THE KING AND JEREMY ADAM SHARP
[2024] NZHC 2936
•10 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-475
[2024] NZHC 2936
BETWEEN THE KING
Appellant
AND
JEREMY ADAM SHARP
Respondent
Hearing: 1 October 2024 Appearances:
B J Thompson for appellant S D Cassidy for respondent
Judgment:
10 October 2024
JUDGMENT OF JOHNSTONE J
(appeal against sentence)
This judgment was delivered by me on 10 October 2024 at 12 pm
Registrar/Deputy Registrar
Solicitors:
Crown Law Office, Wellington
R v SHARP [2024] NZHC 2936 [10 October 2024]
[1] On 28 September 2022, 44 year old mother of three, Magriet Miller, was driving home from work along Waiuku Road. Jeremy Adam Sharp, who had been drinking alcohol and smoking cannabis, drove in the other direction, and into Ms Miller’s lane, causing a head-on collision and Ms Miller’s death.
[2] More than two and a half years later, Mr Sharp was sentenced in the District Court at Manukau, on the charge of being in charge of a motor vehicle and causing a person’s death while the proportion of alcohol in his blood exceeded 80 milligrams per 100 millilitres. He was ordered to serve 11 months’ home detention and 250 hours’ community work.1
[3]With the Solicitor-General’s consent, the Crown appeals Mr Sharp’s sentence.2
[4] As this is a sentence appeal, I must allow it if satisfied that, for any reason, there is an error in the sentence, and a different sentence should be imposed.3 However, the sentence will only be increased if it is manifestly inadequate or based upon a wrong principle.4 The Court will be reluctant to interfere with the sentence if this would cause injustice to the offender.5 And if the appeal is allowed, the sentence should only be increased to the level that accords with the lowest range of appropriate sentences for the relevant offending.6
[5] The Crown says that Mr Sharp was sentenced on the basis of incorrect and misleading information about rehabilitative steps he was said to have undertaken, and that were it not for this, he would have received a sentence of imprisonment.
The offending
[6] The essence of the offending is outlined above. Waiuku Road is a chip-sealed rural road between Pukekohe and Waiuku, with a speed limit of 80 kilometres per hour.
1 R v Sharp [2024] NZDC 18636.
2 Criminal Procedure Act 2011, s 246.
3 Section 250(2).
4 R v Muavae [2000] 3 NZLR 483 (CA) at [10] citing R v Pue [1974] 2 NZLR 392 (CA), recently affirmed in McCaslin-Whitehead v R [2023] NZCA 259 at [30].
5 R v Donaldson (1997) 14 CRNZ 537 (CA) at 550 as cited in McCaslin-Whitehead v R, above n 4, at [31].
6 McCaslin-Whitehead v R, above n 4, at [32].
The collision occurred at around 9.30 pm, wholly within the westbound lane in which Ms Miller was travelling, Mr Sharp having driven into her path.
[7] Mr Sharp’s blood alcohol reading was 104 milligrams per 100 millilitres. His blood sample was further analysed and found to contain tetrahydrocannabinol (THC), the active constituent of the class C controlled drug cannabis plant. Mr Sharp admitted consuming both alcohol and cannabis prior to driving his car.
[8] Ms Miller’s death has given rise to profound loss: loss that is felt particularly strongly by her husband, her father and sisters, her adult and teenage daughters and her eight-year-old son.
Mr Sharp’s circumstances
[9] Mr Sharp was charged almost six months after the collision, on 15 February 2023. He entered his guilty plea a further 13 months later, on 4 April 2024.
[10] Now aged 43, Mr Sharp has criminal convictions from 2002, for driving with excess blood alcohol, and for possession of a class B controlled drug. And from 2004 for possession of cannabis plant and possession of a pipe or utensil for consuming cannabis. Mr Sharp also has a poor record of driving infringements, exceeding posted speed limits prior to colliding with Ms Miller in 2001, 2003, 2007, 2008, 2011, 2012, 2013, 2020 (x2), 2022 (x2).
[11] Twice since the collision, and once since being charged, Mr Sharp has incurred further demerit points for exceeding posted 80 kilometre per hour speed limits. He has also since incurred demerit points for operating an unlicensed motor vehicle.
[12] Registered clinical psychologist Jim Van Rensburg offered a written assessment of Mr Sharp, dated 26 July 2024. Mr Sharp told Mr van Renburg that:
(a)He grew up in a tinny house, with his father frequently assaulting his mother, until his father left when Mr Sharp was ten years old. He was ostracised from school friends due to his father’s conduct. Once his
father left, his home life improved. However, Mr Sharp used cannabis and alcohol from a young age, including as a means of addressing lifelong anxiety and depression.
(b)Mr Sharp had a son from an early relationship, and another from a lengthier relationship, during a large part of which he complied with his partner’s instruction to stop drinking.
