McKeeman v Police

[2022] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-0034

[2022] NZHC 1033

BETWEEN

JASON MCKEEMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 May 2022

Appearances:

S J Ross for Appellant

C S Taylor for Respondent

Judgment:

13 May 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 May 2022 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Marsden Woods Inskip Smith, Crown Solicitor, Whangārei Counsel:       S J Ross, Whangārei

MCKEEMAN v POLICE [2022] NZHC 1033 [13 May 2022]

Introduction

[1]                 The appellant, Mr McKeeman, appeals against sentence on one charge each of driving with excess breath alcohol (“EBA”),1 driving whilst disqualified,2 and driving a motor vehicle in a dangerous manner.3

[2]                 The grounds of appeal are that the sentencing Judge, Judge McDonald, failed to give any credit for time spent on EM bail and did not consider a sentence of home detention.

Background

[3]                 At about 6:30 pm on 5 January 2022, Mr McKeeman was driving through Kamo, intoxicated and on his way to purchase more alcohol. He narrowly missed one oncoming car and then drove his vehicle through a fence and into a house occupied by a young family, including five children. It is entirely a matter of luck that no-one was injured or killed.

[4]                 Mr McKeeman fled the scene but was located by the Police shortly thereafter. He subsequently underwent an evidential breath test, giving a reading of 727 micrograms of alcohol per breath, and so almost three times the permitted maximum of 250 micrograms.

[5]                 Mr McKeeman pleaded guilty to the offending. Judge McDonald sentenced him to nine months’ imprisonment on the EBA offending, and nine months and one month respectively on the other two offences, these sentences to be served concurrently with the sentence imposed on the EBA.  The Judge also disqualified  Mr McKeeman from driving for 12 months and one day.

1      Land Transport Act 1998, ss 56(1) and 56(4): maximum penalty two years’ imprisonment or

$6,000 fine.

2      Sections 32(1)(a) and 32(4): maximum penalty two years’ imprisonment or $6,000 fine.

3      Section 35(1)(b): maximum penalty three months’ imprisonment or $4,500 fine.

Submissions

[6]                 Section 9(2)(h) of the Sentencing Act 2002 (“Act”) requires the Court, in sentencing an offender, to take into account that the offender has spent time on bail with an EM condition, and in doing so to have regard to the matters in s 9(3A) of the Act.

[7]                 Mr Ross, for Mr McKeeman, submits that the Judge erred in failing to take into account that, by the time of sentencing, Mr McKeeman had spent 39 days on EM bail. As to s 9(3A), Mr Ross advises that Mr McKeeman was on a 24/7 curfew, was fully compliant, and did not have any permitted absences. In short, the EM bail condition was restrictive in its effect. Accordingly, Mr Ross submits that, whatever my decision on his second submission (as to home detention), at the very least Mr McKeeman must have some reduction in the duration of his sentence, and he submits this should be at least two weeks.

[8]                 I am not persuaded to make any reduction to Mr McKeeman’s sentence on this ground. Thirty-nine days is a short period to spend on EM bail. In Longman v Police, Simon France J was asked to increase a one month credit given by the sentencing Judge for two and a half months on EM bail.4 The Judge said that any credit for such a short period of EM bail was far from inevitable. Similarly, in Hemopo v R, the Court of Appeal said that any discount is a discretionary matter. In my view, no reduction is required or merited in this particular case because, as I have said, the period was so short.5

[9]                 Mr McKeeman’s other ground of appeal is that the Judge was required to but did not consider the imposition of a sentence of home detention.

[10]              I do not have a copy of the PAC report that was prepared but from the information before me I gather that it recommended supervision and community detention between 7 pm and 7 am.

4      Longman v Police [2017] NZHC 2928 at [13].

5      Hemopo v R [2016] NZCA 242.

[11]              The  Judge  did   not   accept   that   recommendation.   He   recorded   that Mr McKeeman has been subject to oversight from Probation Services for some two and a half years (in total), and none of it has made any difference to Mr McKeeman’s behaviour. Importantly, the Judge noted that the time had come to protect the community from Mr McKeeman, even if only for a short period of time.

[12]              This latter statement stems from the fact that, at age 28, Mr McKeeman already has an appalling driving record. This most recent EBA offence was his fourth and he also has a conviction for refusing a blood specimen. Mr McKeeman committed his other EBA offending, including the refusal to which I have just referred, in 2010, 2013, 2015, and 2019.

[13]              Mr McKeeman also has several convictions for driving whilst disqualified. He committed his first at the same time as his 2013 EBA. He accrued the subsequent convictions in 2015 (when he was also convicted of dangerous driving), 2018, 2019, and 2021. At the time of the present offending, Mr McKeeman was disqualified from driving on an indefinite basis.

[14]              Whilst I am on the subject of Mr McKeeman’s criminal history, I record that he also has several convictions for failing to answer bail, and for breaches of community work and release conditions.

[15]              Mr Ross is correct that the Judge did not make overt reference to home detention or why he did not consider that sentence appropriate. However, nothing turns on that for the purposes of this appeal. Early in his sentencing the Judge referred to the need to impose the least restrictive sentence, and he also referred to s 16 of the Act, the relevant parts of which provide:

16       Sentence of imprisonment

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must 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.

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

...

[16]              Mr Ross submits that does not assist as s 16 is concerned with community- based sentences, which home detention is not. I do not accept that submission. Section 16 requires a Judge to refrain from imposing a sentence of imprisonment unless no other sentence will be sufficient.

[17]              Judge McDonald, a very experienced District Court Judge, may not have referred expressly to the possibility of home detention, and why it was unsuitable but, as I have said, he did refer to the need to impose the least restrictive sentence appropriate in the circumstances, and s 16 conveys a similar principle. The Judge’s reference to the need to protect the community from Mr McKeeman indicated that he considered anything less than a sentence of imprisonment would be insufficient. That conclusion was inevitable, given Mr McKeeman’s history of driving offences, and of non-compliance with Court orders.

Result

[18]The appeal is dismissed.

Peters J