McNoe v The King

[2023] NZHC 2801

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-22

CRI-2023-425-23 [2023] NZHC 2801

BETWEEN

CODIE JAMES BENJAMIN MCNOE

Appellant

AND

THE KING

Respondent

Hearing:

5 October 2023

Appearances:

J A T Ross for the Appellant

M Brownlie for the Respondent

Judgment:

6 October 2023

JUDGMENT OF HARLAND J

[1]    Codie McNoe appeals against a sentence of 18 months’ imprisonment imposed on him in the Invercargill District Court on 11 July 2023.1 In his notice of appeal, he contended he ought to have been sentenced to a term of home detention as opposed to imprisonment. The appeal now relates to the conditions the Judge imposed when he granted Mr McNoe leave to apply for home detention. Both counsel now ask the Court to grant the appeal as it relates to the conditions.

[2]    When the appeal was called before me, I indicated I would allow the appeal as it relates to the conditions and quash them. The Judge’s grant of leave to apply for home detention is not affected by this outcome.

[3]I indicated to counsel I would reserve my reasons. I now provide them.

1      R v McNoe [2023] NZDC 14566.

MCNOE v R [2023] NZHC 2801 [6 October 2023]

Background

[4]    Mr McNoe appeared before the District Count Judge for sentence on two sets of charges, which I will refer to as the January 2021 and July 2022 offending.

The January 2021 offending

[5]    The first set of charges comprise one charge of driving while disqualified, being his third or subsequent such offence,2 and one charge of, having been required to do so, refused to permit a blood specimen to be taken,3 this also being his being his third or subsequent such offence. These charges arose out of what happened on 10 January 2021. They were laid in the Dunedin District Court on 14 January 2021.

[6]    On 9 February 2021, Mr McNoe pleaded not guilty to both charges and elected trial by jury.

The July 2022 offending

[7]    On 3 July 2022, when he was at Invercargill, Mr McNoe was apprehended and charged with driving with an excess breath alcohol level, being a third or subsequent offence, and driving contrary to a zero alcohol licence, also being a third or subsequent offence. In respect of these charges, Mr McNoe pleaded not guilty and elected trial by jury.

Progress of both sets of charges

[8]    On 14 November 2022, the morning of his jury trial for the January 2021 offending, Mr McNoe pleaded guilty to both charges. The Court record notes that he was further remanded on EM bail for sentence on 23 March 2023, but his attendance, should he be accepted on the Right Track programme, was noted to be an approved absence.

[9]    On 9 December 2022, the Court was advised that Mr McNoe had been accepted on the May 2023 Right Track Programme. A sentencing date was allocated for 21 June 2023.

2      Land Transport Act 1998, s 32(1)(a).

3      Section 60(1)(a).

[10]   On 16 December 2022, Mr McNoe pleaded guilty to the July 2022 offending at his trial callover.

[11]   On 26 May 2023, the Court was notified that Mr McNoe had been removed from the Right Track programme. A sentencing date was allocated for 30 June 2023. For some reason, that date was also changed so that Mr McNoe appeared before the Court for sentence on 11 July 2023.

District Court sentencing

[12]   Both sets of charges came before Judge Turner for sentence on 11 July 2023. The Judge outlined the circumstances of the offending at paras [5]–[9] of his judgment which I replicate below:

[5]        The circumstances of your driving are set out in police summaries of facts. On 19 December 2019, you were disqualified by the Timaru District Court from driving for a period of 18 months, but on 10 January 2021 you were driving a car on State Highway 1 towards Waihola near Dunedin. A member of the public following behind you was concerned about your manner of driving; you were swerving within your lane, driving to the left side of the road and onto the grass verge before veering to the right and over the centreline where up to a quarter of your vehicle was over the centreline.

[6]        Police were contacted due to your manner of driving. The member of the public followed you into the carpark at Lake Waihola and spoke briefly with you, telling you that police were on the way. You staggered off and sat behind nearby bushes and were located there by police shortly thereafter. You exhibited signs of alcohol consumption, had slurred speech, were incoherent in what you said, your eyes were glazed and you smelt heavily of alcohol. You were also unbalanced when walking.

