Nisbett v Police

[2021] NZHC 1815

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2021-488-25

[2021] NZHC 1815

BETWEEN

TRENT KEVIN NISBETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 July 2021

Appearances:

Judgment:

JPR Scott for the Appellant

CS Taylor for the Respondent

16 July 2021

Reasons for Judgment:

16 July 2021

REASONS FOR JUDGMENT OF FITZGERALD J

Solicitors:      Thode Utting & Co, Whangarei

Marden Woods Inskip & Smith, Whangarei

NISBETT v NZ POLICE [2021] NZHC 1815 [16 July 2021]

Introduction

[1]    Trent Nisbett was convicted of driving with an excess blood alcohol level (on a third or subsequent occasion),1 driving while disqualified (on a third or subsequent occasion),2 and breaching community work.3 On 24 June 2021, Judge D J Orchard sentenced him to thirteen months’ imprisonment and declined Mr Nisbett’s application to commute that sentence to one of home detention.4 Her Honour also disqualified Mr Nisbett from holding or obtaining a driver’s licence for two years.

[2]    Mr Nisbett appealed against the sentence of imprisonment. He submitted that it was manifestly excessive, because no uplift should have been given for the driving while disqualified and breaching community work charges, and – in light of a new pre-sentence report completed before the sentencing date – a ten to fifteen per cent discount for mitigating circumstances ought to have been given. This would have led to an eleven-month period of imprisonment. He also submitted that the Judge erred in not commuting the sentence to one of home detention.

[3]    I heard Mr Nisbett’s appeal earlier today. It is helpful to record at the outset that while the Police opposed the appeal, in his oral submissions, counsel for the Police, Mr Taylor, did not press that opposition particularly firmly. He accepted that in light of the more recent pre-sentence report, a sentence of home detention was available.

[4]    I gave an oral result judgment in court, granting the appeal – not in terms of the length of the sentence of imprisonment (interfering in which would have in my view amounted to “tinkering”), but on the basis that the Judge ought to have imposed an end sentence of home detention (with electronic monitoring).

[5]I now give my reasons for granting the appeal.

1      Land Transport Act 1998, ss 56(2) and 56(4). Maximum penalty two years’ imprisonment and a

$6,000 fine. Mr Nisbett had a blood alcohol level of 136 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80.

2      Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment and a $6,000 fine.

3      Sentencing Act 2002, s 71(1)(a). Maximum penalty three months’ imprisonment or a $1,000 fine.

4      Police v Nisbett [2021] NZDC 12486.

The offending

[6]    On 24 September 2020, Mr Nisbett drove a Ute on Peter Snell Road, Ruakaka. He was stopped at a checkpoint, where licence checks revealed that he was disqualified from driving. A subsequent blood test revealed a reading of 136 milligrams of alcohol per 100 millilitres of blood. He told the Police that he was driving to check on a job he was going to do the next day. This gave rise to the charges of driving while disqualified and driving with excess blood alcohol content.

[7]    Mr Nisbett presented the following narrative by way of explanation. His father had sadly died three days before the offending and on the day in question, he was home recovering from that. He received a text from a debtor who owed him and his father money for previous building work, got into his father’s Ute, and drove a short distance to meet the creditor. Mr Nisbett suggested his decision-making was impaired due to the proximity of his father’s death.

[8]    On 11 April 2019, Mr Nisbett had been convicted of male assaults female in a domestic violence context. He was sentenced to 90 hours of community work. On  15 November 2019, he failed to report for community work. He suggested that he was under the impression that his hours had been cancelled, and that the subsequent confusion around COVID-19 meant that he struggled to communicate with the Court.

Mr Nisbett’s personal circumstances

[9]    Mr Nisbett was 29 years old at the time of the offending. He has 34 prior convictions, none of which are particularly serious, but the volume of convictions for someone still relatively young is a concern. Relevantly for present purposes is that the present offending represented Mr Nisbett’s fifth conviction for driving with excess breath alcohol and his tenth for driving while disqualified. His most recent previous conviction for driving with excess breath alcohol was in September 2016 (the offending having occurred in November 2015). His most recent conviction for driving while disqualified was in September 2017 (the offending having occurred in August 2017). This means that at least on the more serious offending of driving with excess breath alcohol, prior to the present offending, there had been a period of approaching five years since Mr Nisbett had been convicted for such offending.

[10]   In terms of prior sentences, Mr Nisbett was sentenced to one year’s imprisonment in September 2017 for three offences of driving while disqualified. He was sentenced to home detention in 2016 for driving with excess breath alcohol and while disqualified. I also note that he has a number of convictions for breach of community work, though other than the present offending, the last such conviction was in November 2013.

[11]   Mr Nisbett has five sons with his partner (with whom he is in an established relationship and who is supportive of him). Their sons are aged 11, 6, 2, 1, and 2 months. His mother died when he was seventeen, and his first conviction for driving with excess breath alcohol occurs shortly thereafter. As noted earlier, his father died three days before his present driving offending.

