Howard v The Queen
[2017] NZHC 2986
•4 December 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-000049
CRI-2017-412-000056 [2017] NZHC 2986
BETWEEN BYRON WILLIAM DAVID HOWARD
Appellant
AND
THE QUEEN Respondent
Hearing: 1 December 2017 Appearances:
E C Bulger for the Appellant
C E R Power for the RespondentJudgment:
4 December 2017
JUDGMENT OF DUNNINGHAM J
[1] On 2 August 2017, Mr Howard was sentenced to two years’ imprisonment after he pleaded guilty to:
(a) intentional damage;1
(b) possession of an offensive weapon;2
(c) dangerous driving causing injury;3 and
1 Crimes Act 1961, s 269(3).
2 Crimes Act 1961, s 202A(4)(b)
3 Land Transport Act 1998, ss 7(2) and 36(1)(b).
HOWARD v THE QUEEN [2017] NZHC 2986 [4 December 2017]
(d) failing to stop and ascertain injury.4
[2] The appellant was also disqualified from holding a driver’s licence for a period of four years and ordered to pay sums in reparation and for emotional harm and Court costs.
[3] The appellant appeals on the grounds that the Judge erred by:
(a) failing to impose the least restrictive outcome when refusing to impose home detention;
(b) imposing a manifestly excessive disqualification period; and
(c) referring to two erroneous facts regarding the appellant’s background which may have influenced the outcome.
Background
[4] The appellant was previously employed by the victim and there was a disagreement over wages. On the evening of 14 July 2016, the appellant drove to where the victim had relocated to, to demand money he was owed from wages. He approached the victim’s residence and started banging on the front door.
[5] The victim informed the appellant that he should leave the address and that he did not want to have any arguments with him. The appellant threated and abused the victim for a short time, then went back to his vehicle. The victim thought the defendant had left the address. Approximately a minute later, the appellant began smashing all the front windows of the house using a crow bar.
[6] The victim feared for his safety and felt trapped in the house. The appellant shattered all the windows and damaged some of the window frames, as well as the
wooden frame to a sliding door.
4 Land Transport Act 1998, ss 22(1)(a) and 36(1)(c).
[7] The appellant went back to his vehicle and started to drive away. The victim came out of the house and was standing approximately one foot onto the road, away from the gutter, filming the defendant leaving in his vehicle. The appellant saw this happening and drove towards the victim, hitting him with his vehicle. The victim was knocked on top of the bonnet then slid off the vehicle and was left lying in pain on the footpath while the defendant drove away. The victim suffered pain and tenderness on parts of his right side and some bruising to the forearm. He also suffered some small lacerations to a toe and had glass fragments in his foot. Specialist intervention was required to remove the glass.
District Court decision
[8] In sentencing Mr Howard, the Judge acknowledged that reparation orders should be made and made orders for the sums of $2,052.40 and $300. He then discussed the victim impact statement which had been read by the victim at sentencing. He acknowledged, in particular, the effect of the victim coming to Court and reading his statement saying:
[6] …I do not diminish at all what we see in victim impact statements. But here today we have heard the real effects rise from the paper into seeing him very responsibly and bravely before the Court today.
[7] I get from [the victim] the wider circumstance. I have heard about the disagreement. Whatever the disagreement was, prior to the events I am sentencing you today is background. So it gives me some context. That background really seems to have you going out of your way to make life miserable for [the victim] and his business.
[9] After reciting the factual background the Judge identified the aggravating factors of the offending which he said were: premeditation, the extent of the property damage with the owner present, the possession of the crow bar and the intentional nature of the driving offence which caused injury to the victim. He also considered the degree of harm, the extent of the loss and the physical and emotional effects on the victim to be aggravating factors. He then noted that the appellant was “on bail at the time”, although he said “it is not suggested there should be any uplift for that because it was in relation to a minor matter”. The only mitigating factor identified was the guilty plea for which an overall discount of 15 per cent was given, along with a further five per cent to take into account the appellant’s remorse and his offer to make amends.
[10] The Judge adopted an overall starting point of three years’ imprisonment but reduced the sentence to two years nine months to take into account the principle of totality. The sentence was then further reduced to take into account the appellant’s guilty plea and remorse. An end sentence of two years’ imprisonment was imposed on the vehicle charge and the intentional damage charge along with concurrent one year sentences on the other two charges.
[11] The Judge then went on to consider whether to impose home detention. He noted that, notwithstanding the appellant’s age and lack of serious previous criminal offending, this was “really significant offending” which had caused “significant physical and emotional harm”. He said:
[50] … If I were dealing with you on the driving charge alone I would be exercising real caution about a home detention sentence. When a person uses a vehicle as a weapon, it is an extremely serious situation.
