HOWE v NEW ZEALAND POLICE [2021] NZCA 619

HOWE v NEW ZEALAND POLICE [2021] NZCA 619 [9 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA532/2021[2021] NZCA 619BETWEEN DARWIN MARLIN HOWEAppellantAND NEW ZEALAND POLICERespondentHearing: 24 November 2021Court: Cooper, Collins and Goddard JJCounsel: M G Robinson and S J McDonald for AppellantM H Cooke for RespondentJudgment: 9 December 2021 at 3.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction[1] On 8 July 2021 Mr Howe was sentenced in the District Court at Porirua to13 months' imprisonment.1 Judge Doyle granted leave to Mr Howe to apply for home1 Police v Howe [2021] NZDC 13856 [Sentencing notes] at [47].detention at a suitable residential rehabilitation address.2 Post-release conditions wereimposed for six months.3 Mr Howe was also disqualified from driving for 18 months.4[2] The sentence was imposed in respect of the following charges:(a) one charge of unlawfully getting into a motor vehicle;5(b) three charges of driving while disqualified (third or subsequent);6(c) one charge of possession of two methamphetamine pipes;7(d) one charge of possession of a Class A controlled drug(methamphetamine);8(e) one charge of receiving property over $500;9 and(f) one charge of dangerous driving.10[3] Mr Howe appealed against that sentence to the High Court. The appeal wasdismissed by Churchman J.11[4] There are no available residential rehabilitation addresses at which Mr Howecould serve a sentence of home detention. So he is serving the 13-month sentence ofimprisonment imposed on him, and has now served some five months of that sentence.His release date is in late January 2022.2 At [48].3 At [56].4 At [49]–[51].5 Crimes Act 1961, s 226(2): maximum sentence of two years' imprisonment.6 Land Transport Act 1998, s 32(1)(a) and (4): maximum sentence of two years' imprisonment or$6,000 fine, and mandatory disqualification from driving.7 Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum sentence of one year's imprisonmentand/or $500 fine.8 Section 7(1)(a) and (2): maximum sentence of six months' imprisonment and/or $1,000 fine.9 Crimes Act, ss 246 and 247(c): maximum sentence of three months' imprisonment.10 Land Transport Act, s 35(1)(b) and (2): maximum sentence of three months' imprisonment or$4,500 fine, and mandatory disqualification from driving.11 Howe v Police [2021] NZHC 2087 [High Court judgment].[5] This Court granted leave to Mr Howe to bring a second appeal against hissentence under s 253 of the Criminal Procedure Act 2011.12[6] Mr Howe has for some years been trapped in a cycle of drug use, offending(mostly driving offences) and short sentences of imprisonment. The sentences he hasserved have not provided any real opportunity to deal with the underlying causes ofhis offending. We accept that Mr Howe appears now to be committed to makinga change in his life and breaking that cycle. His brother and sister-in-law and theirdaughter are willing to provide a home for Mr Howe if a community-based sentenceis imposed, and are willing to support his rehabilitation.[7] We have given careful consideration to the alternative sentences that might beimposed to support Mr Howe's rehabilitation. We agree with Mr Robinson, counselfor Mr Howe, that spending further time in prison will not help with Mr Howe'srehabilitation and may well make things worse. Mr Howe has not been provided withany meaningful support that might assist with his rehabilitation to date, and is notlikely to receive any such support before his release date in a few months' time. That isprofoundly unsatisfactory. There is an obvious need for Mr Howe to be provided withthe support he requires to give him a real chance of breaking out of his current cycleof drug use and offending.[8] However none of the sentencing options that are realistically available on thisappeal, some two months before Mr Howe's release date, can provide any real supportfor his rehabilitation. No services have been identified that could provide a significantlevel of support in the community over the next month or two, if a sentence of homedetention were to be imposed. And as Mr Robinson realistically accepts, Mr Howe'spattern of offending confirms that there is a real risk that he will breach home detentionconditions and commit further driving offences that put the public at serious risk. Thatrisk cannot be sufficiently addressed by GPS monitoring.[9] The appeal must therefore be dismissed.12 Howe v Police [2021] NZCA 604 [Leave judgment].BackgroundThe relevant offending[10] In the early morning of 15 February 2021, Mr Howe was driving a vehicledown State Highway 1, 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 and charged withdriving while disqualified.