Kenny v Police
[2016] NZHC 1850
•10 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-205 [2016] NZHC 1850
ROBERT JUNIOR KENNY
v
NEW ZEALAND POLICE
Hearing: 8 August 2016 Appearances:
R L Brown for the Appellant
C D Piho for the RespondentJudgment:
10 August 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 10 August 2016 at 3pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Public Defence Service, Manukau. Kayes, Fletcher, Walker, Manukau.
KENNY v NEW ZEALAND POLICE [2016] NZHC 1850 [10 August 2016]
Introduction
[1] The appellant, Robert Kenny, was sentenced to eight months’ imprisonment on one charge of driving with excess blood alcohol (third or subsequent)1 and one charge of driving while disqualified (third or subsequent).2
[2] Mr Kenny has appealed against the sentence on the basis that the Judge: (a) adopted a starting point which was too high given the facts;
(b) gave insufficient weight to mitigating features; and
(c) erred in declining to impose a community-based sentence.
Factual background
[3] On 28 February 2016 at about 3.00am, Mr Kenny was driving a vehicle on State Highway 20 near Lambie Drive in Manukau. The road was wet and slippery from continual heavy rain that night. He lost control of his vehicle, crashing into the Armco barrier causing significant damage to both the vehicle and the barrier.
[4] Mr Kenny was taken to hospital. A blood test undertaken there showed that he had 155 milligrams of alcohol per 100 millilitres of blood.
[5] This was Mr Kenny’s fourth conviction on driving with excess breath or
blood alcohol charges, and his third for driving while disqualified.
[6] Mr Kenny pleaded guilty at his first appearance after receiving legal aid, on
16 May 2016.
1 Land Transport Act 1998, ss 56(2) and 56(4).
2 Land Transport Act 1998, ss 32(1)(a) and 32(4).
Pre-sentence report
[7] At the time of the report, Mr Kenny was a 29 year old who lived with his mother and two adult siblings, being the main financial provider for the family. He had been sentenced to community work and supervision for his previous most recent offending. The supervision sentence was to expire on 11 August 2016. He had completed his community work.
[8] The report writer assessed Mr Kenny’s risk of reoffending as medium due to his recidivist offending, saying the risk profile was likely to remain until he addressed his offending-related factors. His risk of harm was considered low, given the lack of violence related offences.
[9] The report noted that, despite recently completing an alcohol and drug programme, he reoffended while on supervision. The report said Mr Kenny completed the programme in May 2016, some months after the most recent incident of offending. The report identified other programmes Mr Kenny could attend.
[10] Mr Kenny worked full-time in a factory, rostered on night and day shifts, which the report-writer noted could interfere with imposing a curfew.
[11] The report stated that Mr Kenny readily accepted responsibility for his actions and was assessed as being motivated to complete any programmes deemed necessary. Mr Kenny said he was sorry, and did not want to go to prison and was willing to undertake community-based sentences. He said that, when he consumed alcohol, he made poor decisions, and that he had not drunk since the offending. Mr Kenny was assessed as having a harmful pattern of alcohol use.
[12] The report recommended intensive supervision and community detention, with a curfew from 8pm to 6am.
District Court decision
[13] The sentencing Judge identified the following aggravating features:3
3 Police v Kenny [2016] NZDC 11892 at [9].
(a)
(b)
The seriousness of the accident itself.
The fact that Mr Kenny’s offending took place at a time when he was
undertaking a sentence of supervision imposed specifically for the purpose of controlling his drinking. (c)
He was driving while disqualified and while under a sentence of supervision.
(d)
The incident took place within a short period of his previous conviction for similar offending.
(e)
He was now facing his fourth charge of driving with excess breath or blood alcohol and his third of driving while disqualified since 2009.
[14]
The
Judge commented that Mr Kenny had disregarded the previous
opportunities he had received to learn from his previous convictions. Accordingly, the Judge considered that the sentencing purposes of deterrence and denunciation assumed primacy over the desirability of assisting in the offender’s rehabilitation. He considered that the deterrent aspect of sentencing could only be met by a sentence of imprisonment but recognised that the Court would have to consider imposing a sentence of home detention if the sentence of imprisonment to be imposed were less than two years.
