Thompson v Police

[2024] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-94

[2024] NZHC 1748

BETWEEN

SHANNON HUGH THOMPSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 June 2024
Appearances:	M J Smit and J A Poff for Appellant L Fiennes for Respondent
Judgment:	1 July 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 July 2024 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

THOMPSON v NEW ZEALAND POLICE [2024] NZHC 1748 [1 July 2024]

Introduction

[1]                  On 31  January  2024,  Mr  Shannon  Hugh  Thompson  was  sentenced  to  12 months’ supervision and seven months’ disqualification from driving1 for the offence of dangerous driving.2

[2]                  On 15 February 2024 the appellant applied for a rehearing of the matter and sought that the 12 months’ supervision sentence be substituted for a fine because he wanted to move to Australia. Judge McMeeken dismissed the application for a rehearing in a Chambers decision dated 20 March 2024 (the Chambers decision).3

[3]                  The appellant initially framed his appeal as an appeal against the Chambers decision. However he now frames his appeal as an appeal against sentence claiming that given a change in his circumstances, the sentence is now manifestly excessive.

Facts

[4]                  In the early hours of the morning on 13 January 2023, the appellant was seen driving at high speeds through residential streets in North-west Christchurch and on to State Highway One where he was recorded as travelling at over 135 kmph in an 80 kmph area. He was also observed travelling on the wrong side of the road to pass vehicles, and weaving in and out of traffic without using an indicator. Ultimately, the appellant was stopped by the police and admitted to overtaking other motorists and putting other motorists at risk, but denied driving in excess of the posted speed limit.

District Court decisions

The District Court sentencing decision

[5]                  The appellant vacated  his  not  guilty  pleas  and  entered  guilty  pleas  on  13 October 2023. He appeared for sentencing on 31 January 2024. At sentencing the appellant also made an application under s 94 of the Land Transport Act 1998 (LTA) for substitution of a community-based sentence instead of disqualification.

1      Police v Thompson [2024] NZDC 3607 at [18]–[19].

2      Land Transport Act 1998, s 35(1)(b) – maximum penalty three months’ imprisonment, $4,500 fine.

3      Police v Thompson [2024] NZDC 5855.

[6]                  The Judge began by noting that the appellant was convicted in 2015 of driving while suspended and in 2016 and 2020 of driving while disqualified or driving while suspended. The appellant was currently employed as a driver, and since January 2023, he had spent several thousand dollars obtaining different licences and now had a Class 4 driver’s licence with wheels, tracks, rollers and forklift endorsements. The Judge then summarised the appellant’s submissions, being that he has learnt the value and importance of having a driver’s licence, has undertaken training courses to acquire those various endorsements to his licence and believes he is now a safer driver. After referring to the relevant considerations under s 94 LTA, the Judge noted both the appellant’s concern that he would lose his job if he was disqualified and the letter from his employer who corroborated that his disqualification would result in an inability to continue the appellant’s employment. The Judge stated that, sadly, in this court, the consequence for some people when they are mandatorily disqualified is real hardship, such as the termination of their employment, and there was nothing hugely unusual in that. He could however seek to obtain a limited licence.

[7]                  The Judge considered it was a “little unusual” that during the 12 months that these criminal proceedings were before the Court the appellant had taken steps to get various licences and a job that requires him to drive, and now came before the Court saying “because I have done these things I do not want to be disqualified.”4 The Judge also noted the appellant was not particularly cooperative with the probation report writer and she did not find the grounds were made out to substitute a community-based sentence.

[8]                  Judge McMeeken sentenced the appellant to 12 months’ supervision and seven months’ disqualification from driving. The Judge backdated the appellant’s disqualification to 31 December 2023 so that he could apply for a limited driver’s licence immediately with the hope that would enable the appellant to keep his job.

Chambers decision of Judge McMeeken

[9]                  On 20 March 2024, following an application for a rehearing, Judge McMeeken issued the Chambers decision. The appellant sought that the sentencing decision be

4      Police v Thompson, above n 3, at [13].

reheard and the 12-month sentence of supervision be replaced with a fine on the basis he had no need for a rehabilitative sentence, so supervision was inappropriate, and he wanted to move to Australia.

