McLennan v Police

[2018] NZHC 320

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000001

[2018] NZHC 320

BETWEEN

JAMIE GREGORY MCLENNAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 March 2018
Appearances:	M Scally for Appellant C Ure for Respondent
Judgment:	5 March 2018

JUDGMENT OF GENDALL J

[1]    On 20 December 2017, following guilty pleas the appellant was sentenced to 18 months’ imprisonment for two charges of reckless driving causing injury and one charge of failing to stop following an accident to ascertain injury. The appellant appeals this sentence on the basis that he should have been sentenced to home detention rather than imprisonment.

Facts

[2]    The charges in question related to two separate driving events. The first occurred around 7.40 am on 24 June 2016 when the appellant was driving near Omakau. As he crested the brow of a hill, he struck a vehicle travelling in the opposite direction. Both vehicles suffered minor damage and the other vehicle pulled over. The appellant did not stop. This resulted in the charge of failing to stop following an accident to ascertain injury.

MCLENNAN v NEW ZEALAND POLICE [2018] NZHC 320 [5 March 2018]

[3]    The second occurred around 11.50 pm on 14 October 2016, when the appellant was driving a vehicle up the overbridge on Ward St, Dunedin. The overbridge is in the shape of an H and in a 50 kilometre per hour zone. The appellant had one passenger in his vehicle. The traffic was light and the road dry.

[4]    As he approached the moderate right hand bend off the Ward Street bridge, the appellant accelerated heavily and, while doing so, turned his vehicle to the right and then quickly to the left. This put the vehicle sideways as he drove down the opposite side of the bridge. As he rounded the corner, he continued to accelerate, causing his vehicle  to  lose  traction,  skid  and  “drift”  around  the  corner  at  approximately  54 kilometres per hour. At this point, the appellant’s vehicle crossed the centre line and collided head on with another vehicle.

[5]    The crash resulted in serious physical injuries and on-going emotional consequences to two young women who were passengers in the other car. The first victim received a broken back, a hairline fracture to her cheekbone, bruising about her face and had to have some of her small intestine removed. The second victim required an operation to repair her bowel which was split open by the crash. She also received bruising throughout her body. Both cars were written off. All this resulted in the two charges the appellant faced of reckless driving causing injury.

District Court decision

[6]    In his decision in the District Court, Judge Flatley highlighted the appellant’s relevant history of offending, which included two charges for careless driving and one for reckless driving. In discussing the probation report, Judge Flatley noted that the appellant had told the report writer that he was tired at the time, fell asleep at the wheel, and then woke up and overcorrected, causing the crash. This indicated to the Judge that, at the time, the appellant did not take responsibility for what he had done. Despite that, the report assessed the appellant’s remorse as genuine but found his risk of harm to others and his likelihood of reoffending was medium.

[7]    The appellant participated in a restorative justice conference with the two victims. The report contends that it was successful but Judge Flatley heard from one of the victims in court that they did not find it so. The appellant, however, had

apologised to the victims and showed remorse, which they accepted. But there had been long-term consequences for them, and one of the victims requires further surgery.

[8]    Judge Flatley did acknowledge that later the appellant took some responsibility for his actions with the restorative justice report saying that he acknowledged he should not have done what he did. The Judge said that this indicated the appellant did not fall asleep and then woke up and simply overcorrected, but that the appellant intentionally drove his vehicle in the manner outlined, which makes his culpability and the gravity of the offending high. The appellant, according to the Judge, showed complete disregard for the potential danger to other road users and the consequences if an accident occurred.

[9]    Judge Flatley then assessed the appropriate starting point for the charges of reckless driving causing injury. In doing so he identified several aggravating features: the seriousness of the harm to the victims; the appellant’s intentional driving actions; the fact that the appellant was driving with a passenger in contravention of his restricted licence; the presence of two charges; the earlier charge of failing to stop; and the appellant’s history of offending. The Judge also noted the absence of other aggravating factors often present, such as consumption of alcohol, excessive speed and a prolonged course of bad driving.

[10]   These factors and relevant case law led him to set the start point at 21 months’ imprisonment. The Judge uplifted this by three months to recognise the charge of failing to stop and the appellant’s driving history. This was generously discounted by 25 per cent to 18 months’ imprisonment to recognise what was a very late guilty plea.

[11]   The Judge then considered whether the sentence should be remitted to one of home detention, given the principle that the least restrictive sentence appropriate must be imposed. He noted that, while home detention would allow the appellant to work and thus pay reparation, the victims’ focus was not on this but they would rather see him appropriately sentenced.

[12]   The Judge considered that the offending was serious and the appellant’s culpability extremely high. The appellant made the decision to drive as he did and

had a poor background of driving with convictions both for driving-related offending and for other offending including breaching sentences. Therefore, the Judge found that a sentence of home detention was insufficient to meet the principles of the Sentencing Act, such as denunciation and deterrence. He noted that a clear message to the appellant and others was required.