[15] After taking into account the circumstances of the driving, the fact that Mr Kenny was driving while disqualified, and the fact he was under sentence, the Judge adopted a starting point of eight months’ imprisonment. That starting point reflected six months for the driving with excess blood alcohol charge and two months for the driving while disqualified charge.
[16] The Judge then uplifted the starting point by two months to reflect Mr Kenny’s previous convictions for similar offending. The Judge then reduced the starting point by two months for Mr Kenny’s early guilty pleas.
[17] That left a sentence of eight months’ imprisonment. The Judge then turned his mind to whether home detention or imprisonment was the appropriate sentence in the circumstances. The Judge concluded that a term of imprisonment was appropriate, reasoning as follows:
I consider that in this case for personal denunciation and general education, as well as denunciation of this repeat type of conduct, that a term of imprisonment should be imposed.
Submissions
Submissions for the appellant
[18] Ms Brown, appearing for the appellant, accepted the aggravating features identified by the Judge and also referred Mr Kenny’s blood alcohol level of 155 milligrams and the fact that his most recent previous offending for driving with excess blood alcohol occurred as recently as 15 August 2015;
[19] Ms Brown identified as mitigating the fact that no one else was injured or involved in the accident; Mr Kenny entered a guilty plea at the earliest reasonable opportunity, after obtaining counsel; he had never received a sentence of imprisonment or an electronically monitored sentence; he was remorseful and had completed an alcohol and drug course as part of his previous sentence of supervision; and had a supportive family and was in stable employment prior to his imprisonment.
[20] Ms Brown compared these features against relevant case law and submitted that the starting point of eight months’ imprisonment in relation to both charges was excessive. She submitted that a starting point of four months’ imprisonment would have been appropriate for the excess blood alcohol charge. She accepted, however, an uplift of two months for the additional charge of driving while disqualified, and the uplift for Mr Kenny’s previous offending. On Ms Brown’s analysis, an end sentence of five to six months’ imprisonment would have been appropriate.
[21] Ms Brown submitted that the Judge erred by failing to give sufficient weight to the mitigating features personal to Mr Kenny.
[22] Finally, Ms Brown submitted that the Judge erred by not regarding home detention or community detention combined with intensive supervision as a real alternative to imprisonment. In doing so, the Judge failed to impose the least restrictive outcome available in the circumstances, she said
Crown submissions
[23] Mr Piho appeared for the respondent. In his submission, the Court should focus on the seriousness of the accident in which Mr Kenny was involved while under the influence of alcohol. That, in his submission, differentiated the case from other cases cited by the appellant.
[24] Mr Piho referred to the fact that Mr Kenny’s most recent offending was in August 2015. In his submission, given aggravating factors, the starting point of 10 months’ imprisonment prior to the guilty plea discount taken by the sentencing Judge was within range.
[25] Mr Piho accepted that the purposes of sentencing could be met by sentence of home detention but, in his submission, the Judge was not wrong to say, in this case, a prison sentence was the appropriate one. Mr Piho pointed out that Mr Kenny had previously been given a rehabilitative sentence whilst living with supportive family but yet he still offended.
[26] Finally in his submission, little weight should be given to Mr Kenny’s alleged motivation to attend rehabilitative programmes given he was a recidivist offender.
Approach to appeal
[27] 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.
[28] This requires the appellant to show there was an error on the part of the sentencing court “whether intrinsically, or as a result of additional material submitted on appeal”.4 If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence. The concept of “manifestly excessive” is helpful in examining the significance of the error to decide whether a different sentence should be imposed.5 In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.6
Analysis
Starting point
[29] Ms Brown referred to a number of cases.7 She submitted that, following these cases, a starting point of four months’ should have been adopted and a community based sentence should have been considered.
[30] As the Judge imposed a starting point of eight months including a two-month uplift for the driving while disqualified charge, he in fact imposed a six month starting point for the driving with excess blood alcohol offending. No objection was taken to the two month uplift imposed for the driving while disqualified charge, so Ms Brown’s submissions related specifically to the six months’ starting point for the driving with excess blood alcohol offending.
