Kinita v The Queen
[2020] NZHC 1008
•27 November 2020
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2020-454-010
[2020] NZHC 1008
BETWEEN CATHRYN KINITA
Appellant
AND
THE QUEEN
Respondent
Hearing: 10 November 2020 Appearances:
E Hall for the Appellant C Ure for the Crown
Judgment:
27 November 2020
JUDGMENT OF GRICE J
[1]This is an appeal against a sentence imposed by the District Court.1
[2] Ms Kinita had pleaded guilty and was convicted on one charge of operating a motor vehicle while under the influence of alcohol causing death.2 At the same time she was convicted and sentenced on charges of possession of methamphetamine,3 possession of cannabis,4 and possession of a pipe.5 The sentences were concurrent.
1 R v Kinita [2020] NZDC 8014 [District Court decision]. The names of friends and wider family contained in the victim impact statements were suppressed; at [37].
2 Land Transport Act 1998, s 61(2)(b) and (3AA); maximum penalty of 10 years’ imprisonment or a $20,000 fine, and disqualification from holding or obtaining a driver licence for one year or more.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a); maximum penalty of six months’ imprisonment or a $1000 fine.
4 Section 7(1)(a) and (2)(b); maximum penalty of three months’ imprisonment or a $500 fine.
5 Section 13(1)(a) and (3); maximum penalty of one year’s imprisonment or a $500 fine.
KINITA v R [2020] NZHC 1008
[3] The appellant was sentenced to 22 months and two weeks’ imprisonment, together with being disqualified from driving for two years. Ms Kinita is presently on bail.
[4] The appellant appeals on the basis that the least restrictive outcome and most appropriate sentence was home detention. The appellant submits that:
(a)The sentence starting point was too high.
(b)Insufficient credit was given to other mitigating factors.
(c)The Moses v R methodology should have been applied.6 This would have resulted in a larger discount being applied to the start sentence for mitigating factors. That methodology involves the aggregation of discounts rather than the process known as the three-step process in which the guilty plea discount is applied separately. Ms Kinita was sentenced on 8 May 2020.7 She lodged an appeal on 19 May, and the Court of Appeal decision in Moses v R was delivered on 15 July 2020.
(d)Imprisonment should have been replaced by a sentence of home detention.
Background
[5] On 3 November 2019 the appellant had been making an early morning delivery of eggs. She had been awake since 3.00 am. The night before she had socialised with friends and consumed cannabis and methamphetamine. She had been awake until about 11.00 pm that evening so had had little sleep.
[6] In the afternoon of 3 November Ms Kinita was driving north in Manakau on State Highway 1. The victim, Mr Jenkins, an avid cyclist was also cycling north to the left of the fog line on the side of the road.
6 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
7 District Court decision, above n 1.
[7] Ms Kinita had been seen earlier swerving her vehicle in her lane. Other motorists had given her some space. One swerve took her across the fog line and onto the shoulder of the road. She was travelling at about 100 kilometres per hour and made no attempt to brake before she collided with the victim riding his bike.
[8] The victim was flung into the air before hitting the road. His cycle was mangled and dragged underneath the appellant’s vehicle. She stopped a short distance away. Tragically the victim suffered severe and fatal injuries. He died a short time afterwards at the scene.
[9] Police attended the scene and smelt cannabis when speaking to the appellant. Police found seven grams of cannabis, two small bags of methamphetamine and a drug pipe in her vehicle. The appellant failed an impairment test. Blood tests revealed cannabis and methamphetamine in her system.
[10] Ms Kinita had not considered herself impaired. However, she now accepts that she was impaired for driving and was unable to properly control her vehicle.
District Court decision
[11] Ms Kinita was sentenced on 8 May 2020. The Judge set a starting point of three and a half years’ imprisonment.8 The notes of sentencing noted that a central factor was the “poorness” of the driving illustrated by Ms Kinita continuing to drive despite swerving and drifting across the lane, then failing to brake as she drifted across the fog line to collide with the victim. Other cars had been pulling back. The Judge was of the view the appellant ought to have stopped earlier. Nevertheless, the Judge noted there were cases providing examples of far more dangerous driving and he did not consider the driving “extremely bad”. The Judge also noted the illicit drugs factor should not be double-counted as an aggravating factor in relation to the offence as it was an element of the offence.9
8 District Court decision, above n 1, at [24].
9 At [10].
[12] The Judge referred to Edmonds v R,10 where the defendant had pleaded guilty to the same charges as in this case.11 The starting point there was three and a half years. Brewer J on appeal noted that he thought the starting point may be a little high but was satisfied with the one year and nine month end sentence.12 The appellant in that case had returned a blood alcohol reading of five times the legal limit. The sentencing Judge here noted that Ms Kinita had an illegal class A drug in her system.
