Sergeant v Police
[2025] NZHC 360
•28 February 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2024-483-17
[2025] NZHC 360
BETWEEN SHAYNE SERGEANT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 February 2025 Counsel:
S J Burlace for Appellant I Barfucci for Respondent
Judgment:
28 February 2025
JUDGMENT OF RADICH J
[Appeal against sentence]
[1] In a decision on 17 October 2024,1 Judge Marinovich imposed a sentence of 16 months’ imprisonment on Shayne Sergeant for three charges of driving while disqualified (third or subsequent),2 two charges of careless driving3 and one charge of failing to stop and ascertain injury.4 Mr Sergeant brings this appeal from that decision.
[2] The issue on appeal is whether the sentence should have been commuted to home detention. Ms Burlace submits that the Judge erred by not imposing the least restrictive outcome that is appropriate in the circumstances. She submits that the sentence reflects inadequate engagement with Mr Sergeant’s personal circumstances and undue weight being placed on his previous offending. In pursuing that
1 Police v Sergeant [2024] NZDC 25491 [Decision under appeal].
2 Land Transport Act 1998, s 32(4); maximum penalty of two years’ imprisonment or a fine not exceeding $6,000.
3 Section 37; maximum penalty of a fine not exceeding $3,000.
4 Section 35(1)(c); maximum penalty of three months’ imprisonment.
SERGEANT v NZ POLICE [2025] NZHC 360 [28 February 2025]
submission, leave to adduce further evidence of Mr Sergeant’s medical condition is sought.
[3] The Crown opposes the appeal on the basis there was no error by the Judge in the exercise of his discretion.
Leave to appeal out of time
[4] The appeal is out of time.5 I am satisfied that the circumstances which led to a delay of 16 working days in filing the notice of appeal are such that it is in the interests of justice for leave to appeal out of time to be granted. Mr Sergeant was proactive in his attempts to appeal his sentence but had difficulties in engaging with to counsel who were able to conduct the appeal. It was these problems that caused the delay.
Home detention
[5] A sentence of two years’ imprisonment or less may be commuted to home detention.6 Whether home detention is the appropriate sentence is a discretionary matter that is to be determined having regard to the purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act 2002. Under s 16(2) of the Act, the court must not impose a sentence of imprisonment unless it is satisfied that:
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
[6] The court must have regard also to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.7
5 Under the Criminal Procedure Act 2011, s 248(2), a notice of appeal must be filed within 20 working days after the sentencing date.
6 Sentencing Act 2002, s 15A.
7 Sentencing Act, s 16(1).
Approach on appeal
[7] In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.8 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.9 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.10 The court will not generally intervene unless a sentence is manifestly excessive11 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.12
[8] In R v Palmer, the Court of Appeal confirmed that the same approach will apply to an appeal against a decision not to commute a sentence of imprisonment to home detention.13 The appellant must identify a material error in the exercise of discretion by the sentencing Judge. The Court said that decisions on whether to commute a sentence of imprisonment to home detention calls for a case-by-case exercise of judgement against the principles and purposes of sentencing, and that the principles and purposes can sometimes point in opposing directions. Absent an error of principle, an appeal will come down to whether a sentence of imprisonment was clearly excessive.14 The Court said:15
As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
[9] In R v D (CA253/2008), endorsed in Palmer v R, the Court of Appeal said that in borderline cases “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight”.16
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
9 At [30].
10 At [30].
11 At [35].
12 At [30]–[36].
13 Palmer v R [2016] NZCA 541.
14 At [24].
15 At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].
16 R v D, above n 15, at [66].
Mr Sergeant’s offending and other relevant background
[10] Mr Sergeant was disqualified indefinitely from driving a motor vehicle on 22 February 2022. Yet, on 3 March 2022, he drove a car. He crashed into a parked vehicle on the right hand side of the road and then left the scene without stopping to see if the two people in the parked car were injured. Luckily, they were not, but the vehicles were damaged.
