Mitchell v Police
[2017] NZHC 530
•22 March 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-412-000012 [2017] NZHC 530
BETWEEN CODY ETHAN MITCHELL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 March 2017 Appearances:
F E Guy Kidd for Appellant
R D Smith for RespondentJudgment:
22 March 2017
JUDGMENT OF DUNNINGHAM J
[1] Mr Mitchell appeals against his sentence of 15 months’ imprisonment on the charge of causing death by careless use of a motor vehicle while under influence of alcohol. He was sentenced before Judge Turner in the Alexandra District Court on
15 February 2017. He was also disqualified from driving for two years and ordered to pay $2,000 reparation for emotional harm.
[2] The appellant does not challenge the length of the sentence, nor the additional penalties imposed. The only issue on appeal is whether the Judge erred by imposing a sentence of imprisonment in the circumstances, instead of a sentence of home detention.
Facts
[3] On Saturday 10 September 2016, the appellant and victim both attended a party, along with other friends and associates. Over the course of the afternoon and evening, the group consumed alcohol. Around midnight, the victim and the
appellant left the party and walked to a nearby bar where they continued to drink
MITCHELL v NEW ZEALAND POLICE [2017] NZHC 530 [22 March 2017]
alcohol. Around 1.00 am they left the bar, with others, and walked to the victim’s
house.
[4] A decision was made to return to the party on the opposite side of Cromwell. This resulted in the appellant, the victim and two others walking a short distance to the appellant’s home in order to use the appellant’s quad bike to transport everyone to the party. The bike was designed to carry only one person. It has since been examined and found to have substantial faults.
[5] The appellant rode the bike and the victim perched or sat on the small cargo deck behind him. The other two men sat on the two wheel arches, one on either side. No-one wore a helmet. The appellant drove for some distance at a low speed. As the bike entered a laneway, one of the passengers noticed that the victim was no longer on the bike and alerted the appellant. They returned and found the victim lying prone on the road, bleeding from a cut to the back of his head. The victim began vomiting.
[6] The appellant and his associates underestimated the seriousness of the victim’s injuries and returned him to his house. They took some time to look after him and put him to bed. A sober person at the address was asked to care for him. The group then proceeded on to the party.
[7] At about 3.15 am, the person caring for the victim became concerned and called an ambulance. Ambulance officers ascertained that he had a significant head injury. The victim was transported to Dunstan Hospital and then flown to Dunedin Hospital in a critical condition. He was placed on life support. It was subsequently ascertained that his injuries were not survivable. Life support was turned off and he died several days later.
[8] When the appellant learnt of the seriousness of the victim’s injuries, he
travelled to Dunedin Hospital to be with the family.
The District Court decision
[9] The Judge’s sentencing notes were detailed. He discussed the appellant’s co-operation with police, his previous history of offending and the pre-sentence report. He also noted the victim impact statements and the fact that the appellant had participated in a restorative justice conference with the victim’s family.
[10] The Judge then embarked on the sentencing process observing that the primary sentencing principles in this case were denunciation, deterrence, and holding the appellant accountable for the harm he caused.
[11] The Judge then considered the gravity of the offending and identified the following factors contributed to the seriousness of the offending:
(a) The degree of carelessness — the Judge found a high degree of carelessness as the bike was overloaded, the passengers could not hold onto the bike securely, and no-one was wearing protection. He noted that the appellant was driving the bike in a moderate manner but emphasised that the appellant was not fully alert to what was happening on the vehicle;
(b) Level of intoxication — there was no clear evidence of the appellant’s
level of intoxication but the Judge accepted that it was high;
(c) Consequences — a life was lost so the consequences were very serious; and
(d)Public interest — there is a need to denounce and deter the public from drinking and driving.
[12] The Judge took a starting point of two years which he established by reference to the cases of R v Jack, Hanly v Police and Quinn v Police where slightly higher starting points were adopted, but involved more serious cases of drink driving
causing death.1 He then uplifted this by one month to take account of the appellant’s
previous conviction for drink driving.
[13] The Judge gave the appellant a 20 per cent discount for personal mitigating factors, including his personal circumstances and his genuine expression of remorse. The appellant was also given the full 25 per cent credit for his early guilty plea. This resulted in an end sentence of 15 months imprisonment.
