Shetty v Police
[2020] NZHC 438
•9 March 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-425-000001
[2020] NZHC 438
BETWEEN SAHIL SUDHIR SHETTY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 March 2020 Appearances:
B Shackell for Appellant
S N McKenzie for Respondent
Judgment:
9 March 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 9 March 2020 at 12.30 pm
Registrar/Deputy Registrar
Date:
SHETTY v POLICE [2020] NZHC 438 [9 March 2020]
Introduction
[1] Mr Shetty pleaded guilty to a charge of careless driving causing injury while under the influence of drink (under s 62(1) Land Transport Act 1998).1
[2] Mr Shetty was sentenced by Judge Farnan to 16 months’ imprisonment. He was disqualified from driving for four years. The Judge ordered reparation of $500 on account of the emotional harm suffered by the victim, which her Honour described as a “token amount”.
[3] Mr Shetty appeals the sentence of imprisonment on the ground that it is manifestly excessive. He submits the Judge erred in adopting a starting point that was too high and in declining to impose home detention with community work.
Facts
The crash
[4] On 12 March 2019 Mr Shetty and his partner (the victim) were visiting bars in the Queenstown CBD where Mr Shetty consumed alcohol. At about 3.43 am on 13 March Mr Shetty, the victim and one other person walked to their vehicle. The vehicle was seen being driven east along Shotover Street and then on Robins Road, heading away from town.
[5] At 10.20 am (more than eight hours later) an employee at Gorge Road Retail Centre, Queenstown found the vehicle, extensively damaged and on its side, wedged between a building and a grass bank off the road. Emergency services were called. The crash-site is approximately one kilometre from where the vehicle was last sighted.
The victim’s injuries
[6] The victim was on the ground 1.5 m from the car on the passenger side. She was moving her limbs but unable to communicate. She was taken to hospital in critical condition.
1 Police v Shetty [2019] NZDC 24997.
[7] The victim has extensive, long-lasting injuries. She sustained a left-side skull fracture, bleeding beneath the skull, damage to her right side of the brain, brain swelling and damage to the left lung. The victim was placed in an induced coma. She underwent emergency surgery. She spent 26 days in the Intensive Care Unit until she regained respiratory functions. The victim did not regain meaningful speech for over one month. She requires extensive neurorehabilitation. The victim subsequently returned to Germany, her home country, where she remained hospitalised for a period.
[8] I note from the victim impact statement of the victim’s mother that in August 2019 (five months after the crash) the victim was still suffering short-term memory issues, had no feeling in two fingers in one hand, and still had a broken collar bone and torn ligaments which were deemed inoperable.
The crash investigation
[9] The crashed vehicle was inspected. The front passenger seat belt had been cut with a sharp object. There was blood staining inside the drivers’ window and also on the door, ignition, steering and foot-well area. Through DNA testing this blood was confirmed to be Mr Shetty’s. Police located in the car three cell phones, and Mr Shetty’s and the victim’s wallets.
[10] At 6 pm (still on 13 March) Mr Shetty rang one of the cell phones found in the vehicle, which was answered by police. Mr Shetty inquired about the victim. Mr Shetty told police he did not recall the previous night and had just woken up. Police found later that Mr Shetty had lacerations to his face.
[11] On 26 March 2019 Mr Shetty gave a DVD interview. In the interview he said he recalled events leading up to the crash, but not the driving or the crash itself. He stated he woke up on the side of the road on muddy gravel with glass in his hair. He could not see the car. He walked towards the township and caught a ride home to Arrowtown with a member of the public. Mr Shetty then went to sleep. When he woke he wondered where the victim was. In an affidavit later produced to the Court, Mr Shetty said that, on waking up on the side of the road, he wondered if someone had beaten him up. He looked for the victim but could not see her “so assumed she must have gone home without him”.