[11] On 3 August 2022, Mr Sergeant was found driving again. And then in the very early hours of the next day, 4 August 2022, he drove again. He crossed the centre line into the opposing lane and then rolled his car, which came to a stop the right way up on the grass shoulder of the opposing lane. No other vehicles or people were harmed, but Mr Sergeant himself had to be transported to the hospital for medical treatment after ending up upside down in the front passenger seat’s footwell. A bag containing
0.13 grams of methamphetamine was found inside the car.
[12] Prior to the offending I have described, Mr Sergeant had eight convictions for driving while disqualified and 17 other convictions for driving offending, including dangerous and reckless driving and driving offences involving alcohol.
District Court’s sentencing decision
[13] The sentencing Judge reached a global starting point of 20 months’ imprisonment by taking a start point of six months’ imprisonment for the March 2022 offending, uplifting it by six months for the 3 August offending and by a further eight months for the 4 August offending.
[14] The Judge uplifted the global starting point by a further two months to reflect the fact that Mr Sergeant was on bail when he offended on 3 and 4 August and his history of dangerous and reckless driving.17 The Judge did not take into account Mr Sergeant’s previous driving while disqualified convictions in making this uplift.
17 Which involved a conviction for reckless driving in 2017 and convictions for dangerous driving in 2014, 2012, 2003 and 1994.
As he said, he had taken it into account in setting the starting point. He then applied credits amounting to six months’ imprisonment.18
[15] This all resulted in a sentence of 16 months’ imprisonment. The Judge declined to convert the sentence to home detention. He considered and applied the relevant principles set out in ss 7, 8 and 16 of the Sentencing Act19 and concluded that imprisonment was appropriate because of the principles of deterrence, denunciation, and protection of the community:
[26] Here in relation to your offending, it is serious. As I said, two of your charges of driving whilst disqualified have resulted in crashes, one where it was you on your own and another that involved members of the public. I am aware that your last conviction in 2021 together with other charges resulted in a term of imprisonment of 10 months.
[27] Home detention previously for driving related matters including driving whilst disqualified, excess breath alcohol and reckless driving have not deterred you. It needs to be sheeted home to you that you cannot drive, that when you do drive, you drive in a manner that places the public and the community in danger. The protection of the community in this regard is a paramount consideration. So is deterrence and denunciation. Ultimately in exercising my discretion I determine that a term of imprisonment is appropriate and is the only sentence that meets the purposes and principles.
Positions of the parties
[16] Mr Sergeant’s position is that the Judge made an error in refusing to commute his sentence to home detention because too much weight was placed on his recidivist offending and insufficient weight was given to his ongoing chronic health issues and his ability to rehabilitate while serving a sentence of home detention. Ms Burlace says the Judge did not acknowledge—or understand that—Mr Sergeant’s health complications were ongoing and, as a result did not give them due weight when making the decision on commutation. She submits that Mr Sergeant’s health issues and ongoing need for surgery makes a sentence of imprisonment disproportionately severe in terms of s 8(h) of the Sentencing Act.
18 Made up of four months for Mr Sergeant’s guilty plea, one month for Mr Sergeant’s health issues, and one month for Mr Sergeant’s prospects of rehabilitation in relation to the issues other than his driving, such as substance abuse.
19 Decision under appeal, above n 1, at [23]–[25].
[17] Emphasis is placed on the monitoring and control conditions that can be imposed for a sentence of home detention and on the way in which any risks to the public can be addressed accordingly.
[18] The Crown says the Judge made no error in the exercise of his discretion and that a sentence of imprisonment was not manifestly excessive. It submits that Mr Sergeant is a recidivist offender who has failed to rehabilitate despite the imposition of rehabilitative sentences for previous offending. It submits that Mr Sergeant continues to fail to appreciate the gravity of his actions, increasing the risk of similar conduct in future and underscoring the importance of the principles of deterrence and community protection.
