Macnee v Police
[2019] NZHC 1125
•22 May 2019
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2019-412-12
[2019] NZHC 1125
BETWEEN IAN DAVID MACNEE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2019 Appearances:
B Stephenson for Appellant R Smith for Respondent
Judgment:
22 May 2019
JUDGMENT OF MANDER J
Introduction
[1] The appellant, Ian Macnee, pleaded guilty to one charge of driving while impaired, being his third or subsequent offence. After considering advice that home detention would not be suitable, Judge Crosbie sentenced Mr Macnee to eight months’ imprisonment, with six months of special release conditions, along with reparation of
$750.11 and two years’ disqualification from driving. Mr Macnee appeals the sentence of imprisonment on the basis the Judge erred in not substituting the prison term for a community-based sentence.
Facts
[2] At about 11.40 am, Mr Macnee was driving south on the Taieri Plains Highway near the Dunedin Airport. He passed another south-bound vehicle while entering a righthand bend. In undertaking that manoeuvre he drove entirely within the north- bound lane and caused an oncoming north-bound vehicle to take evasive action. He
MACNEE v NEW ZEALAND POLICE [2019] NZHC 1125 [22 May 2019]
continued south and was seen driving erratically, weaving in and out of the south- bound lane crossing over the centre line. At times he drove entirely within the north- bound lane in the face of oncoming traffic.
[3] A driver in a south-bound vehicle ahead of Mr Macnee used his car horn and hand gestures to try and warn oncoming vehicles. Such was his concern, the driver attempted to slow and stop Mr Macnee by braking in front of him. However, Mr Macnee passed him on the left-hand side, driving onto a footpath and forcing the driver to take evasive action.
[4] Eventually Mr Macnee came to a stop when he accelerated behind a vehicle towing a trailer and struck it in the rear. Police attended the scene and described Mr Macnee as speaking slowly, stuttering, having glazed eyes and being unsteady on his feet. A breath screening test showed no signs of alcohol but Mr Macnee admitted to having consumed prescribed methadone earlier that morning. After undergoing an Impairment Test which demonstrated “very noticeable” signs of impairment, Mr Macnee gave a blood specimen which tested positive for cannabis, methadone and diazepam/Valium.
[5] Mr Macnee has two previous convictions for driving with excess blood alcohol in 1994.
District Court decision
[6] In sentencing Mr Macnee, Judge Crosbie first noted that the drug and alcohol report that had been requested had not been completed because the provider had been unable to get a response from Mr Macnee. While Mr Macnee’s counsel submitted that there should be an adjournment for a report to be prepared, the Judge declined to do so. Judge Crosbie considered he had sufficient information before him in the probation report and other documents to sentence Mr Macnee.
[7] The Judge recognised that Mr Macnee was on the methadone programme as a result of a serious drug addiction. However he considered it clear that Mr Macnee was also consuming non-prescription drugs, having had cannabis and diazepam in his
system on the day of his offending. Convictions for cultivation, possession for supply and supply of cannabis as recently as 2011 were also noted.
[8] Judge Crosbie acknowledged the significant interval since Mr Macnee’s two prior driving while impaired convictions from 1994 but focused on the seriousness of the present offending. The Judge described the driving as “appalling”, and “as bad as it gets”. The Judge stressed that it was simply “luck and nothing else that saw no-one injured or worse”.
[9] In terms of the purposes of sentencing, Judge Crosbie considered that deterrence, denunciation and accountability were required to be given precedence over Mr Macnee’s rehabilitation. The Judge noted that if Mr Macnee was intent on rehabilitation, there should have been some “self-starting” while Mr Macnee had been on remand awaiting sentencing.
[10] The home detention suitability report advised that while the occupants of the proposed home detention address consented to Mr Macnee staying at the address, Oranga Tamariki had expressed concerns about Mr Macnee serving a sentence of home detention at that address. The Judge noted that Mr Macnee’s counsel advocated for a combination of community detention, supervision and community work, but did not engage further with that submission. That is the approach which is pursued on the appeal.