[13] The Judge also referred to the decision of R v Reynolds13 where a driver collided with a person on the side of the road who had been flagging motorists to warn them that two others were changing a tyre on the roadside. Two people were killed in that collision and one was seriously injured. In that case the starting point was five years’ imprisonment.
[14] The Judge also noted the police submission that in Skipper v R, the Court of Appeal mentioned in passing that in cases which feature serious impairment, very bad driving or multiple victims, the end sentences were in the range of about three to four years’ imprisonment.14
[15] The Judge then went on to consider the appropriate discounting factors. He allowed six months for remorse, six months for good character, noting Ms Kinita’s unblemished criminal record, that she held two jobs to support her family and had suffered previous difficulties in her life. The Judge reduced the starting point by 12 months from 42 to 30 months. He then reduced that by 25 per cent. Although not stated this was for the appellant’s guilty plea. The final sentence reached was 22 and a half months’ imprisonment.
[16] As the sentence was less than two years’ imprisonment the Judge went on to consider whether home detention was an appropriate sentence in the circumstances.
[17]The Judge noted the following cases:
10 Edmonds v R [2020] NZHC 662.
11 Land Transport Act 1998, s 61(2)(a): although in that case, the defendant was under the influence of alcohol and had about five times the legal blood alcohol limit.
12 Edmonds v R, above n 10, at [8]–[9].
13 R v Reynolds [2017] NZDC 6390; [2018] DCR 88.
14 Skipper v R [2017] NZCA 399 at [31].
(a)McMillan v Police:15 in that case the offender drove while having twice the legal limit of alcohol in his bloodstream. The Court was of the view that this militated against home detention. By analogy the Judge noted that, although the exact amount of drugs in Ms Kinita’s blood was unknown, the fact that illegal substances were in her system militated against home detention.16
(b)Bowlin v Police:17 in that case the Court noted that home detention is the exception rather than the rule for alcohol-impaired driving causing death.
(c)Edmonds v R:18 in that case Brewer J agreed with the District Court and declined to impose home detention.
[18] The sentencing Judge concluded that home detention would be insufficient to meet the gravity of Ms Kinita’s offending.
[19] The Judge imposed release conditions for a period of six months after the conclusion of the sentence, relating to non-consumption of alcohol and non-prescription drugs, attendance at alcohol, drug, rehabilitation and maintenance programmes.19 As noted, Ms Kinita was disqualified from holding and obtaining a driver’s licence for a period of two years from the date of sentencing.
Law
[20] This appeal is brought under s 250 Criminal Procedure Act 2011 which provides that an appeal Court must allow the appeal if, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.
15 McMillan v Police [2014] NZHC 150.
16 District Court decision, above n 1, at [30].
17 Bowlin v Police [2014] NZHC 2635 at [26].
18 Edmonds v R, above n 10.
19 District Court decision, above n 1, at [34].
[21] The focus is on the end sentence rather than the process by which the sentence was reached.20 The Court will not intervene where the sentence is within range and can properly be justified by accepted sentencing principles.21 If an appeal is allowed, this Court may set aside the sentence and impose another sentence, vary the sentence or any part or condition of the sentence or remit the sentence to the District Court with directions to amend the sentence.22
Ground one: whether the starting point was manifestly excessive
[22] The appellant submits the starting point was manifestly excessive; the Judge relied on factors that were not actual aggravating factors; the starting point was too high compared with other cases; and that culpability is reduced when addiction is present.
[23] Ms Kinita says the “bad driving” and the crossing of the fog line should not have been taken into account as aggravating factors. Ms Kinita submits that this should be a neutral factor in sentencing unless the driving was extremely bad, for instance, sustained dangerous driving. She also says continuation of driving is only aggravating when a driver continues after warnings to stop or after near misses or collisions.23 In this case, the Judge said Ms Kinita should have realised she should not be driving and should have stopped. However, the appellant pointed to R v Reynolds to support the proposition that weaving within a lane was not an instance of “continuing to drive” nor an aggravating factor.24 Therefore, Ms Kinita submits her continued driving was not an aggravating factor.