Further evidence
[19] Mr Sergeant has sought leave to adduce further evidence in this appeal. It comprises:
(a)a letter from his doctor dated 12 December 2024 in which his health problems are explained;
(b)a letter from a surgical registrar dated 31 October 2024 in which it is said that he has been offered major surgery but, because the surgery would require a long recovery period, it was seen as the best option to defer the surgery until after his release from prison;
(c)various medical records, including his prison medical history notes and records of several overnight stays at Wellington hospital, dating from 17 October 2024 to 31 January 2025 — while Mr Sergeant has been serving his sentence of imprisonment.
[20] The Court may receive evidence that was not before the sentencing Judge if it considers it to be necessary or expedient in the interests of justice.20 An appellant wishing the Court to consider further evidence should demonstrate that the evidence
20 Criminal Procedure Act, s 335.
is fresh and credible.21 If it is both fresh and credible, it should be admitted unless the Court is satisfied the evidence would have had no effect on the sentence.22 If it is credible but not fresh, the Court should assess its strength and potential impact on the sentence: if the appeal court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.23
[21] The evidence Mr Sergeant seeks to adduce postdates his sentencing, so it is fresh.24 It is credible and it is relevant to the appeal. I grant leave to adduce it accordingly.
Discussion
[22] I begin by addressing the submission for Mr Sergeant that the Judge placed undue emphasis on Mr Sergeant’s past offending. The difficulty with this submission is that it is framed on the basis that the Judge “placed too much emphasis on these previous breaches so as not to consider Home Detention appropriate in these circumstances.” That is not the way in which Mr Sergeant’s past offending was assessed by the Judge. Rather, the Judge saw that Mr Sergeant’s past offending was such as to require a more severe response than home detention given, in particular, that previous sentences of home detention for Mr Sergeant for similar offending had not deterred him. In addition, the Judge saw that Mr Sergeant’s history of driving offending meant that, when he does drive (and that occurs regularly despite his disqualification) he places the public in danger.
[23] Moreover, Mr Sergeant’s past offending underlines the importance of protecting the community when sentencing him and the importance of deterrence to achieve that. That is the approach the Judge took.
21 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22]; and Lundy v R [2013] UKPC
28, [2014] 2 NZLR 273 at [120].
22 Mark v R [2019] NZCA 121 at [16].
23 Mark v R, above n 22, at [16].
24 One letter is not in this category—a letter from a surgical registrar of 7 March 2024. I am content to admit it as part of the package of information that otherwise satisfies the relevant tests.
[24] I do not see that the Judge could reasonably be criticised for the conclusions he reached on these points. Mr Sergeant’s criminal and traffic conviction history dates back to 1987. The offending on which he was sentenced are his 26th to 31st driving offences. A PAC report on 15 November 2023 emphasised that Mr Sergeant’s claims of remorse are undermined by blame he attributes to victims for “improper parking” and for “verbally attacking” him. The report writer concluded that Mr Sergeant lacks insight into the risks that is repeated bad driving poses to the general public.
[25] I accept that Mr Sergeant has worked on his substance addiction during 2024 and I commend him for that. However, I do not see that that, alone, will change sufficiently his irresponsible attitude to driving where many of his previous driving convictions do not appear to be the product of, or related to, substance abuse. And, as the Judge observed, previous sentences of home detention for driving offences have not rehabilitated Mr Sergeant in any way. Accordingly, I cannot find any traction, either, in the submission for Mr Sergeant that the Judge gave insufficient weight to his ability to rehabilitate of serving a sentence of home detention. He was entitled to give considerable weight to the sentencing principles of deterrence and community protection.
