Howe v Police

[2021] NZHC 2087

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-49

[2021] NZHC 2087

DARWIN HOWE

v

NEW ZEALAND POLICE

Hearing:	5&12 August 2021
Counsel:	S J McDonald for Appellant M Shaw for Respondent
Judgment:	12 August 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1]        On 8 July 2021, Mr Howe was sentenced in the Porirua District Court for the following charges:1

(a)1 x charge of unlawfully getting into a motor vehicle;

(b)3 x charges of driving while disqualified (third or subsequent);

(c)1 x charge of possession of two methamphetamine pipes;

1      Police v Howe [2021] NZDC 13856.

HOWE v NEW ZEALAND POLICE [2021] NZHC 2087 [12 August 2021]

(d)1 x charge of possession of a Class A controlled drug (methamphetamine);

(e)1 x charge of receiving property over $500; and

(f)1 x charge of dangerous driving.

[2]        For these charges, Mr Howe was sentenced to 13 months’ imprisonment. The Judge also granted Mr Howe leave to apply for home detention to a suitable rehabilitation address and disqualified him from driving for 18 months.

[3]Mr Howe now appeals the sentence, on the grounds that:

(a)the sentence of 13 months’ imprisonment was manifestly excessive;

(b)the Judge did not sufficiently turn her mind to a non-custodial sentence pursuant to ss 8(g) and 16 of the Sentencing Act 2002;

(c)the Judge did not place sufficient weight on the recommendations in the Provision of Advice to Courts report (PAC report); and

(d)the Judge erred in determining that home detention was not an available end sentence.

[4]The police oppose the appeal.

Background

Factual background

[5]        In the early morning of 15 February 2021, Mr Howe was driving a vehicle down State Highway One, despite being disqualified from driving at the time. He was stopped by police at a COVID-19 checkpoint and asked to produce his driver’s licence. He immediately admitted that he was disqualified and complied with police instructions. The vehicle was impounded and Mr Howe was arrested, resulting in the driving while disqualified charge.

[6]        On 9 March 2021, while Mr Howe was on bail for his 15 February driving while disqualified charge (and still disqualified), he drove down State Highway One near Paremata in the early hours of the morning. Mr Howe saw a police vehicle and accelerated away at speed.   The police followed and observed  him travelling at   170 kilometres per hour. Mr Howe also turned his lights off as he continued to travel at high speeds away from the police. This resulted in an additional driving while disqualified charge, and a dangerous driving charge.

[7]        On 19 March 2021, Mr Howe was caught driving a stolen vehicle with stolen number plates in the early hours of the morning. This resulted in the final driving while disqualified charge, and the receiving property charge (in respect of the stolen licence plates affixed to the stolen car).

[8]        On 24 March 2021 at 17:15pm, Mr Howe was in the driver’s seat of a parked vehicle in Paraparaumu (in breach of bail by doing so). He was located by police, who blocked him from leaving, and arrested and searched him. In their search, police located two methamphetamine pipes in his satchel bag, and approximately 0.1 gram of methamphetamine. This led to the possession of methamphetamine pipes and possession of methamphetamine charges.

District Court decision

[9]        Before considering the starting point, Judge Doyle noted the detailed reports that had been filed concerning Mr Howe, including a PAC report, an s 27 report, and an s 38 report. In particular, the Judge noted that the s 38 report indicated the significant rehabilitation needs that Mr Howe had, which were complex, multi- layered, and not easy to fix, but that he was prepared to seek help and assistance in dealing with these issues.

[10]      The Judge also acknowledged Mr Howe’s whānau support in Court, recognising their willingness to support him in his rehabilitative journey, and to support him in having an address for him to be bailed to, or to serve home detention at.

[11]      After setting out the relevant facts, the Judge decided to adopt the driving while disqualified charges as the lead offences, following the approach taken by Clifford J in Apiata v Police.2 That approach entailed taking the most serious driving while disqualified offence (the 21st offence) and using that as the starting point, and then imposing an uplift for other driving while disqualified convictions, previous convictions, any other offending, and then considering discounts for mitigating factors.

[12]      In terms of these discounts, the Judge noted that Mr Howe should receive the full 25 per cent for guilty pleas, because these were given as early as possible. The Judge also concluded that Mr Howe should receive a significant discount for his personal circumstances, which included his difficult childhood and current battles with drugs and mental health, as well as his expressions of remorse, and willingness to engage in restorative justice. A 25 per cent discount was given for these factors.