[11] On 9 March 2021, while Mr Howe was on bail for his 15 February 2021 drivingwhile disqualified charge (and still disqualified), he drove down State Highway 1 nearParemata 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.[12] 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, the charge of unlawfully getting into a motor vehicle, andthe receiving property charge (in respect of the stolen licence plates affixed to thestolen car).[13] On 24 March 2021 Mr Howe was in the driver's seat of a parked vehicle inParaparaumu (in breach of bail). He was located by police, who blocked him fromleaving, and arrested and searched him. They located two methamphetamine pipes inhis satchel bag, and approximately 0.1 grams of methamphetamine. This led to thepossession of methamphetamine pipes and possession of methamphetamine charges.[14] At the time of this offending, Mr Howe was subject to release conditions,including special conditions requiring him to attend an alcohol and drug assessmentand to see a departmental psychologist.Previous offending[15] Mr Howe has an extensive history of offending since 2008, with some88 convictions including 18 previous driving while disqualified offences; otherdriving offences; substance-related offending; theft; assault; and multiple failures tocomply with community work and bail requirements. Between 2011 and 2020he served a number of short sentences of imprisonment.Mr Howe's personal circumstances[16] Mr Howe is 30 years old. He is of Māori and European descent. Duringchildhood he was exposed to, and experienced, significant violence. Both parentsengaged in substance abuse, and spent extended periods in prison. At times they wereboth in custody, and Mr Howe lived with various relatives. Mr Howe had a range ofbehavioural issues and difficulties at school which led to him being expelled when hewas 14 years old. He attended an alternative education programme until he was17 years old. Mr Howe has been employed in a range of jobs since then, includingworking in a family restaurant, fishing, labouring and forestry.[17] Mr Howe is in a long-term relationship. His partner of some seven years livesin Auckland. The relationship has been intermittent, due in part to his incarceration.He has no children, but enjoys helping his partner with her two children.[18] Mr Howe has a history of substance abuse — in particular methamphetamineand cannabis. He has been diagnosed as meeting the threshold for stimulant usedisorder. He has in the past been diagnosed as experiencing Attention DeficitHyperactivity Disorder (ADHD) as a child. His functioning may also be affected bypre-natal alcohol or other drug use, and past trauma. Difficulties have been identifiedin a number of areas of neuro-psychological functioning. Mr Howe has very limitedliteracy, but says he can read enough to get by. Mr Howe has expressed a strong desireto address his substance use and behavioural issues.[19] Mr Howe has at times been involved with the Mongrel Mob gang.[20] Mr Howe's brother, sister-in-law and niece have been very supportive ofMr Howe in the period leading up to his sentencing, and following that sentencing.They are willing to have Mr Howe serve a sentence of community detention or homedetention in their home, and to support him in complying with the requirements of anysentence and staying out of trouble.Pre-sentence reports[21] Two pre-sentence reports were prepared to assist with Mr Howe's sentencing.The reports recommended a sentence of community detention to be served at hisbrother and sister-in-law's address in Wellington, with a curfew period from 7.00 pmuntil 7.00 am daily. The report writer also recommended intensive supervision withthe following special conditions:(a) to attend an assessment for alcohol and other drug use, includingresidential rehabilitation, as directed by a Probation Officer;(b) to attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfactionof a Probation Officer;(c) to attend a psychological assessment with a departmental psychologistas directed by a Probation Officer and complete any treatment and/orcounselling as recommended by the assessment to the satisfaction ofa Probation Officer; and(d) not to possess, consume or use any alcohol or drugs not prescribed tohim.