Jennison v Police
[2022] NZHC 2070
•19 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-106
[2022] NZHC 2070
BETWEEN JASON KERRY JENNISON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 August 2022 Appearances:
T Aickin for Appellant
G E R Alloway for Respondent
Judgment:
19 August 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 19 August 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
JENNISON v NEW ZEALAND POLICE [2022] NZHC 2070 [19 August 2022]
Introduction
[1] On 8 June 2022, Jason Jennison was sentenced to 16 months’ imprisonment and disqualified from driving for two years on one charge each of dangerous driving and driving while impaired.1 He appeals his sentence of imprisonment saying he should have been sentenced to home detention.
Facts
[2] Mr Jennison has five previous convictions for driving with excess breath alcohol.
[3] At 4:50 pm on 22 March 2021, Mr Jennison was driving a vehicle on Selwyn Road, Rolleston. Police had received multiple driving complaints about his vehicle being driven erratically and crossing the centreline before it crashed and hit a fence. He was spoken to at the scene and exhibited signs of being under the influence of a drug. He failed a compulsory impairment test. Blood test procedures were carried out and an ESR analysis of the sample showed Mr Jennison was under the influence of Lorazepam and Tramadol.
[4] His defence that the Lorazepam was taken involuntarily was rejected at a Judge Alone Trial.2 Indeed, the Judge formed the view that Mr Jennison and his mother “contrived” the explanation for how he came to have taken the drugs and concluded he lacked credibility.3
District Court sentencing decision
[5] The Judge described Mr Jennison’s erratic driving in his sentencing decision as follows:
1 Police v Jennison [2022] NZDC 10467.
2 Police v Jennison [2022] NZDC 4316.
3 At [53](e) and (g).
[6] … It included Mr Jennison driving over the speed limit and crossing the centre line on numerous occasions to the point of causing so much concern that not only did the complainant phone Police but she followed him. Her evidence included pleading with the operator for help. She provided updates on a long stretch of Brougham Street which of course is a very busy road with the driving continuing onto the motorway swerving out form his lane into the one beside it and ending right up hard against the median fence. Cars were passing and taking a wide berth to avoid being hit if he veered into their lane.
[7] At the end of the Southern Motorway he took the Shands Road exit. He sat completely through the first green arrow and almost through the second before going through very late. At this point the complainant described his driving as “truly terrifying”, driving fast and travelling far too close to people in front before they would turn off. He would cross the centre line into oncoming traffic and then correct again hard left. He would be driving up the grass verge and then back to the centre line and back to the centre and across to the centre line again.
[8] On Shands Road alone he crossed into oncoming traffic at least four to six times with some very close calls. One oncoming car beeped loudly with the complainant continually on the phone to the operator. He managed to turn right into Selwyn Road almost colliding with an oncoming car and continued his pattern of crossing the centre line with another couple of very close calls. He went right across the centre line of the opposite lane nearly missing a car on the way. He crashed into a hedge on the opposite side of the road.
[6] The Judge noted Mr Jennison’s driving only stopped because he crashed. The Judge found Mr Jennison knew he was impaired and unwell and that he ought to have pulled over. The Judge took as aggravating factors that this was his sixth conviction for driving while impaired, that his previous convictions had very high readings and on the last occasion he received a sentence of imprisonment. He acknowledged there had been a gap since his last conviction for such offending.
[7] The Judge considered Mr Jennison’s background, including that he is employed, in a long-term relationship with a partner who has three children, that he parents those children and that he is the main income provider for the family. His partner and mother explained their concerns about how hard Mr Jennison had been working. The Judge noted Mr Jennison accepted he should not have taken medication which was not prescribed to him and that he ought not to have driven when feeling unwell.
[8] While the Judge acknowledged the availability of an electronic sentence, he noted some concerns about the proposed address due to the restrictive nature of the sentence and the potential for family violence at the address.
[9] The Judge took deterrence and denunciation as the principal issues when sentencing. He found Mr Jennison needed to be deterred personally and that a message of general deterrence needed to be sent in relation to people who continue to drive under the influence of drugs or alcohol. The Judge found Mr Jennison’s appalling driving also needed to be denounced.