[31] Whata J recently analysed trends in sentencing for driving with excess breath and blood alcohol third and subsequent in Samson v Police.8 His Honour concluded:
[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] citing R v Shipton [2007] 2
NZLR 218 (CA) at [139].
5 Tutakangahau, above n 9, at [30]-[33].
6 Ripia v R [2011] NZCA 101 at [15].
7 Coles v Police HC Christchurch CRI-2007-409-000161; Pitman v Police [2015] NZHC 205.
8 Samson v Police [2015] NZHC 748.
spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:
(a) No seriously or only moderately aggravating factors, 9—12 months;
(b) One or more seriously aggravating factors, 12—18 months;
(c) Multiple offences with seriously aggravating factors, 18—20 months;
(d) Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.
[16] Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):
(a) The absence of seriously aggravating factors; (b) High levels of remorse;
(c) Genuine attempts to address the underlying causes of the offending;
(d) No previous sentence of imprisonment;
(e) No previous sentence with a rehabilitative focus; and/or
(f) Lengthy gaps between the current and prior offending.
[17] To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered. It is simply the outcome of a canvass of authorities which I have found useful for the purpose of commencing the finer grained assessment required in this appeal. Indeed, the following analysis aptly illustrates the care that must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence.
[32] On the basis of this review, a starting point of six months’ imprisonment
would in and of itself be generous since it is outside the range identified.
[33] I have considered other cases which, although they had different aggravating factors, such as higher alcohol readings, indicate the types of sentences imposed for third and subsequent drink driving offending with one or more serious aggravating
factor.9 While reference to other cases can be of help, every case, of course, turns on its own facts.
[34] I accept the sentencing Judge’s articulation of aggravating factors of the offending as supplemented, responsibly, by Ms Brown. I am satisfied that the starting point of six months’ imprisonment adopted by the Judge on the charge of driving with excess breath alcohol was within range once the particular aggravating factors of the offending are taken into account. There was no challenge to imposing two months’ uplift for the driving while disqualified charge.
[35] The Judge uplifted the starting point by two months for Mr Kenny’s personal circumstances, specifically his “previous like offending”. That was an error in my view, given that the Judge had already taken account of Mr Kenny’s bad driving history when he identified as an aggravating factor that Mr Kenny was facing his fourth charge of driving with excess breath or blood alcohol and his third charge of driving while disqualified.
[36] I am, therefore, satisfied that the starting point should have been eight
months’ imprisonment.
Reduction for mitigating features
[37] The Judge did not mention any mitigating features personal to the appellant. [38] Counsel identified Mr Kenny’s attendance at an alcohol and drug programme
as a mitigating feature. In my view, compulsory attendance at a drug and alcohol programme as a term of his supervision sentence does not warrant a reduction in sentence, particularly when the current offending was completed while on that sentence. Mr Kenny’s supportive family and the fact that he was in full-time employment, and was the main financial provider for the family, are also not unique
circumstances which would typically warrant a sentencing discount.
9 Fonoti v Police [2015] NZHC 200; Daley v Police [2012] NZHC 1251;Black v Police [2012] NZHC 1694; Ngatikai v Police [2014] NZHC 3294:.
[39] The other two grounds argued as supporting a reduction in sentence essentially sought a remorse discount, relying on statements in the pre-sentence report that Mr Kenny accepted responsibility for his offending and was motivated to complete any programmes. Counsel commented that Mr Kenny considered the car crash to be a wake-up call and was very remorseful.
[40] In my assessment, the comments in the pre-sentence report are not highly indicative of remorse. Mr Kenny’s comment that he was sorry was directly linked to the statement that he “does not want to go to prison”.
[41] I see no reason to interfere with the Judge’s assessment that the mitigating
factors relating to Mr Kenny did not warrant a separate discount.
[42] The Judge gave a two month discount for the appellant’s early guilty pleas. While the discount from a starting point of ten months’ could have been perhaps two weeks more, from a starting point of eight months’ imprisonment, it is appropriate.
[43] That would result in a sentence of six months’ imprisonment.
