Smith v Police
[2025] NZHC 1009
•30 April 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-000011
[2025] NZHC 1009
BETWEEN JOE-ANNE ELIZABETH SMITH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 April 2025 Appearances:
J P Seal on behalf of J H C Waugh for Appellant A N Kearney for Respondent
Judgment:
30 April 2025
JUDGMENT OF PRESTON J
This judgment was delivered by me on 30 April 2025 at 12 .00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SMITH v NEW ZEALAND POLICE [2025] NZHC 1009 [30 April 2025]
Introduction
[1] Joe-Anne Smith pleaded guilty to driving with excess blood alcohol causing injury,1 and driving with excess blood alcohol (3rd or subsequent).2 She was sentenced to 15 and a half months’ imprisonment by Judge Marinovich in the District Court.3
[2] Ms Smith appeals. She says the Judge was wrong to decline to commute the sentence to home detention by under-weighing the rehabilitative purpose of sentencing, and that leave should have been granted to apply.4 The respondent opposes, arguing no error is disclosed and the sentencing approach was open to the judge in the particular circumstances of this case.
The offending
[3]The offending involves two incidents of drink driving 14 months apart.
[4] On 7 September 2023, Ms Smith was driving on SH1 when she failed to take a corner and crossed the centre line, colliding with an oncoming vehicle. The occupant of the vehicle sustained a sternal fracture, she has limited movement in her left shoulder following the crash. Ms Smith was transported to hospital following the crash to obtain a blood sample. The result of that sample was a blood concentration of 165 milligrams of alcohol per 100 millilitres of blood. Charges were laid in respect of this offending on 30 June 2024.
[5] On 5 November 2024, while awaiting sentence on the injuring charge, Ms Smith was drinking alcohol with an associate when an argument took place and Ms Smith left the address in her car. Her associate called the police who arrived shortly after. While police were at the address, Ms Smith returned in her car and admitted she had consumed alcohol. An evidential breath test gave a reading of
1 Land Transport Act 1998, s 61(1)(b) — maximum penalty five years’ imprisonment or $20,0000 fine.
2 Land Transport Act, ss 56(1) and 56(4) — maximum penalty two years’ imprisonment and 12 months’ disqualification.
3 Police v Smith [2024] NZDC 31088.
4 Ms Smith did not have an address at the time of sentencing. The Judge declined to adjourn sentencing to allow her to put forward an address.
588 micrograms of alcohol per litre of breath. This was Ms Smith’s third conviction for drink driving, having a previous conviction in 2013 for the same offence.
Victim Impact
[6] The victim struggles with being on the road since the accident. She says she is now “hyper-vigilant on the road, nervous about other drivers, the weather, road conditions, road works, and approaching intersections”. She also suffers ongoing shoulder pain and may require surgery. The victim says she hopes that with targeted rehabilitation Ms Smith is able to learn about her drinking habits and the decisions she makes when driving.
[7] The victim’s daughter also gave a statement. She says her mother was previously an independent driver who loved to go on road-trips on her own, but now struggles to drive for more than an hour and a half. She speaks also of the financial cost of the crash, as her parents had to purchase a new car and her mother was delayed returning to work following the crash.
District Court Decision
[8]Sentencing took place on 16 December 2024.
[9] The pre-sentence report available to the Judge had been prepared on 2 December. The report referred only to the 2023 driving causing injury, omitting any mention of the third drink driving offence less than a month before sentencing.
[10] The report recorded that Ms Smith acknowledged she should not have been driving, and the report writer believed she expressed a genuine level of remorse for the victim. Ms Smith, aged 50, was assessed as being a low risk of re-offending and at a medium risk of harm to others, and the report writer recommended a sentence of intensive supervision.
[11] The Judge considered this recommendation “woefully inadequate”. His impression from the report was that Ms Smith’s concern was more for the impacts on herself than for the victim.