[24] A further point made by the appellant is the Judge also relied on the fact that Ms Kinita had illicit drugs in her system which warranted the three and a half year starting point despite earlier acknowledging that that factor was an element of the offence. This, Ms Kinita says, has been taken into account both as an element of the
20 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
21 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
22 Criminal Procedure Act 2011, s 251.
23 R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40. The District Court Judge referred to this case: above n 1, at [19]. The appellant also pointed to Tevi v Police HC Dunedin CRI-2009- 412-12, 29 July 2009; and R v Bahadori-Esfahani [2019] NZHC 1532.
24 R v Reynolds, above n 13, at [3].
offence and additionally, as an aggravating factor. The appellant cited a passage from Skipper v R as authority that s 61 of the Land Transport Act 1998 treats, as equivalent, having an alcohol reading exceeding the legal limit, and using drugs so as to be incapable of having proper control of a vehicle.25
[25] The appellant also says the Judge was in error in relying on Edmonds v R where the defendant was found to be “grossly intoxicated”.26 In this case Ms Kinita submitted she had consumed methamphetamine and cannabis nearly 17 hours before the offending but there was no evidence that she was the equivalent of grossly intoxicated. Ms Kinita also noted that on appeal in Edmonds v R the High Court considered that the starting point of three and a half years was “somewhat high” although the final sentence of one year nine months was not manifestly excessive.27
[26] Ms Kinita notes that there is little case law on s 62(2)(a) of the Land Transport Act concerning driving under the influence of drugs but noted two alcohol-related cases: McCullough v Police and Edmonds v R.28 The same maximum penalty applies under s 61(1)(a) for the offence of driving and causing death with excess blood alcohol.
[27] Ms Kinita points to cases where lower starting points had been applied. In particular, in Williams v Police a driver with excess blood alcohol was momentarily distracted, veered and overcorrected causing the death of a passenger.29 A starting point of two years, nine months was taken. There had been a low blood alcohol reading recorded.
[28] Ms Kinita also points to Skipper v R.30 In that case Ms Skipper’s daughter was killed following an accident when Ms Skipper lost control of the car. She had a low
25 Skipper v R, above n 14, at [14].
26 Edmonds v R, above n 10, at [10].
27 At [9].
28 McCullough v Police [2013] NZHC 279: in this case, the Court adopted a three-and-a-half years’ starting point. Ms McCullough was just over twice the legal blood alcohol limit, and was on a restricted licence, driving an unregistered and unwarranted car. She drank at a party before she drove and killed one of her passengers and caused another to sustain serious injuries.
29 Williams v Police [2014] NZHC 2666. This was an interim judgment pending an appropriate address. The end sentence was confirmed, and the final judgment was given in Williams v Police [2014] NZHC 2875.
30 Skipper v R, above n 14.
blood reading of methamphetamine. A starting point of three years was taken and reduced to two years on appeal. The Court of Appeal noted the case indicated “moderate culpability” and grave consequences.31 The two year old child who died had undone her car seat buckle during the journey. In that case, Ms Skipper was an unlicensed driver and two years earlier she had been prohibited from driving until she obtained a licence. There was no evidence of impairment although her blood contained low levels of methamphetamine. The Court of Appeal in that case noted that there was overlap between the section under which the conviction was entered and a lesser offence of careless driving causing death, for which there was a maximum penalty of three years’ imprisonment in the event of death resulting.32
[29] Ms Kinita also says that deterrence as a sentencing objective is ineffective in cases where addiction reduces culpability. There is growing acceptance and understanding that drug addiction is a health issue.33 Ms Hall, for Ms Kinita, said she was not submitting that being under the influence of drugs lessened culpability for the particular offence, but rather, that the issue of addiction in general was capable of reducing culpability in general. Ms Hall noted that s 9 of the Sentencing Act 2002 excludes consideration of the taking of drugs, or being under the influence of drugs, at the time of the offending. She submitted that addiction also must be a factor that calls for a consideration of a rehabilitative response as part of sentencing.34 In particular, a pre-existing addiction cannot be excluded as a mitigating factor.35
31 Skipper v R, above n 14, at [32].
32 The appellant could have been charged under two provisions of the Land Transport Act 1998: either s 61(1)(2)(b) or s 62(1)(b). Under s 61(2)(b) it is an offence for a person, while in charge of a motor vehicle, to cause death or bodily injury if their blood “contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975”. Schedule 1 lists Class A drugs. The maximum penalty is five years’ imprisonment where bodily injury results, and 10 years’ imprisonment where death results. Section 62(1)(b) applies when a person carelessly drives a vehicle “in a manner that is not an offence under section 61”. It creates an offence to cause death or bodily injury by carelessly driving a motor vehicle if the driver’s blood “contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975”. The maximum penalty is three years’ imprisonment where either bodily injury or death results.