[22] The District Court Judge directed that an assessment report be prepared unders 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to inform thesentencing. A report was prepared by Ms Ruth Pracy, a registered clinicalpsychologist. Ms Pracy considered that Mr Howe did not appear to be "mentallydisordered" within the meaning of the Mental Health (Compulsory Assessment andTreatment) Act 1992.13 But his childhood and subsequent experiences have led himto have few skills for management of his emotions and impulses, and to experienceconsiderable painful emotions, some of which may have led to a tendency to perceivehimself as victimised and/or powerless and to feel anger at the police and society.This combination of factors has likely led to impulsive and disruptive behaviour andgravitation to anti-social peers. Those factors also likely contributed to substanceabuse from an early age. His offending and substance use have been normalised byhis environment throughout much of his life, and have become entrenched.[23] Ms Pracy's report records that Mr Howe is motivated to address his substanceuse, which she identified as a priority. His trauma symptoms and limited skills formanaging distress, emotions and impulses were identified as another key initialtreatment target. Ms Pracy considered that a residential treatment programme forsubstance abuse would be appropriate. Such a programme would also need toprioritise development of skills to manage distress, emotions and impulses, andstrategies to manage substance-specific symptoms. This could occur in prison or inthe community. Planning for support following the residential programme would bevital. Ms Pracy considered that Mr Howe's anger and substance use both presentedpotential safety issues which should be monitored.[24] There was no written report prepared under s 27 of the Sentencing Act 2002.But Mr Howe's family spoke at his sentencing about his background, and theirwillingness to support him, as contemplated by s 27.District Court decision[25] The Judge noted that comprehensive reports were available to her. They setout Mr Howe's significant rehabilitation needs, which are complex and multi-layered.But as the Judge noted, the reports show, as the Judge said to Mr Howe at sentencing,that "you are at the point now at 30 years of age where you are putting your hand upand saying I am done with this and I want some help and I know it is going to be hardbut I am up for it".1413 See Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2 definition of"mentally disordered".14 Sentencing notes, above n 1, at [8]–[9].[26] The Judge also specifically acknowledged the whānau support for Mr Howe athis sentencing.15[27] The Judge adopted the driving while disqualified charges as the lead offences.She took 18 months' imprisonment as the starting point for sentencing Mr Howe forthe most serious of those charges, uplifted it by four months for the two other drivingwhile disqualified convictions, and added a further two months for the dangerousdriving and unlawfully getting into a vehicle charges. The possession ofmethamphetamine and possession of pipes charges did not attract a further uplift.No uplift was imposed for the receiving of the licence plates. There was a two-monthuplift to reflect his 70 previous convictions (not including the 18 driving whiledisqualified charges, which were considered as part of the starting point).That resulted in an adjusted starting point of 26 months' imprisonment.16[28] The Judge allowed a 25 per cent discount for Mr Howe's guilty pleas, whichhad been given as early as possible. The Judge also concluded that Mr Howe shouldreceive a significant discount of 25 per cent for his personal circumstances, includinghis difficult childhood and current battles with drugs and mental health, as well as hisexpressions of remorse, and willingness to engage in restorative justice.17[29] The cumulative discount of 50 per cent resulted in a sentence of 13 months'imprisonment.[30] The Judge then considered whether Mr Howe's sentence should be convertedinto a community-based sentence. The difficult aspect of the case, the Judge said, washow to balance Mr Howe's rehabilitative needs and the public interest in having himrehabilitated, with the need to protect the public from his ongoing offending and, inparticular, any risk that he might pose to the public because of his driving.18[31] The concern identified by the Judge was whether Mr Howe was yet at the pointwhere it is safe for him to be in the community and receiving treatment. He had been15 At [10].16 At [19] and [25]–[28].17 At [29].18 At [30]–[31].sentenced to multiple short terms of imprisonment. The Court had not been preparedto give him a community-based sentence since 2012, when he was 22 years old.The Judge accepted that Mr Howe was in the best position he had been in for nearly10 years to start