Killeen v New Zealand Police
[2014] NZHC 717
•8 April 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000005
CRI-2014-404-000006
CRI-2014-404-000007
CRI-2014-404-000008 [2014] NZHC 717
BETWEEN SHANNON KILLEEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 April 2014 Counsel:
N Silich for Appellant
H Musgrave for RespondentJudgment:
8 April 2014
ORAL JUDGMENT OF FOGARTY J
Solicitors:
N Silich, Auckland
Meredith Connell, Auckland
KILLEEN v POLICE [2014] NZHC 717 [8 April 2014]
[1] This is an appeal against a sentence imposed by Judge O’Driscoll in the District Court sentencing the appellant to 24 months imprisonment. Mr Killeen had appeared before the Judge on a number of charges, in effect, four separate and discrete sets of charges:
(a) Possession of methamphetamine on 31 July 2013;
(b) On 5 August, charges of driving while disqualified and providing false information to the police;
(c) On 28 August, there are charges of failing to stop for the police, driving while disqualified and dangerous driving; and
(d) On 16 October there are charges of driving while disqualified and careless driving.
[2] The appellant has a significant criminal history. He had been sentenced to prison previously, in fact, shortly before some of these events being released.
[3] The Department of Corrections’ advice to the Court recognises at the start that Mr Killeen had amassed a total of 58 convictions spanning 19 years. He was assessed at high risk of reoffending and it was noted he had poor impulse control and lack of consequential thinking. It reported Mr Killeen was willing to undergo any programme, counselling or treatment, to address his rehabilitative needs. He had voluntarily undertaken a community and alcohol and drugs course. There were signs then to the probation officer and it could be taken from the Court that Mr Killeen might, with the passing years, be achieving some kind of maturity.
[4] The probation officer began by considering home detention. It was the assessment of the probation officer that only a sentence of home detention or imprisonment would provide an adequate deterrent effect and went on:
Although home detention is considered an appropriate sentencing outcome, it cannot be recommended as the proposed address put forward by Mr Killeen is no longer available. …
In the light of this and given the paucity of other sentencing operations, a sentence of imprisonment would be an appropriate sentencing option.
However, as an alternative recommendation to imprisonment, intensive supervision offers a less restrictive sentencing recommendation …
And the writer did not feel that imprisonment would offer Mr Killeen the opportunity to reduce his risk through attendance at rehabilitative interventions. That led to a recommendation of intensive supervision and community work. The alternative was a sentence of imprisonment.
[5] The report of the probation officer did not find favour with Judge O’Driscoll. He was met with an application to adjourn the sentencing in an effort to see whether or not another suitable for home detention could be available. The Judge declined to adjourn the sentencing date. He said:
[7] … I indicated that I was not prepared to do that because you had previously been sentenced to imprisonment for driving matters and now you are back before the Court again on further sets of driving matters.
[8] While on some occasions it is appropriate to go down the sentencing ladder in the sentencing hierarchy, I may have done that if perhaps there had only been the one charge because you were sentenced on a number of charges earlier this year. There does not seem, however, to be any gap in your offending between your release earlier this year and this offending which, as I have said, can be seen as being three separate and discrete sets of driving matters, and in total a set of four lots of offending.
[9] You are aged 37. You have had some 58 previous convictions spanning a number of years. You are considered to be at high risk of re- offending. As I have said, home detention was not considered because there was not suitable address and intensive supervision was seen as a least restrictive recommendation which might address …
And then the Judge repeats his main reason:
[10] I note, however, that when you have previously been sentenced to imprisonment, you have had both standard conditions of release and also special conditions of release, which I would envisage were designed to help and assist you.
[6] Dealing with this point first, because although it was the second round of appeal, it comes first in order of time. (I should say that the two grounds of appeal – the first, that the sentence was manifestly excessive and, second, the Judge erred in not giving due consideration to home detention as a sentencing option.) In the latter
regard, Mr Silich cited the High Court decision in Fomai v Police,1 a recent decision of Woodhouse J, delivered on 6 March this year. This was a case where the sentencing Judge in the District Court did not refer to the possibility of home detention at all when he was considering a sentence of imprisonment of 18 months.
Woodhouse J held that:
[18] … A sentencing Judge is bound to consider home detention, if it is technically available in terms of s 15A of the Sentencing Act. … For this reason, the question of home detention needs to be assessed by this Court. …
[19] If a sentencing Judge has considered home detention and refused to grant it in exercise of the discretion, the approach on appeal is as outlined by the Court of Appeal in James v R2 as follows:
[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 Judge Tuohy 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? … 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.
