Rafferty v New Zealand Police HC Napier CRI-2008-441-23

[2008] NZHC 2564

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2008-441-23

KEVIN THOMAS RAFFERTY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 September 2008

Appearances: K R L Guthrie for Appellant

M W Snape for Respondent

Judgment:      9 September 2008

ORAL JUDGMENT OF WILD J

Introduction

[1]      This is an appeal against a sentence of eight months’ imprisonment imposed by Judge Adeane in the District Court at Hastings on 1 July.   The appellant had pleaded guilty to a charge of causing bodily injury while driving a motor vehicle with excess breath alcohol, and a charge of careless use.  The two charges arose out of the same accident.

[2]      The nub of the appeal is that the sentence of imprisonment was wrong in principle because Judge Adeane:

RAFFERTY V NEW ZEALAND POLICE HC WN CRI-2008-441-23 9 September 2008

a)        Did not properly consider home detention;

b)Did not take into account the appellant’s personal circumstances, in particular the possibility that the appellant was suffering from serious depression post-traumatic stress disorder as a result of the accident; and

c)       Refused to adjourn the sentencing to enable full information to be obtained, in particular as to the appropriateness of home detention and a report as to the appellant’s possible depression induced post- traumatic stress disorder.

The facts

[3]      After working all night, and then drinking with friends, the appellant drove home.   While on a straight open stretch of highway, he went to sleep.   His car crossed the centre line and crashed head on into a small oncoming car, causing very serious injuries to its female driver.

[4]      The fire engine that attended the accident had to cut this woman from her car. She was hospitalised with a broken right heel, broken left leg, broken right femur, an open wound to her knee, six broken ribs, lung contusions, broken facial bones and an open  wound  to  her  face.    She  has  undergone  operative  treatment  and,  when sentencing the appellant, the Judge mentioned that she had yet to undergo a number of further operations.  This woman was actually on the way to play bowls and the accident has brought to an end, at least for the moment, her active sporting life.  At the time of sentence it was unclear to what extent she will again be able to engage in the sporting activities and walking she enjoyed.  The sentencing Judge commented:

[3]      …it is no exaggeration to say that her life has been significantly changed by what happened and her future has been changed also…

Home detention

[5]      Ms Guthrie’s first submission, as I pointed out, is that the Judge did not properly consider home detention as a sentencing option.   Despite the reporting officer having been directed by Judge Mackintosh, who took the appellant’s guilty please on 5 June, to report on suitability of home detention in terms of s 26A of the Sentencing Act 2002, the required appendix was not part of the pre-sentence report.

[6]      Judge Adeane declined Ms Guthrie’s request to adjourn sentencing so that the missing appendix could be obtained.

[7]      The Judge did consider the appropriateness of a sentence of home detention. In [7] of his sentencing notes he identified as the “one real issue…whether the inevitable sentence of imprisonment should be served in home detention”.

[8]     In [8] he noted Ms Guthrie’s request to adjourn sentencing so that the appropriateness of home detention could be reported upon.  He set out his reasons in [9]-[11] of his sentencing notes.  Essentially, they were that the appellant’s conduct was so deplorable that a deterrent sentence of imprisonment was called for, and a sentence  of  home  detention  would  not  sufficiently  denounce  the  appellant’s behaviour or protect the public.

[9]      As Gendall J pointed out in [11] and [31]-[33] in Stewart v New Zealand Police (HC WN CRI-2008-485-24 6 May 2008), it is not wrong for a Judge to decline to adjourn sentencing until a s 26A report is obtained, if the Judge is of the opinion that a sentence of imprisonment is required.  Or, to put it in the language of s 8(g) of the Sentencing Act, that a sentence of imprisonment is “the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentence and orders set out in s 10A”.

[10]     Judge Adeane clearly ruled out any sentence lower on the s 10A(2) hierarchy than imprisonment, and for that reason declined to adjourn in order to obtain the missing s 26A appendix.

[11]   That could not be wrong if imprisonment was the only sentence that appropriately marked this offending.  I agree with the Judge that it was.

[12]     The Judge referred to the Court of Appeal’s decision in R v Fallowfield [1996] 3 NZLR 657. That judgment was delivered in August 1996, well before the Sentencing Act, and of course before the 2007 amendments to that Act. The maximum sentence for the present offence at the time Fallowfield was decided was five years’ imprisonment or a fine of $6,000 or both. Against those sentencing maxima, the Court said at p 663:

There can be no fixed tariff because of the range of conduct covered by the offences and the range of circumstances in which it occurs.  However, where the consumption of drink or drugs is heavy, the conduct reckless or worse and the consequences are serious terms of imprisonment up to three years, and more in very bad cases, should be expected.  Where there is the added factor of driving while disqualified the disregard for a decision of a Court and the wilfulness of the conduct will call for an increase in sentence.  The list of aggravating and mitigating factors set out in Skerrett remains a helpful guide.  Repeated disqualified driving, which is all too prevalent, is to be met with increasing sanctions.