[10] The Judge adopted a starting point of 16 months’ imprisonment and granted no credit for mitigating factors. He determined Mr Jennison’s driving was egregious and Mr Jennison was still not getting the message, so a sentence of imprisonment was appropriate.
Principles on appeal
[11] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011. They must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 It is appropriate for this court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
[12] Home detention is an alternative to a short-term sentence of imprisonment.6 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.7 An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.8
Submissions
Appellant’s submissions
[13] Ms Aickin, for Mr Jennison, submitted the Judge erred in failing to account for the time Mr Jennison had spent on bail without breach or further offending and
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Ripia v R [2011] NZCA 101 at [15].
6 Sentencing Act 2002, s 15A(1)(b).
7 Section 15A(1)(a).
8 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].
insufficiently accounted for Mr Jennison’s personal circumstances. Ms Aickin submitted the Judge ought to have spoken with Mr Jennison’s partner regarding the impact of a prison sentence on her and her children and Mr Jennison’s health condition. She submitted Mr Jennison’s lack of previous convictions for driving impaired or dangerous driving was given little or no weight by the Judge. Furthermore, he had last been convicted for driving with excess breath alcohol four years prior.
[14] Ms Aickin submitted home detention would not be an easy option for Mr Jennison, leaving him with only limited ability to be absent from his address for employment or rehabilitative purposes. She submitted the Judge did not consider the fact Mr Jennison has never before received a sentence of home detention. Accepting that deterrence and denunciation were relevant purposes, Ms Aickin submitted it was unsafe to conclude that no other sentence but imprisonment would address them.
Respondent’s submissions
[15] Mr Alloway, for the Crown, submitted it was open to the Judge not to take into account the time Mr Jennison spent remanded on bail given it was only a month and the conditions were not onerous. He noted the Judge acknowledged Mr Jennison’s personal circumstances and the fact he was in employment. He submitted the Judge was correct to place weight on principles of deterrence and denunciation given Mr Jennison’s history of driving with excess breath alcohol. He also rejected the submission Mr Jennison had not received a prior sentence of home detention saying his criminal record shows that his fourth drink drive conviction was converted to imprisonment as a result of a review of home detention.
[16] Mr Alloway maintained the Judge sufficiently considered whether a sentence of home detention would have addressed the purposes and principles of sentencing. He noted police concerns with the proposed address given they had attended family harm occurrences at the address in February and May 2021.
Analysis
[17] While Ms Aickin contends the Judge gave insufficient credit for mitigating features of Mr Jennison’s offending, the starting point is not challenged. I am satisfied a starting point of imprisonment was warranted and that the notional sentence of imprisonment adopted by the Judge was not manifestly excessive. The issue on appeal is whether the sentence ought to have been commuted to one of home detention.
[18] There were no technical barriers to the imposition of home detention at the proposed address. However, the pre-sentence report noted a request for information was sent to the Police. They informed officers had attended the address for family harm occurrences in February and May 2021. No charges resulted though on one occasion Mr Jennison was taken to his mother’s home for the night. On both occasions his use of alcohol was referred to. Police did not support Mr Jennison serving home detention at the address due to the restrictive nature of such sentences and the potential for family violence. The pre-sentence report writer recommended a no alcohol or drugs condition were home detention imposed. A sentence of community work and a fine was recommended.
[19] The Judge received information about Mr Jennison’s circumstances from several sources. Mr Jennison’s employer sent a letter to the Court setting out his history with the company, with Mr Jennison working for them between 1999 and 2008 and again for the last four years. The employer said he works to a high standard, would be hard to replace and his job remains open to him. His partner also provided a letter. She set out how they have been in a relationship for three and a half years now and that they live together in Rolleston with her children aged seven, 14 and 16. She says her children welcomed Mr Jennison, with her seven-year-old especially adoring him. She said Mr Jennison has been supportive of her and expressed frustration at the fact Mr Jennison would be sentenced to imprisonment so long after the offending.