[10]              Judge McMeeken stated that Mr Thompson was merely seeking a rehearing because he wanted a different outcome and did not want to engage with Corrections. That did not entitle the appellant to a rehearing. The Judge noted that the probation report dated 15 January 2024 recommended a sentence of supervision and a fine and noted that imprisonment was an option if the Court wanted to impose a more punitive sentence. In the circumstances she considered the sentence imposed was appropriate.

[11]              While  the  Judge  concluded,  at  [11],  that  she  was  “not  satisfied  that   Mr Thompson has established that a rehearing ought to be granted,” this appeared to be contradicted by the concluding sentences which read “The application is dismissed. The rehearing is granted.”

[12]              The significance of this is that there is no right of appeal against a refusal to grant a rehearing so if the rehearing was refused, Mr Thompson could not appeal.5 However given the appellant’s confirmation he is appealing the original sentence, not the Chambers decision, I do not need to resolve this issue. That said, my view is that the Judge makes it clear she was declining the application for a rehearing and the last sentence likely accidentally omitted the word “not” before “granted”.

Principles on appeal

[13]              Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 (CPA) and must be determined in accordance with s 250. 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 that a different sentence should be imposed.6 As the Court of Appeal stated 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

5      Warren  v R  [2016] NZCA 108 at [19]. See also Mathew Downs (ed) Adams on Criminal Law

(online ed, Thomson Reuters) at [CPA177.08].

6      Criminal Procedure Act 2011, subs 250(2) and 250(3).

justified by accepted sentencing principles”.7 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.8

Submissions

Appellant’s submissions

[14]              Mr Poff, for the appellant, submits that there has been a material change in the appellant’s circumstances, such that it will be unjust to maintain the sentence. It is submitted that, in the circumstances, the sentence is manifestly excessive.

[15]              The change in circumstances referred to is that Mr Thompson is currently living in Australia having obtained work there. It is his intention to continue living in Australia for the foreseeable future with the option of returning to New Zealand for work when the opportunity arises. If the supervision sentence remains, Mr Thompson will be forced to return to New Zealand to complete the sentence.

[16]              Counsel accepts that the sentence of supervision was within the range of appropriate sentences available to the sentencing Judge at the time of sentencing and there was no material error or miscarriage of justice in the original sentencing decision. It is simply the change in circumstances which he submits renders it excessive.

[17]              Mr Poff submits, that to ensure a sentencing outcome that can be complied with, the sentence of supervision should be cancelled and the maximum fine under   s 35(2)(a) of the LTA of $4,500.00 imposed instead. He acknowledges that a fine is typically regarded as a less serious sentence than supervision. However, he submits that imposing the maximum fine will ensure that the outcome is sufficiently punitive. Counsel further notes that the probation service supports the cancellation of the sentence  of  supervision,  referring  to  an   email   dated   8 March   2024   from   Mr Thompson’s probation officer.

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

Respondent’s submissions

[18]              Ms Fiennes submits that the sentence was in all respects within range and the appeal ought to be dismissed. Ms Fiennes submits there has been no material change in circumstances such that a sentence of supervision has become excessive. The appellant’s personal preference to reside in Australia is not a change in circumstances warranting the substitution of an otherwise appropriate sentence for a lesser sentence.

[19]              Ms Fiennes submits that the appellant has made a personal choice to seek out employment in Australia following the imposition of a sentence which required him to complete rehabilitation in New Zealand. Ms Fiennes points out that the appellant had full-time employment in New Zealand at the time of his sentencing and did not voice an intention to work in Australia in his affidavit filed for his original sentencing. She submits it would be inappropriate for the appellant to avoid his sentence because of personal preference. The fact that the appellant does not wish to engage with his sentence does not mean the Court on appeal should substitute a lesser sentence.

[20]              Ms Fiennes further submits that a rehabilitative sentence was appropriate in the circumstances, she submits that the appellant appeared to have no appreciation or understanding of the serious nature of the offending, or remorse for it.

[21]              Ms Fiennes notes that the primary recommendation in the pre-sentence report was for a sentence of supervision with a condition requiring the appellant to complete any courses, counselling or treatment as directed by his probation officer. Ms Fiennes says it is only the appellant’s poor attitude which has caused Corrections to support the possible substitution of the sentence. The appellant’s rehabilitative needs remain, and the sentence was clearly appropriate and remains so, despite the appellant’s unwillingness to participate in it.