[12] The Judge adopted a starting point of 18 months’ imprisonment on the charge of driving with EBA causing injury,5 identifying aggravating features of Ms Smith’s offending including the impact on the victim and her family, the high blood alcohol level, breach of trust owed to other road users, the prior conviction for drink-driving from 2013, and the location of the driving which he inferred was a 100 kilometre per hour zone. The starting point was uplifted by three months for the November 2024 offending, giving overall starting point of 21 months’ imprisonment.
[13] The Judge did not consider a reduction was warranted for remorse given Ms Smith’s limited expressions of this and noting that after injuring another person driving while drunk, Ms Smith went on to drive drunk again while awaiting sentence. Applying a five per cent reduction to recognise Ms Smith’s limited and late rehabilitative efforts, and full credit of 25 per cent for her early guilty plea, the end sentence was therefore 15 and a half months’ imprisonment.
[14]The Judge then said this:
[30] That is a short-term sentence of imprisonment. Whether it is to be commuted to home detention involves the exercise of my discretion in a way that gives effect to the purposes and principles of sentencing. Section 7 includes deterrence, denunciation, accountability, promoting a sense of responsibility in you, providing for the interests of any victims, protection of the community and your rehabilitation. In addition I note s 8(g) requires me to impose the least restrictive outcome that is appropriate in the circumstances.
[31] I also need to take into account s 16 of the Sentencing Act 2002. … [W]hen considering the imposition of a sentence of imprisonment for any particular offence, I must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. … I must not impose a sentence of imprisonment unless I am satisfied that a sentence has been imposed for all or any of the purposes set out in s 7 and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 to the particular case.
[15] Noting the offending was serious and the impact on the victim significant and ongoing, the Judge considered the offending while awaiting sentence was “staggering”, observing denunciation and deterrence as important purposes of sentencing. The Judge recorded that Ms Smith did not have an available address for
5 Having regard to three comparator decisions: Pho Fu v Police [2015] NZHC 3260; Manikpersadh v R [2011] NZCA 452; and Police v Ngaan [2018] NZDC 11715.
electronic monitoring and determined that a sentence less than imprisonment would be simply inadequate to achieve the purposes of sentencing. He therefore declined to grant leave to apply for home detention.
[16]The Judge also ordered an alcohol interlock sentence.
Principles on appeal
[17] This Court must allow an appeal against sentence if satisfied, that for any reason, there is an error in the sentence imposed and a different sentence should be imposed in any other case, the Court must dismiss the appeal.6 In deciding whether to impose a different sentence, however, the Court does not substitute its own view for that of the first instance sentencing judge.7 Rather, it must be shown that the sentence imposed is manifestly excessive or wrong in principle.8
Submissions
[18] Mr Seal, for the appellant (who was not counsel in the District Court), submits the Judge erred in concluding a sentence of imprisonment was the least restrictive sentence that meets the purposes and principles of sentencing.9
[19] Mr Seal highlights Ms Smith’s previous compliance with community-based sentences, noting that home detention is a significant sentence in its own right. He submits the Judge did not give adequate reasons for rejecting home detention as meeting the purposes and principles of sentencing, arguing the rehabilitative purpose of sentencing was not sufficiently recognised. Counsel advises Ms Smith has a proposed address for home detention.10
[20] For the respondent, Ms Kearney supports the Judge’s reasons submitting that given Ms Smith’s history it was open to the Judge to consider her recidivism, having been convicted of a third drink-driving offence, in re-offending committed while on
6 Criminal Procedure Act 2011, ss 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
8 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 9, at [32] – [35].
9 Written submissions were filed by Mr Waugh (also not counsel in the District Court).
10 There has been no suitability assessment, but Mr Seal advised at the hearing Probations would prepare a stand down report within days of the appeal hearing, if ordered.
bail awaiting sentence for serious drink-driving offending. Ms Kearney notes that the pre-sentence report did not include the further offending, which in itself demonstrates Ms Smith presents a higher risk than was identified in the report. Further, Ms Kearney submits, Ms Smith’s personal circumstances do not point strongly toward a sentence of home detention.
