HOWE v NEW ZEALAND POLICE [2021] NZHC 2087

HOWE v NEW ZEALAND POLICE [2021] NZHC 2087 [12 August 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-49[2021] NZHC 2087DARWIN HOWEvNEW ZEALAND POLICEHearing: 5&12 August 2021Counsel: S J McDonald for AppellantM Shaw for RespondentJudgment: 12 August 2021JUDGMENT OF CHURCHMAN JIntroduction[1] On 8 July 2021, Mr Howe was sentenced in the Porirua District Court for thefollowing charges:1(a) 1 x charge of unlawfully getting into a motor vehicle;(b) 3 x charges of driving while disqualified (third or subsequent);(c) 1 x charge of possession of two methamphetamine pipes;1 Police v Howe [2021] NZDC 13856.(d) 1 x charge of possession of a Class A controlled drug(methamphetamine);(e) 1 x charge of receiving property over $500; and(f) 1 x charge of dangerous driving.[2] For these charges, Mr Howe was sentenced to 13 months' imprisonment. TheJudge also granted Mr Howe leave to apply for home detention to a suitablerehabilitation address and disqualified him from driving for 18 months.[3] Mr Howe now appeals the sentence, on the grounds that:(a) the sentence of 13 months' imprisonment was manifestly excessive;(b) the Judge did not sufficiently turn her mind to a non-custodial sentencepursuant to ss 8(g) and 16 of the Sentencing Act 2002;(c) the Judge did not place sufficient weight on the recommendations inthe Provision of Advice to Courts report (PAC report); and(d) the Judge erred in determining that home detention was not an availableend sentence.[4] The police oppose the appeal.BackgroundFactual background[5] In the early morning of 15 February 2021, Mr Howe was driving a vehicledown State Highway One, despite being disqualified from driving at the time. He wasstopped by police at a COVID-19 checkpoint and asked to produce his driver's licence.He immediately admitted that he was disqualified and complied with policeinstructions. The vehicle was impounded and Mr Howe was arrested, resulting in thedriving while disqualified charge.[6] On 9 March 2021, while Mr Howe was on bail for his 15 February drivingwhile disqualified charge (and still disqualified), he drove down State Highway Onenear Paremata in the early hours of the morning. Mr Howe saw a police vehicle andaccelerated away at speed. The police followed and observed him travelling at170 kilometres per hour. Mr Howe also turned his lights off as he continued to travelat high speeds away from the police. This resulted in an additional driving whiledisqualified charge, and a dangerous driving charge.[7] On 19 March 2021, Mr Howe was caught driving a stolen vehicle with stolennumber plates in the early hours of the morning. This resulted in the final drivingwhile disqualified charge, and the receiving property charge (in respect of the stolenlicence plates affixed to the stolen car).[8] On 24 March 2021 at 17:15pm, Mr Howe was in the driver's seat of a parkedvehicle in Paraparaumu (in breach of bail by doing so). He was located by police, whoblocked him from leaving, and arrested and searched him. In their search, policelocated two methamphetamine pipes in his satchel bag, and approximately 0.1 gramof methamphetamine. This led to the possession of methamphetamine pipes andpossession of methamphetamine charges.District Court decision[9] Before considering the starting point, Judge Doyle noted the detailed reportsthat had been filed concerning Mr Howe, including a PAC report, an s 27 report, andan s 38 report. In particular, the Judge noted that the s 38 report indicated thesignificant rehabilitation needs that Mr Howe had, which were complex, multi-layered, and not easy to fix, but that he was prepared to seek help and assistance indealing with these issues.[10] The Judge also acknowledged Mr Howe's whānau support in Court,recognising their willingness to support him in his rehabilitative journey, and tosupport him in having an address for him to be bailed to, or to serve home detentionat.[11] After setting out the relevant facts, the Judge decided to adopt the driving whiledisqualified charges as the lead offences, following the approach taken by Clifford Jin Apiata v Police.2 That approach entailed taking the most serious driving whiledisqualified offence (the 21st offence) and using that as the starting point, and thenimposing an uplift for other driving while disqualified convictions, previousconvictions, any other offending, and then considering discounts for mitigatingfactors.