33 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [31].
34 Zhang v R, above n 33, at [10](k) and [150].
35 At [144].
Crown submissions
[30] The Crown submitted that the Judge appropriately took into account the poor driving when setting the starting point and correctly identified that impairment was relevant.
[31] Ms Ure, for the Crown, submitted that the Judge’s assessment was correctly based on the appellant’s driving leading up to the incident. She also distinguished the present case from Skipper v R. She noted that Skipper v R was a case more akin to careless driving whereas the present case involved poor driving, rather than momentary inattention.36 In addition, Ms Skipper had a low level of methamphetamine in her system but in this case Ms Kinita had two drugs in her system that impaired her driving. Ms Skipper’s driving was apparently not impaired by the low level of methamphetamine in her system.
[32] The Crown also noted that this was a case of voluntary ingestion of two separate prohibited substances and that the smell of cannabis was strong enough for the police to notice it when talking to the appellant at the scene of the offending. These factors resulted in the search of the car resulting in the evidence being found to lay the possession charges for cannabis, methamphetamine and utensils.
[33] The Crown therefore submits that the Judge made no error in setting the starting point, which was well within the available range given the maximum penalty of 10 years’ imprisonment.
Discussion
[34] The starting point does appear somewhat high when compared to a number of other cases. However, the Judge in general focussed on the “poorness” of the driving, and noted that the appellant continued driving when she ought to have stopped. The Judge also took into account the fact that the two drugs found in her bloodstream were illicit which went toward justifying the starting point of three and a half years’
36 Skipper v R, above n 14.
imprisonment. He noted that the same starting point had been considered “somewhat high” in Edmonds but said that in this case the substances were illegal (not alcohol).37
[35] In my view the Judge made no error in setting that starting point. It was within the appropriate range, albeit it might be said to be at the high end. It compares to R v Reynolds where a start point of five years was taken (where two people were killed and one was seriously injured) and Edmonds at three and a half years (where a passenger was killed).38 In Edmonds there was excessive alcohol involved which impaired the driving. I do not consider the Judge here made an error in taking into account the fact that there were two illicit drugs that had been consumed by Ms Kinita and led to impairment. The amount and nature of the substance voluntarily consumed is relevant. The substances impacted on Ms Kinita’s driving such that she was weaving in the lane to such an extent that other motorists gave her some space.
[36] In Skipper there was no suggestion of impaired driving.39 It appeared that the accident occurred due to a moment of inattention when Ms Skipper was distracted. The Court of Appeal in that case was also mindful that, on the facts of the case, there was an overlap between the offence with which Ms Skipper was charged and a lesser careless driving offence which had a maximum of three years’ imprisonment.
[37] In relation to the submission by Ms Hall that addiction could go to culpability in general terms, and therefore reduce the starting point, I accept that may be the case in some circumstances but I do not consider that was a factor to be taken into account in relation to this offending. Its relevance is to Ms Kinita’s personal circumstances, which I deal with below.
[38] In my view therefore, the Judge made no error in fixing the starting point. It was within the appropriate range for the offending involved. Therefore, this ground of appeal fails.
37 Edmonds v R, above n 10.
38 R v Reynolds, above n 13; Edmonds v R, above n 10.
39 Skipper v R, above n 14.
Ground two: whether discounts for personal mitigating factors were sufficient
[39] The appellant submits that additional discounts should have been given, taking into account the appellant’s personal circumstances, addiction and vulnerable mental health. Those circumstances are set out in some detail in the Alcohol and Drug report (AOD report) and the psychological report before me. These were not before the sentencing Judge. No objection was taken to their admission.
[40] The Judge had some limited information before him. He noted that Ms Kinita had had trauma and unhappiness in her life, that she was holding down two separate jobs in order to keep her family supported and noted that she was “a good person”, leaving aside her lifestyle choices in relation to drugs.40 He also noted Ms Kinita’s extreme remorse.
