Ranford v Police
[2021] NZHC 132
•10 February 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2020-443-32
[2021] NZHC 132
BETWEEN PHILLIP GRAHAM RANFORD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 February 2021 Appearances:
NP Bourke for Appellant JE Bourke for Respondent
Judgment:
10 February 2021
(ORAL) JUDGMENT OF FITZGERALD J
Solicitors: C & M Legal, New Plymouth Counsel: N Bourke, New Plymouth
RANFORD v POLICE [2021] NZHC 132 [10 February 2021]
Introduction
[1] Philip Ranford has been convicted on one charge of driving with excess breath alcohol (third or subsequent),1 one charge of failing to stop to ascertain injury2 and one charge of driving contrary to the requirements of a zero-alcohol licence.3 This is Mr Ranford’s seventh drink driving conviction since 1993.
[2] On 16 December 2020 in the District Court at New Plymouth, Mr Ranford was sentenced by Judge C D Sygrove on the lead charge of driving with excess breath alcohol (third or subsequent) to 13 months and two weeks’ imprisonment, with leave to apply for home detention.4 Mr Ranford was also disqualified from driving for six months and ordered to apply for an alcohol interlock licence. Leave to apply for home detention was reserved because while Mr Ranford had identified a suitable address for a sentence of home detention (namely his mother’s house), the property did not have adequate cellular coverage for electronic monitoring.
[3] Mr Ranford appeals his sentence on the basis that the Judge failed to impose the least restrictive outcome that was appropriate in the circumstances. Counsel for Mr Ranford, Mr Bourke, submits that the least restrictive appropriate outcome was either a sentence of intensive supervision coupled with significant community work, or a non-electronically monitored sentence of home detention.
[4] A preliminary point arises. Mr Ranford seeks leave to file a memorandum containing a recent article from the New Zealand Law Society email bulletin “Lawpoints” published on 4 February 2021. The article notes that the Department of Corrections has trialled random alcohol and drug testing in the Northern region (that is, from the Bombay hills north), and is now expanding that programme to the other regions around the country. This suggests there will be increased testing if the Court re-sentences Mr Ranford to home detention or intensive supervision with a condition
1 Land Transport Act 1998, s 56. Maximum penalty 2 years’ imprisonment or a $6,000 fine, and a mandatory disqualification from holding or obtaining a driver’s license for more than 1 year.
2 Land Transport Act 1998, s 35. Maximum penalty 3 months’ imprisonment or a $4,500 fine, and a mandatory disqualification from holding or obtaining a driver’s license for 6 months or more.
3 Land Transport Act 1998, ss 57AA(4) and 57AA(6). Maximum penalty 2 years’ imprisonment or a $6,000 fine, and a mandatory disqualification from holding or obtaining a driver’s license for 1 year or more.
4 Police v Ranford [2020] NZDC 26283.
requiring him to refrain from consuming alcohol. This, Mr Bourke suggests, increases the chances of compliance.
[5] The Department of Corrections’ press release which accompanies Mr Bourke’s most recent memorandum is dated November 2020. But it does not appear unreasonable that Mr Bourke was not aware of it until it was publicised in the recent Lawpoints article. That obviously post-dates Mr Ranford’s District Court sentencing. Further, the material contains information that is relevant to this appeal. I am therefore satisfied it is in the interests of justice to admit it on the appeal.
Facts
[6] At around 6:25pm on 1 March 2020, Mr Ranford was driving along a street in New Plymouth when he hit a parked car. He says that he swerved to avoid a cat: the sentencing Judge considered it obvious that the crash was due to his intoxication. Mr Ranford did not stop. He carried on down the road until he pulled over to assess the damage to his car. The owner of the parked car came out and called out to Mr Ranford. Mr Ranford got into his vehicle and drove away. This gave rise to the charge of failing to stop after a crash to ascertain injury.
[7] The Police found Mr Ranford in a carpark a short time later. A breath test gave a reading of 745 micrograms of alcohol per litre of breath. The adult limit is 250 micrograms, having been lowered from 400 micrograms in 2014. For holders of a zero-alcohol licence like Mr Ranford, the legal limit is zero. This gives rise to the charge of driving with excess breath alcohol and driving contrary to the requirements of a zero-alcohol licence. Mr Ranford suggested that after he pulled into the carpark he consumed alcohol from a bottle of wine, and hence gave a positive breath test despite not drinking while driving.