[13]      In considering the starting point, the Judge considered that it was appropriate to start with 18 months’ imprisonment, given that Mr Howe’s circumstances were on all fours with the Apiata case. This was uplifted by four months for the two other driving while disqualified convictions, and a further two months for the dangerous driving and unlawfully getting into a vehicle charges.

[14]      The Judge agreed with Mr Howe’s counsel that the possession of methamphetamine and possession of pipes should not attract a further uplift. They were different and discrete issues and were symptomatic of the demons that Mr Howe was dealing with in terms of his drug addiction. There was also no uplift imposed for the receiving of the licence plates.

[15]      A two-month uplift was given to reflect Mr Howe’s 70 previous convictions (not including his 18 driving while disqualified charges, which were considered as part of the starting point), resulting in an adjusted starting point of 26 months’ imprisonment. This was reduced to 13 months’ imprisonment due to the 50 per cent discount for guilty plea and Mr Howe’s personal circumstances.

2      Apiata v Police [2016] NZHC 3119.

[16]      The Judge then turned to consider whether Mr Howe’s sentence should be converted to a community-based sentence. After noting the principles of the Sentencing Act, including the balance between denunciation and deterrence and rehabilitation, the Judge considered that the most “difficult aspect” of the case was the balance between Mr Howe’s rehabilitative needs, and the need to protect the public from his ongoing offending.

[17]      The Judge acknowledged that the PAC report had recommended that a sentence of community detention and intensive supervision but noted that Mr Howe had not engaged particularly well with Community Probation during the interview process, and also that he had a high risk of offending due to the fact that he continued to offend on a regular basis. There was also a need for Mr Howe to get intensive support and monitoring, both through judicial monitoring and through community probation – an issue also raised in the s 38 report. A co-ordinated approach was particularly important given Mr Howe’s trauma symptoms, and his limited skills to manage distress, emotions and impulses. The Judge in particular noted that while Mr Howe appeared to be motivated, the psychologist had expressed concern about his use of avoidance which would require targeting before addressing intrusive experiences, as well as his substance abuse.

[18]      The Judge noted that Mr Howe had commenced the Salvation Army Bridge Programme in January 2021, but was released shortly after breaching its programme rules, and that he would need to engage with Community Alcohol and Drug Services before re-engaging in the programme.

[19]The Judge noted:

My concern at this stage is whether you are yet at the point where it is safe for you to be in the community and receiving treatment. Since at least 2015 you have had a pattern of doing this kind of behaviour, unlawful taking, driving whilst disqualified, thefts, drug use, being imprisoned, being released and doing the same thing all over again.

[20]      It was also noted that there was a pattern of being imprisoned and re-offending in the past decade, and that the Court had not been prepared to give Mr Howe a

community-based sentence since 2012. Because of this pattern of re-offending, the Judge concluded:

I am not saying you are not motivated. I am not saying you are not on your way. You are. But when I have to balance your rehabilitation needs with the public safety, it comes down in favour of the public safety. What that means is that I cannot find that the least restrictive option that is appropriate in all the circumstances is a community-based or electronically monitored sentence. I am sentencing you to 13 months’ imprisonment.

[21]      Finally, the Judge granted Mr Howe leave to apply for home detention, but only if he could provide an address which would enable him to undertake residential rehabilitation in the form of a bridge or other rehabilitation programme at which he could complete his sentence.

[22]      The Judge also disqualified Mr Howe from driving for 12 months, and with six months of post-release conditions.

Position of the parties

Mr Howe

[23]      As noted above, Mr McDonald, counsel for Mr Howe, brought the appeal on four grounds. Before setting out these grounds, counsel discussed Mr Howe’s background and personal circumstances. It was noted that Mr Howe was a particularly vulnerable man, who had consistently received custodial sentences without the opportunity to engage in rehabilitation to properly deal with the underlying causes of his offending. Those underlying causes were identified in the s 38 report, which found that Mr Howe grew up in a home with violence and substance abuse, and both his parents were incarcerated for a number of years when he was growing up. The report also found that Mr Howe likely experienced post-traumatic stress disorder (with scores for PTSD above the clinically elevated range), ADHD, potentially suffering from foetal-alcohol syndrome, stimulant use disorder, and borderline intellectual functioning below low average.

[24]      Counsel also noted that the s 38 report had recommended referral to Community Alcohol and Drug Support, residential rehabilitation, and post-sentence support. According to counsel, it appeared in recent months that Mr Howe had finally

turned a significant corner in his life, and recognised that he needed support for his addiction, leading him to have a discussion with the forensic mental health nurse about this issue at his appearance for plea.

