R v Tod

[2012] NZHC 188

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-085-69 [2012] NZHC 188

THE QUEEN

v

ALLAN HERBERT TOD

Counsel:         T J Gilbert for Crown

D M Goodlet for Accused

Judgment:      17 February 2012

SENTENCING NOTES OF MACKENZIE J

[1]      Mr Tod you appear for sentence on one count of criminal nuisance under s 145 of the Crimes Act 1961 and a number of summary charges which have been referred to this Court for sentence. These are:

(a)      Failing to correctly identify your load thereby misrepresenting the nature  of  the  goods  with  intent  to  evade  s 67  of  the  Maritime Transport Act 1994;1

(b)Failing to furnish to the master of the vessel the required dangerous goods declaration;

(c)      Failing, as the driver of the vehicle transporting dangerous goods, to ensure that the vehicle was placarded accordingly;  and

1      In my oral sentencing remarks I referred in error to s 173 of the Act. That section, now expired, had been cited in the information.

R V TOD HC WN CRI-2011-085-69 [17 February 2012]

(d)Failing, as the driver of that vehicle, to ensure that dangerous goods documentation was carried.

[2]      You have pleaded guilty to all of those charges.

[3]      The facts are that you are a director and shareholder of a company called Creek Grange Ace Limited.  The company is involved in the use of explosives, for blasting.    In  August 2010,  you  had  a  need  to  transport  a  quantity  of  blasting explosives from the North Island to the South.   The reason for that was that your company is engaged in avalanche control work and supplies of explosive necessary for that work had run low.  A booking was made with the Interislander ferry for the

2.25am sailing on 15 August 2010 for a four wheel drive vehicle and trailer and one passenger in the name of Miller.   The Interislander ferry service permits the transportation of explosives up to a maximum of 1,000 kilograms, if the load is in an approved container.   It must be transported on the Sunday 6.05am sailing and is subject to approval by the harbour master.  Police became aware of the booking and the likelihood that it would contain explosives and so stopped and checked your vehicle after it had passed the ferry vehicle check in area.   An inspection of the trailer revealed that it was loaded with 663 kilograms of Class 1 blasting explosive. There was no documentation or mention of the load to Interislander staff, either at the time of booking or at check in.

[4]      From your explanation to the probation officer, it appears that the company is a family company for which you work part time, and which employs two other people.  The core business of the company is avalanche control.  As I have said, you needed to get explosives down to the South Island with some urgency for that work. You said that the offending occurred out of “sheer frustration” and admitted that you took a risk.  You are described as being regretful of your actions.  At the time of the offending you had no previous convictions, although I note that there is a more recent matter apparently which you have recently faced.

[5]      The Crown explosives expert identified the explosive as Ammonium Nitrate and  fuel  oil,  a  common  blasting  explosive  consisting  of  premixed Ammonium Nitrate  and  a  fuel  normally  diesel.    He  describes  this  as  relatively  insensitive

requiring another explosive booster to detonate it.   However, when in bulk and exposed to a fire it will decompose and is liable to detonate on mass.  He expresses the opinion that the detonation of this quantity of explosive would be likely to cause severe damage to the structure of the ferry and would be likely to cause a number of secondary fires involving the ship’s equipment and other vehicles, and danger to personnel and it would be enough to sink a vessel such as the Interislander.  You have  produced  statements  from  explosive  experts  which  suggest  that  a  Class 1 explosive will not ignite without a primer and a detonator, except in the event of fire and in that event it is most likely that the explosive would burn without explosion or detonation.   There were no primers or detonators carried with this load.   It is abundantly  clear  that  the  potential  for  damage  if  the  material  did  explode  is enormous.  The extent of the risk that there might be an explosion is much less clear. I do not have available sufficient material, and I do not consider that it is necessary, for me to consider in any detail the extent of the risk which this load might have presented had you been successful in taking it onto the ferry.  I approach the matter on the basis that the requirements for the carriage of dangerous goods are an important aspect of public safety, and must be observed. Any failure to observe them must be viewed as serious.

