Venn v Police

[2024] NZHC 1932

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000045

[2024] NZHC 1932

BETWEEN

SCOTT JASON VENN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 July 2024

Appearances:

M Ryan for Appellant

B Bosomworth for Respondent

Judgment:

15 July 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 15 July 2024 at 3 pm

………………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Marsden Woods Inskip Smith, Crown Solicitor, Whangarei M Ryan, Barrister, Auckland

VENN v NEW ZEALAND POLICE [2024] NZHC 1932 [15 July 2024]

[1]    The appellant, Scott Venn, pleaded guilty to a charge of driving a motor vehicle in a manner which, having regard to all the circumstances, might have been dangerous to the public and thereby caused  injury  to  his  passenger.1  On  6  May  2024,  Judge D J McDonald sentenced Mr Venn to 14 months’ imprisonment and disqualification from holding or obtaining a driver licence for three years.2

[2]    On appeal, Mr Venn says that because of an issue as to whether he consented to electronic monitoring Judge McDonald erred by declining to adjourn the sentencing or by declining to grant him leave to apply for home detention.

Background

[3]The summary of facts states that on 18 October 2022, at approximately

9.30 am, Mr Venn was driving North along State Highway 10. His partner was in the front passenger seat. While travelling at excessive speeds, Mr Venn crossed onto the opposite side of the road to overtake three vehicles in front of him. In doing so, he narrowly avoided a head-on collision with a truck travelling in the opposite direction. When Mr Venn re-entered the correct side of the road, he lost control of the vehicle due to his excessive speed. He crossed back over to the opposite side of the road, became airborne and impacted approximately three metres up a tree before ricocheting into a paddock.

[4]    Mr Venn was removed from the wreckage by members of the public who stopped to help. His partner remained trapped in the wreckage until firefighters were able to cut her free. Mr Venn received moderate injuries. His partner received a femoral fracture and a perforated bowel. Both were airlifted to hospital.

District Court decision

[5]    Judge McDonald adopted a starting point of 14 months’ imprisonment to take into account the serious risks that Mr Venn’s driving posed to his partner, other drivers and to himself. The Judge also mentioned the burden the resulting hospital treatment

1      Land Transport Act 1998, s 36(1)(b). Maximum penalty: five years’ imprisonment or a $20,000 fine, and disqualification from holding or obtaining a driver licence for one year or more.

2      New Zealand Police v Venn [2024] NZDC 9947.

had on the health system and taxpayers, as well as the serious problem of reckless driving in Northland.

[6]    Judge McDonald gave a 15 per cent discount for Mr Venn’s late guilty plea. However, the Judge considered that neither Mr Venn’s previous period of electronically monitored bail for separate charges (which were eventually dismissed) nor the limited amount of time Mr Venn alleged he had been given to travel to the Kaitaia District Court on the morning of the offending (the exact duration of which was disputed) could warrant further discounts. Judge McDonald then went on to add a three-month uplift to reflect Mr Venn’s history of driving, violence and dishonesty offences.

[7]    Of relevance to this appeal, Judge McDonald noted that the pre-sentence report (report) recorded that Mr Venn did not consent to electronic monitoring. He acknowledged that Mr Venn disputed this and said:3

You say you are not going to do any electronically monitored sentence, you dispute that, but the report writer has quite clearly advised me of that and I have read thousands of these reports, and if a person says that they will do an electronically monitored sentence and give an address then that address is checked.

[8]    The report does not refer to an address being provided by Mr Venn for the purposes of a suitability assessment for EM bail. The Judge again referred to the report which quoted the words of Mr Venn to the report-writer:4

It tells me this: an electronic monitoring has been declined by Mr Venn stating: “I’ve only just recently come off electronically monitored whilst on EM bail for 19 months and I don’t see why I should go back on it.”

[9]    The Judge accordingly concluded that an electronically monitored sentence was not available. He sentenced Mr Venn to 14 months’ imprisonment and disqualification from holding or obtaining a driver licence for three years.