[12]   Mr Nisbett is a builder by trade. He reports that he is currently making an effort to rebuild his father’s building business, which is in abeyance after disruption caused by COVID-19 and his father’s passing.

The PAC and other reports

[13]   Two PAC reports were prepared on this file. One was prepared in March, on the community work charge alone, and one in June, on all three charges. It appears that only one report, that prepared in March, was before the District Court Judge prior to sentencing, though the more up to date report was handed up during the hearing itself. But not having that report to consider prior to the sentencing may have influenced the Judge’s overall decision.

[14]   The March report notes that Mr Nisbett had completed 54.5 hours of his      90 hour community work sentence. It suggested that he was not motivated to rehabilitate or manage his offending behaviour. He attributed part of his offending to the death of his father in the days before the offending, noting that “Dad normally looked after the kids” while Mr Nisbett did his community work. The report writer considered at that time that he was unlikely to be compliant with a community-based sentence, and observed that he had (at the time) little prospect of completing his community work hours by his sentencing date. The writer nonetheless recommended a community-based sentence.

[15]   The June report paints a better picture. This apparently followed a “stern” warning to Mr Nisbett at some point during these proceedings by another Judge, presumably at a callover. The June report notes that Mr Nisbett has not previously completed any intervention to address his offending behaviour.   It recorded that    Mr Nisbett now presented as “owning” his offending behaviour, and appreciating its impact on his family. The report writer stated:

The factors I consider that have contributed to this offending is Mr Nisbett’s poor decision making, alcohol abuse and his circumstances as previously explained around his family in [the earlier] pre-sentence report. .. I consider him likely to be compliant on a community based sentence, given he is demonstrating motivation to address his offending behaviour, coupled with his wrap around support. His likelihood of re-offending in the same manner is considered to be low – medium, given the aforementioned factors for his compliance.

[16]    The report writer went on to observe that Mr Nisbett appeared to have “turned a corner” in his attitude to his offending behaviour and wanting to address that behaviour. It noted that Mr Nisbett had in fact completed his outstanding community work hours some time before the report was written, on 30 May 2021. The report recommended home detention as the appropriate sentence.

[17]   I have also reviewed a report which confirmed that Mr Nisbett had got himself onto the Drive Soba Programme, and had completed eight of 12 sessions by the time of his District Court sentencing. The author recommended that it would be beneficial for Mr Nisbett to complete that programme to address his recidivist drink driving behaviour. A further report on his attendance at that programme reported that once the programme had been completed, further one-to-one counselling sessions were to be put in place to help monitor progress.

The District Court sentencing

[18]   As noted, the Judge was not prepared to commute the sentence to one of home detention. A key factor taken into account was Mr Nisbett’s negative attitude as evidenced by the  March  PAC  report,  and  the  need  for  firm  deterrence  given  Mr Nisbett’s prior driving and alcohol related convictions. The Judge expressed some

scepticism around Mr Nisbett reaching a “turning point”, given what she described as the “great immaturity” shown in the March PAC report. The Judge concluded:5

You need to be deterred from offending in this way. Nothing much seems to work but, in my view, the knowledge that every time you appear for this sort of offending, you are likely to get a sentence of imprisonment, is about the last chance or the last option the Court has to bringing home to you that you must not continue to offend in this way.

Approach on appeal

[19]   An appeal against sentence must be allowed only if the Court is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.6 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.7

[20]   In a case such as this the real question is whether the effective end sentence was manifestly excessive. The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.8

Mr Nisbett’s submission on appeal

[21]   Counsel for Mr Nisbett accepted the 18 month starting point adopted by Judge Orchard. Counsel suggested that since Mr Nisbett did in fact complete his community work hours, no uplift was appropriate on that ground.

[22]   Counsel suggested that a clear narrative arises from the facts  surrounding  Mr Nisbett’s current offending: his father passed away, and he dealt with the grief by consuming alcohol. He then attempted to drive to meet with a debtor to his and his father’s business. Under these circumstances, and taking into account Mr Nisbett’s

5      New Zealand Police v Nisbett [2021] NZDC 12486 at [24].

6      Criminal Procedure Act 2011, s 250.

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30] and [31].

8      Larkin v Ministry of Social Development [2015] NZHC 670 at [26], applying Ripia v R [2011] NZCA 101 at [15].

family situation, Mr Scott submitted that a ten to 15 per cent discount would have been appropriate for Mr Nisbett’s personal circumstances.

[23]   Counsel suggested that in the time before the sentencing, Mr Nisbett took the risk of a prison sentence to heart and engaged with a rehabilitative approach. Counsel observes that Mr Nisbett researched and engaged with the Drive SOBA programme to deal with the underlying causes of his offending, and submited that an additional discount might have been appropriate for these efforts.