addressing his complex needs. But the Judge considered that he couldnot be allowed into the community at this stage because the risk of re-offending and,therefore, the risk to the community remains too great. Balancing his rehabilitationneeds with public safety, the balance came down in favour of public safety. The Judgeconsidered that meant she could not find that the least restrictive option that isappropriate in all the circumstances is a community-based or electronically-monitoredsentence. She sentenced him to 13 months' imprisonment.19[32] The Judge then granted leave to apply for home detention, saying:[48] I am going to grant you leave to apply for home detention but only ifyou can provide an address which will enable you to undertake residentialrehabilitation. So what that means is that if you can get into the Bridgeprogramme or some rehabilitation programme then you can complete yoursentence at that programme. The reason I have to wrap that around you sotightly is because there is too much of a risk that if you have any choice aboutit you will choose to continue to offend, particularly when it gets hard.This way I give you two choices. You either do the rehab or you go back tojail and you do your time, and I can tell you Mr Howe, a lot of people end updoing the time because the rehab is really hard. So I want to give you thatopportunity, but I want to give you that opportunity in the safest way to protectyou from torpedoing your life anymore and also to protect the public from thefallout if that is the path you choose to take.[33] As noted above, Mr Howe was also disqualified from driving, and post-releaseconditions were imposed.20[34] The Judge concluded as follows:[58] Mr Howe, I have been really impressed with you and with yourwhānau. It is a matter of timing and a matter of making sure that if you godown this track you are as well supported as you possibly can be to make itwork for you, because the temptation for you to slip into the old andcomfortable habits will be huge, particularly when you are faced with thechallenge of having to address head on some of these things that you havebeen carrying around with you. Thank you for listening to me with courtesy.19 At [44]–[47].20 At [49]–[51] and [56].Thank you for addressing me directly. Thank you also to the whānau whohave been here and for staying as long as you have.High Court judgment[35] Before the High Court, counsel for Mr Howe argued that the sentence imposedwas manifestly excessive. Counsel also submitted that the Judge should have imposeda sentence of home detention.[36] Churchman J did not consider that the District Court Judge erred in consideringthe factors relevant to length of sentence. He identified the ultimate question aswhether:21 in balancing the risk to the public with Mr Howe's rehabilitative needs, the Judge placed too much emphasis on the latter and not enough on the formerby imposing a sentence of imprisonment that would therefore be manifestlyexcessive.[37] The High Court Judge noted that if an offender is convicted of an offencepunishable by imprisonment, and the end sentence reached is a sentence ofimprisonment of up to 24 months, home detention is available as a sentencing option.He said that whether or not it is appropriate to impose this sentence, in thecircumstances of a particular case "is a matter for the discretion of the sentencingJudge. There is no presumption in favour of home detention being imposed."22[38] The High Court Judge noted that while denunciation and deterrence aresignificant factors in the sentencing process, s 7(1)(h) of the Sentencing Act dictatesthat a purpose of sentencing is to assist in the offender's rehabilitation andreintegration, and rehabilitation should be given adequate recognition in sentencing.23The critical issue in this case was whether Mr Howe has sufficient support around himto ensure that he gets the rehabilitative support that he needs, and that with thatsupport, he can be effectively monitored so as to reduce his risk of re-offending.2421 High Court judgment, above n 11, at [42].22 At [43].23 At [45], citing Mallett v R [2014] NZCA 39 at [11].24 At [48].[39] The hearing was adjourned to enable counsel to provide the Court with furtherinformation. Mr McDonald, counsel for Mr Howe before the High Court, providedthe Court with details of a community voluntary narcotics anonymous programme,held on Wednesday evenings. Mr McDonald had also been in touch with Ora ToaMauriora, which provides weekly counselling sessions. It is not a residentialprogramme. In the limited time available, it had not been possible for a place on eitherprogramme to be confirmed.