[12] In terms of these discounts, the Judge noted that Mr Howe should receive thefull 25 per cent for guilty pleas, because these were given as early as possible. TheJudge also concluded that Mr Howe should receive a significant discount for hispersonal circumstances, which included his difficult childhood and current battles withdrugs and mental health, as well as his expressions of remorse, and willingness toengage in restorative justice. A 25 per cent discount was given for these factors.[13] In considering the starting point, the Judge considered that it was appropriateto start with 18 months' imprisonment, given that Mr Howe's circumstances were onall fours with the Apiata case. This was uplifted by four months for the two otherdriving while disqualified convictions, and a further two months for the dangerousdriving and unlawfully getting into a vehicle charges.[14] The Judge agreed with Mr Howe's counsel that the possession ofmethamphetamine and possession of pipes should not attract a further uplift. Theywere different and discrete issues and were symptomatic of the demons that Mr Howewas dealing with in terms of his drug addiction. There was also no uplift imposed forthe receiving of the licence plates.[15] A two-month uplift was given to reflect Mr Howe's 70 previous convictions(not including his 18 driving while disqualified charges, which were considered as partof the starting point), resulting in an adjusted starting point of 26 months'imprisonment. This was reduced to 13 months' imprisonment due to the 50 per centdiscount for guilty plea and Mr Howe's personal circumstances.2 Apiata v Police [2016] NZHC 3119.[16] The Judge then turned to consider whether Mr Howe's sentence should beconverted to a community-based sentence. After noting the principles of theSentencing Act, including the balance between denunciation and deterrence andrehabilitation, the Judge considered that the most "difficult aspect" of the case was thebalance between Mr Howe's rehabilitative needs, and the need to protect the publicfrom his ongoing offending.[17] The Judge acknowledged that the PAC report had recommended that a sentenceof community detention and intensive supervision but noted that Mr Howe had notengaged particularly well with Community Probation during the interview process,and also that he had a high risk of offending due to the fact that he continued to offendon a regular basis. There was also a need for Mr Howe to get intensive support andmonitoring, both through judicial monitoring and through community probation – anissue also raised in the s 38 report. A co-ordinated approach was particularly importantgiven Mr Howe's trauma symptoms, and his limited skills to manage distress,emotions and impulses. The Judge in particular noted that while Mr Howe appearedto be motivated, the psychologist had expressed concern about his use of avoidancewhich would require targeting before addressing intrusive experiences, as well as hissubstance abuse.[18] The Judge noted that Mr Howe had commenced the Salvation Army BridgeProgramme in January 2021, but was released shortly after breaching its programmerules, and that he would need to engage with Community Alcohol and Drug Servicesbefore re-engaging in the programme.[19] The Judge noted:My concern at this stage is whether you are yet at the point where it is safe foryou to be in the community and receiving treatment. Since at least 2015 youhave had a pattern of doing this kind of behaviour, unlawful taking, drivingwhilst disqualified, thefts, drug use, being imprisoned, being released anddoing the same thing all over again.[20] It was also noted that there was a pattern of being imprisoned and re-offendingin the past decade, and that the Court had not been prepared to give Mr Howe acommunity-based sentence since 2012. Because of this pattern of re-offending, theJudge concluded:I am not saying you are not motivated. I am not saying you are not on yourway. You are. But when I have to balance your rehabilitation needs with thepublic safety, it comes down in favour of the public safety. What that meansis that I cannot find that the least restrictive option that is appropriate in all thecircumstances is a community-based or electronically monitored sentence. Iam sentencing you to 13 months' imprisonment.[21] Finally, the Judge granted Mr Howe leave to apply for home detention, butonly if he could provide an address which would enable him to undertake residentialrehabilitation in the form of a bridge or other rehabilitation programme at which hecould complete his sentence.