[11] The Judge set a starting point of 10 months’ imprisonment. He declined to uplift the sentence for Mr Macnee’s criminal history, acknowledging the gap since the previous driving while impaired convictions. Two months’ credit was afforded for the guilty plea, addiction issues, and in recognition of Mr Macnee not having previously received a sentence of imprisonment for driving offending.
[12] The Judge thus sentenced Mr Macnee to eight months’ imprisonment, six months of special release conditions, reparation, and two years’ disqualification from driving.
Required approach to appeal
[13] An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 A court will not intervene where the sentence is within the available range.2 However, the appeal Court will substitute its own views if the sentence under appeal is “manifestly excessive” or one that cannot be justified upon application of the relevant sentencing principles.3
Submissions
Appellant’s submissions
[14] Mr Stephenson, for the appellant, submitted that the Judge erred in refusing to impose a community-based sentence rather than a sentence of imprisonment. No challenge is made to the starting point of imprisonment, but Mr Stephenson argued that the Judge should have commuted that sentence to a combination of community detention, intensive supervision and community work in the absence of home detention being a viable sentencing option. Mr Stephenson submitted that alternatively, the Judge could have adjourned the matter for another proposed address to be assessed for home detention.
[15] Counsel accepted the Judge’s characterisation of Mr Macnee’s very bad driving. However, Mr Stephenson submitted that, by not considering a community- based sentencing option, the Judge had failed to follow the Court of Appeal’s decision in Fairbrother v R. In that case, the Court considered that the sentencing Judge:4
… 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.
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 Fairbrother v R [2013] NZCA 340 at [30].
[16] Mr Stephenson highlighted s 16(1) of the Sentencing Act 2002, which requires the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. He submitted the sentencing Judge had failed to make a considered and principled choice between possible sentences as required by Fairbrother v R.
[17] Counsel referred to a letter written by Mr Macnee to the Court explaining that he had no memory of the offending and was “extremely ashamed” and “truly sorry”. Mr Macnee wrote that he had reflected on the fact he could have killed someone. That insight was repeated to the pre-sentence report writer. He also expressed a willingness not to take Valium anymore. However, the pre-sentence report records that Mr Macnee has continued to use Valium and cannabis while on remand for the present offending. Mr Stephenson responsibly acknowledged that would have to be taken into account when assessing the genuineness of Mr Macnee’s remorse.
[18] It was submitted on Mr Macnee’s behalf that he is an addict, and is struggling but trying to address his addiction through engagement with his clinician. Mr Stephenson sought to rely on the proposition in Kumar v R that demonstrable remorse, and therefore as a result better prospects for rehabilitation, point towards a sentence of home detention.5 He submitted this observation can also be extended to other alternative community-based sentences.
[19] In terms of Mr Macnee’s rehabilitative potential, Mr Stephenson argued that Judge Crosbie was wrong to have made an adverse finding against Mr Macnee because he had not engaged in rehabilitative work while awaiting sentence. Mr Stephenson submitted the Judge failed to take into account Mr Macnee’s progress in addressing his addictions, and that he had successfully managed his addiction to opiates through 14 years on the methadone programme and regularly sees his clinician to support his reduction in the use of other substances. In the pre-sentence report it is noted that Mr Macnee self-reported that he has not consumed alcohol since 1999.
[20] In light of Mr Macnee’s remorse and efforts to address his addiction, along with the wider circumstances of Mr Macnee’s offending, Mr Stephenson submitted
5 Kumar v R [2014] NZHC 146 at [19].
that a community-based sentence would be appropriate and that the Judge had erred in not arriving at the conclusion that this would be the most appropriate outcome.
