Jenkins v Department of Corrections

[2014] NZHC 2895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-309 [2014] NZHC 2895

BETWEEN

WARREN JENKINS

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	20 November 2014
Appearances:	A MacMillan for Appellant J Barry for Respondent
Judgment:	20 November 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

JENKINS v DEPARTMENT OF CORRECTIONS [2014] NZHC 2895 [20 November 2014]

[1]      Mr Jenkins pleaded guilty in the District Court to a charge of breaching his prison release conditions.  On 9 September 2014, Judge Wade sentenced Mr Jenkins to nine months imprisonment.1    He now appeals to this Court on the basis that the sentence was manifestly excessive.

Background

[2]      Mr Jenkins  was  released  from  prison  on  14  July 2014,  having served  a sentence of four years imprisonment in relation to a number of charges.   These included driving with excess blood alcohol and thereby causing the death of another person.  Mr Jenkins reported to his probation officer on 15 July 2014, and his release conditions were fully explained to him.

[3]      On 13 August 2014, Mr Jenkins obtained permission to attend a programme designed to assist in his rehabilitation.   Rather than attend that programme, Mr Jenkins took a bus to Northland and spent the next two days visiting associates in that area.  His counsel advises that the purpose of the visit was to pay his respects to friends and family of a colleague who had died whilst Mr Jenkins was in prison.

[4]      Mr Jenkins maintained contact with his partner whilst he was in Northland. On 15 August 2014, she travelled to Northland and drove him back to Auckland.  He was then taken into custody.  At the time the offending occurred, Mr Jenkins was subject to electronic monitoring.  When he returned to Auckland on 15 August, Mr Jenkins was still wearing his electronic bracelet.

The Judge’s decision

[5]      The Judge selected a starting point of 12 months imprisonment, being the maximum available.   He explained why he had chosen this starting point in the following passages of his sentencing remarks:2

[4]      Your criminal history is absolutely appalling.  You  have, as I make it,  19  convictions  for  drink-driving,  18  convictions  for  driving  whilst

1      Department of Corrections v Jenkins DC North Shore CRI-2014-044-003059, 9 September

2014.

2      Department of Corrections v Jenkins, above n 1.

disqualified and in the past you have breached prison release conditions twice. You have breached home detention conditions six times.

[5]       As I have already made plain, my primary duty here is to protect the public.  I would never forgive myself if I were to let you out of prison today, as I have been urged to do, only to find out in a few days’ time you had fallen off the wagon again and had killed somebody else as a result of your drink-driving.

[6]       I think it is the plain duty of any Court in this country to take offenders like you off the road for as long as possible, in the sure and certain knowledge that sentences of disqualification have no effect upon you whatever.  The statutory maximum sentence for your offence is one of 12 months’ imprisonment. That is my starting point , 12 months’ imprisonment. I deduct 25 percent of that to acknowledge your guilty plea at an early opportunity.

This process resulted in the end sentence of nine months imprisonment.

Arguments on appeal

[6]      Ms MacMillan submits that the starting point that the Judge selected was manifestly excessive having regard to the circumstances of the offending.  Although she accepts that the offending was blatant, she points out that it did not involve Mr Jenkins driving and thereby placing other motorists at risk.  In addition, the police screened Mr Jenkins for alcohol when he returned to Auckland, and no alcohol was detected on his breath.   As a result, she submits that the gravity of the offending arises out of the fact that Mr Jenkins deliberately decided to travel to Northland rather than attend the pre-arranged appointment.  He then remained in Northland for two days before returning to Auckland and turning himself in to the authorities.  She submits that this should have attracted a starting point of around five months imprisonment.

[7]      Mr Barry for the respondent accepts that the starting point the Judge adopted was excessive.  He submits that an appropriate starting point was one of six months imprisonment.   In this context he referred me to Johnson v Department of Corrections, in which a starting point of six months imprisonment was upheld in circumstances where the offender had failed to make contact with a probation officer

on two occasions and effectively absconded for several days.3

3      Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010.

Decision

[8]      The starting point was clearly manifestly excessive.  The Judge’s concern in selecting the maximum sentence was the danger that Mr Jenkins posed to motorists should he elect to drink and drive.  As the summary of facts demonstrates, however, there is no evidence to suggest that Mr Jenkins placed the lives of motorists at risk by driving at any stage during the time he was in breach of his release conditions. Nor is there any evidence that he consumed alcohol during that period.  Rather, the gravity of the offending lies in the fact that, in full knowledge of his obligations, he elected to abscond for two days and travel to Northland.

[9]      I consider that a starting point of five months imprisonment is appropriate. Mr Jenkins now has a long history of breaching Court orders and sentences imposed by the Court.  For that reason an uplift is also appropriate.  His present offending is made more serious by the fact that he has failed to learn the lesson from earlier sentences  imposed  on  him.    An  uplift  of  two  months  imprisonment  would  be required to reflect this factor.   This would produce an end starting point of seven months imprisonment.

[10]     Given the fact that Mr Jenkins had no prospect of defending the charges, a modest discount is appropriate even though an early guilty plea was entered.   I would allow a discount of six weeks to reflect the guilty plea.  This produces an end sentence of five and a half months imprisonment.

Result

[11]     The sentence of nine months imprisonment is accordingly quashed.   In its place, I impose a sentence of five months two weeks imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
A MacMillan, Auckland