[22] The Judge also disqualified Mr Howe from driving for 12 months, and with sixmonths of post-release conditions.Position of the partiesMr Howe[23] As noted above, Mr McDonald, counsel for Mr Howe, brought the appeal onfour grounds. Before setting out these grounds, counsel discussed Mr Howe'sbackground and personal circumstances. It was noted that Mr Howe was a particularlyvulnerable man, who had consistently received custodial sentences without theopportunity to engage in rehabilitation to properly deal with the underlying causes ofhis offending. Those underlying causes were identified in the s 38 report, which foundthat Mr Howe grew up in a home with violence and substance abuse, and both hisparents were incarcerated for a number of years when he was growing up. The reportalso found that Mr Howe likely experienced post-traumatic stress disorder (with scoresfor PTSD above the clinically elevated range), ADHD, potentially suffering fromfoetal-alcohol syndrome, stimulant use disorder, and borderline intellectualfunctioning below low average.[24] Counsel also noted that the s 38 report had recommended referral toCommunity Alcohol and Drug Support, residential rehabilitation, and post-sentencesupport. According to counsel, it appeared in recent months that Mr Howe had finallyturned a significant corner in his life, and recognised that he needed support for hisaddiction, leading him to have a discussion with the forensic mental health nurse aboutthis issue at his appearance for plea.[25] While Mr Howe had exited the Salvation Army Bridge programme, counselsubmitted that he was not ready to attend rehabilitation at the time, and that it wascommon for individuals with severe methamphetamine addictions to have severalattempts at rehabilitation.[26] Counsel discussed two "key factors" which the Judge used to justify notimposing a non-custodial sentence: that home detention was not an available sentencebecause it had not been canvassed explicitly in the pre-sentence report and it was notclear that the whānau had explicitly consented to it, and that community detentionwould not sufficiently reduce the risk that Mr Howe posed to the community.[27] Counsel then turned to the grounds of appeal.[28] Under ground one, counsel submitted that the sentence imposed wasmanifestly excessive, and that the getting into a motor vehicle charge should have beenconsidered the lead offence. Under this offence, a starting point of six months'imprisonment was appropriate with an end sentence 100 hours' community work incombination with six months' supervision as the least restrictive sentence.[29] Under ground two, counsel submitted that the Judge failed to take steps toclarify whether home detention was available and was not amenable to standing thematter down for Corrections to clarify if home detention was available, despite theoccupants of Mr Howe's proposed address having explicitly consented to Mr Howebeing sentenced to community or home detention at their address. Furthermore, theend sentence of imprisonment was excessive, as the Judge did not have proper regardto s 16 of the Sentencing Act. Because under that provision, the Court must haveregard to the desirability of keeping offenders in the community as far as practicableand consonant with the safety of the community, and given that a community-basedsentence was recommended, the 13-month sentence of imprisonment should havebeen commuted to on namely home detention under s 8(g) of the Sentencing Act.Counsel noted that the proposed address provided some distance from Porirua wherehe had connections back to the Mongrel Mob.[30] Under ground three, counsel submitted that the Judge did not appropriatelyconsider s 27 of the sentencing Act, particularly subs (1)(d) and (1)(e), which makeswhānau support and the offender's whānau background relevant considerations underthe provisions. Mr Howe's whānau was present at the sentencing hearing, but that theJudge did not place appropriate weight on the wishes of his whānau to assist in hisrehabilitation and reintegration through a community-based sentence.[31] Under ground four, counsel submitted that the Judge erred in not determiningthat a sentence of home detention was not available. Counsel noted that jurisprudentialshifts in Zhang v R, where the Court of Appeal noted the factors of addiction, povertyand deprivation as factors that could be taken into account in sentencing, and that itchanged the way lower Courts should sentence vulnerable individuals in order toprioritise a health-centred, rehabilitative approach.3 Counsel submitted thatMr Howe's decade-long addiction to methamphetamine, which sat on top of hisdifficult upbringing including severe deprivation, abuse and violence, low IQ, PTSD,possible foetal alcohol syndrome and mental health challenges, as well as his lack ofconnection with his iwi of Ngāpuhi justified this type of approach here and impose anon-custodial sentence.The police[32] Mr Shaw, counsel for the police, submitted that there was no error in theJudge's analysis of the appropriate end sentence, as she properly considered all thereport, submissions, and other information before her.