Sands v Police
[2018] NZHC 3048
•23 November 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000110
[2018] NZHC 3048
BETWEEN IAN CRAIG SANDS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 November 2018 Appearances:
N R Wham for Appellant
P A Norman for Respondent
Judgment:
23 November 2018
JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Mr Sands, pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent). On 2 November 2018, Judge Garland sentenced him to 17 months’ imprisonment and two year’s disqualification from holding or obtaining a driver’s licence. He also granted the appellant leave to apply for home detention if that could be served at a residential treatment facility.
[2] The appellant appeals against both the length of the sentence imposed and the refusal to grant home detention on the conditions outlined in the PAC report.
Background
[3] At around 11.30 pm on 14 February 2018, the appellant was found in the driver’s seat of his vehicle. He had been revving the engine for a period of about five
SANDS v NEW ZEALAND POLICE [2018] NZHC 3048 [23 November 2018]
minutes which awoke local residents. They saw the appellant was heavily intoxicated and intervened. The appellant was required to undergo an evidential breath test. It returned a level of 1025 micrograms of alcohol per litre of breath.
[4] The appellant pleaded guilty but only on the morning of his trial. He has 12 previous convictions for drink driving between 1998 and 2012. The PAC report assesses him as being at a medium risk of reoffending and causing harm to others. The report writer recommended community detention and intensive supervision.
District Court decision
[5] Judge Garland noted that the appellant engaged well with the alcohol and drug assessment ordered. The appellant had described more than a decade of heavy and problematic drinking but with significant changes in recent years. He said that he was disappointed he had driven impaired because he thought he was under the limit to drive. The Judge noted that a driving change programme was available in early 2019 which may be of benefit to the appellant.
[6] It must be noted, as Judge Garland mentioned, that the appellant’s breath alcohol reading was over four times the legal limit. He said also, however, that there had been a gap of approximately six years between the present offending and the appellant’s most recent drink driving conviction.
[7] The Judge took a starting point of 20 months’ imprisonment and reduced it by 15 per cent, being three months for the late guilty plea. Judge Garland considered that home detention simpliciter was not appropriate here and did not satisfy the purposes and principles of sentencing. He noted that there was no proposal at the moment for the appellant to enter a residential treatment facility but gave leave for him to apply for home detention if that could be served at a residential treatment facility. The sentence he imposed of 17 months’ imprisonment included standard and special release conditions.
Principles on appeal
[8] 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 only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.2
Submissions
Appellant’s submissions
[9] The appellant contends that the Judge erred with respect to the length of the sentence imposed by failing to:
(a)Consider the mitigating factors in Clotworthy3 and the sentence starting points in Samson;4 and
(b)Adjust for there being only a single charge when relying on McQuillan5
and Stoves.6
[10] The appellant also submits that the Judge erred in refusing to allow him to serve a sentence of home detention in his own home by:
(a)Identifying an artificial distinction between home detention with a non- residential programme condition and home detention with a residential programme condition in respect of the purposes and principles of sentencing;
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Ripia v R [2011] NZCA 101 at [15].
3 Clotworthy v Police [2003] 20 CRNZ 439 at [20].
4 Samson v Police [2015] NZHC 748 at [15].
5 R v McQuillan CA129/04, 12 August 2004.
6 R v Stoves CA264/06 7 November 2006.
(b)Implicitly considering the appellant’s residence unsuitable even though the PAC report had identified it as suitable;
(c)Failing to sufficiently articulate why home detention was being refused; and
(d)Failing to consider s 8(g) of the Sentencing Act 2000.
Respondent’s submissions
[11] Ms Norman, for the respondent, argues that Judge Garland did not err in setting the starting point, which is within the appropriate range for offending of this nature. Although there has been a gap since the last offending, Ms Norman submits that the number of previous convictions may still be treated as a personal aggravating feature. This would put the offending within the category identified by Whata J as requiring a starting point of between 12 and 18 months. To this, Ms Norman suggested Judge Garland had included an appropriate two or three months uplift for aggravating factors such as the seriously excessive breath alcohol reading, previous record and other factors.
[12] Ms Norman notes that the appellant has received a number of rehabilitative and deterrent sentences in the past, which it seems have not successfully modified his behaviour in any real way.
[13] In light of the lateness of his plea, she says too that the 15 per cent discount given by the Judge was generous, and could have been as little as five per cent. Thus, even if the starting point was seen as slightly high, the overall sentence was within range, given the aggravating features of the offending and the appellant’s personal factors.
[14] Ms Norman also submits that while the appellant may be motivated to change, a sentence of home detention outside of a residential treatment facility would not appropriately meet the principles and purposes of sentencing here. She also emphasises that the appellant has a history of failing to comply with court orders.
Analysis
Sentence length
[15] In Clotworthy v Police, the following aggravating and mitigating factors were identified for the purpose of sentencing drink driving (third or subsequent) charges:7
(a)The breath or blood alcohol level.
(b)The length of time that has elapsed since the last drink driving conviction…
(c)Conviction for two or more EBA offences in close succession.
(d)The manner of driving: innocuous or dangerous; accident and injury resulting or neither?
(e)Whether the offender was disqualified or forbidden from driving at the time…
(f)The plea(s) and, if guilty, whether that plea was entered at an early stage or only belatedly.
(g)The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
(h)The offender's record, if any, of convictions for other types of offending.
(i)Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
(j)Any mitigating personal or family circumstances contributing to the offending.
[16]In Samson v Police, Whata J considered Clotworthy and noted that factors (a)-
(e) were important for the purpose of assessing the starting point.8 In that case, he reviewed a number of authorities and identified some general trends in starting points.