3      New Zealand Police v Venn, above n 2, at [20].

4 At [21].

Law on appeal

[10]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.5 Otherwise, the Court must dismiss the appeal.6

[11]   The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.7 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.8

[12]   This standard of appellate review applies to decisions not to commute imprisonment to home detention.9 Importantly, a failure to consider whether to grant leave to apply for home detention is a material error, even if the defendant does not request leave.10

Submissions

[13]Mr Ryan, on behalf of Mr Venn, submits that Judge McDonald erred by:

(a)not granting an adjournment to enable evidence to be obtained from Mr Venn and the pre-sentence report-writer about Mr Venn’s consent to electronic monitoring; and/or

(b)not granting leave for Mr Venn to apply for home detention.

5      Criminal Procedure Act 2011, s 250(2).

6      Criminal Procedure Act, s 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

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

9      Palmer v R [2016] NZCA 541 at [18]; and Manikpersadh v R [2011] NZCA 452 at [12].

10     Papa v Police [2019] NZHC 1309.

Granting an adjournment

[14]   Mr Ryan says that counsel appearing on his behalf for Mr Venn only became aware of the pre-sentence report (dated 23 April 2024), and learned that it stated that Mr Venn did not consent to electronic monitoring, on the day of the sentencing — the same day counsel filed submissions. Counsel then spoke with Mr Venn who instructed him that he did, in fact, consent to electronic monitoring but that he simply preferred to avoid it having just finished approximately 18 months on electronically monitored bail for unrelated charges which were subsequently dismissed.

[15]   Mr Ryan says counsel informed Judge McDonald of this misunderstanding during the sentencing, and Judge McDonald acknowledged that this issue was in dispute: “You say you are not going to do any electronically monitored sentence, you dispute that, but the report-writer has quite clearly advised me of that”.11

[16]   Mr Ryan now applies to admit new evidence on this issue, being an affidavit from Mr Venn explaining how the pre-sentence report mischaracterised his position and that, in fact, he was and remains open to electronic monitoring. The affidavit also expresses his remorse and states that his attitude towards driving has changed following the accident. Mr Ryan argues that leave should be granted to admit this evidence as it is both credible and fresh.

[17]   Crown counsel, Mr Bosomworth, opposes the admission of this new evidence, arguing that it is neither fresh nor cogent. He submits that its contents are not fresh because counsel, could have with reasonable diligence, tendered this evidence at the hearing having obtained instructions from Mr Venn. Furthermore, Mr Bosomworth notes that the expressions of remorse in the affidavit could have, with reasonable diligence, been provided at the hearing through a letter of remorse.

[18]   Mr Bosomworth also submits that the contents of the affidavit are not cogent as they are irrelevant to the first issue of whether Judge McDonald should have adjourned the sentencing, which must be assessed on the material the Judge had at the time.

11     New Zealand Police v Venn, above n 2, at [20].

[19]   On the issue of an adjournment, Mr Bosomworth submits that there is no indication that counsel sought an adjournment at sentencing in order to obtain an updated  pre-sentence  report  or  to  otherwise   resolve   the   disputed   evidence. Mr Bosomworth contends that counsel chose to give Mr Venn’s version of events from the bar rather than tendering evidence or requesting an adjournment. The Judge then made a credibility finding in favour of the report-writer and proceeded with the sentencing. In the absence of any request for an adjournment, Mr Bosomworth submits that there was no error in Judge McDonald’s approach. Furthermore, he contends there is no requirement on a sentencing judge to adjourn a sentencing hearing where an offender has not provided a viable home detention address and does not request an opportunity to do so.

Granting leave to apply for home detention

[20]   In their written submissions, Mr Ryan and Mr Bosomworth agree that Judge McDonald made a material error by failing to consider whether leave to apply for home detention should be granted. Likewise, they both submit that whether leave should now be granted depends on whether the Court would have sentenced the appellant to home detention if a suitable residence had been available.12 However, they disagree as to whether this is the case.