[12] Examination of the crash scene concluded the vehicle had been travelling north on Gorge Road, towards Arthurs Point. The area of the crash has a 50 km/h speed restriction. It was estimated the vehicle was travelling between 65 to 72 km/h when the crash occurred (a traffic crash report completed on the day of the crash recorded: “Suspected speed before crash – 60 km/h”). Tyre marks indicated that the vehicle crossed the centre line, left the road and drove over the bank, crashing into the side of the building.
[13] Mr Shetty is from India. At the time of the crash he was 26 years of age, and living in New Zealand having completed some studies here. Ms Shackell informed me at the appeal hearing that Mr Shetty has since been issued with a notice of deportation liability, as a result of which he will be leaving New Zealand at the end of his sentence.
District Court decision
[14] Judge Farnan noted the maximum penalty of three years’ imprisonment. Judge Farnan adopted a starting point of 30 months’ imprisonment. She then allowed a 10 per cent credit for good character and 10 per cent for personal matters as set out in the affidavit provided by Mr Shetty. This brought the starting point down to 24 months. A full credit (25 per cent) for Mr Shetty’s guilty plea brought the calculation to 18 months’ imprisonment. The Judge finally reduced the sentence by a further two months to take into consideration Mr Shetty’s having been on restricted bail for five months. The end sentence was 16 months’ imprisonment, together with a four-year disqualification from driving and an order of $500 reparation.
[15] Towards the end of her Honour’s judgment, Judge Farnan stated that she had reached her overall decision taking into account a similar case of hers in Police v Catlin, which had been upheld on appeal.2 In that appeal (involving as it did a more serious charge and a defendant with prior relevant convictions) the end sentence of two years and four months’ imprisonment had been upheld. Ms Shackell noted that the two charges on which Mr Catlin was sentenced had had a cumulative maximum
2 Police v Catlin [2017] NZDC 12468; Catlin v Police [2017] NZHC 2485.
(if cumulative sentences were imposed) of 10 years’ imprisonment (as opposed to three years in Mr Shetty’s case).
Principles on appeal
[16] 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 when a different sentence should be imposed.3 As the Court of Appeal identified 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”.4 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.5
Submissions
Appellant’s submissions
[17] Ms Shackell, for Mr Shetty, submitted the starting point of two years and six months was too high in the circumstances. She submitted that the Judge placed undue weight on the aggravating factors and insufficient weight on the mitigating factors. She further submitted that the Judge erred by not commuting the end sentence to one of home detention and community work, and by applying the principles of deterrence and denunciation to the exclusion of all other principles.
[18] Ms Shackell emphasised that the maximum penalty of three years’ imprisonment for the charge in this case has to accommodate cases involving significantly aggravating factors such as where multiple vehicles are involved and/or fatalities result. By reference to the decision of the Court of Appeal in Gacitua v R
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
(concerning the assessment of culpability for reckless driving causing death), Ms Shackell noted the lengthy list of possible aggravating factors (listed as “a” to “p”).6
[19] Ms Shackell recognised that the seriousness of injuries to the victim in this case had to be taken into account. She acknowledged also Mr Shetty’s failure to remain at the scene or to raise the alarm but noted Mr Shetty’s explanation (including in his affidavit) that he had no recollection of the accident.
[20] Ms Shackell then turned to matters which in her submission the Judge treated incorrectly as aggravating and justifying the start sentence.
[21] The Judge, in sentencing Mr Shetty, observed that “[t]he fact that you had been drinking makes your offending serious”.7 Ms Shackell submitted that, because the influence of alcohol is an element of the offence, it was incorrect to count it as an aggravating feature.
[22] In relation to speed, the Judge observed that where the vehicle ended up, in its position, would suggest that a higher speed was involved than Mr Shetty would want the Court to conclude.8 Ms Shackell noted that the Judge appeared to be taking the view that Mr Shetty was minimising his culpability (counsel having identified that the crash report referred to a “suspected speed” of 60 km/h). Ms Shackell submitted that any view that Mr Shetty was minimising his culpability was mistaken, as the figure in question came from the records of the police themselves. The Judge referred also to the fact that Mr Shetty had, in the period after the accident, not made enquiries to ascertain whether the victim had gone home without him and had not reported the incident to the police (having regard to his reported suspicion that he may have been assaulted).9 Ms Shackell noted that Mr Shetty had provided evidence that he was not in possession of a telephone when he came to at the side of the road with the consequence that the level of culpability for failure to report the incident should be limited.