[7]        You refused to comply with alcohol testing procedures and ultimately refused to supply a blood sample for analysis.

[8]        You claimed that you were not driving the car but you were the sole occupant and your guilty plea puts paid to that lie.

[9]        Released on bail, on 3 July you drove a motor vehicle in Lumsden. The car was stopped by police and you exhibited signs of recent alcohol consumption. This time you complied with the officer’s request to submit to the testing procedures which ultimately returned a level of 1,041 micrograms of alcohol per litre of breath against the legal limit of 250. You said you had drunk six cans of alcohol.

[13]   The Judge referred to Mr McNoe’s previous criminal history, which he described as significant both for driving with excess alcohol in his system and driving while disqualified.

[14]   Having heard submissions, the Judge correctly adopted the July 2022 offending as the lead offending given the level which he described as five times the legal limit.4 As well as this, the Judge noted this offending occurred in breach of Mr McNoe’s zero alcohol licence and when he was on bail for the 2021 offending. The Judge adopted a starting point of 18 months’ imprisonment for the July 2022 offending.

[15]   In relation to the January 2021 offending, the Judge considered the manner of driving to have been seriously deficient and he treated the fact that Mr McNoe was disqualified at the time as an aggravating factor. The Judge considered that this offending would ordinarily justify a starting point in the vicinity of 18 months but, on a totality basis, he reduced the uplift to one of nine months’ imprisonment.

[16]The overall starting point was therefore one of 27 months’ imprisonment.

[17]   In terms of mitigating deductions, the Judge allowed 15 per cent for Mr McNoe’s guilty pleas in respect of the July 2022 offending, five per cent for background matters and 10 per cent to reflect the time he had spent on electronically monitored (EM) bail. The total deductions allowed amounted to 30 per cent.

[18]   The end sentence imposed was one of 18 months’ imprisonment and Mr McNoe was also disqualified from holding or obtaining a driver’s licence for 28 days commencing on the date of his release from prison. Thereafter, the Judge noted he would be eligible for an alcohol interlock licence followed by a zero-alcohol licence.

[19]In relation to the prospect of home detention, the Judge said the following:

[38]   I have some reservations about Mr McNoe’s genuineness in wishing  to address his addiction issue. He has told me from the dock, before he asked to be taken downstairs to commence his sentence, that he is open to residential rehabilitation. I would allow him to apply for home detention for that purpose only – to enter a residential rehabilitation facility, but that would be after six months of serving a sentence of imprisonment. He is to be required to serve six months imprisonment and after that time I would entertain an application for home detention to a residential facility.

4      R v McNoe, above n 1, at [23].

The appeal

[20]   Mr McNoe appeals against the conditions outlined in para [38] of the judgment. It is submitted that the type of home detention address specified (a residential facility) and the period of time that must be served before he could make an application for home detention are ultra vires.

[21]   The Crown concede that the conditions attached to the leave to apply for home detention are ultra vires.

[22]   Both counsel agreed that I should grant the appeal, clarifying that the grant of leave to apply for home detention should remain but the conditions attached to it should be quashed.

[23]   I was advised by counsel that Mr McNoe has filed an application in the District Court seeking to have his sentence of imprisonment converted to home detention but the District Court, having accepted the application for filing, is awaiting the determination of this appeal prior to setting it down for a hearing.

Discussion

[24]   Section 80I of the Sentencing Act 2002 (the Act) provides the court the power to grant to leave to convert a sentence from imprisonment to home detention:

80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)   This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)   At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

(emphasis added)

[25]   Section 80I(2) of the Act is directory not discretionary. It places an obligation on judges to grant an offender leave to apply to the Court to convert their sentence to home detention if the requirements of s 80I(1) are met.5

[26]As Venning J said in Oltaches v New Zealand Police:6

[20]      The only qualification the section contemplates is that the proposed residence must be “suitable”. The further qualification the Judge sought to impose as a condition, namely that home detention would only be granted to a residential drug and alcohol programme, however well intentioned, does not appear to be permitted by the legislation.