(c)The latter relationship suffered during the COVID-19 lockdown, with Mr Sharp coping poorly, including by drinking. He moved out of the family home, into a rental property. The couple did not reunite after the lockdown, but had ongoing joint roles in the roofing business Mr Sharp had established years before, albeit with Mr Sharp tending to feel isolated and less in control.
(d)Around this time, Mr Sharp commencing living with, and looking after, a friend who was terminally ill with cancer. On occasion, they would drink together.
(e)On the day of the collision, Mr Sharp oversaw work being done by his team at his partner’s house. When the work was done, a barbeque and drinks were provided. Mr Sharp spoke with his partner about the possibility of reconciliation, but she advised him of lifestyle changes she wished him first to make. Mr Sharp said he then felt miserable, smoked cannabis and had a few more drinks before leaving to drive home.
[13] Mr Sharp spoke further with Mr van Rensburg about his drug and alcohol use. That aspect is addressed in more detail below.
[14]Overall, Mr van Rensburg assessed Mr Sharp as at medium risk of reoffending.
The Judge’s decision
[15] The sentencing Judge adopted a starting point, to reflect the culpability of the offending, of three years’ imprisonment. The Judge declined to uplift that starting point in light of Mr Sharp’s previous conviction for drink-driving being more than 20 years old. And the Judge applied a 20 per cent discount for Mr Sharp’s guilty plea, accepting that, before Mr Sharp entered his guilty plea, he took the time first to obtain an independent crash investigator’s report because he could remember nothing of the collision.
[16] A 20 per cent discount from the Judge’s starting point of three years’ imprisonment amounts to a deduction of just over seven months.
[17] The Judge then addressed Mr Sharp’s personal circumstances informing his decision to drive on the night of the collision, drawing heavily from Mr van Rensburg’s report. Her Honour observed that Mr Sharp’s background of drug and alcohol addiction left him at risk of turning to those substances when confronting difficulties in his life, unless he had “done anything about it”. And the Judge continued:
[39] I turn to whether you have done anything about it. Whilst your counsel, despite efforts and your own, have not been able to get written confirmation of that, the sentencing proceeds on the basis, as you have indicated to your counsel and to the psychologist, that after this occurred … you did drug and alcohol counselling, and you completed the programme with Care New Zealand. That is an important feature, because it means that the risk of another tragedy like this has been reduced. The Crown focus is that there is said to be moderate risk because of your damage, but nevertheless, the counselling has reduced that.
[18] As can be seen, the Judge’s reference to Mr Sharp undertaking drug and alcohol counselling was informed by what Mr Sharp told Mr van Rensburg. In this regard, Mr van Rensburg’s report recorded the following:
As stated earlier, he has been using cannabis since primary school, but feels that it has usually helped him to be calm and deal better with his frustrations. He admitted using alcohol at earlier stages in his life and of course at the time of the accident. However, he stated that he can easily live without alcohol as he had proven for 14 years. He has nonetheless attended a CADS programme since the accident and said it helped him to understand the many negative consequences of substance abuse.
(Emphasis added.)
[19] And also, the issue had been canvassed with Mr Sharp’s then counsel — not Mr Cassidy — during the sentencing hearing in the Manukau District Court. The relevant part of the exchange is as follows:
Counsel: … In relation, your Honour, to the discussion about the alcohol and drug attendance, of CADS, it is my instructions from Mr Sharp that he did attend CADS. After our last court hearing, I did attempt to contact the Pukekohe CADS office and they haven’t responded to my calls. I have been keeping in touch with Mr Sharp and he himself has been contacting the CADS office in Pukekohe and they haven’t been responding, so I haven’t been able to put myself in a position where I can put a certificate before the Court.
…
The Court: Are your clear instructions that whilst you’ve had difficulty getting proof of that that he had been going along to do drug and alcohol counselling at CADS?
Counsel: Yes, my instructions are that he completed the course after the incident.
The Court: Right, yes, and that’s what the psychologist has indicated as well.
[20] Counsel are agreed that the Judge’s transcribed reference to Care New Zealand is in error. Either reference to CADS (Community Alcohol & Drug Services) South has been mis-transcribed, or the Judge simply misspoke.
[21] In any event, the Judge plainly assessed what Mr Sharp had “done … about” his personal background and risk of reoffending by referring specifically to Mr van Rensburg’s account of Mr Sharp describing himself “attend[ing] a CADS programme”, and to Mr Sharp’s instructions to his counsel that he “had been going along to do drug and alcohol counselling at CADS”, and had “completed the course after the incident”. Specifically, the Judge found that “the risk of another tragedy like this has been reduced”. And, that the counselling “has reduced” the moderate risk of reoffending observed by Mr van Rensburg.