[20] Mr Jennison wrote a letter to the Judge. He expressed regret for his actions on the night in question and acknowledged the harm he caused. He acknowledged his poor history but said he had turned his life around in the last five years. Mr Jennison
described himself as fortunate to meet his partner and her three boys and expressed gratitude for his better circumstances. He asked for a chance to continue moving forward.
[21] The Judge set out and considered these circumstances. He determined, ultimately, though that the dominant purposes of sentencing Mr Jennison were deterrence and denunciation. I do not consider this was an error of law because, rather than failing to consider purposes such as rehabilitation,9 the Judge considered and discounted those purposes. He also emphasised Mr Jennison needed to be held to account and some responsibility promoted in him, noting he did not plead guilty to the driving while impaired charge and only pleaded guilty to the dangerous driving charge at a very late stage. The Judge rightly explained that Mr Jennison needed to be personally deterred because, whatever he said about what was in his system, his driving was “appalling” and he had no control over the vehicle. In my view the Judge was also entitled to emphasise general deterrence and denunciation given Mr Jennison’s offending involved real danger to the public. While I acknowledge Mr Jennison has not previously been convicted of dangerous driving alongside his previous driving with excess blood alcohol charges, the very high level of danger involved here was clearly an aggravating factor of his driving while impaired.
[22] I do not accept it was necessary, as Ms Aickin submitted, for the Judge to speak to Mr Jennison’s partner regarding the effect of a sentence of imprisonment on her. In my view, those effects could be readily inferred from her letter to the Court and from the pre-sentence report, and the Judge gave due consideration to those matters.
[23] Ms Aickin submitted the Judge erred in failing to take into account the time Mr Jennison spent on bail without breach or further offending. The Judge did not explicitly refer to this factor, though that does not mean he did not consider it. Mr Alloway indicated Mr Jennison was remanded at large from his first appearance on 28 May 2021 until he was remanded in custody pending sentence on 22 March 2022. He was granted bail on 29 April due to his sentencing hearing being
9 This would be an error of law—see Fairbrother v R [2013] NZCA 340 at [29]; and Manikpersadh v R [2011] NZCA 452 at [17].
adjourned with conditions to reside at his address and not to drive a motor vehicle. He was sentenced on 15 June 2022.
[24] Mr Jennison was therefore out in the community for nearly a year between his first appearance and being sentenced without incident, including a period where he seemingly complied with a bail condition not to drive a vehicle. During that period, it appears he was in employment and, it appears from his partner’s letter, was a supportive breadwinner for his family.
[25] I accept Mr Jennison has complied with all previous disqualification periods and that was a factor which might point to a rehabilitative sentence. Also relevant was the gap between this offending and Mr Jennison’s last sentence of imprisonment, during which Mr Jennison says he has turned his life around. However, contrary to Ms Aickin’s submissions, his record shows he was sentenced to home detention previously. On his fourth drink driving offence, his criminal record shows the sentence of home detention was reviewed and he was resentenced to imprisonment. Thus, he has had a sentence of home detention but has continued to offend.
[26] While I accept there are factors which might point to the suitability of a home detention sentence, the decision involved the exercise of a discretion and I must be satisfied there was some error in the exercise of that discretion. Here, the Judge had the benefit of presiding over Mr Jennison’s trial where his case was advanced and where he and his mother gave evidence. The Judge was not impressed with that evidence. He noted there was no suggestion Mr Jennison did not know he was impaired nor that he was unaware he was in no state to drive. It is conceivable that the Judge might have prioritised different purposes had Mr Jennison pleaded guilty. Ultimately, though, I do not accept he failed to consider any of the information before him or to put appropriate weight on it. Having regard to the nature of Mr Jennison’s driving and the fact he had received previous sentences of imprisonment for driving under the influence, the Judge was also entitled to find nothing short of imprisonment would satisfy the purposes of denunciation and deterrence.
[27] I do not consider the Judge erred in exercising his discretion to decline home detention. Although noting it was significant Mr Jennison would be deprived of his
employment, he found the purposes of deterrence and denunciation in this case outweighed the need for any rehabilitative sentence.
Conclusion
[28]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
T Aickin, Barrister, Christchurch
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