[21]      It seems to me that it may be a matter of how the point is expressed. I noted that in the case of Sands v New Zealand Police this Court granted leave to apply for home detention should a properly supervised position become available. Rather than fixing it as a condition as the District Court Judge sought to do in this case, the Judge could have indicated, when granting leave to apply for home detention, that a suitable residential programme would be looked at favourably, but I do not consider she was entitled to make it an express condition of a grant of leave. Of course, any proposed address that did not enable Mr Oltaches’ specific needs to have been addressed would not be likely to be assessed as suitable.

(footnote omitted)

[27]   It makes sense for there to be no discretion for judges to impose conditions in respect of an application to convert a sentence to one of home detention as s 80I applies only if, at the time of sentencing, the court would have sentenced the offender to home detention if a suitable residence was available. This is because the appropriate sentence in this situation has been determined to be a sentence of home detention subject to a suitable address being available at sentencing. In such a case, there would no scope for the judge to sentence an offender to a period of imprisonment followed by a period of home detention,7 and therefore it would be incongruous if a judge could achieve that outcome by attaching a condition that a period of imprisonment should be served before an application to convert the sentence to home detention could be made.

5      Bourton v New Zealand Police [2016] NZHC 2883 at [12].

6      Oltaches v New Zealand Police [2021] NZHC 908.

7      Other than for a period of two months on humanitarian grounds or if the court is satisfied it is in the interest of justice: s 80W(1).

[28]   Section 80K provides that, where an offender who has been granted leave to apply for home detention under s 80I applies to covert the sentence:

(4) … the court may, if satisfied of the matters in section 80A(2), cancel the sentence of imprisonment and substitute a sentence of home detention.

(emphasis added)

[29]Section 80A(2) provides:

(2)   A court may sentence an offender to home detention under subsection (1) if—

(a)the court is satisfied that—

(i)the proposed home detention residence is suitable; and

(ii)the relevant occupants (as defined in section 26A(4)) of the proposed home detention residence—

(A)    understand the conditions of home detention that will apply to the offender; and

(B)     consent to the offender serving the sentence in the residence in accordance with those conditions; and

(C)     have been informed that they may withdraw their consent to the offender serving the sentence in the residence at any time; and

(iii)the offender has been made aware of and understands the conditions that will apply during home detention, and he or she agrees to comply with them; and

(b)the proposed home detention residence is in an area in which a home detention scheme is operated by the chief executive of the Department of Corrections.

[30]   There is conflicting High Court authority as to whether s 80K(4) gives a judge discretion to refuse to convert the sentence where the address proposed is suitable. In White v New Zealand Police, Mackenzie J held that the use of the word “may” does not indicate that the judge should exercise discretion afresh but that if the conditions in s 80A(2) are satisfied, then the sentence should be converted to one of home detention.8 However, in Gamble-Mackesy v Department of Corrections, Katz J held that the use of the term “may” provides the judge with a residual discretion to decline

8      White v New Zealand Police HC Napier CRI-2010-441-51, 16 December 2010, at [16].

to convert the sentence even where the conditions in s 80A(2) are met.9 Her Honour said this was consistent with the overall statutory scheme in that the information provided to a judge is not restricted to the matters outlined in s 80A(2) as a new pre- sentence report must be provided to the judge under s 80L.10 This means that if new information comes to light following sentencing that suggests a sentence of home detention is inappropriate, the judge may act on that.11 The approach in Gamble-

Mackesy has been adopted more recently by other cases in the High Court.12

[31]   I agree that the conditions imposed by the Judge were ultra vires. All that could be done was to grant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention in terms of s 80I(2) if the Judge was satisfied that the conditions in s 80I(1) had been met. I infer from para [38] that he was so satisfied.

Result

[32]   I allow the appeal. The conditions imposed in the District Court attached to the granting of leave to apply for home detention are quashed, however, the grant of leave to apply for home detention remains.

Harland J

Solicitors:

J Ross, Barrister, Invercargill

RP Law / Crown Solicitor, Invercargill.

9      Gamble-Mackesy v Department of Corrections [2015] NZHC 1568 at [30].

10     At [31]–[32].

11 At [28].

12     See Khan v Department of Corrections [2018] NZHC 2897 at [18]; and Henry v New Zealand Police [2018] NZHC 394 at [21].