Hood v Police
[2016] NZHC 1797
•4 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-212 [2016] NZHC 1797
BETWEEN PAUL HOOD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 August 2016 Appearances:
R Rao for the Appellant
L Belk for the RespondentJudgment:
4 August 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 4 August 2016 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Inder Lynch, Auckland.
Kayes, Fletcher Walker, Manukau.
HOOD v NEW ZEALAND POLICE [2016] NZHC 1797 [4 August 2016]
Introduction
[1] Mr Paul Hood pleaded guilty to driving with excess breath alcohol, third or subsequent under s 56(1) and (4) of the Land Transport Act 1998.1 On 20 June 2016, he was sentenced to eight months’ imprisonment.2
[2] Mr Hood appealed on the basis that the Judge was mistaken as to the date of his most recent previous conviction, gave him insufficient credit for his guilty plea, efforts at rehabilitation and personal circumstances, and erred in exercising his discretion as to granting home detention.
[3] I have allowed Mr Hood’s appeal, quashed his sentence of imprisonment and sentenced him to four months’ community detention, 100 hours of community work and 12 months’ supervision, with the disqualification from driving to remain. I now set out my reasons for doing so.
Factual background
[4] At 7.24pm on 10 February 2016, Mr Hood was stopped by Police at an alcohol check point while driving in Pukekohe. The Police noted that he exhibited signs of recent alcohol intake and subsequent breath test procedures recorded an evidential breath test reading of 1242 mg of alcohol per litre of breath.
[5] Mr Hood admitted that he had consumed a wine and bourbon before driving and stated he was driving down the road to buy a Lotto ticket.
Background and previous convictions
[6] Mr Hood’s first driving charge was in 1995, with his next conviction in 2003. He was convicted of his third drink-driving charge in 2007, for which he received community work. He was sentenced for breach of community work in early 2008. His most recent charge was in March 2010 for driving with excess breath alcohol,
for which he was sentenced to community work and supervision.
1 Maximum penalty 2 years’ imprisonment or a fine not exceeding $6000, and mandatory
disqualification from driving for one year.
2 Police v Hood [2016] NZDC 12516.
[7] The initial pre-sentence report dated 5 May 2016 was positive about Mr Hood’s ability to rehabilitate. It assessed him as a low to medium risk of reoffending, as his alcohol related driving offences were spread over a long period, but this was the fifth such offence. It described him as “very genuine in his efforts to gain sobriety and have a healthier lifestyle”. He was “extremely remorseful for his offending”, “fully cognizant of the risk he poses while driving under the influence”, and had “made every effort to undertake counselling through the remand period”.
[8] By the time of the second report, on 14 June, the same report writer commented that it had “become very clear through dealing with Mr Hood that he does not have the motivation to complete another residential alcohol programme at this time”.
District Court Decision
[9] Mr Hood appeared for sentence on 20 June. The Judge noted that he had pleaded early, and noted his previous convictions:
You have previous convictions. The first is in January 1996, now 20 years ago; level, 653. Thereafter, August 2003; level, 1107. Thereafter, February 2007; level, 448. Next one, June 2010; level, 652. This is your fifth conviction. It is your third conviction in 10 years. As I have said to your counsel, the level is literally through the roof.
[10] The Judge referred first to the initial pre-sentence report and noted Mr Hood’s acknowledgment that he was a person who should not drink at all due to his drinking problems. He referred to the initial pre-sentence report writer’s view that, “home detention is not, then, considered appropriate as that is where you drink”.3 The Judge stated that Mr Hood had been engaging in counselling processes for many years, and during the remand period had been attending community alcohol and drug services for individual sessions with a counsellor as well as an admission to Pitman House.
[11] The Judge then noted the second report dated 14 June which recorded that Mr Hood entered the Waitemata Health Pitman Detox House on 10 May. He had a bad reaction there to treatment, and was hospitalised and discharged on 17 May. He
was then admitted to the Auckland City Mission detoxification programme and completed the seven day programme from 30 May until being discharged on 6 June. The report recommended “community detention with hours”, but also made the comment referred to above, that, “it has become very clear through dealing with Mr Hood that he does not have the motivation to complete another residential alcohol problem [sic] at this time.”
[12] The Judge said that he assessed Mr Hood as an entrenched alcoholic, saying:4
You recognise in moments of sobriety that you need ongoing help. I suspect you need, as I have said, intensive residential rehabilitation. I doubt very much that the counselling processes, even those undertaken, are sufficiently good enough and intense enough to see you through this difficult period of your life.
[13] The Judge noted Mr Hood had said he did not want to undertake a full residential programme. He noted again the very high level of intoxication and the danger it posed. He listed the aggravating factors of the offending as the extremely high reading, and the proximity of his last conviction, which was only two years earlier. The Judge consequently adopted a 12 months starting point, with two months deducted for Mr Hood’s rehabilitative efforts and another two to accommodate his guilty plea, leading to an end sentence of eight months’ imprisonment.