[41] The Drug and Alcohol report and the psychological report add considerably to the relevant information for sentencing purposes. Ms Kinita’s personal background shows a difficult upbringing; she suffered domestic abuse and abuse from her ex-partner who also faced mental health issues and was diagnosed with cancer.
[42] Ms Kinita had lost her 14 year old son when their car was struck by a drunk driver. She blames herself for this. That incident led to her breakdown, losing her relationship, her job and home. Recently, her eldest grandchild lost three babies who were born prematurely. There is no doubt that she is a hard worker and the primary provider for her family. She feels profound remorse and is acutely aware of the psychological suffering of the victim’s family.
[43] The report assesses Ms Kinita’s risk of re-offending as low and notes she has strong prosocial views and values consistent with non-criminal and contributing members of the wider community. She does, however, have a moderate methamphetamine use disorder and severe cannabis use disorder. Ms Kinita says she requires support to abstain. The report-writers both report her readiness to change and note that she has received counselling. Ms Kinita has had mental health difficulties and suffers from depression, which worsened after her son’s death. She has also been
40 District Court decision, above n 1, at [27].
diagnosed with post-traumatic stress disorder and the one month in custody before being granted bail led to a deterioration in her mental health.
[44] The psychological report recommends rehabilitative treatment. Imprisonment would expose her to antisocial attitudes and would have long-term negative consequences.
[45] The Crown says the discounts given by the Judge were generous and no further discounts need to be applied. It submits the discounts for remorse, on top of a guilty plea discount, which can be seen to take into account a level of remorse evidenced by the acknowledgement of the offending, should only be given in exceptional circumstances. The Crown also warns against “discount creep” where closely-related/inter-related mitigating features are artificially disaggregated and given full and discrete discounts.41
[46] The Crown says there was no demonstration here of exceptional remorse. It says the appellant’s background deserved credit and the Judge took into account her tragic circumstances and reflected that in the remorse discount when it might better have been a separate factor. However, any further discount, the Crown says, amounts to artificially disaggregating the mitigating factors.
Discussion
[47] It is apparent that the Judge did note some of the appellant’s personal factors and took them into consideration in the remorse discount. The Judge also took into account some of the appellant’s background in the good character discount. However, the Judge did not have the material that is now before me in relation to Ms Kinita’s background, the trauma she has suffered and her mental health difficulties, as well as her present circumstances.
[48] I understand and accept the Crown’s submission in relation to “discount creep”. The circumstances that are taken into account in the various discounts, such as those for personal background, are often inter-related. Ms Kinita’s
41 R v LB [2020] NZHC 94 at [53].
grief and remorse are tied to her personal experiences of losing a child in similar circumstances and exacerbated by her fragile mental health as well as her previous life experiences.
[49] I am of the view that the extra information in the reports that I now have before me warrants a further discount to sentence. I accept that reasonable discounts for remorse and good character (12 months) have already been applied, but consider an additional four month discount would have been appropriate for the factors relating to mental health, addiction, and personal trauma evident from the reports now before me.42 The sentencing Judge did not have the advantage of that material.
[50]Therefore, this ground is allowed.
Ground three: whether the sentencing methodology was correct
[51] The appellant says the sentencing methodology was in error: the Judge applied the pre-Moses three-stage approach, where the starting point is set, the personal discounts (or aggravating factors) are applied and the discount for the guilty plea is then applied as a third step. Applying the two-stage Moses approach to the District Court sentence, where all the personal discounts are added together, including the discount for a guilty plea, would lead to a difference of two and a half months – that is an end sentence of 20 months.
[52] The Crown acknowledge that in the event the appeal was allowed and the sentence set aside and a new sentence imposed, the Court would be entitled to consider whether or not to apply the Moses methodology as an appeal in this case had been filed before the delivery of the judgment in Moses on 13 July 2020.43
[53] The Crown says Moses should not be routinely applied retrospectively and, in any event, the focus must remain on the end sentence. The Court should not intervene if the sentence is within the range and can be properly justified by accepted sentencing principles. Even in the case of an error, the Judge must be satisfied that a different sentence should be imposed.
42 Sentencing Act 2002, s 27.
43 Moses v R, above n 6.
[54] I am of the view that the sentence is within the appropriate range with an adjustment referred to above. I do not consider it is appropriate to apply the methodology in Moses in this case to further reduce the sentence.44
[55]Therefore, this ground is dismissed.