[25]      While Mr Howe had exited the Salvation Army Bridge programme, counsel submitted that he was not ready to attend rehabilitation at the time, and that it was common for individuals with severe methamphetamine addictions to have several attempts at rehabilitation.

[26]      Counsel discussed two “key factors” which the Judge used to justify not imposing a non-custodial sentence: that home detention was not an available sentence because it had not been canvassed explicitly in the pre-sentence report and it was not clear that the whānau had explicitly consented to it, and that community detention would not sufficiently reduce the risk that Mr Howe posed to the community.

[27]Counsel then turned to the grounds of appeal.

[28]      Under ground one, counsel submitted that the sentence imposed was manifestly excessive, and that the getting into a motor vehicle charge should have been considered the lead offence. Under this offence, a starting point of six months’ imprisonment was appropriate with an end sentence 100 hours’ community work in combination with six months’ supervision as the least restrictive sentence.

[29]      Under ground two, counsel submitted that the Judge failed to take steps to clarify whether home detention was available and was not amenable to standing the matter down for Corrections to clarify if home detention was available, despite the occupants of Mr Howe’s proposed address having explicitly consented to Mr Howe being sentenced to community or home detention at their address. Furthermore, the end sentence of imprisonment was excessive, as the Judge did not have proper regard to s 16 of the Sentencing Act. Because under that provision, the Court must have regard to the desirability of keeping offenders in the community as far as practicable and consonant with the safety of the community, and given that a community-based sentence was recommended, the 13-month sentence of imprisonment should have been commuted to on namely home detention under s 8(g) of the Sentencing Act.

Counsel noted that the proposed address provided some distance from Porirua where he had connections back to the Mongrel Mob.

[30]      Under ground three, counsel submitted that the Judge did not appropriately consider s 27 of the sentencing Act, particularly subs (1)(d) and (1)(e), which makes whānau support and the offender’s whānau background relevant considerations under the provisions. Mr Howe’s whānau was present at the sentencing hearing, but that the Judge did not place appropriate weight on the wishes of his whānau to assist in his rehabilitation and reintegration through a community-based sentence.

[31]      Under ground four, counsel submitted that the Judge erred in not determining that a sentence of home detention was not available. Counsel noted that jurisprudential shifts in Zhang v R, where the Court of Appeal noted the factors of addiction, poverty and deprivation as factors that could be taken into account in sentencing, and that it changed the way lower Courts should sentence vulnerable individuals in order to prioritise  a  health-centred,   rehabilitative   approach.3   Counsel   submitted   that Mr Howe’s decade-long addiction to methamphetamine, which sat on top of his difficult upbringing including severe deprivation, abuse and violence, low IQ, PTSD, possible foetal alcohol syndrome and mental health challenges, as well as his lack of connection with his iwi of Ngāpuhi justified this type of approach here and impose a non-custodial sentence.

The police

[32]      Mr Shaw, counsel for the police, submitted that there was no error in the Judge’s analysis of the appropriate end sentence, as she properly considered all the report, submissions, and other information before her.

[33]      Counsel for the police disagreed with counsel for Mr Howe’s submission that the Judge should have taken steps to clarify whether home detention was available. Nothing in the Judge’s decision referred to the issue of the occupants’ lack of consent as being a concern, and this did not appear to be a material factor influencing the Judge’s decision. Counsel submitted that it was difficult to see how seeking

3      Zhang v R [2019] NZHC 507.

clarification from the occupants of the proposed address as to whether they consented could be considered an error. Ultimately, the Judge simply did not consider that they would be able to address Mr Howe’s specific needs.

[34]      In terms of Judge’s decision to refuse a non-custodial sentence on the basis of Mr Howe’s risk to the public, counsel submitted that the Judge carefully assessed this risk, noting his pattern of dangerous driving and driving while disqualified charges, and that the 6 July 2021 PAC report was completed without interviewing Mr Howe because he was evading police attention. Despite this, the Judge carefully assessed the PAC and s 38 reports and noted that Mr Howe’s risk of re-offending was still high, despite his whānau support.

[35]      Counsel disputed the submission that the Judge did not appropriately consider s 27 of the Sentencing Act. The Court specifically acknowledged Mr Howe’s whānau support and granted a discount of 25 per cent from the starting point for his personal circumstances.

[36]      Finally, it was submitted that the Judge did in fact adopt a rehabilitative or health-centred approach, as she explicitly allowed Mr Howe to apply for leave for home detention if he could find an address at which he could undertake a residential rehabilitation programme, as this was the only option in which Mr Howe could properly undertake a rehabilitative approach.