[21]   Mr Ryan submits that a sentence of electronically monitored home detention would have been the appropriate sentence in accordance with the purposes and principles of the Sentencing Act 2002. He notes that, prior to sentencing, Mr Venn completed approximately 18 months of EM bail without issue, thereby demonstrating his ability to comply. Furthermore, he notes that home detention would deter and denunciate the offending, and that these purposes would also be supported by the three-year disqualification period. He then refers to several cases involving, what he submits, was more serious offending that resulted in sentences of less than imprisonment. In Chaya v Police, the defendant sped and lost control of his vehicle in a school zone, injuring six children between 13 and 15 years’ old.13 His final

12     Pursuant to s 80I(1)(b) of the Sentencing Act 2002.

13     Chaaya v Police [2019] NZHC 3250.

sentence was 10 months’ home detention, 250 hours of community service, a $16,000 fine and disqualification from driving for one year.

[22]   In Hiroki-Kaka v Police, alongside other charges including theft and male assaults female, the defendant knowingly drove his car for 100–200 metres while the victim was holding on to the outside of his vehicle and shouting for him to stop.14 The victim was dragged along the ground and eventually forced to let go, suffering cuts, abrasions and a broken ankle — she required surgery and a skin graft. The defendant received an end sentence of 10 months’ home detention.

[23]   Mr Bosomworth submits that a term of imprisonment was the least restrictive sentence appropriate in the circumstances. In particular, he argues that home detention would be insufficient to serve the sentencing purposes of denunciation, deterrence and accountability. He submits that the gravity of the offending was moderately high and involved serious risks of harm to multiple road users. He emphasises the pre-sentence report-writer’s opinion that Mr Venn had a high risk of harm and a medium risk of reoffending. Mr Bosomworth also referred to Mr Venn’s extensive history of traffic offending, demerits and licence suspensions. He submits that this repeat offending, despite prior sanctions, supported a sentence of imprisonment to deter and denunciate this behaviour and to protect the public.

[24]   Lastly, Mr Bosomworth distinguishes the cases cited by Mr Ryan as involving significant personal mitigating factors which do not apply in the present case. In Chaaya v Police, the sentence was reduced due to the defendant’s mental health difficulties, remorse, restorative justice, previous good character and youth. In Hiroki-Kaka v Police, the report-writer noted the pro-social support available at the defendant’s proposed address where they had successfully spent six months on electronically monitored bail. The report-writer also assessed the defendant in that case as being at a low likelihood of reoffending, and the judge noted the defendant’s assurances he would leave his gang and the salutary effects of him having already spent five weeks in custody.

14     Hiroki-Kaka v Police [2023] NZHC 3774.

Discussion

[25]   Mr Ryan made it clear that he was not asking this Court to substitute a sentence of home detention on appeal, rather he submits that the Court should remit the matter back to the District Court for resentencing to enable Mr Venn to submit that home detention is the most appropriate sentencing option or to grant leave to Mr Venn to apply to substitute a sentence of home detention for his current sentence of imprisonment. In oral submissions Mr Ryan focussed simply on the first option. Accordingly, I approach the appeal on that basis.

[26]   I first address the issue of whether the Judge erred in not expressly considering whether leave to apply for home detention under s 80I should be granted. Despite both counsel agreeing in their written submissions that the Judge erred in not considering whether to grant leave, I do not consider that he did err. Section 80I provides:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[27]   The reason I say that the Judge did not err was because s 80I(1)(b) did not apply. It did not apply because of the Judge’s factual finding accepting the statements in the pre-sentence report that Mr Venn did not wish to serve a sentence of home detention. In those circumstances, with Mr Venn not wishing to serve a sentence of home detention, the Judge would not have imposed such a sentence. In the course of oral submissions, when the Court sought submissions on that proposition, both counsel accepted that was the case. Accordingly, that ground of appeal fails.

[28]   I next address the issue as to whether the Judge should have adjourned the sentencing hearing to resolve the disputed aspect of the pre-sentence report, namely whether or not Mr Venn had consented to an EM sentence. Mr Ryan submits that the sentencing should have been adjourned to enable evidence to be heard from Mr Venn and the pre-sentence report-writer.