[6]      Counsel for the Crown submits that the aggravating features of the offending are:  that it was premeditated and involved a course of conduct designed to deceive; that it was commercially motivated;  that the quantity of explosives was significant, with potential for enormous harm;  that the identification of dangerous goods relies largely on the honesty of persons transporting the materials;   and that you are a certified dangerous goods handler in a position of trust which you breached.  I agree with counsel for the Crown that those are serious matters.  I also agree that they lead to the conclusion that the most relevant purposes of sentencing are accountability, denunciation and deterrence.  I must fix an appropriate sentence which has regard to those purposes but which reflects all of the relevant circumstances.

[7]      Counsel for the Crown submits in his written submissions that a starting point of six to nine months imprisonment is justified with a deduction for personal mitigating factors.  Counsel notes the availability, if a starting point of imprisonment is adopted, of home detention.

[8]      The key question for me and one on which I have given careful consideration is whether a sentence of imprisonment is justified.  Two of the charges which you face each carry a maximum penalty of one year’s imprisonment.   Those are the counts of criminal nuisance and the misrepresentation of the goods under s 67 of the Maritime Transport Act.  The latter charge also carries a maximum $10,000 fine and the other charges potentially carry fines.  Your actions involved in each of those two charges which carry a sentence of imprisonment are so closely connected that a concurrent sentence would be appropriate.   Accordingly, the effective maximum sentence of imprisonment which I could impose would be one year.  I must take into account  also  in  determining  whether  a  sentence  of  imprisonment  would  be appropriate your personal circumstances including:   that you have pleaded guilty; that you are effectively a first offender;   and that you have a long and previously unblemished record as a handler of explosives and you have positive references.

[9]     So, the first question for me is whether a sentence of imprisonment is appropriate.  Under s 15A of the Sentencing Act 2002 I may impose a sentence of home detention only if I would otherwise impose a term of imprisonment of two years or less.  Under s 8(g) of that Act I must impose the least restrictive outcome that is appropriate in the circumstances.   So the question is whether a sentence of imprisonment is required or whether some other sentence or combination of sentences,  lower  in  the  hierarchy  of  sentences,  would  meet  the  purposes  of sentencing in this case.   Those purposes, as I have said, are principally those of accountability, denunciation and deterrence.

[10]     In R v Edbrooke, the Court of Appeal noted that a non-custodial sentence is not a lenient option.  It said:2

The sentencing Judge also considered, however, that, but for his belief that Andrews required him to impose a sentence of imprisonment, a non-custodial sentence would have been appropriate. We are prepared to entertain this alternative. Such a penalty is not a lenient option. In R v Minto [1982] 1

NZLR 606 at p 608 this Court said:

``As we took trouble to emphasise in R v Burton [1982] 1

NZLR 602 periodic detention and community service are two forms of non-custodial sentence which are intended by

Parliament to be, and indeed are, very real and effective

2      R v Edbrooke [2000] 3 NZLR 360 at [14].

alternatives to imprisonment. We repeat now that the impact of these alternatives can be severe and they ought not to be regarded by the public as a minor or insignificant reaction by the Courts.''

[11]     In R v Conway that Court said:3

The general principle is that a non-custodial sentence, such as community work,   ought   to   be   regarded   as   a   real   and   effective   alternative   to imprisonment. We refer, in particular, to R v Burton [1982] 1 NZLR 602 (CA) at 604-605 and R v Minto [1982] 1 NZLR 606 (CA) at 607. Both of those cases arose from protests against the 1981 Springbok tour of New Zealand. In each case this Court quashed sentences of imprisonment and, instead, imposed sentences of community service and periodic detention respectively in conjunction with a fine. The sentencing options of community service and periodic detention have now been elided into the single sentence of community work …

[12]     It further said:4

The starting point is the need to view the sentence of community work as a real and effective alternative to imprisonment for the reasons given in Burton and Minto. However, it is clear that a community based sentence (while being a real and effective alternative) may not be an appropriate sentence in cases where accountability for harm done to the community, deterrence and denunciation are the most important sentencing goals.