Ground four: whether home detention should have been imposed
[56] The appellant submits the Judge erred in declining to impose a sentence of home detention. Ms Hall, for Ms Kinita, outlined the relevant purposes and principles of sentencing noting that s 16(1) of the Sentencing Act required the Court to have regard to the desirability of keeping offenders in the community and she submitted that prison was a place of last resort.
[57] Ms Kinita further submits that no purpose or principle of sentencing should be elevated above the other in terms of significance. Nevertheless, she acknowledged that deterrence and denunciation are often those most emphasised in driving under the influence of drugs or alcohol cases, but pointed to the comments of MacKenzie J in Williams v Police:45
[15] … as a matter of law, a sentence of home detention may serve the purposes of denunciation and deterrence. … That general proposition, that home detention may adequately serve those purposes, is not excluded for any particular category of offence. While drinking and driving offences demand a deterrent response, and denunciation, that does not exclude the availability of home detention. … Section 15A of the Act allows a court to impose a sentence of home detention if the court is satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any lesser sentence and that the court would otherwise sentence the offenders to a short term of imprisonment. Section 15A does not exclude any particular offences from eligibility for home detention. The focus is not on the nature of the offence, but on the length of term of imprisonment that would otherwise be appropriate. If that term is two years or less, then home detention is an available sentencing option. …
[16] In this case, considerations of denunciation and deterrence did not require a sentence of imprisonment greater than two years. The possibility of home detention was therefore open, and there are other considerations which needed to be weighed. One is the need to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of that community, under s 16. Another is the principle that
44 Moses v R, above n 6.
45 Williams v Police, above n 2929, at [15]–[16].
the court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A. …
[58] The appellant submits that there is no presumption that sentences cannot be commuted to home detention for impaired driving causing death and referred to examples in Skipper v R, R v Seyb and R v Pan.46 Ms Kinita further submits it was against Parliament’s intention that drugs should be singled out given that excessive blood alcohol and being under the influence of a drug attract the same penalty.47
[59] Ms Kinita says that the following factors weighed in favour of home detention: the appellant’s age (56 years of age), good character, very low risk of re-offending, profound remorse, addiction issues which are being addressed, vulnerable mental health, full-time employment prior to the offending and ability to work. She noted that a penalty had been also imposed in the form of the two year disqualification from driving. Ms Kinita submitted imprisonment would be disproportionately severe for her given her mental health and other circumstances. Ms Hall submits that keeping Ms Kinita in the community would be consistent with the purposes of rehabilitation and her whānau’s wellbeing.
[60] From a technical point of view the pre-sentence report notes Ms Kinita’s address is feasible for electronic-monitoring. While Ms Kinita has been on bail for the last four months pending appeal, she has not offended nor breached her bail.
[61] The Crown pointed Palmer v R which noted that the decision to commute a sentence to home detention is a case by case exercise of judgment.48 It noted that the Court of Appeal identified denunciation and deterrence as important sentencing considerations.49 The Crown referred to McLennan v Police in support of its submission that it was appropriate to place emphasis on deterrence and denunciation when imposing penalties for traffic offences.50
46 Skipper v R, above n 14; R v Seyb HC Timaru CIV-2007-004-416, 11 September 2008; R v Pan
[2020] NZHC 2342.
47 The appellant also says the appellant’s culpability was at the lower end of the spectrum. She says that nothing excludes the possibility of home detention and that it is more consistent with the principles of sentencing.
48 Palmer v R [2016] NZCA 541.
49 Palmer v R, above n 48, at [26].
50 McLennan v Police [2018] NZHC 320; citing R v Beaman CA117/82, 16 December 1982.
[62] The Crown says home detention for such offences is the exception not the rule and suggested home detention is usually insufficient to meet the gravity of cases of impaired driving causing death.51 The Judge in this case had considered that the fact that the appellant was under the influence of multiple narcotic substances was a relevant factor when considering the sentencing options.
[63] The Crown says there is nothing to suggest that the Judge elevated denunciation and deterrence over the other principles. It was the same assessment as was applied in Edmonds v R.52 In this case the appellant voluntarily consumed the narcotics and took a deliberate risk that resulted in the tragic death of a cyclist. The Crown submits that the offending was serious and the imposition of a sentence of imprisonment was not an error.