[14] The Judge ruled out home detention and community detention as not appropriate, noting that rehabilitative sentences had been imposed previously. He stated:
In declining to impose a monitored sentence, I summarise. Your repeat offending is serious. Thus far, you have not been deterred. The commitment to rehabilitation, in my judgement, is not entire, you indicating that you are not motivated to complete another programme. You are resistant, I suspect, to that which you so desperately need.
[15] The final sentence was eight months’ imprisonment, with eighteen months disqualification from driving and special release conditions to apply for six months after the completion of the sentence, requiring drug and alcohol counselling, treatment or other programme.
Appellant’s submissions
[16] Mr Rao for the appellant submitted that the Judge failed to consider community detention, and simply said that it was “not a penalty”, without any analysis of whether such a sentence could meet the needs of deterrence and denunciation, and that in other cases it had been found to be such a deterrent.5
Counsel said that in Carran v Police community detention was imposed on a six time offender with a higher breath alcohol reading than the current case.
[17] Mr Rao noted that Mr Hood had never received a sentence of imprisonment or community or home detention. He pointed to the fact that Mr Hood’s last offending was actually over five years ago, and that apart from his very high breath alcohol reading, there were no other aggravating factors to the offending. Further, he said that there were considerable mitigating personal factors relating to the offending, given the circumstances in which Mr Hood was caring for his elderly mother. The appellant’s last rehabilitative sentence of supervision in June 2010 did have some positive effect, as he did not reoffend within five years of the sentence.
[18] In Mr Rao’s submission, in light of these factors, community detention was
warranted.
[19] Mr Rao also submitted that home detention was an available option, and that the risk of Mr Hood drinking at home did not exclude it. He pointed to the availability of special conditions forbidding alcohol intake, and ongoing alcohol counselling as providing reassurance that drinking at home would not occur. Further, by the time of sentencing, the appellant had completed two rounds of detoxification and had been engaged in individual alcohol counselling, suggesting he would have engaged in such conditions. Counsel submitted that the possibility of Mr Hood drinking at home was not an insurmountable obstacle.
[20] In the alternative, the appellant also challenged the length of his sentence, pointing to his rehabilitative efforts, personal circumstances as disclosed in the probation officer’s report which shaped his adult drinking behaviour and his genuine remorse, as warranting a four month, or 33 per cent discount.
[21] With a 25 per cent reduction for Mr Hood’s guilty plea, this would result in a further reduction of two months, and an end sentence of six months’ imprisonment.
Respondent’s submissions
[22] In Ms Belk’s submission, the sentencing judge properly refused a sentence of home detention based on Mr Hood’s risk of alcohol consumption in the home creating a risk of reoffending and the appellant’s view that a residential programme would not be appropriate.
[23] Ms Belk said that Mr Hood had served “a number” of community based sentences since 1993 and, although his last drink-driving sentence was five years ago, despite all rehabilitative efforts, he had reoffended at a significantly higher breath alcohol than previously.
[24] The Crown’s position was that the sentence imposed was within range.
Appeal against sentence
[25] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[26] In any other case, the Court must dismiss the appeal.6
[27] The Court of Appeal in Tutakangahau v R has recently confirmed that s
250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.7 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s
approach to sentence appeals.8
6 Criminal Procedure Act 2011, s 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8 At [33], [35].
[28] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:9
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[29] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.10
Analysis
[30] The primary questions are whether community or home detention sentences were available sentencing options which should have been imposed.
[31] There is no presumption that either imprisonment or home detention is to be preferred: the matter is one for the judge’s discretion.11 In Bregmen v Police, Brewer J summarised:12
[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.
9 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
10 Ripia v R [2011] NZCA 101 at [15].
11 Manikpersadh v R [2011] NZCA 452; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271, at
[17].
12 Bregmen v Police HC Gisborne CRI-2011-416-000004, 5 April 2011.
[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.
[32] In Manikpersadh v R, the Supreme Court approved the statement “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.13
[33] The Judge did make an error when identifying the aggravating factors of the offending. There can be no contest with the very high level, 1242 mg of alcohol per litre of breath, being considered an extremely high reading. However, the second aggravating factor identified by the Judge was the proximity of Mr Hood’s most recent conviction which the Judge described as “but two years previous”. In fact, Mr Hood’s most recent conviction was in June 2010, six years before sentencing.
[34] I accept Mr Rao’s submission in this regard. It was not a matter of Mr Hood, within a short space of a recent conviction, acting with flagrant disregard for the law. His most recent conviction was six years ago, and since that time he had undertaken a six month residential treatment programme.
[35] Although Mr Hood is a recidivist drink driving offender, the lapse of five years since his previous conviction does not place this at the worst end of recidivist behaviour.
[36] The other factor which in my assessment gave rise to an error of approach was as a consequence of the pre-sentence reports. The first pre-sentence report, dated 5 May 2016, stated that a sentence of home detention at home was not considered appropriate because home was where Mr Hood used alcohol. The pre- sentence report said that home detention at a residential treatment programme could
have been appropriate.