Approach to appeal

[37]      This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5

4      Tutakangahau v R [2014] NZCA 279.

5      Ripia v R [2011] NZCA 101 at [15].

Relevant law and analysis

Section 27 factors, and mental health and rehabilitation

[38]      The Court of Appeal has recently considered the role of s 27 reports  in Zhang v R, where it observed that sentencing must achieve justice in individual cases, which requires flexibility and discretion.6 The Court further noted that ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to the individual’s offending.7

[39]      The Court of Appeal has also recently considered rehabilitation and mental health issues as factors in the sentencing process in Orchard v R. This case concerned a charge of wounding with intent to cause grievous bodily harm by the appellant, who had suffered a mild traumatic brain injury.8 The Court gave the following guidance on the approach to sentencing and mental health:9

[45]      Theoretically, mental health issues may be engaged at two stages of the sentencing process. First, they may affect the starting point at stage one. That will be relatively rare, however, as the first stage is concerned with the intrinsic seriousness of the offending conduct, viewed objectively. This enables sentencing comparisons to be made from case to case. To be a proper stage one consideration, mental disability must have altered the character and gravity of the offending itself.

[46]      Secondly, and more typically, mental health issues may operate as a mitigating factor relevant to the offender’s personal circumstances at stage two. Other, comparable personal considerations such as youth or systemic deprivation are usually considered at this stage also. Mental health issues may mitigate the offending, diminishing moral culpability for the offending, and thereby also diminishing deterrence, accountability and denunciation as sentencing concerns. The weight given to the consideration, for those purposes, will however depend on evidence supporting the view that the condition contributed causally to the offending. Alternatively, it may be the condition means that a sentence will weigh more heavily on the offender than it would on a person in normal health, or that there is a serious risk of imprisonment having a significant adverse impact on the offender’s mental health. There may of course be a combination of these considerations.

[47]      The usual effect of mental health issues is to mitigate sentence, although it may also be a neutral consideration and it may even aggravate the

6      Zhang v R [2019] NZCA 507 at [10].

7 At [159]. See also Solicitor-General v Heta at [49].

8      Orchard v R [2019] NZCA 529.

9      At [45]-[48] (footnotes omitted).

level of sentence, where the offender’s mental health issues affect the risk of reoffending and thereby public protection.

[48]      In E (CA689/2010) v R, the Court noted that stage two discounts for mental health issues ranging from 12 per cent to 30 per cent had been seen as appropriate. This is not be taken to confine the upper range discount where diminished responsibility by reason of mental health deficits substantially diminishes moral culpability and the needs of deterrence, accountability and denunciation generally as sentencing concerns.

[40]      I also note the recent report issued by the Office of the Prime Minister’s Chief Science Advisor entitled: What were they thinking? A discussion paper on brain and behaviour in the criminal justice system. The report details issues such as offenders with FASD and intellectual disabilities and the criminal justice system. With regard to intellectual disabilities, the report noted:10

Despite the lack of robust research on prevalence rates of people with intellectual disability in the criminal-justice system, there is agreement that there are compounding effects of having an intellectual disability that worsens outcomes once involved with the system. These include not understanding legal rights or consequences when first engaged with police, nor the legal language and court processes that may follow. Once in prison, difficulties arise from not understanding written information (prison rules, systems to access services, treatment programmes etc) and risks of being bullied and getting depressed and anxious increase.

[41]      Clearly, there is growing research and acknowledgment by the Courts and in the justice system in relation to the mental health issues (and the importance of rehabilitation) with offenders, as well as other personal factors and circumstances within an offender’s life which can mitigate culpability or contribute to offending. However, in this case, it appears as though the Judge took these factors into account. Mr Howe’s difficult personal circumstances, including his mental health and rehabilitative issues, were explicitly considered by the Judge, and she acknowledged the presence of his whānau support in the courtroom. After considering those particular circumstances, the Judge considered that a discount of 25 per cent was appropriate, to reflect Mr Howe’s battles with trauma, drug addiction, mental health issues, as well as his remorse. The Judge also carefully considered Mr Howe’s PAC and s 38 reports, noting their recommendations, and also his rehabilitative needs, but

10   Ian Lambie What were they thinking?  A discussion paper on brain and behaviour in relation to  the justice system in New  Zealand  (Office  of  the  Prime  Minister’s  Chief  Science Advisor, 29 January 2020) at [123].

ultimately considered that Mr Howe was not yet at the point at which it was safe for him to be in the community, given his pattern of re-offending.

[42]      Therefore, it does not appear that the Judge erred in considering these factors. The ultimate question is, in balancing the risk to the public with Mr Howe’s rehabilitative needs, whether the Judge placed too much emphasis on the latter and not enough on the former by imposing a sentence of imprisonment that would therefore be manifestly excessive.