[22] The Judge then expressed the preliminary impact of that assessment on the sentencing exercise as follows:
[40] When I take into account that, I think I can assess your culpability as being affected by that background, that addiction, and importantly the steps that you have taken to treat that. I reduce that sentence to two years’ imprisonment.
[23] The Judge then turned to whether to impose a sentence of two years’ imprisonment or to impose a community based sentence. Here, the Judge found it appropriate, in light of the desirability of keeping offenders in the community as far as that is practicable and consonant with community safety, and other sentencing principles, to impose a final sentence of home detention and community work. In doing so, the Judge expressed the further impact of Mr Sharp’s efforts with CADS:
If you had not taken the steps of doing the drug and alcohol counselling, then in my view imprisonment in its true form was the only possibility.
[24] The Judge thus recognised the counselling Mr Sharp had undertaken by way of CADS programme twice: first, by applying a 13.3 per cent discount to the starting point appropriate for his offending, and second, by converting the two year prison sentence that would otherwise have been appropriate to one of home detention and community work.
Was the sentencing Court under a misunderstanding?
[25] The Crown’s submission that Mr Sharp was sentenced on the basis of incorrect and misleading information is informed by an affidavit it has obtained from a clinician at CADS South. The affidavit confirms that Mr Sharp attended a CADS assessment on 17 October 2022, and two sessions of CADS counselling, on 3 and 11 November 2022. These matters are fresh to the Crown and cogent. Leave to file the affidavit in respect of them is granted.
[26] The balance of the affidavit contains hearsay statements addressing matters such as the usual length of group and individual counselling offered by CADS. For the Crown, Mr Thompson accepted that this part of the affidavit is inadmissible. I put it to one side.
[27] No other evidence of Mr Sharp’s CADS attendance is available. Counsel for both the Crown and then for Mr Sharp were hampered by reticence on the part of CADS to disclose Mr Sharp’s private information.
[28] Referring to Mr Sharp having provided a privacy waiver and having recently received copies of information held by CADS, his counsel, Mr Cassidy, observed that
this Court might be assisted by an explanation from CADS of why Mr Sharp attended only the assessment and counselling described above. But, asked whether Mr Sharp sought adjournment of the appeal so that information could be provided, Mr Cassidy said he did not.
[29] Mr Cassidy’s more substantive position is addressed below. For now, then, it need only be said that he responsibly accepted on behalf of Mr Sharp that the experienced sentencing Judge would likely have understood reference to a “completed” CADS “programme” of counselling to refer a course of group therapy of six to eight weeks’ duration.
[30] On this basis, it is clear that the account given to the Judge of Mr Sharp’s CADS counselling was likely to give rise to misunderstanding. For the reason outlined below, I infer that it did.
Was the misunderstanding material?
[31] Mr Cassidy’s substantive position for Mr Sharp was that, regardless of the number of counselling sessions Mr Sharp undertook, the important point for the Judge to consider was whether Mr Sharp’s risk profile had reduced. In that regard, the Judge had the benefit of Mr van Rensburg’s report, offering risk assessment on the basis of psychometric testing and evaluation. In short, Mr Cassidy submitted that the Crown could not establish that any misunderstanding on the part of the Judge about the exact extent of Mr Sharp’s engagement with counselling was material to the sentencing outcome.
[32]I do not accept Mr Cassidy’s submissions on this point.
[33] First, the sole basis for the Judge’s finding that the risk of Mr Sharp reoffending had “reduced” related to her Honour’s understanding that he “did drug and alcohol counselling, and … completed the programme”. The reference to completion confirms, in my view, that the Judge understood Mr Sharp to have undertaken numerous sessions of a standardised programme of therapy. This is the basis on which I infer the Judge misunderstood the true position.
[34] Second, and relatedly, the final sentence of the Judge at [39] (see [17] above) can only be understood as a reference to the “medium risk of reoffending” described by Mr van Rensburg, and therefore as an expression of her Honour’s view that “the counselling has reduced that”. Thus, the Judge moderated the significance for sentencing purposes of Mr van Rensburg’s risk assessment, by applying an independent risk discount due to Mr Sharp’s completion of a programme of counselling.
[35] Third, I consider it clear, based on the Judge’s sentencing remarks, that a full understanding of the timing and context of Mr Sharp’s counselling would have led to a materially different outcome. In particular, the Judge was not informed that Mr Sharp’s CADS assessment occurred on 17 October 2022, less than a month after the collision on 28 September 2022. Or that his two counselling sessions were completed within two months of the collision.
[36] The context at the time of Mr Sharp’s assessment and counselling was one where Mr Sharp had not yet been charged. As mentioned above, Mr Sharp obtained an independent crash investigator’s report after he was charged on 15 February 2023. The Corrections Department’s pre-sentence (PAC) report recorded Mr Sharp observing that the details set out in the summary of facts were “not as I recall what occurred on the night and what I have believed for the past duration”, but that he had to accept them as accurate.