[22]              Even if there were a material change in circumstances, Ms Fiennes says this does not necessarily mean the sentence imposed should be amended on appeal. In Poi v R the Court of Appeal considered a sentence appeal where, following the sentencing, the appellant had been seriously assaulted in prison.9 The Court of Appeal

9      Poi v R [2015] NZCA 300.

concluded that it would be inappropriate to intervene and reduce the sentence of imprisonment because:10

(a)as s 250(2) of the Criminal Procedure Act 2011 makes clear, the role of the Court on a sentencing appeal is to correct error. Absent error, a sentence appeal must be dismissed; and

(b)when an inmate's health declines seriously after sentence, the appropriate response is likely to be administrative.

[23]              Where  a  change  in  circumstances  renders  the  sentence  inappropriate,  Ms Fiennes submits that the appropriate response may be an application to cancel the sentence rather than an appeal against the sentence. Here the relevant route would be via s 54 of the Sentencing Act 2002 which allows an offender to apply to vary or cancel a sentence of supervision.

Analysis

[24]              Although initially filed as an appeal against the Chambers decision declining a rehearing, counsel are agreed that this appeal is an appeal against sentence. While this means the appeal is filed out of time, no issue was taken with the late filing and I grant an extension of the time for filing the appeal.11

[25]              The Court of Appeal in Tamihana v R summarised what is required for a successful appeal against sentence:12

An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion. Unless there is a material error in the end sentence, this Court will not intervene. There will be a material error if, for example, the end sentence is manifestly excessive or wrong in principle.

(footnotes omitted)

10     At [11]–[13].

11     Pursuant to s 248(4) of the Criminal Procedure Act 2011.

12     Tamihana v R [2015] NZCA 169 at [14].

[26]              What the appeal comes down to then is the question of whether the additional materials submitted on appeal, being the information that the appellant is currently in Australia for work, vitiates the lower Court’s sentencing discretion such that the sentence imposed on conviction is now in error.

[27]              Counsel for the appellant accepts that there is no evidence Mr Thompson appraised the sentencing Judge of his intention to move to Australia in the near future. His affidavit filed in support of the s 94 application refers to the need to have a licence for his full-time job in New Zealand. The move to Australia is new information that is coming before the court on appeal.

[28]              New evidence was argued to make the sentencing Judge’s decision on whether the sentence was manifestly excessive in the case of Poi v R.13 The additional material in that case concerned Mr Poi’s assault in prison and resultant long-term adverse medical condition. However even in that case where the change in circumstances was not of the appellant’s making, the Court did not find that it made the sentence imposed manifestly excessive. It follows that in the present case, the appellant’s voluntary decision to leave New Zealand is even less likely to render his sentence manifestly excessive.

[29]              I also reject the submission that because there is another sentence that could be served instead, being a fine, and which would serve the purposes of deterrence and denunciation, that is a reason to allow the appeal. The fact another sentence is available does not render the sentence imposed manifestly excessive.

[30]              The available evidence suggests that the appellant has not changed his attitude to his offending and remains at risk of further offending. His probation officer assessed the appellant as “confrontational” and “difficult to engage”. However, the probation officer does ultimately support the cancellation of the sentence, because, while a sentence of supervision “could allow further exploration of his attitudes and… drug use… prior to the offence”, the appellant was not eligible for the Departmental Programme which would best address the appellant’s attitude issues.

13     Poi v R, above n 9.

[31]              For the sake of completeness, I agree with Ms Fiennes that a rehabilitative sentence was appropriate in all the circumstances. As noted in the pre-sentence report, the appellant has amassed a total of 88 infringement offence notices since 2014. In addition, the appellant has also received three convictions related to driving while his licence had either been revoked, suspended or disqualified since 2015. The appellant has also shown little remorse and attempted to minimise his offending. The Judge was right to prioritise a rehabilitative sentence.

[32]              In summary nothing raised by the appellant satisfies me that the sentence was in error or was manifestly excessive.

Conclusion

[33]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
M J Smit, Barrister, Christchurch