[33] Counsel for the police disagreed with counsel for Mr Howe's submission thatthe Judge should have taken steps to clarify whether home detention was available.Nothing in the Judge's decision referred to the issue of the occupants' lack of consentas being a concern, and this did not appear to be a material factor influencing theJudge's decision. Counsel submitted that it was difficult to see how seeking3 Zhang v R [2019] NZHC 507.clarification from the occupants of the proposed address as to whether they consentedcould be considered an error. Ultimately, the Judge simply did not consider that theywould be able to address Mr Howe's specific needs.[34] In terms of Judge's decision to refuse a non-custodial sentence on the basis ofMr Howe's risk to the public, counsel submitted that the Judge carefully assessed thisrisk, noting his pattern of dangerous driving and driving while disqualified charges,and that the 6 July 2021 PAC report was completed without interviewing Mr Howebecause he was evading police attention. Despite this, the Judge carefully assessedthe PAC and s 38 reports and noted that Mr Howe's risk of re-offending was still high,despite his whānau support.[35] Counsel disputed the submission that the Judge did not appropriately considers 27 of the Sentencing Act. The Court specifically acknowledged Mr Howe's whānausupport and granted a discount of 25 per cent from the starting point for his personalcircumstances.[36] Finally, it was submitted that the Judge did in fact adopt a rehabilitative orhealth-centred approach, as she explicitly allowed Mr Howe to apply for leave forhome detention if he could find an address at which he could undertake a residentialrehabilitation programme, as this was the only option in which Mr Howe couldproperly undertake a rehabilitative approach.Approach to appeal[37] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.4 The focus ison the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.54 Tutakangahau v R [2014] NZCA 279.5 Ripia v R [2011] NZCA 101 at [15].Relevant law and analysisSection 27 factors, and mental health and rehabilitation[38] The Court of Appeal has recently considered the role of s 27 reports inZhang v R, where it observed that sentencing must achieve justice in individual cases,which requires flexibility and discretion.6 The Court further noted that ingrainedsystemic poverty resulting from loss of land, language, culture, rangatiratanga, manaand dignity require consideration at sentencing when shown to contribute causativelyto the individual's offending.7[39] The Court of Appeal has also recently considered rehabilitation and mentalhealth issues as factors in the sentencing process in Orchard v R. This case concerneda charge of wounding with intent to cause grievous bodily harm by the appellant, whohad suffered a mild traumatic brain injury.8 The Court gave the following guidanceon the approach to sentencing and mental health:9[45] Theoretically, mental health issues may be engaged at two stages ofthe sentencing process. First, they may affect the starting point at stage one.That will be relatively rare, however, as the first stage is concerned with theintrinsic seriousness of the offending conduct, viewed objectively. Thisenables sentencing comparisons to be made from case to case. To be a properstage one consideration, mental disability must have altered the character andgravity of the offending itself.[46] Secondly, and more typically, mental health issues may operate as amitigating factor relevant to the offender's personal circumstances at stagetwo. Other, comparable personal considerations such as youth or systemicdeprivation are usually considered at this stage also. Mental health issues maymitigate the offending, diminishing moral culpability for the offending, andthereby also diminishing deterrence, accountability and denunciation assentencing concerns. The weight given to the consideration, for thosepurposes, will however depend on evidence supporting the view that thecondition contributed causally to the offending. Alternatively, it may be thecondition means that a sentence will weigh more heavily on the offender thanit would on a person in normal health, or that there is a serious risk ofimprisonment having a significant adverse impact on the offender's mentalhealth. There may of course be a combination of these considerations.