Robinson v Police
[2022] NZHC 442
•11 March 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2022-425-01
[2022] NZHC 442
BETWEEN TULLY ISABEL ROBINSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 February 2022 Appearances:
K Cook for Appellant
R Donnelly for Respondent
Judgment:
11 March 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 11 March 2022 at 3.00 pm
Registrar/Deputy Registrar Date:
ROBINSON v NEW ZEALAND POLICE [2022] NZHC 442 [11 March 2022]
Introduction
[1] Tully Robinson was sentenced1 to four months and two weeks’ home detention by Judge J J Brandts-Giesen on one charge of careless driving causing death2 and one charge of careless driving causing injury.3 The Judge also ordered reparation totalling
$35,000, disqualified Ms Robinson from driving for 18 months, imposed judicial monitoring, special conditions of home detention and six months of post-detention conditions and special conditions.
[2] Ms Robinson appeals that sentence in relation to the special conditions of home detention, post-detention conditions and special post-detention conditions, including the judicial monitoring. She asserts there was no basis for their imposition.
[3] Ms Robinson does not appeal the other aspects of the sentence (home detention, reparation and disqualification).4
Facts
[4] In August 2020 Ms Robinson, normally a resident of Sydney, was visiting the Queenstown area.
[5] On 22 August at about 9.13 pm, Ms Robinson was driving a Toyota Landcruiser along Malaghans Road from Arrowtown in a south-west direction. Astin Caldwell and Allanah Walker were driving along Malaghans Road towards Arrowtown.
[6] Ms Robinson had been travelling at approximately 108 km/hr before accelerating to 112 km/hr. She travelled over the double yellow centreline, crossing onto the other side of the road. Mr Caldwell observed her vehicle travelling towards his and attempted to take evasive action by steering his vehicle right, also crossing the centre line of the road. The vehicles collided on the front passenger side. Ms Walker
1 R v Robinson [2021] NZDC 24140.
2 Land Transport Act 1998, s 39; maximum penalty three years’ imprisonment.
3 Land Transport Act, s 39; maximum penalty three years’ imprisonment.
4 In her notice of appeal, Ms Robinson appealed also against the length of the sentence of home detention but that aspect of the appeal was abandoned.
was killed upon impact and Mr Caldwell was trapped in his vehicle. He suffered serious injuries.
[7] A blood sample taken from Ms Robinson showed she had 59 milligrams of alcohol per 100 millilitres of blood. Subsequent analysis of her mobile phone showed she had sent a series of messages on Facebook Messenger between 9.12:36 pm and 9.13:50 pm, with an unsent but typed message open at the time of impact.
District Court decision
[8] The Judge took a starting point of 17 months’ imprisonment. He granted a full 25 per cent discount for Ms Robinson’s immediate guilty plea, a 10 per cent discount for her previous good character and youth, and a 15 per cent discount for her remorse and participation in restorative justice, resulting in an adjusted starting point of eight and a half months’ imprisonment.
[9] The Judge did not consider prison appropriate, noting Ms Robinson’s youth, personal health, intrinsic integrity and lack of previous convictions. Instead, he imposed four months and two weeks’ home detention with the following special conditions:
(a)to travel directly from sentencing to the address set out in the probation report;
(b)not to possess, consume or use any alcohol or drugs not prescribed to her;
(c)to reside at the address and not move to any new residential address without prior written approval of a probation officer;
(d)to attend an assessment for drug and alcohol counselling or treatment programme as directed by a probation officer, (the “drug and alcohol assessment condition”); and
(e)to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer, (the “treatment condition”).
(The latter two conditions I will refer to as “the assessment and treatment conditions”).
[10] The Judge ordered six months’ post-detention conditions, with the assessment and treatment conditions repeated.
[11]The Judge also imposed judicial monitoring.
[12] Ms Robinson’s appeal relates to the assessment and treatment special conditions; the post-detention conditions; and the judicial monitoring.
Principles on appeal
[13] 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. An appeal against sentence may be allowed by this Court, only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal recorded in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[14] Mr Cook, for Ms Robinson, submitted the special conditions of home detention were justified neither by the Judge in sentencing nor by counsel in any submissions. He submitted there was not the required link between the imposition of conditions and
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
the purpose of such conditions. In relation to the assessment and treatment conditions, Mr Cook submitted there was no evidence to suggest Ms Robinson had an issue with alcohol. He referred to the probation officer’s report that a screening of Ms Robinson showed no harmful pattern of use of alcohol. He referred to Ms Robinson’s previously untarnished and pro-social record, and also to the clearly remorseful response Ms Robinson has made through a restorative justice conference with Mr Caldwell.
[15] In relation to the judicial monitoring, Mr Cook submitted there was no evidence it was necessary, the evidence pointing towards Ms Robinson being compliant with the sentence.
[16] In relation to the post-detention conditions, Mr Cook submitted the discretion to impose post-detention conditions should be read to allow post-detention conditions only if necessary to serve the purposes of sentencing set out in s 7(1) Sentencing Act. He submitted the conditions are a barrier to Ms Robinson’s returning to her home to Australia and there are no rehabilitative or reintegrative needs here.
[17] Finally, Mr Cook submitted the Judge could not be satisfied there was a significant risk of further offending by Ms Robinson and therefore there the Judge could not impose special post-detention conditions.
Respondent’s submissions
[18] Mr Brownlie, for the Crown, noted the special conditions of home detention and special post-detention conditions were recommended in the pre-sentence report to offer Ms Robinson some education around the risks of driving after consuming alcohol. He submitted there was therefore a foundation for the Judge to impose the special conditions. However, he acknowledged that, other than in relation to the issue around alcohol, there was little in support of a finding there is a significant risk of reoffending. Mr Brownlie submitted that, where conditions are recommended by a pre-sentence report writer and not challenged at sentencing, there is a proper basis for them to be imposed.
