Leef v Police
[2024] NZHC 772
•12 April 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CR-2024-488-000020
[2024] NZHC 772
RICHARD LEEF APPELLANT v
NEW ZEALAND POLICE RESPONDENT
Hearing: 11 April 2024 Appearances:
T Shepherd for the Appellant A Goodwin for the Respondent
Judgment:
12 April 2024
JUDGMENT OF WHATA J
Appeal
Solicitors / Counsel:
Mr T Shepherd, Barrister, Kaikohe
Marsden Woods Inskip Smith, (Office of the Crown Solicitor) Whangarei
LEEF v POLICE [2024] NZHC 772 [12 April 2024]
[1] Richard Leef was charged with drink driving, being his fourth offence of this type.1 His breath alcohol was analysed at 856 micrograms, more than double the limit of 400 micrograms. Mr Leef pleaded guilty and was sentenced by Judge D J Orchard to six months’ imprisonment, without leave to apply for home detention.2
[2] Mr Leef now appeals that sentence saying it is manifestly excessive because the Judge did not consider relevant factors to the imposition of home detention, which would have been the least restrictive outcome in the circumstances and should have been imposed.
[3] At the conclusion of the hearing, I resolved to allow the appeal on the basis that a sentence of six months’ home detention be substituted, and on the basis that Mr Leef be subject to a condition that he participate in rehabilitation. I invited counsel to file a joint memorandum addressing the issue of conditions. They have done so, and they have been incorporated into my decision.
[4]These are my reasons.
Threshold for appeal
[5] I may allow the appeal against sentence if I find a material error, including that the end sentence was manifestly excessive.3
Decision of the District Court
[6] In sentencing Mr Leef, the Judge noted the aggravating features were that this was Mr Leef’s fourth conviction and the level of alcohol in the present case, and with his prior convictions, was very high. Also of concern to the Judge was Mr Leef’s “apparent lack of any interest in doing anything about [his] drinking”.4 The Judge was sceptical about Mr Leef’s remorse offered, saying that he must have known he was
1 Land Transport Act 1998, s 56(1) and (4). Maximum penalty: two years’ imprisonment or $6,000 fine; and disqualification from holding or obtaining a driver licence for more than one year.
2 New Zealand Police v Leef [2024] NZDC 5131.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
4 New Zealand Police v Leef, above n 2, at [4].
very drunk before driving and that it could be inferred from the timing there was no real gap between the drinking and the driving.
[7] Mr Leef said that since the conviction he did not go out as regularly as he once did, but continues to have a few drinks at home with friends. The Judge noted this was his way of mitigating any risk of being caught again. The Provision of Advice to Courts (PAC) report noted from Mr Leef’s prior sentencing notes in 2015 that he “required a lot of coaxing to attend his Salvation Army Bridge programme”, although it was unclear whether this was due to a lack of motivation or transport issues. Given the rest of the information in the PAC report, the Judge found that Mr Leef had no intention of changing his drinking patterns, and was simply attempting to avoid the consequences of being caught after consuming alcohol.
[8] The Judge accepted that Mr Leef is a long-term ACC patient with a spinal injury that means he cannot walk unaided, and therefore a sentence of imprisonment will be more difficult for him, but was unpersuaded that this outweighed the risk he represents to the community and his continued consumption of alcohol. If treated leniently once again by the courts, Mr Leef would risk drink-driving again. The recommendation of the report writer for a sentence of community detention and supervision was completely inadequate for the seriousness of the offending, exacerbated by an apparent lack of desire to do anything about his dangerous levels of drinking.
[9] A starting point of eight months’ imprisonment was considered appropriate, having regard to the factors in Samson v Police,5 with a 25 per cent discount for the guilty plea. The notional end sentence was six months’ imprisonment. The Judge considered a sentence of home detention but was of the view that the least restrictive sentence in these circumstances was imprisonment, as home detention would not fulfil the purposes of accountability, deterrence, and denunciation.
5 Samson v Police [2015] NZHC 748.
Argument
[10] Mr Shepherd, for Mr Leef, submits the Judge gave the purpose of deterrence complete priority without regard to any countervailing purposes of sentencing. He says the Judge did not consider or give sufficient weight to the following factors:
(a)Mr Leef has never previously received a sentence of imprisonment or an electronically monitored sentence;
(b)he has only received fines, coupled with supervision in 2015, for his prior excess breath alcohol convictions;
(c)there are considerable periods of time between his convictions and this most recent one;
(d)he understands and consents to an electronic sentence by signing the Offenders Electronic Monitoring Agreement form;
(e)his ability to undertake and comply with an electronically monitored sentence remains untested;
(f)he has a technically suitable residential address available; and
(g)consideration of his health, namely, his severely compromised walking ability requiring the use of walking aids.
[11] Mr Goodwin for the Police submits that while firm, a sentence of imprisonment was available, referring to a number of sentences involving imprisonment for a fourth drink-driving offence. He highlighted the aggravating features of the offending including:
(a)that Mr Leef was double the limit;
(b)he has three previous convictions with high readings;
(c)the lack of motivation to change; and
(d)the limited attempts at addressing the underlying cause of his offending.
[12]The starting point of 8 months’ imprisonment was therefore appropriate.
[13] On the issue of home detention, referring to Samson, deterrence and denunciation are at the forefront, and Mr Leef clearly presents a heightened risk given that he downplays his consumption of alcohol, which creates a barrier to genuine rehabilitation.