Home detention

[43]      If an offender is convicted of an offence punishable by imprisonment,11 and the end sentence reached is a short-term sentence (meaning a sentence of imprisonment of up to 24 months),12 home detention becomes available as a sentencing option. However, whether or not it is appropriate to impose this sentence, in the circumstances of a particular case, is a matter for the discretion of the sentencing Judge. There is no presumption in favour of home detention being imposed.13

[44]      In Metua v R, Hinton J (citing the Court of Appeal decision of Fairbrother v R), provided useful guidance on a Court’s assessment of when home detention is appropriate:14

[12] Accordingly, as with any offence, where a proposed term of imprisonment is under two years the sentencing court is obliged to consider a term of home detention. Where appropriate, after considering the purposes of sentencing, home detention is to be imposed. The Court cannot impose a sentence of imprisonment unless satisfied that relevant sentencing purposes cannot be achieved by another sentence. The Court of Appeal in Fairbrother v R stressed that in choosing between the two options, “the choice must be intelligible”, which requires that the “factors that really count must be identified and weighed”. In that case…the Court provided useful guidance on when home detention should be substituted for imprisonment on appeal:

Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence. That does not mean that a

11     Sentencing Act 2002, s 80A(1)(a).

12     Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).

13 At [21].

14     Metua v R [2018] NZHC 246 at [12].

short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.”

[45]      While denunciation and deterrence are significant factors in the sentencing process, s 7(1)(h) of the Sentencing Act dictates that a purpose of sentencing is to assist in the offender’s rehabilitation and reintegration, and rehabilitation should be given adequate recognition in sentencing.15 The Courts have acknowledged that some recognition (often by way of a discount) should be given for genuine efforts by an offender to address the causes of his or her offending, particularly where this appears to have had some measure of success.16

[46]      In R v Hill, rehabilitative considerations are expressly considered to be important in determining whether to commute a sentence to home detention:17

Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[47]      In Barbour v Police, Hinton J observed that where the offending (burglary) was explicable as a result of the offender’s drug addiction, it was inappropriate to emphasise considerations of deterrence and denunciation, and that it was well recognised that home detention is a real alternative to imprisonment and carries with it in considerable measure the principles of deterrence and denunciation.18

[48]      The critical issue in this case is whether Mr Howe has sufficient support around him to ensure that he both gets the rehabilitative support that he needs, and that with that support, he can be effectively monitored so as to reduce his risk of re-offending. The sentencing Judge felt under the current circumstances that the balance favoured imprisonment, as the risk to the public was too great. The Judge is undoubtedly correct in suggesting that Mr Howe will need significant rehabilitative support in order to

15     Mallett v R [2014] NZCA 39 at [11].

16     Waho v Police [2018] NZHC 1767; and R v Nuku [2018] NZHC 2609.

17     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

18     Barbour v Police [2020] NZHC 2707.

have a successful rehabilitation and home detention sentence. It is not clear that he would get that with his whānau support alone.

[49]      I adjourned the hearing of this appeal for counsel to provide the Court with further information. Mr McDonald provided the Court with details about a narcotics anonymous programme. This was a voluntary programme held in the community between 5.30pm and 6.30pm on a Wednesday evening.

[50]      Mr McDonald had also been in touch with Ora Toa Mauriora which provides weekly counselling sessions. It is not a residential programme. Given the limited time, it had not been possible for a place on the programme to be confirmed.

Analysis

[51]      Like Judge Doyle, I have approached this case on the basis of balancing the clear rehabilitative needs of Mr Howe against the risks posed to the community by his behaviour. Like the Judge, I have been impressed by the willingness of Mr Howe’s whānau to support him.

[52]      However, ultimately I have concluded that the Judge made no error in her analysis of the relevant factors.

[53]      The starting point of 18 months’ imprisonment was consistent with authority; the various discounts given fully recognise all the positive factors the Court was obliged to take into account.

[54]      I accepted that home detention was potentially an available option but that, in this case, other than if a fully residential narcotic rehabilitation placement was available, the pattern of Mr Howe’s repetitive offending, including repeat offending while on bail, meant that the risk to the community was just too great.

[55]      The Judge specifically granted leave to Mr Howe to apply for home detention if he could provide an address which would enable him to undertake a residential rehabilitation programme. That option is still available to Mr Howe.

Result

[56]For these reasons, the appeal is dismissed.

Churchman J

Solicitors:

Robinson Legal, Wellington for Appellant Crown Solicitor, Wellington for Respondent