Smith v Police

[2017] NZHC 1616

IN THE HIGH COURT OF NEW ZEALAND

WHĀNGANUI REGISTRY

CRI-2017-483-000005 [2017] NZHC 1616

BETWEEN

JANINE MAREE SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 July 2017 (via AVL at Wellington)
Counsel:	R J Leith for Appellant C B Wilkinson-Smith and N A Refoy-Butler for Respondent
Judgment:	13 July 2017

JUDGMENT OF COLLINS J

Introduction

[1]      At 9.14 am on Sunday 8 January 2017, Ms Smith was stopped at a breath testing checkpoint in Foxton.   She failed a breath screening test and elected to provide a sample of blood that produced a reading of 191 milligrams of alcohol per

100 millilitres of blood.

[2]      Unfortunately, Ms Smith has had four previous convictions, between 2007 and 2014 for driving with excess breath/blood alcohol or refusing to provide a blood specimen.  She also has two previous convictions for breaching home detention and community work conditions.

[3]      On 14 June 2017, Ms Smith was sentenced to seven months’ imprisonment

by Judge Crayton in the Whānganui District Court and disqualified indefinitely from holding or obtaining a driver’s licence.1    She now appeals the decision to sentence

1      Police v Smith [2017] NZDC 12773.

SMITH v NEW ZEALAND POLICE [2017] NZHC 1616 [13 July 2017]

her to a term of imprisonment, arguing that she should have been sentenced to a period of home detention.

[4]      This judgment explains why I am dismissing Ms Smith’s appeal.  I am doing so on the basis that Judge Crayton made no appealable error in the approach he took or the sentence he imposed.

Background

[5]      Ms Smith is 41 years old.  She has two children aged 14 and 15, neither of whom  live  with  her.    She  does  provide  financial  assistance  for  her  children. Ms Smith has worked in the hospitality industry for a number of years.  She has a total of nine previous convictions.

[6]      Ms Smith clearly has a significant issue with alcohol.  She completed alcohol counselling  in  2014  and  in  May  2017  referred  herself  for  further  alcohol rehabilitation assistance.   Mr Thomson, a social worker at the Whānganui District Health Board has provided information about Ms Smith’s present circumstances and her efforts at rehabilitation.

[7]     In the pre-sentence report, Ms Smith states that she believed she acted appropriately by not driving the night before she was apprehended and by leaving her car where she had been drinking until the following morning.  The pre-sentence report records Ms Smith’s remorse was genuine but she was also assessed as being at a high risk of reoffending in a like manner and a high risk of harm to the community. Her ability to  comply with  a community-based  sentence was  assessed  as  being moderately low.   The pre-sentence report writer recommended a sentence of imprisonment and this recommendation was not altered when a suitable address became available for home detention.   That address is occupied by a friend of Ms Smith, who fully supports her serving a sentence of home detention instead of a sentence of imprisonment.

District Court decision

[8]      Judge Crayton adopted a starting point of 11 months’ imprisonment.   He provided Ms Smith with a total discount of 30 per cent to reflect her efforts at rehabilitation, remorse and guilty plea.

[9]      The Judge considered imposing a sentence of home detention.   He noted, however, Ms Smith had been sentenced to home detention in 2014 for nine months and had previously been sentenced to imprisonment for drink driving offending.2   He said Ms Smith was aware that getting behind the wheel of a vehicle when drinking was a danger to the public.

[10]     He noted:3

For reasons of deterrence and denunciation.  Of holding you responsible and for the protection of the public, in this case I do not find that the sentence can be commuted to home detention.

You will receive assistance when you are in custody and you will receive post-release conditions.  Those conditions will be to allow you, as has been identified in the pre-sentence report, to receive alcohol treatment and assessment and any other maintenance programme.

You have to now realise that the decision to drink is yours.  The decision to get behind the wheel though, when in drink, has consequences which, if you do not kill someone, will lead you to prison repeatedly …

[11]     The Judge ultimately concluded that the appropriate sentence was one of

seven months’ imprisonment.

Approach on appeal

[12]     The appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011 (the Act) and is to be determined in accordance with s 250 of the Act.  The Court of Appeal in Tutakangahau v R,4  explained that appellants in Ms Smith’s position must show an error in the sentence imposed and that a different sentence

should have been imposed.