6 Gacitua v R [2013] NZCA 234, at [25].
7 Police v Shetty, above n 1, at [47].
8 At [47].
9 At [5] and [48].
[23] Ms Shackell submitted that there were therefore a limited number of matters which ought to have been treated as aggravating features and that they fell appreciably short of justifying a start sentence of two years six months’ imprisonment.
[24] Ms Shackell then addressed matters of mitigation. She submitted that the Judge had incorrectly given no credit for Mr Shetty’s offer to engage in restorative justice. Ms Shackell stated that Mr Shetty had been led to believe that a restorative justice conference could occur through AVL. Ms Shackell noted the Judge’s assumption that Mr Shetty would always have known that restorative justice could not occur.
[25] Ms Shackell submitted further that the Judge had erred in failing to provide a discrete credit for remorse, after recognising that Mr Shetty did have “a level of remorse”.10
[26] Finally, Ms Shackell submitted that the Judge had erred in stating the factual position as to Mr Shetty’s preparedness to make reparation. The Judge stated: “There is no emotional harm payment offered, despite the fact that you have been before the Court for this incident since 24 June 2019”.11 Ms Shackell noted that by his affidavit, Mr Shetty had in fact stated that, while he had a small amount of savings (around
$1,000), he could afford up to $700 per month towards the final reparation figure, which would be funded by his family in India.
Home detention
[27] Ms Shackell submitted that, when the Judge came to consider whether she should convert a sentence of imprisonment to home detention, the Judge placed undue weight on the principles of deterrence and denunciation.
[28] The appeal had been filed at a time when Ms Shackell understood that a suitable address remained available for the purposes of home detention. At the beginning of the appeal hearing, Ms Shackell informed me that the proposed address
10 At [54].
11 At [55].
for home detention was no longer available. She therefore put this aspect of the appeal on the basis that leave should be granted to make an application for home detention.
[29] Ms Shackell submitted that two particular matters were reflected in the Judge’s consideration of home detention:
(a)this was Mr Shetty’s first criminal offence; and
(b)Mr Shetty had stated in his affidavit that he had stopped drinking alcohol, being “absolutely committed to ensuring that I will never repeat my actions of that night”.
[30] Ms Shackell noted the recognition by the Court of Appeal in Mitchell v R that drink driving or drink driving causing death are not offences of a special class where deterrence must necessarily prevail.12
[31] Although the Judge in her sentencing remarks acknowledged the need to consider imposing the least restrictive outcome on Mr Shetty, Ms Shackell submitted that the refusal to impose a community-based sentence failed to meet the requirements of s 16(1) Sentencing Act 2002 and, in particular, the need to have regard to the desirability of keeping an offender in the community so far as practicable and consonant to the safety of the community.
Submissions for the Police
[32] Ms McKenzie, for the Police, submitted that the end sentence of 16 months’ imprisonment had been appropriate to reflect the overall gravity of Mr Shetty’s offending.
[33] Ms McKenzie submitted that the level of sentence was supported by two previous decisions on appeals to this Court:
12 Mitchell v R [2017] NZCA 233 at [23].
(a)In Kapa v Police, this Court upheld a District Court sentence in which a starting point of two years and four months’ imprisonment had been adopted.13 Ms McKenzie recognised that in Kapa the defendant was facing a more serious charge, offended while on bail and the incident involved speed. She submitted, however, that while those elements are distinguishable, the extent of injuries in this case combined with the appellant’s failure to make proper enquires after he became aware that there had been an incident called for a starting point towards the top end.