He concluded as follows:
[52] In my view, unfortunately, a sentence of home detention would not meet individual deterrence and nor would it meet the very real need for denunciation that I have taken efforts to spell out today. In my view such a sentence would also not meet the interests of the victim or, most importantly, the seriousness of the offending.
[12] Finally, he disqualified the appellant from holding or obtaining a licence for a period of four years and, in addition to the reparation orders made at the outset, he ordered a $2,000 emotional harm payment, and Court costs.
Jurisdiction
[13] This is an appeal against sentence and must be determined under s 250(2) of the Criminal Procedure Act 2011. In accordance with that section, this Court may only allow the appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction and, in addition, that a different sentence should be imposed. Unless there is a material error in the sentence, for example, if it is manifestly excessive, wrong in principle or incorrectly calculated, then the appellate
Court should not intervene.5
5 Te Aho v R [2013] NZCA 47 at [30].
[14] In this case, the appeal focuses on the Judge’s decision not to impose a sentence of home detention. However, again, in such cases:6
… [The] proper approach of an appellate Court in cases such as this is that
‘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’.
Was the Judge in error in refusing to grant home detention?
[15] The appellant submits that in refusing to impose home detention, Judge Crosbie erred by not imposing the least restrictive outcome appropriate in the circumstances of the case. This is supported, says the appellant, by the appellant only receiving the victim impact statement on the morning of sentencing, and the victim not being able to supply contrary information to the victim impact statement which would have perhaps balanced the Judge’s views on how much the defendant had contributed to the victim’s present predicament.
[16] The appellant says if he had had time to respond to the victim impact statement this may have modified the Judge’s view that the appellant seemed to have gone out of his way “to make life miserable for [the victim] and his business”, and the degree of impact that his actions had on the victim’s business.
[17] In oral submissions, Ms Bulger also suggested that the drafting of the victim impact statement may have suggested that the appellant was responsible for other misfortunes suffered by the victim, including his workshop being broken in and his truck vandalised.
[18] Finally, the appellant’s submissions stated that the Judge incorrectly referred to the appellant having a previous conviction for intentional damage,7 and that the appellant was “on bail at the time”.8 However, between filing the submissions and the hearing it was able to be clarified that the appellant had been convicted on a charge of
wilful damage relating to a matter which occurred in May 2016, but the respondent
6 Manikpersadh v R [2011] NZCA 452 at [12].
7 At [25].
8 At [32].
accepts that it was incorrect to say that the appellant was on bail at the time of the offending. Although Ms Bulger accepts that the Judge expressly rejected the need to uplift the sentence for this factor, she says it is not clear whether the error as to bail contributed to the overly negative view the Judge took of the offending in context.
[19] The further information which has been provided to this Court by the appellant, and which, by inference, it is said the appellant would have produced at the District Court sentencing if he had received the victim impact statement earlier, are three statements from unhappy clients of the victim’s company (albeit not given in affidavit form), plus a copy of an order of the Disputes Tribunal against the victim’s company and an extract from a liquidator’s report of the victim’s company showing it had nearly
30 creditors and liabilities of $300,000.
[20] This Court has the power, if it thinks necessary or expedient in the interests of justice, to receive evidence from any witness, including an appellant, for the purpose of an appeal.9 However, having viewed the material, I do not consider that it introduces material which was not already acknowledged in the victim impact statement or which could have made a material difference to the sentencing exercise. As the respondent notes, the victim impact statement expressly acknowledges that the victim’s business was in financial difficulty during the period the appellant was employed, and prior to the incidents which gave rise to the charges. The further information provided simply confirms that and gives specific examples of people who say they were owed money by the victim’s company, or had supplied money to the company and not had work done. As this does not alter anything set out in the victim impact statement, I do not consider that evidence would have made a material difference to the sentencing exercise.
[21] As to whether the Judge may have inferred that the appellant was responsible for some of the other misfortunes that the victim had suffered, including the burglary and vandalising of his truck, there is nothing to suggest that the Judge did assume this and it would be speculative to do so. Rather, these matters are set out in the victim
impact statement as being factors which meant that the appellant’s actions affected the
9 Criminal Procedure Act 2011, s 335(2)(c).
victim more profoundly than might have been the case if he had had no other adverse events occur in his life.
[22] At the hearing it was possible to clarify that the only factual error the Judge made in terms of the appellant’s criminal history was that he was incorrect to say the offending occurred while the appellant was on bail. However, the Judge expressly ignored that for sentencing purposes, and the decision as to whether to impose home detention or a jail sentence was based solely on the aggravating features of the offending as set out in the summary of facts, the impact on the victim and the principles of denunciation and deterrence. There is no evidence this error was factored into the sentencing exercise at all.