Principles on appeal

[13]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.2

[14]   The Court of Appeal has articulated the test in an appeal against a refusal to grant home detention as:3

[T]he choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below.

Submissions

Appellant’s submissions

[15]   The appellant does not take issue with the Judge’s starting point, uplifts, discount or the notional end point of 18 months’ imprisonment. His focus on this appeal is the Judge’s decision not to remit the sentence to one of home detention.

[16]   Counsel submits that the Judge placed too much weight on the views of the victims and the principles of denunciation and deterrence, to the exclusion of a full consideration of other relevant factors. Counsel argues that the Judge’s assessment

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Ripia v R [2011] NZCA 101 at [15].

3      Manikpersadh v R [2011] NZCA 452 at [12].

was brief and did not mention many of the usual factors to be weighed in such cases. Therefore, his decision about home detention was not a ‘considered and principled choice’ between the two sentences.

[17]   Counsel notes that serious offending will not always require a sentence of imprisonment if other factors weigh in favour of home detention. This can be seen in Bryant v Police where a 12 month sentence of imprisonment was replaced with six months’ home detention on appeal.4 There the charges were for dangerous driving causing injury and failing to stop and render assistance. The appellant was intoxicated and drove head on into the victim’s car. He briefly spoke to her at the scene but fled without calling an ambulance. The victim suffered moderate injuries. The appellant later turned himself into police. The appellant had three prior convictions for excess breath alcohol.

[18]   The Court on appeal acknowledged that the offending was serious. However, the length of time since the appellant’s prior convictions, his actions in turning himself into police, the steps taken to remedy his actions, his remorse, his low risk of reoffending and the absence of non-compliance with Court orders weighed in favour of home detention. The Court found that the sentencing Judge, while acknowledging these matters, did not give them sufficient weight in light of the deterrent value of a sentence of home detention.

[19]   Ms Scally, counsel for the appellant, submits that the following factors support a sentence of home detention in this case:

(a)The appellant’s guilty plea signals his acceptance of responsibility for the offending;

(b)His most recent driving charge was six years ago and his reckless driving charge was 12 years ago;

(c)He has not offended since 2013 and his last conviction for non- compliance with a sentence was in 2008;

4      Bryant v Police HC Blenheim CRI-2011-406-20, 5 December 2011.

(d)He has a good employment record and there were positive character references before the sentencing Judge;

(e)He has expressed genuine remorse, attended a restorative justice conference and apologised to the victims;

(f)He is willing to pay emotional harm reparation;

(g)His likelihood of reoffending is assessed as medium with poor decision making identified as the ‘offending related factor’; and

(h)An appropriate address for home detention was available at the time of sentencing.

[20]   Ms Scally maintains that the very fact that an 18 month end point was imposed carries significant denunciative and deterrent effects. Home detention would still give weight to this. Once a considered and principled approach is taken, it is contended that the appellant’s personal factors and his prospects for rehabilitation point towards home detention here being the least restrictive sentence that is appropriate.

Respondent’s submissions

[21]   In reply, the respondent submits that the Judge was entitled to find that home detention was not appropriate in these circumstances. It is said the Judge did not make an error and the sentence of imprisonment was well within the available range, having regard to the relevant principles and purposes of sentencing.

[22]   Ms Ure, counsel for the respondent, maintains that the Judge properly turned his mind to many factors when considering home detention. These include the effect of keeping the appellant in the community and whether home detention would be the least restrictive sentence available. While the principle of denunciation and deterrence and the views of the victim took an arguably prominent position in the sentencing exercise, counsel contends the Judge did not ignore other factors. In fact, it is suggested the Judge made a considered and principled choice.

[23]   Counsel submits, too, that the Judge’s decision is not like that in Manikpersadh,5 where the sole focus was on deterrence and no reference was made to the other purposes and principles of sentencing. Furthermore, unlike the situation in Manikpersadh, the appellant’s personal circumstances and rehabilitation prospects here, it is claimed, do not point strongly towards a sentence of home detention. In response to the appellant’s proposed considerations, the respondent submits that:

(a)The appellant’s guilty plea was on the morning of the trial and a discount of much less than 25 per cent could have been given;

(b)He was being sentenced here for his serious driving conduct on two separate occasions in one year;

(c)While the length of time since his previous convictions tempers an uplift, it does not point towards a sentence of home detention;

(d)The expressions of remorse do not accord with the appellant’s attempts to minimise his offending;

(e)His risk of harm to others is assessed as medium; and

(f)The identification of poor decision making does not lead to any specific rehabilitation requirements.