[14] The Judge went on to consider whether the sentence should be commuted to one of home detention. The Judge noted that a suitable residence was available. The factors in favour of commuting the sentence were listed as the appellant’s relative lack of criminal history, his age, and his personal circumstances. The Judge also noted that the victim’s family had asked that the appellant not suffer any more for what had occurred and that he be given a chance.
[15] The Judge listed the following factors going against home detention: the seriousness of the offence itself, the seriousness of this particular offending, the consequences of the appellant’s carelessness, and the need to denounce and deter such behaviour in the appellant personally and society in general.
[16] Referring to the decision in Quinn v Police, although noting it pre-dated the Sentencing Act 2002, the Judge considered that denunciation and deterrence were “to the fore when sentencing for offences of this nature”.2 He also noted that in the cases of Jack and Hanly, sentences of imprisonment for drink driving were not commuted to home detention. The Judge then concluded that, on balance, the sentencing principles of deterrence and denouncement would not be met by the imposition of a sentence of home detention.
Principles on appeal
[17] 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.
1 R v Jack DC Invercargill CRI-2013-025-001264, 5 September 2013; Hanly v Police HC Rotorua
CRI-2009-463-000104, 10 March 2010; Quinn v Police HC Auckland AP167/93,
18 August 1993.
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.3 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.4 The corollary is that the appellate court will not intervene when the sentence is within the range that can properly be justified by sentencing principles.5
[18] The Court of Appeal has acknowledged that in appeals revolving around whether home detention should have been imposed there is still a requirement to identify a “material” error and “it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent
term of home detention”.6 The Sentencing Act does not suggest a presumption for or
against imprisonment. Rather: 7
[t]he decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. …it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
Submissions
[19] The appellant makes three central submissions:
(a) The Judge made an error on the facts when he stated that the victim fell whilst the appellant was turning the vehicle. The appellant submits that the true position lessens the appellant’s culpability
slightly;
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Ripia v R [2011] NZCA 101 at [15].
5 Larkin v Ministry of Development [2015] NZHC 680 at [26].
6 Palmer v R [2016] NZCA 541 at [19].
(b)The Judge did not appreciate that the appellant would have employment if he was sentenced to home detention, but this has now been clarified by a further affidavit from Mr Mitchell’s employer; and
(c) A sentence of home detention would better allow the appellant to meet his responsibilities to his young daughter and continue to pay child support to her mother. The Judge did not raise his family responsibilities when looking at the factors that point towards home detention.
[20] The appellant also submits that in exercising his discretion the Judge put too much weight on case law which was not directly relevant and failed to have proper regard to the principle that he must impose the least restrictive sentence that is appropriate in the circumstances.
Discussion
Factual error as to point victim fell
[21] I accept that the Judge was in error when he said, at [35], that “the fact is that when turning left into Wishart Crescent [the victim] fell from the back of the bike”. From the schematic diagram showing where the victim was found after he fell, it appears he fell a short distance after the vehicle had entered Wishart Crescent. The appellant submits that the true facts slightly lessen the appellant’s culpability, presumably because it was less likely that he contributed to his passenger falling when he was travelling in a straight direction as opposed to turning.
[22] However, I do not consider this issue to have been material in the Judge’s decision. Wherever the victim fell from the bike, the central fact is that the appellant drove the bike carelessly, by loading it unsafely with three passengers, none of whom were wearing helmets, and while he and his passengers were intoxicated. It was the combination of these circumstances which formed the basis of the Judge’s assessment of culpability and the Judge had been careful to confirm that there was no suggestion of bad driving on the part of the appellant.
[23] I therefore consider there was no material error on this count.
Employment
[24] The appellant submits that the Judge may have been under a misapprehension as to the availability of employment to the appellant of sentence to home detention. In particular, the Judge noted in his sentencing decision that “community detention is favoured over home detention because of employment issues”.8 This appears to rely on the statement in the pre-sentence report which recommends community detention, and says that “a sentence of home detention is not promoted at this time [given] barriers around employment”. Furthermore, when dealing with factors in favour of commuting the sentence to home detention, the Judge did not include the fact that the defendant would have ongoing employment if sentenced to home detention.9
That suggests that he was of the view that employment was not available or,
alternatively, this is where he fell into error, as the availability of employment was a significant factor in favour of commuting the sentence to home detention and he did not take it into account. Keeping a 23 year old in ongoing employment was a significant factor in contributing to his reintegration in the community.