[23] As a consequence, I do not consider that either ground (the lack of opportunity to respond to the victim impact statement or the erroneous understanding about whether the appellant was on bail) contributed to the Judge rejecting a sentence of home detention.
[24] That simply leaves a submission that the Judge erred in sentencing by failing to impose the least restrictive outcome appropriate once he got to the point where an electronically monitored sentence could have been imposed. In the absence of the appellant identifying some material error in the victim impact statement or in any other material the Judge relied on, there is no other suggestion that the Judge omitted some material consideration in deciding that the principles of denunciation and deterrence mandated a sentence of home detention. Furthermore, this was not a matter that was finely balanced. The Judge clearly considered that the driving offence alone was offending which would likely result in a prison sentence given those factors.
[25] Thus, while the appellant had virtually no criminal history, and the pre-sentence report recommended home detention, I cannot conclude that the Judge was in error in exercising his discretion to impose a prison sentence. His decision was thorough and carefully canvassed the relevant issues.
[26] Accordingly, this aspect of the appeal must fail.
Was the disqualification period manifestly excessive?
[27] Counsel for the appellant submits that the disqualification period imposed on the appellant in relation to the dangerous driving charge of four years, was manifestly excessive. The appellant has no history of driving convictions and this was the first time he had appeared in Court in relation to a matter which carried disqualification as a potential penalty.
[28] Counsel for the appellant also submitted that, by his guilty plea, the appellant accepted responsibility for driving dangerously and for causing injury to the victim. Furthermore, a disqualification for four years is significant. It is usually reserved for those who commit driving offences which cause death or for people who have significant driving conviction histories. She also notes that the Judge made the following statement in sentencing “when a person uses a vehicle as a weapon, it is an extremely serious situation”. However, the Crown had initially charged the appellant in the alternative with either dangerous driving causing injury, or assault with a weapon, but had elected to proceed with the former charge. The appellant says, had the charge remained as one of assault with a weapon, he would have continued to deny it. In those circumstances, counsel submitted it was not appropriate for the sentencing Judge to treat the incident as one where he used the vehicle as a weapon.
[29] The respondent acknowledges that it had proposed a disqualification of about two years at sentencing and did not suggest on appeal that a sentence of four years was within range, suggesting instead that two to three years was in range.
Discussion
[30] Under s 36(2)(b) of the Land Transport Act 1998, a person who drives in a manner which is dangerous to the public and by that act causes injury to another person, must be disqualified from holding or obtaining a driver licence for one year or more. As McKenzie J said in Leaupepe v Police:10
[8] The principle objective of disqualification is public safety. Many of the purposes and principles of sentencing in s 7 and 8 of the Sentencing Act
10 Leaupepe v Police [2015] NZHC 1766.
2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.
[9] The extent of discretion available to the sentencing Judge is, for these reasons, less fettered than that in respect of conventional sentencing decisions. A comparison with other cases is therefore a less reliable guide than is the case for conventional sentencing.
[31] In the same decision, reference was made to the Court of Appeal’s decision in
Hitchens v R, where the Court noted that the two competing considerations were:11
(a) long periods of disqualification typically leave little hope for offenders;
(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.
[32] The task of a sentencing Judge, and an appellate Court, is to effect an appropriate balance between these considerations. That said, Panckhurst J noted in Duncan v Police, “as a matter of policy disqualification orders should be kept as short as possible in relation to achievement of the underlying end of road safety”.12 I also accept that, while I should be cautious in drawing comparisons with other cases relating to disqualification periods, it is worth noting that disqualification of the length imposed on the appellant is usually reserved for cases where defendants are driving under the influence of alcohol, causing the death of another.13
[33] In my view, the dangerous driving was clearly an act which formed part of the confrontation with the victim, and its seriousness is reflected in the jail term imposed. I do not consider that, given the appellant’s background, it indicates that the appellant poses a particular risk to public safety more generally. In my view, a disqualification period of two years is ample to achieve the purposes of sentencing on this charge. The four year disqualification period was manifestly excessive in light of the charge the
appellant faced and in the context of his offending.
11 Hitchens v R CA380/03, 25 March 2004.
12 Duncan v Police HC Christchurch CRI34/03, 17 July 2003 at [10].
13 See for example Leaupepe v Police, above n 10; McMillan v Police [2014] NZHC 150 and Gacitua v R [2013] NZCA 234.
[34] Accordingly, the appeal is allowed in part. The disqualification period is reduced from four years to two years. The sentence of two years’ imprisonment remains, including any special conditions imposed on release from this short term of imprisonment.
Solicitors:
E C Bulger, Barrister, Christchurch
RPB Law, Dunedin
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