[47] The usual effect of mental health issues is to mitigate sentence,although it may also be a neutral consideration and it may even aggravate the6 Zhang v R [2019] NZCA 507 at [10].7 At [159]. See also Solicitor-General v Heta at [49].8 Orchard v R [2019] NZCA 529.9 At [45]-[48] (footnotes omitted).level of sentence, where the offender's mental health issues affect the risk ofreoffending and thereby public protection.[48] In E (CA689/2010) v R, the Court noted that stage two discounts formental health issues ranging from 12 per cent to 30 per cent had been seen asappropriate. This is not be taken to confine the upper range discount wherediminished responsibility by reason of mental health deficits substantiallydiminishes moral culpability and the needs of deterrence, accountability anddenunciation generally as sentencing concerns.[40] I also note the recent report issued by the Office of the Prime Minister's ChiefScience Advisor entitled: What were they thinking? A discussion paper on brain andbehaviour in the criminal justice system. The report details issues such as offenderswith FASD and intellectual disabilities and the criminal justice system. With regardto intellectual disabilities, the report noted:10Despite the lack of robust research on prevalence rates of people withintellectual disability in the criminal-justice system, there is agreement thatthere are compounding effects of having an intellectual disability that worsensoutcomes once involved with the system. These include not understandinglegal rights or consequences when first engaged with police, nor the legallanguage and court processes that may follow. Once in prison, difficultiesarise from not understanding written information (prison rules, systems toaccess services, treatment programmes etc) and risks of being bullied andgetting depressed and anxious increase.[41] Clearly, there is growing research and acknowledgment by the Courts and inthe justice system in relation to the mental health issues (and the importance ofrehabilitation) with offenders, as well as other personal factors and circumstanceswithin an offender's life which can mitigate culpability or contribute to offending.However, in this case, it appears as though the Judge took these factors into account.Mr Howe's difficult personal circumstances, including his mental health andrehabilitative issues, were explicitly considered by the Judge, and she acknowledgedthe presence of his whānau support in the courtroom. After considering thoseparticular circumstances, the Judge considered that a discount of 25 per cent wasappropriate, to reflect Mr Howe's battles with trauma, drug addiction, mental healthissues, as well as his remorse. The Judge also carefully considered Mr Howe's PACand s 38 reports, noting their recommendations, and also his rehabilitative needs, but10 Ian Lambie What were they thinking? A discussion paper on brain and behaviour in relation tothe justice system in New Zealand (Office of the Prime Minister's Chief Science Advisor,29 January 2020) at [123].ultimately considered that Mr Howe was not yet at the point at which it was safe forhim to be in the community, given his pattern of re-offending.[42] Therefore, it does not appear that the Judge erred in considering these factors.The ultimate question is, in balancing the risk to the public with Mr Howe'srehabilitative needs, whether the Judge placed too much emphasis on the latter and notenough on the former by imposing a sentence of imprisonment that would thereforebe manifestly excessive.Home detention[43] If an offender is convicted of an offence punishable by imprisonment,11 andthe end sentence reached is a short-term sentence (meaning a sentence ofimprisonment of up to 24 months),12 home detention becomes available as asentencing option. However, whether or not it is appropriate to impose this sentence,in the circumstances of a particular case, is a matter for the discretion of the sentencingJudge. There is no presumption in favour of home detention being imposed.13[44] In Metua v R, Hinton J (citing the Court of Appeal decision of Fairbrother vR), provided useful guidance on a Court's assessment of when home detention isappropriate:14[12] Accordingly, as with any offence, where a proposed term ofimprisonment is under two years the sentencing court is obliged to consider aterm of home detention. Where appropriate, after considering the purposes ofsentencing, home detention is to be imposed. The Court cannot impose asentence of imprisonment unless satisfied that relevant sentencing purposescannot be achieved by another sentence. The Court of Appeal in Fairbrotherv R stressed that in choosing between the two options, "the choice must beintelligible", which requires that the "factors that really count must beidentified and weighed". In that casethe Court provided useful guidance onwhen home detention should be substituted