Whitehead v Police
[2021] NZHC 734
•1 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000003
[2021] NZHC 734
BETWEEN RACHEL JANE WHITEHEAD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 March 2021 Appearances:
G MacDonald for the Appellant C Best for the Respondent
Judgment:
1 April 2021
JUDGMENT OF HINTON J
This judgment was delivered by me on 1 April 2021 at 2:30 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
G MacDonald, Barrister, Auckland
N E Walker, Crown Solicitor, Manukau
WHITEHEAD v NEW ZEALAND POLICE [2021] NZHC 734 [1 April 2021]
[1] Ms Whitehead appeals her sentence of nine months’ home detention for two convictions of refusing an officer’s request for blood specimen (third or subsequent)1 and one conviction for driving with excess blood alcohol (third or subsequent).2 These convictions are her 10th, 11th and 12th convictions for such offending.
[2] Ms Whitehead initially came before Judge G T Winter for sentence on 24 July 2019.3 The Judge indicated a sentence of 18 months’ imprisonment but elected to judicially monitor Ms Whitehead on conditions that she continue to reside at the Grace Foundation to which she had previously been bailed on a 24 hour curfew unless attending programmes; not consume alcohol; and not operate a motor vehicle. The Judge adjourned the hearing part-heard and warned Ms Whitehead that if she did not comply with the conditions, she would be sentenced to 18 months’ imprisonment.
[3] Due to COVID it was not possible for Ms Whitehead to continue to reside at Grace Foundation so there were bail variations moving her to other supported addresses. The sentencing was also further adjourned due to lack of necessary reports.
[4] The sentencing was finally completed approximately 16 months later on 1 December 2020.4 The Judge commended Ms Whitehead’s compliance with the “quite strict” bail conditions and “converted” the indicated sentence of 18 months’ imprisonment to a sentence of nine months’ home detention.
[5] Ms Whitehead appeals on the grounds the sentence is manifestly excessive in light of the 16 months she spent with very restrictive bail conditions. Ms Whitehead says she should have been sentenced to intensive supervision rather than home detention.
1 Land Transport Act 1998, s 60(1)(a); maximum penalty two years imprisonment or a $6,000 fine, and disqualification up to one year.
2 Land Transport Act 1998, s 56(2); maximum penalty two years imprisonment or a $6,000 fine, and disqualification for at least 12 months.
3 Police v Whitehead [2019] NZDC 14814.
4 Police v Whitehead [2020] NZDC 24961.
Offending
[6] On 23 August 2018 Ms Whitehead crashed her motor vehicle into a drainage ditch. When Police arrived Ms Whitehead smelt of alcohol and her speech was slurred. Police required her to undergo an excess breath alcohol test. Ms Whitehead refused saying she was not the driver. Police then requested she supply a blood sample for analysis. They warned her that if she refused she would be arrested. Ms Whitehead refused and was arrested.
[7] On 20 February 2019 Ms Whitehead called the Police and stated she intended to crash her car. The Police found her driving and ambulance staff treated her for an unrelated condition. She was taken to the hospital and a blood sample was taken. Her blood was found to contain 316 milligrams of alcohol per 100 millilitres of blood.
[8] On 28 February 2019, a member of the public stopped Ms Whitehead while she was driving. The person called Police and said they stopped Ms Whitehead as she was driving in a dangerous manner and weaving all over the road. When the police arrived, Ms Whitehead refused to undergo any breath and blood alcohol procedures. A police constable warned Ms Whitehead if she did not permit a blood specimen to be taken, she would be arrested. Ms Whitehead continued to refuse and was arrested.
Law
[9] The appellant has an appeal as of right under Section 244 of the Criminal Procedure Act 2011 ("the Act").
[10] Section 250 of the Act sets out how a court must determine a sentence appeal. An appeal must be allowed if the court be satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.
[11] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:5
…the standard of appellate review in sentence appeals… requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.
[12] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply, and the Court would not intervene where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.6
Sentencing in District Court
[13] As noted, the sentencing was completed on 1 December 2020. The Judge referred to Ms Whitehead’s appalling history of offending. He recorded that she had participated in counselling and therapy at the Grace Foundation, Community Alcohol and Drug services (CADS) and Phoenix Foundation for over 15 months. The Judge also recognised that Ms Whitehead had sold her car and, despite complications arising from the COVID-19 pandemic, had carried on with her determined efforts to maintain a sober lifestyle. The Judge noted that she had only breached her “quite strict” bail conditions four times, only two of which were alcohol-related. It seems none of these involved driving a car.
[14] The Judge then recorded that the latest pre-sentence report (dated 24 November 2020) recommended a sentence of home detention as the best support to reduce the risk of Ms Whitehead drink-driving. He said he would have expected Ms Whitehead to have already entered a residential programme but he was satisfied with the support she was receiving from the Church and from the Phoenix Foundation.
5 Palmer v R [2016] NZCA 541, at [17].
6 Tutakangahau v R [2014] 279, at [35]-[36].
[15] The Judge then “converted” Ms Whitehead’s sentence from the previously indicated 18 months’ imprisonment to 9 months’ home detention. He also imposed conditions that Ms Whitehead not possess, consume or use any alcohol or drugs not prescribed for her and that she attend appropriate alcohol treatment programmes and any other treatment directed by her probation officers. The Judge also imposed six months of similar post-detention conditions. Finally the Judge imposed a 12 month concurrent disqualification from driving.