[13]     The  Court  held  that,  in  that  case,  a  sentence  of  imprisonment  was  the appropriate penalty.  It said:5

In our view, the Judge was right to choose the sentencing option that best met  the goals of accountability, denunciation and deterrence. There is a world of difference, in the minds of most members of the community, between a sentence of imprisonment and a sentence of community work, notwithstanding the observations made by this Court in both Burton and Minto. A short sentence of imprisonment may well deter Mr Conway from behaving in this way again. He will realise that further offending of this type is likely to result in a longer period of imprisonment. Equally, it may well deter other members of the community, of similar mind to Mr Conway, from ignoring or deliberately flouting the provisions of the Act or orders of the Environment Court.

[14]     The maximum penalty must be a significant indicator of the seriousness with which the offence is to be viewed, when deciding whether imprisonment is necessary

3      R v Conway CA234/04, 28 October at [45].

4 At [59].

5 At [65].

to achieve the relevant sentencing purpose.   In Conway, the maximum penalty for each of several distinct incidents of offending, was two years or a $200,000 fine.

[15]     In your case, as I have said, the maximum penalty for what is one incident of offending is one year, or a $10,000 fine.  Having carefully considered the question and recognising that sentences short of imprisonment can be seen as appropriate reflections of the principles of denunciation and deterrence, I have reached the view that a sentence of imprisonment in your case would be an excessive sentencing response.    This  is  serious  offending,  but  I  cannot  view  it  as  the  most  serious offending of the type which might fall within the range of particularly the Maritime Transport Act provision.  In those circumstances I consider that it would be, in your case, having regard also to your personal circumstances and the plea of guilty, an excessive sentencing response.

[16]     That conclusion means that the sentence of home detention is not one which is available.  I must therefore consider a sentence on one or other of the next rungs down the sentencing ladder.  The next level of sentencing are the community based sentences of intensive supervision and community detention.  Community detention will generally be appropriate where it may assist in reducing the likelihood of further offending or restricting your movements in specified periods.   I would not regard that as being a relevant consideration here and I do not regard that sentence as being an appropriate one.  Nor do I consider that the requirements for the imposition of a sentence of intensive supervision are met.

[17]     The  next  rung  down  the  ladder  is  the  community  based  sentences  of community work and supervision.  A sentence of community work may be imposed in this case.  In considering whether to impose it I must give particular consideration to whether the nature and circumstances of the offending make it appropriate for you to be held accountable to the community by making compensation to it in the form of work and whether the sentence is appropriate having regard to your character and personal history and to any other relevant circumstances.   Having regard to those considerations I consider that the sentence of community work is an appropriate sentence in this case.  I note that the view taken by the pre-sentence report writer is that you are a suitable candidate for a sentence of community work and that is the

recommendation.   That is the principal sentence which I consider appropriate and which I intend to apply.

[18]     I come then to the sentence to be imposed:

(a)       On the count of criminal nuisance you are sentenced to a term of

300 hours community work.

(b)On  the  count  of  misrepresenting  the  dangerous  goods  under  the Maritime  Transport  Act  you  are  also  sentenced  to  a  term  of community work of 300 hours.

(c)       Those terms are to be served concurrently.

(d)On the count of failing to furnish a dangerous goods declaration you are fined $5,000.

(e)       On the other two counts you are convicted and discharged.

[19]     The Crown also seeks a cancellation of your driver’s licence on the basis that the offences relate to road safety in terms of failing to placard the dangerous goods load and failing to carry dangerous goods documents.  I consider that those elements of the offending have been adequately addressed in the sentences which I have imposed and I do not regard the circumstances as such as to require the cancellation of your licence.

“A D MacKenzie J”