[37] Further, the collision of course caused Mr Sharp significant injuries of his own. He described those injuries to the pre-sentence report writer, and waking up in hospital. CADS South forms part of Te Whatu Ora: Health New Zealand, the agency responsible for Mr Sharp’s hospital treatment.
[38] Thus, the context for Mr Sharp’s interactions with CADS was one where he had not been confronted with, let alone accepted, his responsibility for causing Ms Miller’s death. And it is not clear that the counselling he undertook was self-initiated, rather than a result of his hospital admission. For those reasons, it cannot be assumed that the abbreviated counselling he did undertake was at all meaningful.
[39] It follows that I consider the sentencing Judge was led into material error as a consequence of misunderstanding the nature of Mr Sharp’s response to his offending.
How should this Court respond?
[40]The question arises, how should this Court respond?
[41] The general principles applicable to prosecutors’ sentence appeals are set out above (at [4]). Real caution is required, as the risk of injustice to an offender is especially acute where, as here, the appellant seeks that a term of imprisonment should replace a non-custodial sentence. In those circumstances, the appellate court is particularly “reluctant to interfere”. 7
[42] In this case, I take the view that the three year starting point adopted by the sentencing Judge was the minimum starting point available for the offending. As the Court of Appeal said in Hitchens v R, “driving offences involving death must be seen on a continuum from careless driving causing death at one end to manslaughter at the other”.8 Thus, although the offence Mr Sharp was charged with carries a maximum penalty of 10 years’ imprisonment, serious cases warrant seemingly high starting points to reflect the true maximum penalty: a sentence of life imprisonment under a manslaughter charge. Recent decisions of this Court have seen similar offending attract starting points of no less than three years, bearing in mind that each case is highly fact specific.9
[43] In light of that view, it follows that the sentence imposed on Mr Sharp was manifestly inadequate.
7 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [43].
8 Hitchens v R CA380/03, 25 March 2004 at [7(iv)].
9 See, for example: Brampton v New Zealand Police [2015] NZHC 2618 at [53]; Lewis v R [2023] NZHC 1248 at [23]; R v Grace [2020] NZHC 3145 at [13]; Tugu v New Zealand Police [2020] NZHC 452 where the starting point was undisturbed on appeal; and McMillan v Police [2014] NZHC 150 at [53].
[44] Further, I am persuaded that this is a case such as that contemplated by the Court of Appeal in R v Johnson, where “community confidence in the administration of justice requires the imposition of a sentence of imprisonment”.10 This is because:
(a)The impact of the error on sentencing was severe. It was the reason for a significant reduction in quantum, so that the sentencing calculation reached the point at which a non-custodial sentence might be considered. And, further, it was then responsible for the Judge’s decision to impose a non-custodial sentence.
(b)The nature of the error requires attention. Sentencing courts are rightly responsive, where information offered on behalf of offenders suggests that the sentence that would be appropriate for the offending would not respond correctly to the offender’s personal circumstances. It is vital that the information offered is reliable. This Court should be seen to insist on its reliability.
(c)The Judge was either uninformed of Mr Sharp’s continued driving infringements, or considered them unimportant given the assurances offered of Mr Sharp’s rehabilitative efforts. Given his now-apparent lack of meaningful rehabilitative efforts, his failure to adjust his non-compliant approach to driving remains an outstanding concern.
[45] This said, in allowing the Crown’s appeal, I will recognise the fact that, following his sentencing on 6 August 2024, Mr Sharp will have served just over two months’ home detention when this judgment is issued. The sentence I impose will be reduced by three months for that reason.
[46] Further, I note that Mr Sharp has responsibilities to, although he has not recently resided with, a young son of his own. The effect on his son of his inability to observe his responsibilities will be recognised by a further two month reduction.
[47]These reductions will avoid any risk of injustice.
10 R v Johnson [2010] NZCA 168 at [34].
Result
[48] The Crown application for leave to adduce further evidence on appeal is granted, to the extent identified above.
[49]The appeal is allowed.
[50] The sentence of 11 months’ home detention and 250 hours’ community work is set aside and substituted with a sentence of two years’ imprisonment. In addition to the standard conditions of release arising under s 93(a) of the Sentencing Act 2002, Mr Sharp is required under s 93(b) to comply with the special conditions of release from imprisonment set out in the PAC report dated 27 June 2024, until they expire on the sentence expiry date.
[51] Mr Sharp must surrender himself to the Prison Director at Mt Eden Corrections Facility (or such other location as may be directed by Corrections in writing) to commence his sentence of imprisonment by 2.00 pm on Friday, 11 October 2024. The current sentence of home detention is to continue in effect until that time.
Johnstone J
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