[8] Mr Ranford has six previous convictions for driving with excess breath alcohol. They are for offending in 1993, 1996, 2000, 2004, 2011 and 2016. He was sentenced for the 2016 offending in 2017 to four and a half months’ home detention, disqualification from driving for a year and a day, and directed to apply for a zero- alcohol licence in accordance with s 65AI of the Land Transport Act 1998. Except for one conviction for cultivating cannabis in 1986 (for which he received a $150 fine),
this is Mr Ranford’s only criminal record. It is not in dispute that Mr Ranford has been compliant with all his previous sentences, and with his most recent bail conditions (including a “not to drive” condition).
[9] Mr Ranford lost his job due to the COVID-19 pandemic. At his first sentencing hearing date he lived at the Scenic Lodge in New Plymouth. Due to the temporary and shared nature of that accommodation, the pre-sentence report writer considered that an electronically monitored sentence would not be possible, despite this being recorded as the “usual” recommendation on offending of this type. The report writer also noted that Mr Ranford had self-referred to Narcotics Anonymous and independently verified that he had been attending. By all accounts he was making good progress. The sentencing was accordingly adjourned to enable Mr Ranford to find other accommodation.
[10] Mr Ranford then suggested his mother’s home. She was supportive of the application. While the Police had no concerns, technical feasibility tests indicated there was no GPS signal in many rooms at Mr Ranford’s mother’s house, or at the property’s perimeter. The pre-sentence report writer, in an updated report, therefore could not recommend an electronically-monitored sentence. Mr Bourke has confirmed this morning that his updated instructions are that Mr Ranford’s mother remains supportive of her son living at her house.
The District Court decision
[11] Judge Sygrove adopted a starting point of 18 months’ imprisonment. He then applied a 25 per cent discount to arrive at an end sentence of 13 and a half months’ imprisonment, with leave to apply for home detention.
[12] The Judge noted that counsel for Mr Ranford had suggested 18 months’ intensive supervision and 350 hours of community work. The Judge referred to R v Royal, a case in which the proposed address for a home detention sentence was also unsuitable for electronic monitoring.5 Grice J had therefore sentenced the offender to 18 months’ intensive supervision and 350 hours of community work. In this case,
5 R v Royal [2020] NZHC 1321.
Judge Sygrove did not comment on the proposed sentence of intensive supervision, but considered that 350 hours of community work was unrealistically long and would be setting Mr Ranford up to fail.
[13] The Judge noted that Mr Ranford had been given lenient sentences in the past, but concluded that the appropriate sentence was imprisonment. The Judge did not say why he considered that sentence best met the relevant sentencing purposes and principles, but I infer it was given the aggravating factors of the offending, that Mr Ranford has had community sentences before yet has continued to offend, the unavailability of electronic monitoring and to suitably denounce the offending.
The appellant’s submissions
[14] Mr Bourke for Mr Ranford accepts that the starting point and discounts were appropriate. The sole issue on appeal is whether the Judge imposed the least restrictive appropriate outcome.
[15] Mr Bourke again notes R v Royal, where Grice J commuted a nominal end sentence of 21 months’ imprisonment to 18 months intensive supervision and 350 hours of community work.6 In that case, Grice J noted that there were “very peculiar circumstances”7 that meant a sentence of intensive supervision and community work was sufficient to meet the goals of denunciation, deterrence, public safety, and rehabilitation. Counsel submits that this case highlights that imprisonment is not the “default” option where home detention is not available for a person who would otherwise have been eligible for it.
[16] Counsel argues that the risk Mr Ranford poses to the community relates solely to his drink driving, and hence rehabilitation must be a key focus of sentencing. This is because in the longer term, this will be the best means of protecting the public. Mr Bourke notes that Mr Ranford has never before been given a sentence of intensive supervision. Counsel contends that Mr Ranford needs intensive rehabilitation to
6 R v Royal [2020] NZHC 1321.
7 R v Royal [2020] NZHC 1321 at [60].
ensure his cycle of drink driving offending can be broken. He notes that the possibility of residential programmes would be available on a sentence of intensive supervision.