[21] Mr Stephenson acknowledged that the starting point of around 10 months’ imprisonment was appropriate, but in light of the gaps in Mr Macnee’s offending (25 years since similar offending, and no offending in the last eight years), his remorse and his commitment to addressing his ongoing addiction issues, there was an appropriate basis upon which to commute the term of imprisonment to a community- based sentence. Mr Stephenson submitted that intensive supervision with judicial monitoring would give Mr Macnee the opportunity to receive stronger rehabilitative intervention and provide for accountability. The punitive element of the sentence, it was submitted, can be addressed by a sentence of community detention and community work, which accords with the approach recommended in the pre-sentence report.
Respondent’s submissions
[22] Mr Smith, for the Crown, submitted that the appeal should be dismissed because the Judge had taken into account all relevant sentencing purposes and considerations, and that the end sentence was within the range available to him in the exercise of his discretion.
[23] The respondent highlighted the seriousness of the offending and the risk at which Mr Macnee’s driving while under the influence of drugs places the community. The protection of the community was stressed as the predominant consideration. Counsel submitted the Judge had explained from the outset in his sentencing remarks why he considered deterrence and denunciation to be the primary relevant sentencing purposes, and why he was unable to give precedence to rehabilitation. It was not necessary for the Judge to again have to traverse that explanation when imposing the sentence of imprisonment.
[24] Mr Smith submitted that as there was no appropriate address at which home detention could be served, commuting a starting point of imprisonment down a further level to another community-based sentence would have been a step too far down the sentencing hierarchy.
[25] Finally, Mr Smith submitted that the Judge was entitled to be sceptical about Mr Macnee’s motivation to rehabilitate, given his lack of action to address his current difficulties since the offending. Mr Macnee’s letter to the Court, it was submitted, “could hardly be said to be a robust demonstration of genuine remorse” and the Judge was entitled to give it little weight. Mr Smith submitted the Judge was entitled to base his assessment on Mr Macnee’s actions, not his words. Additionally, it was noted that the Judge had taken rehabilitative considerations into account in imposing release conditions requiring Mr Macnee to attend treatment, counselling, and programmes or interventions as directed.
Decision
[26] Mr Stephenson has identified what he submits were three errors in the approach taken by the sentencing Judge to Mr Macnee’s sentencing. Each is required to be examined in turn.
Purposes of sentencing
[27] Mr Stephenson argued that Judge Crosbie had not explained or examined the purposes of sentencing, and in particular had not articulated why, despite the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community, he had sentenced the appellant to imprisonment. I do not consider that submission stands scrutiny.
[28] The sentencing Court was cognisant of the competing sentencing objectives when sentencing an offender such as Mr Macnee in the circumstances he was before the Court. Essentially, Mr Stephenson’s complaint is that Judge Crosbie ultimately preferred to give greater weight to accountability and deterrence, the need to promote a sense of responsibility in the offender, and to denounce his conduct. Overarching those considerations was a need to protect the community, which is directly related to the nature of Mr Macnee’s offending, during which he posed a very real threat to the safety of innocent members of the community who happened to be on the road that morning.
[29] While Mr Stephenson was critical of the Judge for not clearly articulating that choice, I consider it is plain from the approach taken by the sentencing Judge that he considered this was the appropriate course. Moreover, as Mr Smith submitted, the Judge expressly stated at the commencement of the sentencing exercise why he considered deterrence and denunciation to be the primary sentencing objectives, which could not be achieved by any lesser sentence.
[30] I accept the choice required to be taken by the sentencing Court was rendered particularly stark as a result of the non-availability of home detention as a sentencing option. I canvassed with Mr Stephenson at the hearing of the appeal whether Mr Macnee now had available to him a suitable address to serve such a sentence. Mr Stephenson advised me that because of the time Mr Macnee had already served, he was not seeking such an outcome on his appeal to this Court.