Imprisonment or a community-based sentence
[44] Ms Brown referred to a number of cases in support of the submission that home or community detention should have been imposed.10
[45] Mr Piho cited the case of Wilson v Police in which the appeal Judge upheld a sentence of imprisonment.11
[46] Ms Brown relied on the fact that Mr Kenny has had no previous sentences of imprisonment, or community or home detention, suggesting that a lower-level sentence should have been imposed first. Furthermore, she said that greater emphasis should have been placed on rehabilitation, and the pre-sentence report’s
recommendation of a sentence of community detention and intensive supervision.
10 Hansch v Police [2014] NZHC 2438; Tarei v Police [2012] NZHC 3393.
11 Wilson v Police [2015] NZHC 1263.
Counsel submitted that the Judge did not sufficiently consider whether deterrence and denunciation could be met through home detention or community detention.
[47] In reviewing whether a sentence of home detention should have been imposed, the extent of the appellant court’s jurisdiction has been considered by the Court of Appeal. The Court of Appeal has commented:12
[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
(Footnotes omitted.)
[48] In Manikpersadh v R, the Court said:13
[12] We agree with counsel for the respondent's assessment that 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’.
[49] There is no presumption that either imprisonment or home detention is to be preferred: the matter is one for the judge’s discretion.14 This involves balancing the principles of supporting rehabilitation and reintegration against denunciation and deterrence.15
[50] The Judge in this case did not refer to any personal factors relating to the appellant. He did note that the emphasis in the pre-sentence report on rehabilitation
did not sufficiently recognise the aggravating features of the offending. He
12 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
13 Manikpersadh v R [2011] NZCA 452.
14 Manikpersadh v R [2011] NZCA 452; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271, at
[17].
15 Bregmen v Police HC Gisborne CRI-2011-416-000004, 5 April 2011.
discussed the fact of the accident before stating his conclusion as to the seriousness of the offence, with emphasis on the seriousness of the accident. It must be remembered, however, that Mr Kenny faced no charge in relation to the manner of his driving.
[51] There was no other attempt at balancing any of the factors to determine whether home detention was open on the facts. The Judge did not appear to consider that home detention was a real and genuine alternative to imprisonment. He regarded the recommendation in the pre-sentence report as inappropriate because, in his view, it failed to have regard to the seriousness of the offending.
[52] However, the Court of Appeal has frequently observed that home detention is a real alternative to imprisonment and carries with it in considerable measure the principles of deterrence and denunciation.16 Furthermore, there was the need to impose the least restrictive outcome available in the circumstances. I am satisfied therefore that the Judge erred in exercising his sentencing discretion.
[53] In assessing in the round whether home detention or community detention should have been imposed, it is relevant that Mr Kenny had never been sentenced to an electronically monitored sentence before. That must be contrasted with the fact that his offending was very close in time to his previous offending, and occurred while on a sentence of supervision. In saying that, I note that the counselling under his supervision sentence commenced only very shortly before this latest offending and was completed after it. There does now appear to be a strong motivation to change which would support granting home or community detention.
[54] Furthermore, Mr Kenny has a supportive family and supportive employer.17
Conclusion
[55] I am satisfied that the least restrictive outcome which recognises the seriousness of the offending, the need to deter and denounce as well as to protect the
public and provide for rehabilitation, is a sentence of home detention and community
16 See for example R v Iosefa [2008] NZCA 453 at [41].
17 Further evidenced by their attendance at the hearing of the appeal.
work. Intensive supervision cannot be combined with a sentence of home detention so the conditions as to intensive supervision suggested in the pre-sentence report are imposed as special conditions of home detention. The special conditions will expire
12 months after detention end date.
[56] Mr Kenny has now served approximately five weeks of his prison sentence. Given the end sentence calculated by me would be one of six months’ imprisonment, I substitute 10 weeks’ home detention to be served at the address canvassed in the pre-sentence report.
[57] It is to be hoped that Mr Kenny will be able to continue his employment but, in any event, I also impose 150 hours of community work.
Result
[58] For the reasons given, the sentence of imprisonment on both charges is quashed and replaced with a sentence of 10 weeks’ home detention with special conditions and 150 hours of community work. The disqualification from driving remains.
[59] The start date of the home detention will be the date the equipment is installed, which is to be undertaken with urgency. If there is any delay between Mr Kenny’s release from custody and installation of the equipment, Mr Kenny will
be on bail with a 24 hour curfew at the home detention address.
Thomas J
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