Assessment
[14] The starting point of imprisonment cannot be faulted. If anything, a higher starting point could have been handed down given that Mr Leef was more than double the limit. As noted in Samson, the presence of an aggravating factor such as this could have justified a starting point of 12–18 months.6 But I am unable to agree that this is a case where imprisonment is the least restrictive sentence available having regard to two key factors identified in Samson including:7
(a)no previous sentence of imprisonment; and
(b)lengthy gaps between the current and prior offending — 21 years, 7 years, and 9 years.
[15] I would also add, that unlike many cases of this type, Mr Leef does not have a long history of related non-compliance offending. For example, he has no convictions for driving while disqualified. This is important because Mr Leef does not appear to present a real risk of offending when subject to disqualification.
[16] While there is no presumption that a short sentence will be commuted to home detention:8
6 Samson v Police, above n 5, at [15].
7 At [16].
8 Fairbrother v R [2013] NZCA 340 at [30].
… the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[17] In this regard, I consider the Judge placed undue emphasis on comments made in the PAC report about the need for coaxing to attend the Salvation Army Bridge Programme and about Mr Leef’s drinking habits. I am advised by Mr Shepherd that Mr Leef in fact completed the Bridge programme. As to concerns about his habits, the PAC report writer recommended community supervision, not imprisonment. While I do not agree with that recommendation, it is a fair reflection of the immediate risk presented by Mr Leef to the community.
[18] I also consider that much greater emphasis needed to be put on Mr Leef’s physical condition. He cannot walk unaided. I infer from this that a sentence of imprisonment would be particularly severe for him. Against a backdrop where Mr Leef does not appear to present a high risk of offending while subject to sentence, it follows that a rehabilitative sentence is justified, particularly when bearing in mind that a short sentence of imprisonment is unlikely to provide the opportunity to engage in such rehabilitation at the earliest opportunity. I also note that of the cases cited by Mr Goodwin, two of them granted leave to apply for home detention. There are also a number of cases where a home detention or a community based sentence for multiple excess breath alcohol offending has been handed down.9
[19] Overall, I am of the view that a sentence of home detention best serves the principles of sentencing, including deterrence and denunciation. In this regard, I consider a sentence of six months’ home detention is justified. This is based on a combination of the sentence of imprisonment that otherwise could be imposed, the peculiar needs of Mr Leef, including to best secure his rehabilitation, and the need to deter future similar behaviour and protect the public.
9 Fonoti v Police [2015] NZHC 200; Afamasaga v Police [2013] NZHC 2763; Tinei v New Zealand Police [2012] NZHC 2003; Hansch v New Zealand Police [2014] NZHC 2438 where a sentence of community detention was handed down but it was observed that home detention may have been the result if not for the appellant having already served some of his sentence of imprisonment; Carran v Police [2013] NZHC 1450 where community detention was given; and Bidois v Police HC Hamilton CRI-2006-419-123, 1 November 2006 where leave to apply for home detention was granted, and upheld on appeal.
[20] It will be observed that in reaching this conclusion, I have not followed the orthodox approach of halving the sentence of imprisonment to fix the home detention period. But I consider this to be necessary because of the peculiar risks and rehabilitative potential presented by Mr Leef. I also consider this to be mandated by the evident sentencing policy underpinning the Court of Appeal’s approach in Zhang v R, that sentences should be tailored to the particular individualised circumstances of the person before the Court.10
[21] Dealing then with an indicative sentence of imprisonment. A starting point of 12–14 months’ imprisonment is within range given that Mr Leef was at double the excess breath alcohol limit. This should then be discounted by one month for the factors listed at [14] and [15] above, and one month for the severity of imprisonment for Mr Leef, together with a discount of about three months (or 25 per cent) for his guilty plea. This results in an indicative sentence of imprisonment of between seven and eight and a half months. The home detention period is often half the period of imprisonment, so that would ordinarily result in a sentence of home detention of about three and a half to four months. However, I consider that given the need for deterrence, public protection, and in order to best secure Mr Leef’s rehabilitation, a home detention period of six months is justified.
[22] I also consider that special and post-detention conditions are necessary to both mitigate the peculiar risks, and facilitate the rehabilitative potential, of Mr Leef. To this end, I adopt the conditions referred to in the joint memorandum of counsel, namely:
(a)To attend an assessment for any programmes or counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend and complete an appropriate alcohol rehabilitation course and/or programme as approved by Mr Leef’s Probation Officer.
10 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [120]. See also R v Bisschop [2008] NZCA 229 at [18].
(c)Not to consume or possess any alcohol.
[23] It is not clear from the memorandum filed the period sought for the post- detention conditions, but I impose them for 12 months in relation to conditions (a) and
(b) I do not impose a post-detention condition in relation to (c) dealing with alcohol consumption. To my mind that is an excessive requirement that may set up Mr Leef for failure.
Outcome
[24] The appeal is allowed. The sentence of imprisonment is quashed. In its place, I impose a sentence of home detention of six months, at the address noted in the PAC report. The period of the home detention is to commence from the commencement date of the original sentence.
[25] There shall be special conditions imposed under s 80D of the Sentencing Act 2002 for the duration of Mr Leef’s sentence of home detention as follows:
(a)To attend an assessment for any programmes or counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend and complete an appropriate alcohol rehabilitation course and/or programme as approved by Mr Leef’s Probation Officer.
(c)Not to consume or possess any alcohol.
[26] There shall also be two special post-detention conditions imposed under s 80N of the Sentencing Act, in the form of [25(a) and (b)] above, for a period of 12 months from the detention end date.
[27] This sentence is deferred by two working days to allow Corrections to enable the electronic monitoring to be put in place.
Whata J
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