[29]   A similar issue was raised in R v Dunsmuir.15 In a pre-sentence report there were statements allegedly made by the appellant to the report-writer in which he divulged his gang associations. The pre-sentence report-writer then made an assessment that the appellant’s pride in his criminal connections contributed to a high risk of reoffending. The appellant submitted that the Judge should not have accepted the contents of the pre-sentence report without evidence to prove his statements beyond reasonable doubt. The discussion by the Court of Appeal on this issue included the following:

[15] In broad terms, the facts to which s 24 is directed will be those relating to the circumstances of the offence whereas the facts and opinions in a pre-sentence report will relate to the circumstances of the offender. There will often be overlap however. Matters disclosed in a pre-sentence report may well be aggravating facts or mitigating facts as defined in s 24. When they are, to the extent that they are facts asserted by one party and disputed by the other, the processes set out in s 24(2) are to be used. On the other hand, matters of information and assessment provided to the court by a probation officer, if challenged, may be the subject of evidence in accordance with s 28(3). That will be the appropriate process when issues arise concerning the accuracy of what is reported as having been told to the probation officer by the offender and of any opinion proffered on the basis of it.

[30]   In the present case the disputed contents of the pre-sentence report did not constitute aggravating or mitigating facts for the purposes of s 24(2) of the Act. The proper process would have been for counsel for Mr Venn to instigate the process under s 28(3) by tendering evidence from Mr Venn or requesting a hearing to do so.

[31]   Mr Ryan, who was not counsel in the District Court, said in oral submissions that he is instructed that counsel appearing on his behalf for Mr Venn requested an adjournment so this dispute could be addressed. It is not clear from the decision

15     R v Dunsmuir CA439/02, 23 July 2023.

whether such a request was made.16 However, it is not necessary for this Court to resolve whether or not there was an application for an adjournment in relation to the dispute over whether or not Mr Venn agreed to an electronically monitored sentence. That is because this Court now has an affidavit from Mr Venn. While I accept that the evidence is not fresh, I propose to admit it in the interests of justice. Mr Venn has now provided sworn evidence that he does consent to a sentence of home detention. In that respect the position is now different to the position as it was in the District Court. To be clear the affidavit is admitted only insofar as it addresses the home detention issue. Mr Venn also refers to the issue of remorse. That part of the affidavit is not admitted.

[32]   In the absence of a further pre-sentence report, this Court is not in a position to determine whether the appropriate sentence is a sentence of home detention. Such a report addresses not only the suitability of the proposed address and occupants but also the suitability of a defendant for home detention. I consider the sentencing Judge will need to carry out a re-sentencing after a further pre-sentence report with a home detention appendix is prepared. The Court has jurisdiction to make such an order under s 251(2)(c) of the Criminal Procedure Act 2011.17

[33]   However, I do make my own observations. There would appear to be good reasons why the Judge might not commute the sentence to one of home detention. I agree with Mr Bosomworth’s submission that the gravity of the offending was moderately high; Mr Venn’s degree of culpability was moderately high; he has a history of convictions for traffic-related offending and an extensive demerit history which includes his licence having been suspended on three occasions due to excessive demerits.

[34]   As against those factors, Mr Ryan will no doubt make submissions, including those summarised in this judgment, as to why home detention is the least restrictive option. That will be for the District Court Judge to determine.

16 The decision records at [3] that there was a written application to adjourn the sentencing.  The  Court has seen a copy of that application and it is clear that the adjournment sought was for the purpose of holding a restorative justice process. However, Mr Ryan’s position is that there was also an oral application on the separate issue of whether or not Mr Venn consented to home detention.

17 R v Harriman [2009] NZCA 156 at [28]–[29] under the predecessor provision.

Result

[35]   I allow the appeal to the extent that sentencing is remitted to the District Court with a direction that it obtains a further pre-sentence report with a home detention appendix before sentencing Mr Venn afresh.

[36]   Mr Venn will remain in custody in the meantime to facilitate completion of the pre-sentence report.

Gordon J