[13]     What emerges from Fallowfield is how seriously the Courts view drunken driving which causes injury or, worse, death.   The reason is that such offences manifest the risks of drink driving that are so consistently and horrifically warned about in the media, and by the Courts, and which the Courts consider must therefore be marked by deterrent sentences of imprisonment.

[14]     I do not see that the Sentencing Act, including the 2007 amendments to it, has changed any of that.   Certainly, the Court of Appeal has not yet stated that it does and held that sentencing courts can consider home detention an appropriate deterrent sentence for drink driving causing injury, particularly where the offender has a previous drink driving conviction(s).

[15]     In  McCormick v Police HC DUN CRI-2008-412-13 7 May 2008, French J dismissed an appeal against the sentence of seven months’ imprisonment imposed on a charge of driving with excess breath alcohol causing injury.  The appellant had lost control of his vehicle and crashed into a power pole, injuring his girlfriend who was a passenger. Counsel argued that the sentencing judge had placed too much emphasis

on deterrence and should instead have considered a community-based sentence.  Her

Honour concluded differently:

[13]      In my assessment, the sentencing Judge was fully entitled to rule out community-based sentences because of the appellant’s past breaches and because of the nature of the offence. There is a strong public interest at play here, and there is a need for the Court to send a strong message. The Judge was mindful of the provisions of the Sentencing Act which have been cited to me by [counsel] today, but in the Judge’s opinion, and I accept it, they were outweighed by considerations of deterrence. …

[16]     That  is  exactly  the  way  Judge  Adeane  viewed  it  in  this  passage  of  his sentencing remarks:

[7]       He  has  also chosen  to  ignore  the  persistent  warnings  which  are published in the media by the authorities in connection with this kind of offending and exactly the kind of consequences that are warned of have come to pass in this case.  So what is to be the outcome?  Again, responsibly, Ms Guthrie concedes that on the authorities the usual outcome is a sentence of  imprisonment.    Since  those  cases  were  decided  Parliament  in  New Zealand has introduced the opportunity for community-based sentences of detention; in particular home detention.  The objects of the Sentencing Act are now well understood as expressed in section 8, and those are all at work in a case of this kind.   But there is only one real issue here and that is whether the inevitable sentence of imprisonment should be served in home detention.

[17]     Ms Guthrie referred to the Court of Appeal’s decision in R v Hill [2008] 2

NZLR 381 in which the Court discussed the place of home detention in the current sentencing hierarchy and endorsed its appropriateness for dealing in Class A drugs, though not at the upper end of the R v Fatu [2002] 2 NZLR 72 ranges or bands. Ms Guthrie acknowledged that the rehabilitative considerations that can exist when sentencing for drug-dealing do not have the same relevance here.

The appellant’s personal circumstances

[18]     As I mentioned, Ms Guthrie’s submission under this head is that the Judge erred in not adjourning the sentencing to enable a report to be obtained from a psychiatrist about the serious depression post-traumatic stress disorder that Ms Guthrie understood the appellant may be suffering.  Again, her request to the Judge for an adjournment on that ground was declined.

[19]     The Judge did consider Ms Guthrie’s request and he explained his reasons for declining it.  He said:

[8]       …the proposition that the defendant may be suffering post-traumatic stress disorder as a result of the consequences of this accident and his own internal turmoil over the harm which he has done to the principal victim.  I don’t intend to do that either because of the view which I have formed about the suitability of a community-based sentence here.

[20]     My view is the same on this ground of appeal.   The Judge did not err in taking the view that the appellant’s personal circumstances, including the possibility that he was suffering from clinical depression as a result of the accident, must give way to a deterrent sentence which clearly marked the Court’s disapproval of this type of offending.

Result

[21]     I do not accept that the Judge erred in either of the aspects alleged by the appellant.

[22]     Although it is not directly raised on this appeal, I add that I consider the sentence of eight months’ imprisonment imposed by the Judge was well within the range available to him.   On 16 March 2006 the appellant had been convicted of driving with excess breath alcohol on 2 March 2006, that is less than two years earlier.  On that occasion, his breath alcohol level was approaching twice the legal limit (747/400).   Taking that into account, and also the dire consequences of this repeat offending, the sentence under appeal could be viewed as a restrained one.

[23]     The appeal is dismissed.

“J R Wild J”

Solicitors:         K R L Guthrie, P O Box 101, Hastings for Appellant

Crown Solicitor, Wellington