[26] Ms Burlace emphasised her submission that the prominence given by the Judge to the community protection principle was undue. She made the fair point that monitoring and control restrictions that can be put in place for a home detention sentence can be such that risks to—and protection of—the public can be addressed adequately. However, the reality here is that none of the restrictions placed on Mr Sergeant over many years have curbed his ongoing driving offending. In any event, while conditions could well reduce the risk to the public in the short term (if he was to serve the balance of his term through home detention) the sheer extent of Mr Sergeant’s offending, and of his disregard for his disqualification, is such that a punitive sentence is needed to denounce the conduct and to deter Mr Sergeant or other people from committing the same or a similar offence.
[27] Ms Burlace has referred to R v Nagel25 and Simpson v R.26 In R v Nagel, the defendant received a sentence of home detention in relation to a conviction of manslaughter. While I accept the point made by Ms Burlace that the case demonstrates that home detention can be imposed in certain circumstances even on serious charges, that is not the issue here. The focus here is on a sentencing response in the light of Mr Sergeant’s offending history. Moreover, Nagel is distinguishable on the basis of the defendant’s youth in that case (he was 19) and his rehabilitative potential (not present here).
[28] In Simpson v R, the defendant was sentenced to home detention in relation to assault and driving convictions on appeal. The circumstances in that case differ from those that are relevant for Mr Sergeant because, again, the defendant was young (he was 25) and was seen as having the potential to rehabilitate while serving a sentence of home detention. The gravity of his offending was lower (as seen through the lower global starting point imposed by the sentencing Judge) and the history of his driving offending was considerably less than that of Mr Sergeant. Accordingly, the denouncement and deterrence objections remain front and centre in Mr Sergeant’s case.
[29] I turn now to address the issue of whether the fresh medical evidence is such that it could now be said that a sentence of imprisonment would be disproportionately severe for Mr Sergeant and, if so, whether that disproportionate severity should outweigh the other sentencing principles I have discussed. The medical records are of assistance. The Judge did not have the benefit of them, although he did account for Mr Simpson’s health issues by giving a credit of five per cent to his term of imprisonment.
[30] The records show clearly that Mr Sergeant has ongoing health issues that are often acute. They record him, soon after his term of imprisonment began, reporting having had a medical condition, for which he had four operations at earlier points and time.27 Mr Sergeant’s patient medical history notes record him having had three
25 R v Nagel [2023] NZHC 3677.
26 Simpson v R [2019] NZHC 3139.
27 I will not describe Mr Sergeant’s medical conditions in any detail in this decision in order to protect Mr Sergeant’s privacy but I have read and considered the medical evidence carefully.
separate medical procedures in January 2025. The third procedure produced a successful outcome.
[31] Accordingly, there has been at least temporary relief from some of the pain endured by Mr Sergeant. However, as a letter from a surgical registrar of 31 October 2024 records, a further, more complex, procedure is still needed which will involve a long recovery period. The registrar said in the letter “we feel it would be best to defer this until he is residing in the Community again and as such have arranged a follow up appointment in nine months’ time”. Accordingly, not to take anything away from the ongoing discomfort Mr Sergeant experiences, the surgical registrar has indicated that it is in order for the procedure to be undertaken later in the year.
[32] I do accept that imprisonment is disproportionately severe for Mr Sergeant when compared with other inmates. But he has had good access to comprehensive medical support while in prison, including hospital visits and procedures and appropriate pain relief. There is no evidence of delays in access. Accordingly, on balance, Mr Sergeant’s medical condition is not something which, as I see it, can override the need for a sentence that denounces the conduct and deters Mr Sergeant or others from committing the same or similar offences. The sheer number of occasions on which Mr Sergeant has completely ignored the fact of his disqualification, and on which he has ignored any previous rehabilitative measures, are such that, in my view, the time has passed at which a sentence of home detention could properly be considered.
[33] I do not see any basis upon which it could be said that the Judge’s approach was wrong, either as a matter of principle or in light of the fresh medical evidence. It was open to him to conclude that imprisonment was the least restrictive outcome that is appropriate in the circumstances.
Conclusion
[34]The appeal is dismissed.
Radich J
Solicitors:
C&M Legal, Whanganui for Respondent
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