[7] There is no doubt that Judge O’Driscoll did consider the option of home detention and also of a sentence of intensive supervision. I have cited the passages where he particularly examines it. He took the view, based on prior sentence of imprisonment, that this was not the occasion to go down the sentencing ladder and he has explained why. There can be no doubt that this Judge did consider home detention and he did refuse to grant it in the exercise of discretion. I have not been able to identify, with the assistance of counsel, that he applied any incorrect principle or gave insufficient or excessive weight to a particular factor.
[8] Mr Silich relied significantly on the fact that there was an application for an adjournment to see if a suitable house can be found but the reasoning of the Judge was clearly of the view that, in the face of the charges that he had to sentence on,
against the failure of a previous prison sentence to act as a deterrent, that a further
1 Fomai v Police [2014] NZHC 377.
2 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17]. Applied by the Court of Appeal in Manikpersadh v R [2011] NZCA 452 at [11] and tiplady-Koroheke v R [2012] NZCA 477.
prison sentence was required. I do not think there is any basis upon which, as an appeal Judge, I can differ from the Judge. He was entitled to reach that judgment and it was an available exercise of discretion.
[9] For this reason, I think the case, if the appeal is to be allowed, has to be that the sentence was manifestly excessive. In this regard, the argument is against the imposition of cumulative sentences, and that insufficient credit been given to mitigating factors, which compound to produce an end sentence that is manifestly excessive.
[10] To understand this argument, it is necessary to go to the sentencing process, which was not entirely orthodox. I am now quoting from para [20] to [28] of the decision:
[20] In respect of the offending on 5 August, the driving while disqualified and providing false information. On the driving while disqualified I take a starting point of eight months’ imprisonment. I reduce that by two months so that the sentence on that matter will be six months’ imprisonment.
[21] On the false information charge, you will be convicted and discharged.
[22] 28 August charges, driving while disqualified, failing to stop, dangerous driving, looking at the totality of those matters I take a starting point of 10 months’ imprisonment. I reduce that by two months.
[23] On the driving while disqualified charge, you will be sentenced to eight months’ imprisonment.
[24] Dangerous driving – two months’ imprisonment. [25] Failing to stop – two months’ imprisonment.
[26] They will all be concurrent with each other, meaning eight months’ imprisonment. But that eight months will be cumulative and in addition to the six months’ imprisonment, meaning 14 months’ imprisonment.
[27] On the charges relating to 16 October, on the driving while disqualified charge, I take a starting point of 12 months’ imprisonment. I reduce it by two months. I therefore impose 10 months’ imprisonment on that.
[28] That 10 months’ imprisonment will be cumulative and in addition to the 14 months’ imprisonment, meaning an effective sentence of 24 months’ imprisonment.
[11] Mr Silich, for the appellant, submits that the calculations for credit given for mitigating factors were difficult to follow. It is unclear what mitigating factors were considered in the calculations. For the 5 August charges, a discount of 25 per cent is given. For the 28 August charges, a discount of 20 per cent is given and on the
16 October charges a discount of 17 per cent is given. The appellant submits if the only credit given was for guilty pleas, then His Honour has not given credit for other mitigating factors such as remorse, rehabilitative efforts and family circumstances.
[12] Ms Musgrave, for the Crown, submitted that the case against Mr Killeen was overwhelming. He had no real defence and that on the Hessell3 principles, he was not entitled to a particularly significant discount, that the remorse factor and
discounting factor under Hessell requires quite genuine remorse.
[13] It would have been helpful if the Judge had made it clear whether he was simply applying discounting factors on the Hessell basis or whether he was giving credit for other mitigating factors; but overall there was, in a broad sense, a discount of around 20 per cent which is either a generous Hessell discount in the circumstances or a combination of Hessell and other factors. But the most critical point is that I do not think, in the face of these discounts, that it can be said that the sentence was manifestly excessive. There was no argument before me that the Judge
had got the starting points wrong.
[14] Mr Silich prudently accepted that the Judge’s use of cumulative or concurrent sentences was not a strong point in his base. He did make submissions in that regard but given that the cumulative sentences were all in respect of offending on different dates, it seems to me that the Judge’s exercise of discretion was orthodox. The only issue would have been whether he should have stood back and looked at the totality of the sentence and decided to reduce it. The 24 month period of imprisonment against this range of charges is, in my judgment, within the range of sentencing that the Judge could impose.
[15] For these reasons, I do not find, as an appeal court, that I can intervene in the sentencing. It is necessary for the Court to be persuaded that the sentencing was
3 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966.
wrong or was otherwise in error and after hearing argument from counsel, I have not been brought to either of those states of mind. For these reasons the appeal is dismissed.
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