[17] In combination with a sentence of intensive supervision, counsel submits a steep sentence of community work would achieve the requisite punitive purpose of sentencing. While the District Court Judge considered and dismissed the possibility of the suggested 350 hours of community work, Mr Bourke contends that the Judge’s assessment that this would be setting Mr Ranford up to fail was inaccurate in the context of Mr Ranford’s positive history of compliance.
[18] Counsel further submits that if intensive supervision and community work is not considered appropriate, a sentence of home detention would be the least restrictive appropriate outcome, as appears to have been acknowledged by the Judge in granting leave for a substituted sentence. Mr Bourke refers to authorities which confirm that home detention need not include electronic monitoring.8 Counsel submits that the nature of Mr Ranford’s offending, and his prior compliance with community sentences and bail conditions demonstrate that electronic monitoring is not crucial in this case.
The respondent’s submissions
[19] Counsel for the Police notes that denunciation and deterrence are important principles of sentencing and emphasise that Mr Ranford has continued to offend and has “progressed up the hierarchy of sentences”. Counsel also suggests a lack of insight by Mr Ranford about his offending, noting that the pre-sentence report records him as denying drinking at the time of driving, but rather doing so after he “parked up” after the accident. Counsel accepts there is a “clear need” for rehabilitation in this case, but given Mr Ranford’s continued offending, there equally needs to be strong deterrence and denunciation which could be met in this case by the imposition of electronic monitoring on a substituted home detention sentence, should a suitable address become available.
8 R v Seyb CRI-2007-003-000416 HC Timaru, 11 September 2008.
Is intensive supervision with community work appropriate?
[20] Mr Ranford’s appeal is to be considered in accordance with s 250 of the Criminal Procedure Act 2011. An appeal must be allowed only if the Court is satisfied there has been an error in the sentencing and a different sentence should be imposed.9
[21] I am persuaded that there was an error in the sentencing and that a different sentence should be imposed. My reasoning follows.
[22] First, it is clear that the Judge considered Mr Ranford a candidate for home detention, but the barrier to such a sentence was a lack of cellular coverage at the proposed home detention address. But the Judge did not consider, expressly at least, the possibility of home detention with manual monitoring, or explain in his decision why this would not be appropriate. Given the nature of Mr Ranford’s offending and his previous compliance with his sentences and bail conditions, I accept Mr Bourke’s submission that electronic monitoring would not have been crucial in this case.
[23] But I also accept that the primary focus of sentencing in this case must be Mr Ranford’s long-term rehabilitation, which will provide the best protection to the public going forward. For that reason, I am satisfied that a period of intensive supervision, coupled with community work (to serve as a deterrent and to denounce Mr Ranford’s offending) is the most appropriate and least restrictive sentencing option available. Such a sentence allows for intensive supervision of Mr Ranford over a reasonably lengthy period of time, so the relevant authorities can assist him come to grips with the underlying and long-term issues which are causing his offending. And special conditions which can be imposed on the sentence provide suitable oversight and control of him.
[24] I am not persuaded that 24-hour electronic monitoring, as would be the case on a “standard” home detention sentence, is necessary to respond to the applicable sentencing purposes and principles, and Mr Ranford’s particular need for rehabilitation. Nor am I persuaded that Mr Ranford’s suggested lack of insight is a barrier to a sentence of intensive supervision. As Simon France J observed in Tamati
9 Tutakangahau v R [2014] NACA 279; [2014] 3 NZLR 482.
v New Zealand Police, “the starting point is that often the eligible offenders will be recidivists, and amongst that group insight is not a common virtue”.10 As the Judge noted, a sentence of intensive supervision will involve courses designed to give that insight. It appears that Mr Ranford has taken at least some steps to address his offending, with his (verified) self-referral to counselling and that he appeared to have been making some progress in that regard, prior to the commencement of his sentence of imprisonment.
