindrup’s claim to be successfully rehabilitating himself.

Decision

[8]      While  the  Judge’s  scepticism  as  to  the  genuineness  of  Mr  Hindrup’s expressions of remorse is understandable, I am not sure that it is entirely justified. For myself, I see signs of a genuine attempt by Mr Hindrup to address his alcoholism which is, of course, the underlying issue.  His association with the church and his involvement in the recovery programme they are providing cannot be dismissed

altogether.  Whether it will lead to a sustained period of recovery is, however, quite another thing.

[9]      As the probation officer points out, Mr Hindrup has tried and failed before. He notes that a counsellor involved with him until  early 2011  reported that he initially made good progress but had been “slipping back into old habits” before disengaging  from  counselling  services  without  completing  treatment.    He  also reports that his enquiries revealed that up until at least December 2011, that is for three months following his apprehension on the current offending, Mr Hindrup was drunk most weekends and had become an unwelcome occupant at the addresses he ended up at.

[10]     In Bregmen v Police,[2]  a judgment of Brewer J referred to me by Ms Harris, there is an admirably succinct summary of the factors which must be weighed by the Court in considering whether or not to impose a sentence of home detention.  The Judge said:[3]

[2] Bregmen v Police HC Gisborne CRI-2011-416-000004, 5 April 2011.

[3] At [18] – [20].

[18]     When a short-term of imprisonment would otherwise be imposed there is no “prevailing presumption” in favour of home detention — whether it is appropriate depends upon the circumstances of the case.  An assessment of all the relevant factors must be made.

[19]     The sentencing judge must have regard to the need to assist in the offender’s rehabilitation and reintegration into the community,  the principle that the Court should impose the least restrictive outcome appropriate in the circumstances,  and the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. Rehabilitative considerations are important in determining whether to sentence to home detention.   Even in cases where there is a presumption of imprisonment, such as arises under the Misuse of Drugs Act 1975, it can be appropriate to give significant weight to the prospects of rehabilitation.

[20]      Balanced against these considerations, the Court must ensure that the purposes  of  denunciation  and  deterrence  are  met.      When  dealing  with serious offending, imprisonment may be necessary to reflect adequately the need to denounce the offender’s actions and to deter others.  This will often be the case for offences of driving whilst intoxicated causing serious injury or death.   Drink-driving is a widespread problem in New Zealand.  It is not to be treated lightly.

[11]     Given that the Judge made no reference to the availability of a sentence of home  detention  in  his  judgment,  I feel  able  to  consider  afresh  the  case  for  its availability.  Having assessed the relevant factors in this case against the criteria set out in Brewer J’s judgment, I come to the view – not without some hesitation – that a sentence of home detention is not appropriate.   Essentially, I conclude that, notwithstanding the importance of rehabilitative considerations, in this case they must give way to the purposes of denunciation and deterrence.

[12]     While, as I have said, I accept that Mr Hindrup is making a genuine effort to address his alcoholism, I have serious reservations that he would be able to achieve the progress that he desires in the conditions under which he would live if a sentence of home detention were imposed.  I note that the probation officer, who appears to have undertaken a careful and sympathetic review of Mr Hindrup’s circumstances, feels  that  he  would  struggle  to  comply  with  the  conditions  of  an  electronic monitoring sentence.

[13]     Given those concerns about his prospects of rehabilitation in the context of a sentence   of   home   detention   and   the   importance   of   denouncing   recidivist drink/driving  offending  and  sending  a  clear  message  of  society’s  abhorrence  of repeat offending, I conclude that a sentence of imprisonment is the only available option in this case.

[14]   I do, however, have some concerns about the length of the term of imprisonment.  While Mr Hindrup has a truly appalling record and was well over the limit, the offending was not the most serious of its kind.   His driving was unexceptional.   He was stopped by the police for reasons unrelated to the way in which he was driving.  And while he had, as I had mentioned, a previous conviction for drink/driving in 2010, his offending prior to that was some ten years earlier.

[15]     I acknowledge Ms Laurenson’s proposition that a two-year starting point was justified if an uplift for driving while disqualified were added to a starting point of

18 months for the charge of excess breath alcohol.  However, even if regard is had to the totality of the offending, in my opinion, the starting point was excessive having regard to all of the relevant factors.   I consider, furthermore, that Mr Hindrup’s

expressions of remorse and the steps he has taken to make the fundamental changes necessary to address his alcoholism, call for greater credit than the Judge was willing to give.

[16]     Bringing all these considerations together, I am of the view that a starting point for sentence of 21 months imprisonment was called for, from which I would deduct one-third to take account of the guilty plea, expressions of remorse and to recognise the prospects of rehabilitation.

Result

[17]     The  appeal  against  sentence  is,  accordingly,  allowed.    The  sentence  of

18 months imprisonment is quashed.  In its place I impose a sentence of 14 months imprisonment.