[19] Mr Brownlie accepted the Judge could not be satisfied judicial monitoring would be necessary for Ms Robinson’s compliance and therefore could not have been imposed.
[20] Mr Brownlie submitted the imposition of a period of post-detention conditions was discretionary and the rationale for imposing them must be to extend the benefit of conditions already imposed as part of the sentence of home detention.
Analysis
The assessment and treatment conditions
[21]Section 80D of the Sentencing Act 2002 states:
80D Special conditions of sentence of home detention
(1)In addition to the standard conditions that apply under section 80C, the court may, subject to subsections (2), (3), and (7), impose 1 or more special conditions described in subsection (4).
(2)A court may impose any of the special conditions described in subsection (4) if the court is satisfied that—
(a)there is a significant risk of further offending by the offender; and
(b)standard conditions alone would not adequately reduce the risk; and
(c)the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
…
[22]Similarly, s 80P states:
80P Special post-detention conditions
(1)A court may impose any of the special post-detention conditions described in subsection (2) if the court is satisfied that—
(a)there is a significant risk of further offending by the offender; and
(b)standard conditions alone would not adequately reduce that risk; and
(c)the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
…
[23] Accordingly, the Judge, if he was to impose special conditions, had to be satisfied there was a significant risk of further offending by Ms Robinson. This was not expressly addressed by the Judge or by counsel at sentencing. On appeal the Crown points to the pre-sentence report writer’s statement that offending related factors:
… have been identified as being Ms Robinson’s attitude towards being complacent in terms of driving a vehicle while under the influence of alcohol. To address Ms Robinson’s use of alcohol and driving a special condition for her to attend drug and alcohol counselling promoted.
[24] It is not clear whether this was an assessment based on the pre-sentence report writer’s interview with Ms Robinson or whether it was an inference based on the facts of the offending. Under the heading “Alcohol Use”, the pre-sentence report writer referred to an alcohol, smoking and substance involvement screening test assessment which did not identify Ms Robinson as showing a harmful pattern of use. The report stated the purpose of the condition would be to “offer her some education around the risks of driving after consuming alcohol”. This does not go as far as to identify a link to a significant risk of further offending that cannot be addressed by standard conditions. The requirement upon a court to be able to explicitly link the imposition on conditions to a general aim of imposing such a condition was illustrated by the Court of Appeal in R v Riri.8
[25] It does not justify the condition that it was a condition recommended by the pre-sentence report writer and not challenged by counsel at sentencing. There must still be a proper basis for its imposition.
[26] Given Ms Robinson’s pro-social record, her lack of previous convictions, her demonstrated remorse including participation in restorative justice, and the fact the evidence did not suggest alcohol use or abuse was an ongoing issue for her, the Court
8 R v Riri [2008] NZCA 441 at [16].
could not reasonably be satisfied there was a significant risk of further offending occasioned by alcohol use. There was therefore no basis on which to impose the assessment or treatment conditions under the Sentencing Act.
Judicial monitoring
[27] The judicial monitoring order raises similar issues. Section 80D(3) Sentencing Act states:
(3) A court may only impose a condition of the kind described in subsection (4)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender’s compliance with the sentence.
[28] For the Crown, Mr Brownlie responsibly conceded this aspect of the sentence should be quashed. The pre-sentence report writer did not foresee any barriers in terms of Ms Robinson’s compliance. There is no evidence judicial monitoring was necessary here.
Post-detention (standard) conditions
[29] The imposition of post-detention conditions as opposed to special post- detention conditions was a discretionary matter. Section 80N of the Act states:
(1) A court that sentences an offender to a term of home detention of 6 months or less may impose the standard post-detention conditions and any special post-detention conditions on the offender and, if it does so, must specify when the conditions expire.
[30] The Court of Appeal in R v Janssen held release conditions, as an element of sentence, were required to serve the purposes of sentencing in s 7(1) Sentencing Act.9 The Court also held such conditions had to be exercised consistently with the principles in s 8 Sentencing Act.10 I consider release conditions and post-detention conditions sufficiently analogous and take the same approach here.
[31] The standard release conditions imposed, including reporting requirements and oversight by a probation officer, can be seen to meet the purposes of holding Ms
9 R v Janssen [2007] NZCA 450 at [14].
10 At [15].
Robinson accountable for the harm done and promoting in her a sense of responsibility for, and acknowledgement of, that harm. Indeed, the detrimental effect on her ability to return to Australia, although a possibly unintended consequence, might contribute to those ends too. As Mr Donnelly submitted, the very nature of post-detention conditions is to lengthen the conditions already imposed as part of the sentence of home detention. They are a part of the sentence proper and do not necessarily have to achieve the sentencing purpose of rehabilitation or reintegration, the purpose Mr Cook has focused on here.
[32] In any event, there can be no argument the Judge was not within his discretion to impose standard post-detention conditions given the terms of the Sentencing Act. The end sentence here was not manifestly excessive.
Post-detention (special) treatment condition
[33] As there was no significant risk of further offending here, there was no power to impose a special post-detention condition. The discussion at [23] to [26] above applies here. There accordingly was an error in the imposition of the post-detention treatment condition.
Outcome
[34] The appeal will be allowed in relation to the assessment and treatment conditions and the judicial monitoring but otherwise dismissed.
Order
[35] The appeal against the drug and alcohol assessment condition and the assessment and treatment conditions, both during and post-detention, and the judicial monitoring, is allowed, and those conditions are quashed.
[36]The appeal is otherwise dismissed.
Osborne J
Solicitors:
Crown Solicitor, Invercargill
Copy to: K Cook, Barrister, Christchurch
4
0