[31] As a result, and as was stressed by the Crown, what was being sought to be achieved on the appeal was the imposition of a substitute sentence that was effectively two steps down the sentencing hierarchy. The hierarchy of sentences is set out in s 10A(2) of the Sentencing Act. The most restrictive sentence is one of imprisonment, followed by home detention and then by community-based sentences of intensive supervision and community detention, and thereafter sentences of community work and supervision. In Ministry of Social Development v Albert, Moore J observed that a “drop down” of two levels in the sentencing hierarchy is unusual and would require compelling reasons to be justifiable.6
[32] In Inland Revenue Department v Song, the prosecution appealed against a sentence of three months’ community detention and 200 hours’ community work on charges of bribery and offending against the Tax Administration Act.7 The respondent had no previous convictions and an impressive list of character references had been made available. An appropriate starting point was recognised by this Court to be in the region of 18 months to two years’ imprisonment, which the prosecution had no
6 Ministry of Social Development v Albert [2015] NZHC 1288 at [40]; see also R v Harris [2013] NZCA 611, (2013) 36 CRNZ 847 at [21].
7 Inland Revenue Department v Song HC Wellington CRI-2008-485-158, 10 February 2009.
objection to being commuted to home detention. Mallon J rejected a submission advocating a further drop to community detention and community work, observing:8
While, on the basis of R v Iosefa, home detention may have been open, that did not mean community detention and community work were also open. Section 10A of the Sentencing Act sets out a hierarchy of sentences. The Court must impose the least restrictive sentence that is appropriate in the circumstances in accordance with that hierarchy. In view of the nature of this offending, denunciation and deterrence required a sentence in the hierarchy more restrictive than a community-based sentence... In my view [the respondent’s] personal circumstances were such as to warrant a significant discount to the term of imprisonment or home detention that would otherwise have been imposed but they did not warrant a community-based sentence. In my view the sentence imposed was manifestly inadequate.
[33] Undoubtedly, personal circumstances can warrant the imposition of a community-based sentence in preference to one of imprisonment. However, there needs to be clear reasons why, in the absence of an otherwise appropriate sentence of home detention, the sentencing Court can justifiably impose a lesser community-based sentence.
[34] An example is that of R v Rawiri, where the Solicitor-General appealed against the defendants’ sentences of 18 months’ intensive supervision and between 200-350 hours of community work on charges of possessing precursor substances and equipment for the purpose of manufacturing methamphetamine.9 Both defendants had methamphetamine addictions and either no or relatively minor criminal histories. The sentencing Judge acknowledged the Crown’s starting points of two years and over three years’ imprisonment for each defendant were appropriate. Home detention was not an option because electronically monitored sentences were not available in the location where the defendants lived. Importantly, the Judge took careful note of the defendants’ steps towards rehabilitation and was concerned that a sentence of imprisonment would undo those steps.
[35] On the appeal, the Court of Appeal rejected the Crown’s submission that where a Judge is satisfied that the criteria for home detention is met, but that sentence is unavailable, the sentence must revert by default to the period of imprisonment which would have otherwise been commuted to home detention. A sentence of community
8 At [32].
9 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.
detention or other form of community-based sentence is an alternative to imprisonment and can achieve the principles of accountability, deterrence and denunciation. As observed by the Court of Appeal in Rawiri, the statutory hierarchy of sentencing options is “a blunt affirmation that prison is a measure of last resort”.10
[36] There is no prohibition on a Court, when faced with having to sentence an offender to prison, in the absence of home detention being available, considering as an alternative the imposition of another community-based sentence. However, the sentencing exercise does not change in those circumstances. The sentence must still be one that the sentencing Court considers is appropriate having regard to the circumstances of the offending, those personal to the offender, and the relevant purposes of sentencing which the Court seeks to achieve in imposing an appropriate sentence. In Rawiri, the sentencing Judge was concerned that the initiatives taken by the defendants to address their addictions would be lost if they were sent to prison. The priority given by the sentencing Court to avoiding that consequence was endorsed by the Court of Appeal.