These were:9
(a)No serious or only moderately aggravating factors 9-12 months;
(b)One or more seriously aggravating factor 12-18 months;
7 Clotworthy v Police, above n 3 at [20].
8 Samson v Police, above n 4.
9 At [15].
(c)Multiple offences with seriously aggravating factors 18-20 months; and
(d)Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.
[17] A high level of intoxication and a prolonged and continuous history of driving related offending were both highlighted as seriously aggravating factors.10
[18] Whata J also identified the following mitigating factors which support a shorter period of imprisonment or home detention:11
(a)The absence of seriously aggravating factors;
(b)High levels of remorse;
(c)Genuine attempts to address the underlying causes of the offending;
(d)No previous sentence of imprisonment;
(e)No previous sentence with a rehabilitative focus; and/or
(f)Lengthy gaps between the current and prior offending.
[19] The appellant here has a concerning history of drink driving. The number of convictions and the length of time which they span indicates that he has serious issues with alcohol and driving. As one of the key sentencing principles for offending of this type is deterrence and protection of the public, a stern sentence is required. The appellant has previously been sentenced to numerous short sentences of imprisonment for drink driving and other offending.
[20] Nonetheless, there are a number of features which mean that this offending is not the most serious of its kind. The authorities are clear that close proximity of offending and the manner of driving are aggravating factors. Here, some credit must be given for the fact that there has been a gap in offending of this type for six years and that, perhaps fortuitously, there was no dangerous driving. Although in his car, it seems the appellant had not yet started to drive at the time. Moreover, the appellant has acknowledged his issues and is willing to engage in rehabilitative programmes.
10 At [16].
11 At [16].
[21] In Kucenko v Police, a starting point of 20 months was taken for a man with 10 drink diving convictions over 40 years.12 Mr Kucenko was observed driving dangerously so the police were called. He gave a reading of 252 milligrams of alcohol per 100 millilitres of blood. There had been a six-year gap since his last conviction. I consider the present case to be perhaps at a slightly lower level of seriousness because there was no concerning driving present. However, the appellant’s high alcohol level and history of offending here, albeit with a break in that pattern, make it analogous to a degree.
[22] I find that this case has a number of seriously aggravating factors, putting it towards the higher end of the second tier set out by Whata J in Samson. Given the various factors present, I consider that a starting point of 18 months sufficiently recognises the seriousness of the offending and aggravating features.
[23] I consider that a small discount should be given for the appellant’s rehabilitative prospects and personal circumstances. A discount of five per cent is sufficient. A discount of 15 per cent for the appellant’s guilty plea, which I agree is appropriate, then brings the final sentence down to 14 months’ imprisonment. This is some three months or about 18 per cent less than Judge Garland’s final imprisonment sentence imposed. This, in my view, represents an error requiring the reduced sentence to be imposed on this appeal.
Home detention
[24] It is an error of law for a judge, in making a determination on home detention, to give complete priority to the purpose of deterrence without regard to any of the countervailing purposes of sentencing.13
[25] Section 80I provides that, where an offender has been sentenced to a short term of imprisonment and the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available, the court must grant the
12 Kucenko v Police [2012] NZHC 3398.
13 Fairbrother v R [2013] NZCA 340 at [29]-[30]; Manikpersadh v R [2011] NZCA 452 at [17]-[19].
offender leave to apply for substitution of home detention if a suitable residence is found at a later date.
[26] By making the order under s 80I, which he did, Judge Garland was implicitly finding that the appellant’s home address was not suitable. The appellant submits that the Judge erred in making this finding and by failing to elaborate on why the address was not suitable.
[27]In relation to home detention, the Judge said:14
It is obvious that you have a long-standing problem with alcohol. You say that you are committed to change. There is no proposal at the moment for you to enter a residential treatment facility. So today, I am not minded to impose home detention because in my view that is not appropriate and does not satisfy the purposes and principles of sentencing. … However, under s 80I Sentencing Act, I grant you leave to apply for a sentence of home detention if that can be served at a residential treatment facility.
[28] It could be said that Judge Garland might have been better served here by elaborating further on why the purposes and principles did not support the appellant serving a sentence of home detention in his own home. It is a crucial part of the sentencing task to justify the reasons for the outcome.
[29] Nonetheless, I agree with the Judge that in all the circumstances here, the appellant should not serve his sentence unsupervised in his own home. It is clear that the appellant’s offending is rooted in his issues with alcohol. Dealing with that is the clear rehabilitative goal. This goal would be supported if he were to serve his sentence in a rehabilitative facility. His drinking would also be monitored in some supervised setting. However, if he were to be in his home, the appellant’s drinking would not be monitored and he would have less support.
[30] Deterrence and denunciation are important factors when sentencing offending of this type.15 While home detention does serve these elements, I consider that the level of seriousness here requires a sentence of imprisonment. The purpose of
14 At [10]-[11].
15 See, for example, Wilson v Police [2006] DCR 655 (HC) at [52].
rehabilitation can only justify home detention if it were to be served in a residential facility where the appellant would get significant support.
Conclusion
[31] This appeal is allowed in part. For all the reasons outlined above, the appellant’s sentence is reduced from 17 to 14 months’ imprisonment. However, the sentence will remain one of imprisonment, albeit with leave to apply for home detention should a properly supervised position in a residential treatment facility or an equivalent supervised arrangement become available. The two year disqualification from holding or obtaining a driver’s licence remains.
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Gendall J
Solicitors:
Natalie Wham, Michael Starling, Barrister, Christchurch Raymond Donnelly & Co, Christchurch
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