Stevens v Police

[2012] NZHC 293

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-470-000033 [2012] NZHC 293

CHANEL DESIRE STEVENS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 February 2012

Counsel:         A M M Schulze for the Appellant

N G Belton for the Respondent

Judgment:      27 February 2012

(ORAL) JUDGMENT OF DUFFY J

Solicitors:    Lance and Lawson P O Box 2279 Rotorua 3040 for the Appellant

Ronayne   Hollister-Jones   Lellman   P    O   Box    13063   (DX   HP40041) Tauranga Central Tauranga 3141 for the Crown

STEVENS v POLICE HC ROT CRI-2011-470-000033 [27 February 2012]

[1]      The appellant, Chanel Stevens, is appealing against a sentence for perverting the course of justice, after having been caught driving with excess blood alcohol and providing   false   personal   details   to   avoid   criminal   responsibility.      In   the District Court, she was convicted and sentenced to six months’ imprisonment on the charge of perverting the course of justice.   On the charge of driving with excess blood alcohol, she was sentenced to one month’s imprisonment, to be served concurrently, and she was disqualified from driving for a period of six months.  On being an unlicensed driver failing to comply with a prohibition against driving, she was convicted and disqualified for a period of six months.

[2]      The matter proceeded before me today with the appellant arguing that the District Court Judge had erred in failing to consider a sentence of home detention. The sentencing notes of the District Court Judge record (at [15]) that this was a case where “… a Court has made a clear direction that a home detention sentence is to be considered”.  This informs me that at the District Court, the appellant had received an indication that a sentence of home detention might be likely.  However, no home detention report was available when the appellant appeared for sentence.  This was because the appellant had not tendered an address for that purpose.  I am told that at the time, she had difficulty providing such an address.  An adjournment was sought but was refused.

[3]      At [16] of the sentencing notes, the District Court Judge went on to say that even if a suitable home detention address were provided, the Judge was satisfied that in the circumstances of the serious offending that had occurred, the need to send a clear and condign message as amplified by the Court of Appeal decisions meant that a sentence of home detention would not be appropriate.  The Judge then said that he was  imposing  the  least  restrictive  sentence  that  he  believed  appropriate  for  the serious offending.

[4]      One aspect of the approach taken by the sentencing Judge that may have caused an error of principle is the omission to consider home detention in light of the fact that the appellant was a first offender and had not previously served a term of imprisonment.

[5]      In Tarrant v Police HC Palmerston North CRI-2007-454-10, 14 May 2007 (at

[10]), on an appeal against sentence, MacKenzie J said:

There is no explicit reference in the sentencing notes to the need to impose the  least  restrictive  outcome  as  required  by  s  8(g).    That  principle  is reinforced by reference to s 16 of the Act.  In this regard it is relevant to note that the appellant has not previously served a term of imprisonment.  The Court of Appeal in R v Earle (CA414/91, 9 March 1992), a decision on the previous legislation in 1992, held that where an offender is being sentenced to a custodial sentence for the first time, greater weight may be given to the statutory requirement to impose the least restrictive outcome that is appropriate.

[6]      Whilst in the present case the sentencing Judge directed himself to the requirement that he should impose the least restrictive outcome, he has not in the sentencing notes expressed any recognition of the principle that where the offender has not previously served a term of imprisonment, greater weight may be given to the statutory requirement to impose the least restrictive outcome.

[7]      In this case, the refusal to grant an adjournment to enable a report on home detention to be obtained has led to someone who is a first offender receiving a sentence of imprisonment.  I also consider that had the appellant been able to provide an address for home detention and had a positive report on suitability for home detention been available when she appeared for sentence on 21 December 2011, the outcome might have been different.

[8]      I am  not  prepared  to  deal  with  the  appeal  today on  the  strength  of  the information I have available to me.  I am told that the appellant can now provide a suitable  address  from  which  she  could  serve  a  sentence  of  home  detention.    I consider the possibility of her serving this sentence should, at the least, be explored.

[9]      The Court of Appeal in R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [31]-[34] recognised that there are acknowledged advantages in imposing home detention instead of imprisonment for policy and rehabilitation reasons.

[10]     Since the appellant is at risk of receiving her first sentence of imprisonment in circumstances where she is a first offender, some consideration should be given to the principles referred to in Tarrant and in Earle.

[11]     I propose, therefore, to do the following.

[12]     I adjourn the appeal to allow a report on home detention to be obtained.  The appellant is advised that today’s outcome should not be understood to reflect how the appeal might possibly end.  I direct that a home detention report is to be obtained.  I extend the appellant’s current bail on the present terms.   Bail is continued until callover at 9.00 am on Tuesday, 17 April 2012, by which time I expect that a report on home detention will be available and an appeal date can be set.   I excuse the appellant from appearing on that day, provided counsel appears.

Duffy J