13 Manikpersadh v R [2011] NZCA 452).
[37] Even in cases involving sentences for driving with excess breath alcohol, there is nothing which precludes home detention as a sentence, even if the offender might have in the past consumed alcohol at home. Indeed, it would be a strange result if one offender were given home detention when he or she generally drinks at a bar and then drives home, but another offender who drinks at home is not able to receive such a sentence. Furthermore, there is nothing which requires a home detention sentence for a drink driving offender to take place at a residential treatment facility. These are all appropriate considerations but should not necessarily have the result of precluding an offender from serving a sentence of home detention at home.
[38] It is very common for sentences of home detention to include special conditions forbidding alcohol in the house and requiring attendance at rehabilitative counselling.
[39] The second unfortunate comment in the pre-sentence report was that in the second report of 14 June 2016 which said:
It has become very clear through dealing with Mr Hood, that he does not have the motivation to complete another residential alcohol programme at this time.
[40] Unfortunately, there was little context around that statement and, in particular, there was no explanation of Mr Hood’s reasoning behind that decision. His counsel said there were two main reasons for Mr Hood’s attitude. The first was that, having undertaken a residential treatment programme before, he was upset when personal details were revealed to a wider group setting. Secondly, Mr Hood had significantly responsibilities looking after his mother who was unwell.
[41] I accept Mr Rao’s submission that not wanting to undertake residential alcohol treatment did not mean Mr Hood was not committed to undertaking rehabilitative measures. Indeed, the pre-sentence report made it clear that Mr Hood had been attending regular counselling with community alcohol and drug services (CADS) over the period between arrest and sentence. It also outlined the recommendation of the counsellors that Mr Hood continue to attend individual counselling as well as group sessions at CADS Manukau. Furthermore, that he should participate in meetings of Alcoholics Anonymous.
[42] I accept, therefore, that there was a plan for ongoing rehabilitative treatment for Mr Hood which did not require attendance at a residential programme. The pre- sentence report writer’s recommendation of community detention was primarily on the basis of Mr Hood’s commitments to CADS counselling and attending Alcoholics Anonymous, although engagement with those programmes could still have been achieved through a sentence of home detention.
[43] The comments by the sentencing Judge that:
… the commitment to rehabilitation, in my judgment, is not entire, you indicating that you are not motivated to complete another programme. You are resistant, I suspect, to that which you so desperately need.
[44] That comment is understandable when the pre-sentence report remark is considered in isolation. However, when the full context is analysed, that is, in my assessment, a somewhat unfair conclusion and, I surmise, reached because of the way the issue was addressed in the pre-sentence report.
[45] The Judge then relied on what he assessed as a lack of commitment to rehabilitation as his justification for declining to impose a sentence of electronic monitoring.
[46] As against that, Mr Hood had been assessed as likely to comply with a community based sentence and as being genuine in his efforts to gain sobriety and have a healthier lifestyle. The later pre-sentence report still recommended community detention and supervision.
[47] Mr Hood has never had a sentence of imprisonment. Mr Hood has received one sentence with a rehabilitative purpose only in respect of his past offending by driving with excess breath alcohol. His 2010 sentence imposed nine months’ supervision. As alluded to above, quite some extensive rehabilitative measures were undertaken by Mr Hood at the time. It is clear that they were successful for a period. That Mr Hood is again in need of rehabilitative measures does not mean he is precluded from another rehabilitative sentence.
[48] The objective evidence of Mr Hood’s engagement in counselling and treatment following his arrest was positive. It suggests a direct engagement with his issues almost immediately following arrest, one which was sustained despite the negative reactions to an early attempt at detoxification which saw him hospitalised.
[49] Mr Hood also provided letters in support from his mother and friends, who testified to his character. They recorded the importance of his care for his mother, the fact that he sincerely regretted this offending and was a generous friend.
[50] Indeed Mr Hood’s explanation for drinking at home needs to be considered – he says it helps numb the pain and stops him thinking. In this regard, I conclude that Mr Hood is in need of counselling to address psychological issues, the reason for which is alluded to in the letters in support of Mr Hood which were provided on sentencing.
[51] I am satisfied that, when the correct date of Mr Hood’s most recent conviction is taken into account and the pre-sentence reports are considered in context, the least restrictive outcome was an electronically monitored sentence.
Result
[52] Mr Hood has served six weeks of his sentence and has 11 weeks remaining. Ms Belk for the Crown agreed that, in the circumstances, a sentence of four months’ community detention would be an appropriate substitute sentence.
[53] For the reasons given, the sentence of imprisonment was quashed and, given
the time already served, substituted with a sentence of four months’ community
detention,14 100 hours of community work and 12 months’ supervision.15
Thomas J
14 To be served at the address canvassed in the pre-sentence report with the hours of curfew being
7pm to 7am, seven days a week
15 The sentence of supervision includes not only the recommended condition as to alcohol and drug counselling but also psychological counselling. The disqualification remained as imposed.
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