Leave to appeal out of time
[21] The notice of appeal was filed out of time.11 Appellate counsel was instructed after Ms Smith was sentenced, and the Christmas vacation period occurred during this time. No prejudice to the Crown is alleged, and the point is not taken. It is appropriate to grant leave to appeal.
Analysis
[22] The decision to impose a sentence of home detention is a discretionary one. An appellate court will focus on the identification of error.12 After careful consideration, I am not persuaded that the Judge fell into error by declining to grant Ms Smith leave to apply for home detention.
[23] I agree with the Judge’s assessment of Ms Smith’s overall culpability, though I would not regard breach of trust as an aggravating factor of the offending. Breaching the trust of other road users is implicit in all charges of driving dangerously or drink driving.
[24] In oral submissions Mr Seal withdrew the point he had advanced in written submissions that the Judge omitted Ms Smith’s risk assessment noted at [10] above in his sentencing remarks. This was an appropriate concession: the Judge noted the assessment within the report.13 However, he was rightfully unconvinced by the author’s conclusion, given the report does not account for the second offence of drink driving occurring just eight days prior to Ms Smith’s interview for that report. It does not appear that the report writer was aware of this further offending. It is not listed in
11 On 26 February 2025.
12 Doolan v R [2011] NZCA 542 at [39].
13 At [9].
the charges identified. The fact that Ms Smith elected to drink drive again at all, and particularly when she was before the court for sentencing for causing injury while more than twice the legal limit invalidated that assessment. It was therefore open to the Judge to disregard that conclusion, as he did.
[25] The Judge was rightly concerned that Ms Smith had offended again in a similar manner just days before her sentencing. It is apparent from the Judge’s decision that he did not consider Ms Smith to be remorseful, nor to appreciate the effect of her offending on the victim or, importantly, the risk she poses to the public. I agree with the Judge that Ms Smith’s relative lack of remorse, lack of awareness as to her clear problem with alcohol, and lack of rehabilitative efforts over the 15 months between the initial offending and her sentencing, are factors pointing toward a sentence of imprisonment.
[26] The Judge expressly had regard to the principles of deterrence, denunciation, accountability, responsibility, community protection and rehabilitation. Given Ms Smith’s re-offending so close to sentencing, the principles of deterrence, both personal and general, denunciation, and accountability, weighed heavily in the Judge’s decision. Protection of the public was also an important consideration in favour of a sentence of imprisonment, given this was Ms Smith’s third drink driving offence.
[27] I acknowledge that Ms Smith began to take steps in the weeks prior to her sentencing, perhaps recognising after the November 2024 offending that she does have a problem with alcohol that requires rehabilitation, until then denied. She self-referred to Community Mental Health and Addictions on 2 December seeking support for her alcohol use. At her first appointment on 9 December, Ms Smith informed her clinician that she was now abstinent from alcohol, a positive step for Ms Smith. Those efforts, albeit late, are important steps on Ms Smith’s part. They were rightly recognised by a five per cent reduction at sentencing. However, I am not persuaded the Judge under- weighed this factor, given the timing. Nor do I accept the Judge failed adequately to factor this in his reasons. Despite these steps, I am not persuaded that a sentence of home detention is the least restrictive sentence available. The prevailing concerns were denunciation and deterrence of recidivist drink driving, and protection of the public from those who repeatedly drive drunk.
Conclusion
[28] This was not a case where deterrence was given complete priority without regard to any of the countervailing purposes of sentence. Overall, it is clear the Judge undertook an evaluative assessment but given the harm drink driving causes in the community as noted by the Court, Ms Smith’s relevant history and her limited efforts to rehabilitate, determined that the short term of imprisonment was the least restrictive available sentence.
[29]That determination was open to the Judge. I am not persuaded that he erred.
Result
[30]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Whanganui
Crowley Waugh Barristers and Solicitors, Whanganui
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