2      Six months’ imprisonment for her drink driving offence in 2008.

3      Police v Smith, above n 1, at [16]-[18].

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[13]     The proper approach in cases relating to the imposition of imprisonment where the length of sentence means home detention is technically available was explained by the Court of Appeal in Manikpersadh v R.5   The choice between home detention  and  a  short  sentence  of  imprisonment  is  the  exercise  of  a  fettered discretion, with appellate review focusing on the identification of an error, if any, in the court below.6     In exercising the discretion whether to commute a sentence of imprisonment to home detention, the sentencing judge must consider the relevant purposes and principles of sentencing set out in the Sentencing Act 2002.7

Grounds of appeal

[14]     Mr Leith, counsel for Ms Smith submits Judge Crayton should have imposed home detention in circumstances where a suitable address was available, and where Ms Smith was highly motivated towards rehabilitation.  He submits the Judge erred in his approach by failing to address various purposes and principles under the Sentencing Act,8  such as imposing the least restrictive outcome appropriate in the

circumstances.9      He  submits  the  Judge  gave  insufficient  weight  to  Ms  Smith’s

rehabilitative efforts10 and relies on Carran v Police11 and Police v Hopkins12 where home detention was imposed for repeat drink driving offences.

Analysis

[15]     The Judge considered  the  relevant  purposes  and  principles  of sentencing when he elected to sentence Ms Smith to a sentence of imprisonment rather than home detention.

[16]     Ms  Smith  has  previously  been  sentenced  to  imprisonment  for  similar offending.    A sentence  of  imprisonment  on  this  occasion  cannot  be  accurately

described as being disproportionate.

5      Manikpersadh v R [2011] NZCA 452.

6 At [12].

7      At [14] citing R v Vhavha [2009] NZCA 588.

8      Sentencing Act 2002, ss 7(1)(h), 8(i) and 8(h).   Reference is also made to s 16(1) and the desirability of keeping offenders in the community as far as that is practicable and consonant

with the safety of the community.

9      Section 8(g).

10     Referring to Osman v R [2010] NZCA 199.

11     Carran v Police [2013] NZHC 1450.

12     Police v Hopkins [2017] NZDC 12675.

[17]     Judge Crayton gave Ms Smith credit for her rehabilitation efforts.  Although another Judge may have given more weight to Ms Smith’s efforts at rehabilitation, the Judge clearly took into account Ms Smith’s rehabilitation prospects.  It cannot be said  that  Judge  Crayton  erred  by  giving  prominence  to  the  other  sentencing principles of deterrence, denunciation and holding Ms Smith accountable for her offending.

[18]     I am persuaded the Judge’s sentencing decision cannot be interfered with for two further reasons. First, as the Judge noted, protecting the community was an important consideration in Ms Smith’s case.13   The pre-sentence report assessed Ms Smith as being at a high risk of reoffending in a like manner and a high risk of harm to the community.  Her circumstances differ from those of the appellant in Carran v Police14   and  the defendant  in  Police v Hopkins15   as  her  previous  drink  driving convictions  are in  closer succession.   Those cases  involved  recidivist  offending marked by lengthier periods of compliance.

[19]     Second, Ms Smith has convictions for breach of community work and a more recent breach of home detention conditions in 2014.  Although home detention may still be considered in these circumstances, breaches of community based sentences will often result in imprisonment in the absence of good excuse or explanation.16

[20]     The  principles  and  purposes  of  sentencing  will  often  pull  in  different directions.   The Judge did not fail to take relevant considerations into account in exercising his discretion to decline home detention.  Ms Smith’s sentence of seven months’ imprisonment therefore should not be interfered with.

Result

[21]     The appeal is dismissed.

13     Sentencing Act 2002, s 7(g).

14     Carran v Police, above n 11.

15     Police v Hopkins, above n 12.

16     Iwikau v Department of Corrections HC Palmerston North CRI-2008-452-42, 26 September

2008 at [6] and Fahey v Police HC Palmerston North CRI-2008-454-21, 4 June 2008 at [12].

D B Collins J

Solicitors:

Richard Leith, Whānganui for Appellant

Crown Solicitor, Whānganui for Respondent