[25] However, again, I am not satisfied that this misunderstanding (if indeed it was) was material. It was clear that the appellant was valued by his employer and would have a job on his release. Thus, the need to maintain employment in the interim was not required to achieve the rehabilitation and reintegration of this particular offender as compared with cases where, for example, the offender has had a history of unemployment and where the job will inevitably be lost if he or she can not retain it. Thus, the appellant’s employment was not a particularly significant consideration to take account of when weighing the respective sentencing principles and I do not consider the Judge erred in a material way by failing to take account of
this factor.
8 At [30].
Family responsibilities
[26] The appellant argues that a sentence of home detention should be imposed because it would better allow him to fulfil his responsibilities to his young daughter. In support of this he provided the parenting order which shows he was progressing towards a full shared care arrangement in respect of his daughter. Furthermore, by virtue of being in prison and not in employment, he was no longer able to make family support payments to his daughter’s mother. He submits that the Judge should have given this greater weight, noting that the Judge did not specifically refer to this factor.
[27] The respondent submits that, while it is unfortunate that the appellant’s family is impacted, this is inevitable in serious offending. It submits that the present impacts do not appear to be exceptional so they would only carry modest weight in the overall assessment of what the appropriate sentence ought to be.
[28] It is clear to me that the Judge did have regard to the appellant’s personal circumstances and, in particular, his relationship with his daughter. The pre-sentence report confirmed that the appellant had “50-50 custody of his young daughter” and commented on the impact that a sentence of even home detention would have in respect of that. The Judge then expressly referred to the personal circumstances addressed in the pre-sentence report and to the fact that difficulties would arise with
the shared care arrangement with his daughter.10
[29] I am not satisfied, therefore, that the Judge ignored the impact of his sentencing decision on the appellant’s family. Furthermore, as the respondent submits, it is inevitable when there is serious offending that the offender’s family will be adversely affected. In my view, there was no error by the Judge in failing to take this into account, nor in determining that, nevertheless, the dominant purposes of deterrence and denunciation should prevail.
Comparable cases
[30] The appellant also discusses the cases relied on by the Judge and points out that some involved more serious conduct. However, as the respondent submits, this was reflected by the Judge taking a lower starting point for the appellant’s offending. Ultimately, the decision of whether to commute a sentence to home imprisonment must be made on the specific facts of the case and the sentencing principles relevant to it.
[31] The other point made by the appellant is that the decision in Quinn, which the Judge relied on to support his decision to imprison, was decided when a sentence of home detention was not available as a standalone sentence. Thus when he referred to it to suggest that the principles of denunciation and deterrence required imprisonment, he was in error.
[32] However, I am satisfied that the Judge expressly acknowledged that the decision precedes the Sentencing Act 2002 and that that Act guided him on the appropriate response to the offending. He goes on to state that he refers to it simply because it “highlights the enduring sentiment that denunciation and deterrence are to
the fore when sentencing for offences of this nature”.11 It was also clear the Judge
appreciated he had the option of home detention available to him. There was, therefore, no error in his reference to Quinn in his sentencing notes.
Least restrictive sentence
[33] Finally, the appellant notes that the Judge made no express reference to the principle that the Court must impose the least restrictive sentence that is appropriate in the circumstances. However, it is implicit in this case that the Judge was considering home detention against imprisonment and that he weighed the factors for and against home detention. As the respondent says, that assessment makes it clear that, having reached a notional end sentence of less than two years, the Judge appreciated that he was required to consider imposing the least restrictive sentence of home detention in place of a sentence of imprisonment and that he did so.
[34] Again, the appellant has not been able to show that the Judge made a material error in assessing whether or not to give home detention.
Conclusion
[35] Despite full and careful submissions from Ms Guy Kidd, I am not satisfied that she has identified an error in the Judge’s reasoning that would warrant this Court intervening on appeal. Furthermore, Judge Turner’s decision not to commute the sentence of imprisonment was within range and was justified by sentencing principles.
[36] Accordingly, this appeal is dismissed.
Solicitors:
F E Guy Kidd, Barrister, Invercargill
RPB Law, Dunedin
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