Submissions
[16] Mr Macdonald, counsel for Ms Whitehead, submits that the sentence of nine months’ home detention was manifestly excessive in particular because the Judge did not take into account the 16 months of restrictive bail conditions since the indicated sentence was given. Relying on two decisions of this Court he submits that time spent subject to restrictive bail may be taken into account in determining whether a sentence of home detention is appropriate and the length of that sentence.7
[17] Mr Macdonald further submits that the Judge had two main purposes in sentencing Ms Whitehead: rehabilitative and punitive. He submits that the punitive purpose has been achieved by the four months and 12 days she spent on remand in custody (which was taken into account at the indicative sentencing) and also by the strictness of her bail conditions over a long period of time. Mr Macdonald submits that the strictness of the bail conditions, together with the threat of imprisonment if the conditions were breached, and the length of time such conditions were imposed, are all punitive factors not taken into account at Ms Whitehead’s sentencing on 1 December 2020.
[18] Therefore, Mr Macdonald submits, the rehabilitative purpose of sentencing should have had greater emphasis in Ms Whitehead’s sentencing, the punitive element having already been achieved. Mr Macdonald says the rehabilitative purpose of sentencing and of ensuring Ms Whitehead continued with her “determined efforts to
7 Smith v Police HC Rotorua CRI-2009-463-110, 18 December 2009; R v Hertnon HC Palmerston North CRI-2007-031-536, 18 December 2009. While the principle is correct neither of these cases is applicable.
keep a sober lifestyle” could have been achieved with a sentence of intensive supervision.
[19] Ms Best, counsel for the Crown, submits that the Judge made no error in his sentencing as he clearly took into account the time Ms Whitehead spent on strict bail conditions. She submits that the Judge was not required to award a further discount for time spent on restrictive bail conditions and that Ms Whitehead’s compliance with the bail conditions was reflected in the fact that the Judge sentenced her to home detention rather than imprisonment.
[20] Ms Best submits that even if an additional “discount” should have been made to reflect the time spent on restrictive conditions, the failure to do so does not justify interfering with the end sentence. She refers to Bennett v R where the Court of Appeal stated:8
We accept that in principle it will often be appropriate to reflect a significant period spent on 24 hour curfew, but we do not agree that we ought to interfere with a sentence on that ground alone.
Discussion
[21]I agree in substance with the appellant’s submissions.
[22] The Judge has noted the lengthy time on bail with a 24 hour curfew but there is no indication he has taken that into account in his sentencing. The Judge was not obliged to do so, but in my view in this case he should have. Ms Whitehead has already served not far off the equivalent of nine months’ home detention and with very substantial compliance.
[23] The quoted sentence from Bennett read in context is not stating a general principle. The Court goes on to say they take that view because they are satisfied all mitigating features had been reflected in a six month discount already allowed. Also the Court of Appeal was considering whether an additional discount of one month should have been awarded to reflect six months spent on restrictive bail conditions. This is materially different to the present case where the time on very restrictive bail
8 Bennett v R [2012] NZCA 173, at [25].
was 16 months since the indicated sentence alone and the appellant is arguing the type of sentence should be changed rather than the length of sentence.
[24] The Judge has followed the recommendation of the pre-sentence report writer but the writer seems to have assumed following the sentence indication that the options were imprisonment or home detention. However the previous pre-sentence report dated 3 September 2020 in fact recommended a sentence of intensive supervision and said this sentence would allow a probation officer to manage Ms Whitehead and ensure she engages in relevant programmes. (I note that when that report was written Ms Whitehead was living in temporary accommodation unsuitable for electronic monitoring.)
[25] The Judge also does not consider whether a sentence of home detention is the least restrictive outcome that would be appropriate in the circumstances.9 Or whether a sentence of intensive supervision would have been appropriate while also achieving the purposes of sentencing.
[26] In my view, the sentence is in error for the above reasons and the appeal should be allowed. Home detention is excessively punitive in these circumstances. Ms Whitehead’s rehabilitation, deterrence and protection of the community need to be the primary focus of this sentence. Intensive supervision subject to judicial monitoring and further attendance at an alcohol prevention programme would be the most appropriate and least restrictive sentence as it allows her some freedom but still allows probation, the Court and counsellors to monitor her progress and ensure she continues to get the support she needs.
[27] Obviously ongoing support and monitoring is critical here and has proved effective following the Judge’s thoughtful indicative sentence. Mr MacDonald accepts that although Ms Whitehead has already served over four months’ home detention, a period of 12 months’ intensive supervision would be appropriate. He also accepts that the special conditions imposed below are appropriate.
9 Sentencing Act 2002, s 8(g)
Conclusion
[28]The appeal is allowed.
[29] The driving disqualification stands but the sentence of home detention is quashed and substituted with a sentence of 12 months’ intensive supervision on standard conditions plus special conditions that Ms Whitehead attend a Salvation Army alcohol prevention program and that she be subject to judicial monitoring. The Registrar is to fix a half-hour hearing before me on a date approximately two months from today, which Ms Whitehead is to attend.
Hinton J