[24]   Counsel submits that the seriousness of the offending and the high level of culpability, against the background of previous relevant convictions and very poor driving on two occasions here, point towards imprisonment as the appropriate sentencing response. The Judge, it is said, did not err in imposing that sentence but even if there had been some error here, no alternative sentence is appropriate.

5      Manikpersadh v R, above n 3.

Analysis

[25]   The Court of Appeal held in Palmer v R that the decision of whether to commute a sentence to home detention calls for a case by case exercise of judgment as there is no presumption either way.6 It also identified denunciation and deterrence as very important sentencing considerations.7 The Court of Appeal earlier held that “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”.8

[26]   In the present case the Judge considered that home detention would be insufficient to meet the purposes and principles of sentencing. The appellant is correct in noting that the Judge placed emphasis on the particular principles of deterrence and denunciation. However, to an extent, this was appropriate here as these are the principal purposes of punishment when imposing penalties for traffic offences.9 In addition, s 8 requires the Court to consider the effect of the offending on the victims.

[27]   There were also, however, number of aggravating factors in this offending. The appellant had a history of driving offences, albeit some time ago, and was being sentenced for serious driving misconduct on two different occasions. The level of harm he caused the two victims was high, as was the level of his culpability due to the intentionality of his actions. All of these factors were valid considerations for the Judge to take into account to conclude that home detention should not be granted in this case.

[28]   Counsel for the appellant has put forward a number of factors which she submits indicate that a sentence of home detention would be sufficient and appropriate here. However, I do not find these enough to show that home detention appropriately meets the sentencing principles in this case. These factors were largely considered by Judge Flatley, albeit some were only noted earlier in his judgment. I agree with the Judge that the appellant’s culpability in this offending was high and that this was exacerbated by his poor history. This necessitated a sentence of imprisonment to

6      Palmer v R [2016] NZCA 541 at [19].

7      Palmer v R, above n 6, at [26].

8      James v R [2010] NZCA 206 at [17].

9      R v Beaman CA177/82, 16 December 1982.

sufficiently denounce this offending and to deter the appellant and others from making bad driving decisions like this.

[29]   There were few, if any, mitigating factors personal to the appellant that required a sentence of home detention, distinguishing it from cases like Manikpersadh. In Manikpersadh there was clearly an error that required correction in that the sole focus in the lower court was on deterrence with no reference being made to the relevant purposes and principles of sentencing. Unlike that decision in Manikpersadh the appellant’s personal circumstances here and his rehabilitation and reintegration, in my view, do not point strongly to a sentence of home detention. There were a range of factors in Manikpersadh that indicated a sentence of home detention was appropriate for the appellant in that case. These included the appellant’s age, prior good character, early plea, payment of reparation (already completed), and recognition of offending related issues. These are generally not matters of which the appellant in all the circumstances of the present case can avail himself.

[30]   Essentially, as I see it, the appellant is contending that his remorse, his attendance at restorative justice, his plea of guilty and his rehabilitative prospects were not properly considered in the District Court in this assessment process. To a significant extent, I disagree.

[31]   In addition, although here there had been some length of time since the appellant’s prior convictions, he was being sentenced for two serious and different driving incidents. He did not immediately turn himself into the Police in relation to the 14 October 2016 offending, and was apprehended only three days later following the 24 June 2016 offending. In addition, his guilty pleas came only on the morning of trial. Although it seems he has shown some remorse, he also said things to minimise his offending. Furthermore, unlike in Manikpersadh, he has been assessed as having a medium risk of reoffending and of causing harm to others, not a low risk. The appellant also has some history of non-compliance with Court orders. He also did not seem to have any particular issue that required rehabilitation and the victims too indicated to the Judge that they did not particularly feel the need for emotional harm reparation.

[32]   After considering all the submissions advanced on behalf of the appellant and the respondent, I am not convinced that Judge Flatley made an error here in refusing to impose home detention. As I have outlined above, refusal to impose home detention is an exercise of discretion. The appellant must demonstrate that Judge Flatley considered something irrelevant, failed to consider something relevant, or that his decision was plainly wrong. None of these grounds exist here. Judge Flatley, as I see it, in this case properly considered first, the issue of home detention and secondly, he concluded that in particular because of the appellant’s previous convictions, the overall effect on the victims of this offending and the need for denunciation and deterrence, a sentence other than imprisonment would be inadequate to meet the proper purposes of sentencing in this case. The culpability of the appellant, in my view, was of such an extent that it attracted a high level of denunciation and deterrence. Refusing to impose home detention was therefore available at Judge Flatley’s discretion and I am satisfied it was appropriate here.

Result

[33]   No error occurred in the Judge’s decision in the District Court not to commute the sentence to one of home detention.

[34]This appeal is dismissed.

...................................................

Gendall J

Solicitors:

Public Defence Service, Dunedin RPB Law, Dunedin