End sentence
[64] The current end sentence is a “short term of imprisonment”, which allows consideration of home detention rather than imprisonment.53
[65] I note that the Court of Appeal in Palmer v R, as well as identifying denunciation and deterrence as important sentencing considerations,54 mentioned that rehabilitation was an important consideration.55 This Court, in McLennan v Police, to which the respondent referred, relied on the Court of Appeal decision of R v Beaman56 in support of the proposition that it is appropriate to place emphasis on deterrence and denunciation when imposing penalties for certain traffic offences. In R v Beaman the Court noted that sufficiently severe punishment was required as denunciation and to mark society’s condemnation of reckless or dangerous driving causing death, as well as the deterrence of others.57 Cooke J (as he was then) for the Court, however, also noted that a sentence of imprisonment does not follow inevitably where driving results in death or bodily injury.58
51 Bowlin v Police, above n 17.
52 Edmonds v R, above n 10.
53 Sentencing Act 2002, s 15A.
54 Palmer v R, above n 48, at [26].
55 At [27].
56 McLennan v Police, above n 50, at fn 9; and R v Beaman, above n 50.
57 R v Beaman, above n 50, at [5].
58 At [5].
[66] The Courts have commented that a sentence of home detention is a real alternative to imprisonment and carries a considerable measure of deterrence and denunciation.59 Unlike the offenders in McLennan and Beaman, Ms Kinita did not have a history of driving-related offending.60
[67] In my view Ms Kinita is a suitable candidate for home detention. In addition to home detention supporting rehabilitation, which is indicated here, Ms Kinita’s personal background, the state of her mental health and extremely low risk of re-offending supports a home detention sentence.
[68] A sentence of home detention is the most appropriate in the circumstances and the least restrictive to meet the purposes and principles of sentencing. I reach that conclusion with the benefit of the additional reports before me not available to the sentencing Judge.
[69] I conclude that the sentence of imprisonment should be substituted with one of home detention.
[70] Ms Hall noted that a rule of thumb is that an equivalent of half the time of the imprisonment term is taken for home detention. However, as the Crown pointed out, the decision to commute a sentence to home detention is a case by case exercise of judgement.
[71] I have allowed the appeal by allowing a further discount of four months for Ms Kinita’s personal circumstances.
[72] I have also allowed the appeal to the extent that the sentence of imprisonment is substituted for one of home detention.
[73] I consider in the circumstances to reflect all the principles and purposes of sentencing, including denunciation and deterrence, and to emphasise the gravity and
59 R v Iosefa [2008] NZCA 453 at [41].
60 McLennan v Police, above n 50, at [12] and [27]; and R v Beaman, above n 50, at [7].
seriousness of the offending, that an end sentence of 10 months’ home detention is appropriate.
Result
[74] Accordingly, I allow the appeal as set out above. The sentence of 22 months and two weeks’ imprisonment is set aside. A sentence of 10 months home detention is substituted. I particularly emphasise the need for Ms Kinita to engage in treatment toward rehabilitation in relation to her addictions.
[75] Release conditions were imposed by the Judge following the recommendations in the pre-sentence report.61 I amend that direction to the extent that there are to be special conditions imposed in the sentence of home detention.62 These are in addition to the usual terms of home detention.63 Ms Kinita has expressed her intention to rehabilitate. Therefore, timely steps toward this are important. The conditions imposed are that Ms Kinita is:
(a)Not to possess, consume or use any alcohol or non-prescription drugs.
(b)To attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer.
(c)To undertake and complete the short rehabilitation programme for women and abide by the rules of the programme to the satisfaction of a probation officer.
(d)To attend and complete an appropriate maintenance programme to the satisfaction of a probation officer. Specific details of the programme shall be determined by a probation officer.
61 District Court decision, above n 1, at [34].
62 Sentencing Act 2002, s 80D.
63 Section 80C.
[76] The Judge also disqualified Ms Kinita from holding or obtaining a driver’s licence for a period of two years starting from the delivery of that judgment.64 For clarity, and as required under the Land Transport Act,65 this disqualification continues.
Grice J
Solicitors:
Pipitea Chambers, Wellington for the appellant. Crown Law, Wellington for the respondent.
64 8 May 2020. See District Court decision, above n 1, at [35].
65 Land Transport Act 1998, s 61(3AA)(b).
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