[37] The difficulty that arises in the present case for Mr Macnee is that the Judge was unimpressed with the efforts made by him to address the underlying causes of his serious offending with which he had struggled over a considerable period. The Judge accepted that the frequency of Mr Macnee’s offending had declined and expressly recognised the considerable gap back to the previous driving offences, when Mr Macnee was convicted of driving with excess blood alcohol. However, what was of particular concern to Judge Crosbie was that, despite the apparent shock to Mr Macnee of the potential consequences of his offending, he had not been motivated to take any initiative or action over the four months since the commission of the offence to address his addictions. The Judge observed that if the appellant was intent on rehabilitation or addressing his drug issues he would have expected to have seen something done by him voluntarily to address those difficulties. The Judge’s view was no doubt reinforced by the appellant’s failure to respond to the drug and alcohol agency responsible for preparing a report on Mr Macnee.
10 At [18].
[38] Mr Macnee has periodically consulted with his clinician, but that, of course, did not prevent the dangerous offending which resulted from his consumption of various drugs. Judge Crosbie expressly took the view that the purpose of deterrence, denunciation and accountability had to be given greater importance in sentencing the appellant than his rehabilitation. I do not consider the Judge was prevented by other competing purposes or principles of sentencing from reaching that conclusion, or that he erred in the exercise of his sentencing discretion in taking that course in the circumstances of this case.
Remorse
[39] Nor, do I consider the Judge erred in his approach to the issue of remorse. Mr Macnee’s letter to the Court expressed regret for his offending and his appreciation of the danger he had placed people in, but I do not consider those expressions extend the depth of his remorse beyond that exhibited by the entry of his plea. As the Supreme Court recognised in Hessell v R, demonstrations of remorse in the circumstances of the individual case can provide a basis for further credit.11 Despite the opportunity afforded to Mr Macnee, by his sentencing he had still not put the sentiments expressed in his letter into any actions. In that regard, I accept Mr Smith’s submission that remorse and rehabilitative efforts, as was the case in Rawiri, are largely linked in cases of this type.
[40] Mr Macnee has a history of addiction with which he has struggled over a very long period. His efforts to date have not prevented his addiction from being the root cause of the potential danger he presents to the public. The difficulty of managing, let alone overcoming, such an addiction cannot be underestimated. But, sadly, because of the underlying causes of his offending, more than statements of remorse will be required before they will attract a discount.
Failure to take into account all information relating to Mr Macnee’s rehabilitative potential
[41] Matters pertaining to this particular issue have largely already been canvassed in addressing the other issues. Mr Stephenson submitted that Mr Macnee has been
11 Hessell v R [2010] NZSC 135, [2011] NZLR 607 at [64].
engaged with a methadone programme for some 14 years and regularly sees his clinician for support in an effort to reduce his use of other substances. Reference was again made to the gap in the appellant’s offending of some eight years, which it was suggested is an indication of personal progress. None of these considerations, however, address the circumstances as they were presented to the sentencing Judge at the time of the imposition of imprisonment.
[42] Mr Macnee has not succeeded in controlling his addiction. To the contrary, his continued addiction had now resulted in near-fatal consequences for others, and, while it is not to be over-emphasised, his present offending does not appear to have been a watershed or turning point for him. He has taken no new or more intensive initiatives to address his drug difficulties. The Court therefore is left with the significant risk that Mr Macnee presents to the public, without any real basis to believe there will not simply be a continuation of the status quo in terms of his rehabilitative efforts to prevent this type of offending.
[43] While I accept that the break in Mr Macnee’s offending can be interpreted as an indicator of progress and that his current offending could be viewed as something of a “slip up”, the nature of the offending and the risk of its repetition entitled the Court to give weight to the need to protect the community and to take a stern and punitive approach, perhaps in the hope that by bringing home to Mr Macnee the seriousness of his actions, he might be motivated to take stronger rehabilitative steps to address his drug difficulties.
Conclusion
[44] Mr Stephenson has been exhaustive in his submissions in an effort to demonstrate the sentence of imprisonment was inappropriate. However, I do not consider the Judge can be held to have erred in the exercise of his sentencing discretion when choosing to adopt the course that he did in imposing an eight month sentence of imprisonment with six months of special release conditions.
Result
[45]The appeal is dismissed.
Solicitors:
Public Defence Service, Dunedin RPB Law, Dunedin
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