[24]   Counsel suggested that an appropriate final period of imprisonment should have been, as a result, no more than eleven months, though in his oral submissions, Mr Scott did not press this aspect of the appeal to any significant extent.

[25]   On the Judge’s decision to not commute the sentence to one of home detention, counsel emphasised that imprisonment is a sentence of “last resort”,9 to be imposed only when the aims and objectives of sentencing can be met no other way. Counsel suggested that the District Court Judge gave too much weight to the principle of deterrence and not enough to Mr Nisbett’s rehabilitation. Counsel suggested that deterrence would be adequately met with a 24-hour electronically monitored curfew, and that there is no reason to believe that Mr Nisbett would cut off his bracelet and abscond. As such, community protection would be adequately met by a sentence of home detention. Finally, counsel suggested that the needs of Mr Nisbett’s children, who are young, and his partner, also ought to be taken into account.

The respondent’s position

[26]   Mr Taylor submitted that the Judge did not err in her overall approach, and in particular, that it was not an error to focus on personal deterrence in setting the end sentence, given Mr Nisbett’s unfortunate history of driving related offences. On that basis, Mr Taylor submitted that there was no error in the lower court decision for the purposes of this appeal.  He pointed in particular to the Judge’s conclusion, set out at

[18] above, that as earlier home detention and terms of imprisonment had not deterred

9      Fairbrother v R [2013] NZCA 340 at [23]-[31].

Mr Nisbett, a further term of imprisonment was necessary to bring home to him that the community simply does not tolerate this type of offending.

[27]               In his oral submissions, however, Mr Taylor acknowledged the matters raised in the June 2021 PAC report, and that the report writer had accepted that Mr Nisbett had genuinely adopted a new and accepting attitude to his offending behaviour. On that basis, and while not abandoning the opposition to the appeal, Mr Taylor noted that a sentence of home detention would have been open to the Judge in the circumstances of this case. He also noted that if the appeal were to be granted on this basis, it would remain open to the Department of Corrections to apply to cancel the sentence of home detention should Mr Nisbett revert to his “old ways”.

Discussion

[28]               As noted at the outset, I granted Mr Nisbett’s appeal. In doing so, I fully appreciate why the Judge took the approach she did, given Mr Nisbett’s offending history. But as she had not had the June 2021 PAC report prior to the sentencing hearing, I am of the view that she placed insufficient weight on its contents, which were significantly more positive than the March report, the contents of which featured prominently in rejecting the notion that he had “turned a corner”. I note also in this context that the same report writer prepared the March and June reports, and so there was consistency of engagement across the two reports.

[29]               Deterrence  in  this  case  was  certainly  an  important  factor.  But  given   Mr Nisbett’s history, and that he has had previous sentences of home detention and imprisonment which have not deterred him, rehabilitation in my view was also an important factor. Further, a five month period of home detention (which reflected the just over three weeks Mr Nisbett has now spent in custody) is not an “easy” sentence. And it will permit Mr Nisbett to complete the Drive Soba programme now, and also commence the follow-up one-to-one counselling. I also take into account that his prior convictions for driving with excess breath alcohol and driving while disqualified are some years ago, and in the case of the former, five years before the prior offending, which is a reasonable time period in the context of Mr Nisbett’s age.

[30]               Ultimately I was persuaded that the principle of rehabilitation required additional focus in this case, as well as imposing the least restrictive outcome that is appropriate. I also took into account that electronically monitored home detention also goes some way to meet the principles of deterrence and denunciation. And as I conveyed to Mr Scott at the hearing this morning, Mr Nisbett is to be under no illusion that he is very much in the “last chance saloon” and, depending of course on the circumstances existing at the time, I do not expect he will be given an opportunity of a sentence other than imprisonment were he to offend again in a similar way.

Result

[31]               Accordingly, and as noted in a minute issued immediately after the appeal hearing, I made the following orders granting the appeal:

The end sentence of imprisonment arrived at by the Judge, in my view, was not in error and there is no change in that regard. However, given the end sentence enabled a final sentence of home detention, I granted the appeal on that basis and sentenced Mr Nesbitt to five months of home detention on those conditions set out on page 4 of the Provision of Advice to Courts Report dated 2 June 2021.

I note the proposed electronic monitoring and, pursuant to the standard conditions, a 24 curfew subject to approved absences from the home detention residence. I strongly recommended that the Probation Officer require Mr Nesbitt to complete the Driving Soba programme as soon as possible once he is released on home detention, and that once he has completed that programme, he continue with one-on-one counselling (as recommended in the Court Alcohol and Drug Assessment from the Northland District Health Board prepared by Ms Waetford). I also made a recommendation that the Probation Officer investigate and where appropriate permit absences from the home detention residence for employment purposes.

Fitzgerald J