Whitehead v Police - [2021] NZHC 734

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whitehead v Police

Details

AGLC: Whitehead v Police [2021] NZHC 734
Case: [2021] NZHC 734
Decision Date: 1 April 2021

CaseChat Overview and Summary

Rachel Jane Whitehead appeals her sentence of nine months’ home detention for multiple convictions related to alcohol-related driving offenses. The convictions stem from two instances of refusing a police officer's request for a blood specimen and one instance of driving with excess blood alcohol. Whitehead argues that the sentence is manifestly excessive, particularly because she had been subject to very restrictive bail conditions for 16 months prior to her sentencing. The appeal was heard in the High Court of New Zealand at Auckland, where the court had to determine whether the sentence imposed was an error and if a different sentence should be imposed.

The legal issue before the court was whether the sentence was manifestly excessive, particularly considering the extensive time Whitehead had already spent under strict bail conditions. The court considered the principles outlined in Palmer v R and Tutakangahau v R, which state that the standard of appellate review in sentence appeals requires the appellant to show a material error was made and that a different sentence should be imposed. The court also looked at submissions from both parties, weighing whether the punitive purpose of the sentence had already been satisfied by the bail conditions, and if the rehabilitative purpose could be achieved through a less punitive sentence.

The court agreed with Whitehead’s submissions, finding that the sentence of home detention was excessively punitive given the significant time she had already spent under strict bail conditions. The court found that the judge did not take this time into account when sentencing, which was an error. The court noted that the strict bail conditions served a punitive purpose, and therefore, the rehabilitative purpose of sentencing should have been emphasized more. The court also found that intensive supervision would be the most appropriate and least restrictive sentence, allowing for continued support and monitoring while providing Whitehead with some freedom.

The appeal was allowed, and the sentence of home detention was quashed and substituted with a sentence of 12 months’ intensive supervision on standard conditions, plus special conditions requiring Whitehead to attend a Salvation Army alcohol prevention program and be subject to judicial monitoring. The driving disqualification remains in place.

Orders