[25] As counsel notes, Mr Ranford has not been subject to intensive supervision before, and the Judge did not appear to consider this option (expressly at least), and what special conditions could be imposed to provide a more nuanced approach to sentencing than a sentence of imprisonment where electronic monitoring is not available. In this context, I am mindful of the Court of Appeal’s observations in R v Rawiri, that the court cannot impose a sentence of imprisonment unless it is satisfied the sentence is being imposed for a statutory purpose or purposes, that those purposes cannot be achieved by a sentence other than imprisonment; and that no other sentence would be consistent with the statutory principles as applied to the particular case.11
[26] I am satisfied that I have jurisdiction to order intensive supervision.12 In particular, I consider that a sentence of intensive supervision will reduce the likelihood of further offending by Mr Ranford through his rehabilitation. I am also satisfied that there needs to be supervision of Mr Ranford for a longer period of time that could be achieved through supervision alone;13 and that his rehabilitative needs require the imposition of conditions that are not available through a sentence of supervision.14 I am also satisfied that a sentence of intensive supervision, together with community work, adequately responds in this case to the need to deter and denounce Mr Ranford’s offending, but also to the very real need for rehabilitation.
[27] I therefore propose to sentence Mr Ranford to a period of 18 months’ intensive supervision with the following conditions:
10 Tamati v New Zealand Police [2017] NZHC 2543 at [13].
11 R v Rawiri [2011] NZCA 244 at [19(b)].
12 Sentencing Act 2002, s 54C.
13 Sentencing Act 2002, s 54C(b)(i).
14 Sentencing Act 2002, s 54C(b)(ii).
(a)First the standard conditions (as set out in s 54F of the Sentencing Act);
(b)Second to attend an assessment for alcohol treatment as directed by a Probation Officer, and to attend and complete any alcohol counselling, treatment or programme as recommended by the assessment and directed by a Probation Officer. In this context, I direct that steps be taken to ascertain whether a suitable residential programme is available for Mr Ranford to attend. In any event, the Court notes that Mr Ranford likely requires intensive rehabilitation, and this should shape the programme or programmes which he is required to attend. Consideration also ought to be given to Mr Ranford continuing his engagement with Narcotics Anonymous, either in parallel to any other programmes, or after completion of those programmes to provide ongoing support to him.
(c)Not to consume alcohol, which will trigger the testing and monitoring regime under s 80ZO of the Sentencing Act, which as noted, is being expanded to broaden the extent of random testing. Mr Ranford would certainly appear to be a good candidate for such random testing, i.e. rather than in response only to “reasonable grounds” testing.
(d)For the first six months of his intensive supervision, and subject to Mr Ranford’s admission to a residential alcohol rehabilitation programme, Mr Ranford is to reside at his mother’s home and not to change address during that period without prior permission of a Probation Officer. This will provide him with an ongoing period of stability and support as he progresses through his sentence.
[28] To provide a suitable punitive element to Mr Ranford’s sentence, I agree that a period of community work is appropriate. For the reasons given by the District Court Judge and given the relatively strict conditions of Mr Ranford’s sentence of intensive supervision, I do not consider that 350 hours is necessary. I conclude that 100 hours of community work is suitable in the current circumstances.
[29] In adopting these sentences, I take into account that Mr Ranford has now served some four months’ imprisonment. Against that backdrop, 18 months’ intensive supervision and 100 hours of community work can be seen as a stern sentence. But that is warranted in this case. Drink driving is a serious offence, given its potentially very serious consequences. And Mr Ranford’s prior six convictions for drink driving are seriously aggravating factors. They must be reflected in his end sentence.
Result
[30] The appeal is accordingly allowed. I quash the sentences of imprisonment on all three charges. I impose a sentence on the charge of driving with excess breath alcohol (third or subsequent) of:
(a)18 months’ intensive supervision, on the standard and special conditions referred to above; and
(b)100 hours of community work.
[31] The District Court orders of disqualification for six months and the requirement for an alcohol interlock device being fitted are not challenged on appeal, and those aspects of the District Court’s sentence are therefore unaffected. No further sentence or orders are made on the charges of failing to stop to ascertain injury and driving contrary to the requirements of a zero-alcohol licence.
Fitzgerald J
4