(b)Ms McKenzie referred also to Pho Fu v Police.14 That was another case involving the more serious charge under s 61 Land Transport Act. By extrapolation, the High Court took it that the District Court had adopted a starting point of 20 months’ imprisonment and upheld the end sentence. That starting point was arrived at by reference to the breath alcohol level (963 mcg/L), the fact the defendant was on a limited licence at the time of the offending, and that the defendant’s fast and erratic driving had resulted in a collision with another vehicle causing extensive damage to both vehicles and injuring three people.
[34] Ms McKenzie submitted that the circumstances of the present case justified the high starting point.
[35] Turning to the Judge’s refusal to impose home detention, Ms McKenzie submitted that the Judge had not erred in her approach to the discretion relating to home detention. In particular, the Judge was entitled to view the requirements of denunciation and deterrence in relation to this particular offending as centrally important. The Judge recognised that she had a discretion and exercised it.
13 Kapa v Police [2017] NZHC 1748.
14 Pho Fu v Police [2015] NZHC 3260.
Analysis
[36] The seriousness of the injuries suffered by the victim of Mr Shetty’s crash were plainly the most aggravating feature of the offending, as acknowledged by Ms Shackell. Alone that feature would not have justified the starting point of two years six months’ imprisonment but I am satisfied that the other features which were present did so. That conclusion has regard to the following matters in particular:
(a)The victim was left unattended at the scene of the crash, severely injured, for a lengthy period while Mr Shetty made his way back to Arrowtown and had some form of rest. The circumstances in which Mr Shetty found himself on the roadside with glass in his hair and unable to see either his car or his friend called for immediate enquiries and/or reporting. That he failed to do either is a significantly aggravating feature. There may be some uncertainty, as Ms Shackell raised, as to the exact timing of the crash, and therefore the period in which the victim was left unattended, but whatever that timing it is clear that the victim was left unattended and severely injured for some hours at the crash site.
(b)I accept Ms Shackell’s submission that, in relation to the offence with which Mr Shetty was charged, it was not appropriate to treat the fact that he was under the influence of alcohol as an aggravating feature in itself. The sole relevant evidence appears to be that he may have consumed around five (mixed) drinks. But the combination of the drinking and the time of night at which Mr Shetty chose to drive was an aggravating feature. This was after having spent the previous day working. Mr Shetty indicated to police that he had a recollection (apparently at some point) of being parked up in Gorge Road “resting with the victim in the back of our parked van”. The decision to drive in that combination of circumstances was a further, significantly aggravating feature.
[37] In these circumstances, the starting point of two years six months’ imprisonment was within an available range.
Mitigation
[38] It is also common ground that Mr Shetty’s good record was a personal mitigating factor. The Judge’s assessment of 10 per cent for his good character is not challenged.
[39] There were then a number of personal factors which Mr Shetty described in the affidavit which Ms Shackell provided to the Court. Those extended to personal injuries, loss of the co-owned vehicle, the end of his relationship, numerous difficulties of accommodation and employment and the risk (which has subsequently come to fruition) that he would lose his right to stay in New Zealand. The Judge allowed a 10 per cent discount for that factor which is not challenged.
[40] It was and remains common ground that Mr Shetty was entitled to a full credit (a 25 per cent discount) for his guilty plea.
[41] Accordingly, to that point, and leaving aside the starting point, the 20 per cent discount for good character and personal matters followed by 25 per cent discount for guilty plea were appropriate.
[42] Ms Shackell submitted that the Judge nevertheless failed to recognise two further mitigating factors.
[43] First, Ms Shackell submitted that Mr Shetty ought to have received a credit for his remorse. The Judge expressly recognised that Mr Shetty had “a level of remorse”.15 There had, for instance, been attempts by Mr Shetty to visit the victim in hospital. But against that, the Judge noted the absence of steps by Mr Shetty up to the sentencing date to either “make amends” or to offer a written apology.16 The Judge clearly turned her mind to Mr Shetty’s degree of remorse but was not satisfied that the expression of remorse was backed up by his actions. In these circumstances, her
15 Police v Shetty, above n 1, at [54].
16 At [55].
Honour was entitled as to treat the full discount for Mr Shetty’s guilty plea as sufficient to recognise an accepted degree of remorse.