for imprisonment on appeal:Sentences of imprisonment have been quashed and home detention substitutedfor two errors of law. One is where the sentencing judge has assumed that theoffence category lies beyond a sentence of home detention. The other is wherethe purpose of deterrence has been given complete priority without regard toany of the countervailing purposes of sentence. That does not mean that a11 Sentencing Act 2002, s 80A(1)(a).12 Parole Act 2002, s 4; Sentencing Act 2002, s 15A(1)(b).13 At [21].14 Metua v R [2018] NZHC 246 at [12].short-term period of imprisonment must always be commuted to a sentence ofhome detention. That equally would be an error of law. What it does mean isthat the judge must make a considered and principled choice between the twoforms of sentence, recognising that both serve the principles of denunciationand deterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing."[45] While denunciation and deterrence are significant factors in the sentencingprocess, s 7(1)(h) of the Sentencing Act dictates that a purpose of sentencing is to assistin the offender's rehabilitation and reintegration, and rehabilitation should be givenadequate recognition in sentencing.15 The Courts have acknowledged that somerecognition (often by way of a discount) should be given for genuine efforts by anoffender to address the causes of his or her offending, particularly where this appearsto have had some measure of success.16[46] In R v Hill, rehabilitative considerations are expressly considered to beimportant in determining whether to commute a sentence to home detention:17Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[47] In Barbour v Police, Hinton J observed that where the offending (burglary)was explicable as a result of the offender's drug addiction, it was inappropriate toemphasise considerations of deterrence and denunciation, and that it was wellrecognised that home detention is a real alternative to imprisonment and carries withit in considerable measure the principles of deterrence and denunciation.18[48] The critical issue in this case is whether Mr Howe has sufficient support aroundhim to ensure that he both gets the rehabilitative support that he needs, and that withthat support, he can be effectively monitored so as to reduce his risk of re-offending.The sentencing Judge felt under the current circumstances that the balance favouredimprisonment, as the risk to the public was too great. The Judge is undoubtedly correctin suggesting that Mr Howe will need significant rehabilitative support in order to15 Mallett v R [2014] NZCA 39 at [11].16 Waho v Police [2018] NZHC 1767; and R v Nuku [2018] NZHC 2609.17 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].18 Barbour v Police [2020] NZHC 2707.have a successful rehabilitation and home detention sentence. It is not clear that hewould get that with his whānau support alone.[49] I adjourned the hearing of this appeal for counsel to provide the Court withfurther information. Mr McDonald provided the Court with details about a narcoticsanonymous programme. This was a voluntary programme held in the communitybetween 5.30pm and 6.30pm on a Wednesday evening.[50] Mr McDonald had also been in touch with Ora Toa Mauriora which providesweekly counselling sessions. It is not a residential programme. Given the limitedtime, it had not been possible for a place on the programme to be confirmed.Analysis[51] Like Judge Doyle, I have approached this case on the basis of balancing theclear rehabilitative needs of Mr Howe against the risks posed to the community by hisbehaviour. Like the Judge, I have been impressed by the willingness of Mr Howe'swhānau to support him.[52] However, ultimately I have concluded that the Judge made no error in heranalysis of the relevant factors.[53] The starting point of 18 months' imprisonment was consistent with authority;the various discounts given fully recognise all the positive factors the Court wasobliged to take into account.[54] I accepted that home detention was potentially an available option but that, inthis case, other than if a fully residential narcotic rehabilitation placement wasavailable, the pattern of Mr Howe's repetitive offending, including repeat offendingwhile on bail, meant that the risk to the community was just too great.[55] The Judge specifically granted leave to Mr Howe to apply for home detentionif he could provide an address which would enable him to undertake a residentialrehabilitation programme. That option is still available to Mr Howe.Result[56] For these reasons, the appeal is dismissed.Churchman JSolicitors:Robinson Legal, Wellington for AppellantCrown Solicitor, Wellington for Respondent