[44] Ms Shackell also submitted that the Judge ought to have given Mr Shetty some recognition for his offer to engage in restorative justice (if necessary, by an AVL connection to Germany). The Judge in fact dealt with that offer in the sentencing judgment.17 Her Honour referred to the fact that Mr Shetty must always have known that restorative justice would not occur with his former partner living in Germany and still impacted by her injuries. The Judge was entitled to take the view that a restorative justice conference was in the circumstances unlikely to be effective. The Judge did not err in providing no separate credit for the offer to participate.
[45] Finally, Ms Shackell submitted that the Judge erred in her approach to Mr Shetty’s offer of an emotional harm payment. In particular, the Judge stated (when discussing the issue of remorse) that “[t]here is no emotional harm payment offered, despite the fact that you have been before the Court for this incident since 24 June 2019”, before going on to impose an emotional harm reparation of “a token amount of
$500”.18 The Judge’s reference to the lack of an offer of an emotional harm payment
was incorrect but the significant discussion of reparation came later in her Honour’s judgment.19 There, her Honour observed that Mr Shetty himself had limited funds (apparently a reference to the $1,000 in his bank account) which were already otherwise committed and the fact that Mr Shetty had taken no steps to obtain any funds. By that, the Judge was clearly referring to funds that would be available by the date of sentencing. The Judge was entitled to treat as inherently uncertain the prospect that Mr Shetty (with a right of only temporary residence on New Zealand) would be able to honour into the future a programme of monthly payments sourced from relatives in India.
[46] In the circumstances, the Judge was entitled to reach the view that additional discounts beyond those she had already assessed were not required.
17 At [53].
18 At [55] and [67].
19 At [67].
End sentence
Conclusion on end sentence
[47] I find the end sentence of 16 months within an acceptable range. It cannot be described as manifestly excessive. The combination of factors present in this case, including the gravity of injuries suffered by the victim, the failure of Mr Shetty to make enquiries or a report, and the initial decision of Mr Shetty to drive when he did, at the time he did, aware that he had been drinking, justified the period of imprisonment arrived at as an end sentence.
Refusal of home detention
[48] The Judge expressly acknowledged the need to consider the least restrictive outcome on Mr Shetty.20
[49] However, her Honour found that the sentencing principles of deterrence and denunciation, together with the need to protect the community, appropriately led to a refusal of home detention. In that she was guided by her assessment that Mr Shetty had not appeared to understand the seriousness of his offending. This was an assessment arrived at by the Judge after a full sentencing hearing. There was a history of Mr Shetty’s approach and conduct after the offending which her Honour was entitled to take into account. That included the fact that no emotional harm payment had been made by the time of sentencing (December 2019) despite Mr Shetty having been before the Court since June 2019. It was at this point of her Honour’s sentencing remarks that her Honour observed that Mr Shetty did not appear to understand the seriousness of his offending or have a high level of understanding of the serious consequences for himself.21 Her Honour continued by noting that Mr Shetty had not permitted Community Probation to contact those who Mr Shetty said currently employed him.22
20 At [64].
21 At [55].
22 At [57].
[50] In short, the Judge assessed that Mr Shetty had not fully comprehended the gravity of either what he had done to the victim or the situation in which he had placed himself. That conclusion was open to her Honour.
[51] In deciding whether to impose home detention, the Judge was clearly alert to the discretion involved. There is no basis to conclude that her Honour exercised that discretion on incorrect principles or an incorrect factual basis.
Outcome
[52]I dismiss the appeal.
Osborne J
Solicitors:
Macalister Todd Phillips, Queenstown for Appellant Preston Russell Law, Invercargill for Respondent
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