[40] The High Court Judge accepted that home detention was potentially anavailable option. But, he said, in this case, unless a fully residential narcoticrehabilitation placement was available, "the pattern of Mr Howe's repetitiveoffending, including repeat offending while on bail, meant that the risk to thecommunity was just too great".25 He noted that the District Court Judge had grantedleave to Mr Howe to apply for home detention if he could provide an address whichwould enable him to undertake a residential rehabilitation programme. That option,the High Court Judge said, remained available to Mr Howe.26[41] The appeal was dismissed.Leave to appeal[42] Mr Howe applied for leave to bring a second appeal to this Court against hissentence under s 253 of the Criminal Procedure Act. As noted above, this Courtgranted leave on 12 November 2021.27[43] Counsel were asked to focus their submissions on whether a miscarriage ofjustice occurred as a result of an incorrect assumption about the potential availabilityof a residential rehabilitation facility as an address at which to serve a sentence ofhome detention, and/or as a result of a failure to consider whether the risk to publicsafety posed by Mr Howe could be adequately addressed by a sentence of home25 At [54].26 At [55].27 Leave judgment, above n 12.detention, with GPS monitoring. However that did not preclude counsel fromaddressing other issues.28Appellant's submissions on appeal[44] Mr Robinson submitted that imprisonment was not the least restrictiveoutcome that was appropriate, having regard to the purposes of sentencing set out ins 7 of the Sentencing Act. His focus was on the sentencing goal of rehabilitation.29He emphasised the absence of any therapeutic services available to Mr Howe whileserving his current sentence. The only support for rehabilitation he has received todate has been a one-week meditation course. No further courses or other therapeuticservices are likely to be available during the balance of his term of imprisonment.Mr Howe would then be released on conditions that do not provide any materialsupport for rehabilitation. In particular, he will not receive the level of support hewould receive if sentenced to intensive supervision.[45] Mr Robinson pointed out that following release from prison in January 2021,under the current sentence, Mr Howe will not be subject to GPS monitoring. If herelapses, there will be nothing to prevent him from driving. So the risk identified bythe Judges below will be present, and will be greater than if he were on home detentionwith GPS monitoring to alert the Department of Corrections or police to any use ofa vehicle.[46] Mr Robinson submitted that the Courts below had taken too short-term anapproach to assessing risk to the public. The protection of the public, takinga longer-term view, supports a sentence of home detention, or community detentionand intensive supervision, coupled with appropriate rehabilitation services.[47] Mr Robinson accepted that home detention coupled with GPS monitoringcould not prevent Mr Howe from leaving the house and driving a vehicle. And heaccepted that given Mr Howe's record of failure to comply with bail and sentenceconditions, the risk that he would do so cannot be ruled out. But GPS monitoring28 At [3].29 Sentencing Act, s 7(1)(h).would mean any breach was detected, and Mr Howe could be found and detainedrelatively promptly. And he would only have the opportunity to do this once.[48] Mr Robinson advised us that Mr Howe would not have access to his family'scar: the car keys would be kept in a safe. A family member would be in the housemuch of the time. They would provide a good level of oversight.[49] Mr Robinson accepted, in response to questions from the Court, that it wasdifficult to see how a sentence of home detention for a further two months or so couldsupport meaningful rehabilitation. As Mr Robinson noted, residential rehabilitationcourses are considerably longer (nine to 18 months), and there is no assurance thatMr Howe would be able to access those during or after a much shorter period of homedetention. Mr Robinson suggested that intensive supervision for a longer period, orhome detention for a longer period than the pre-release balance of the prison term,could facilitate access to residential rehabilitation services. But Mr Robinson did nothave instructions to seek a longer period of home detention in substitution for servingthe balance of Mr Howe's prison term.[50] Ideally, Mr Robinson said, Mr Howe's sentence would include intensivesupervision for a period of at least nine months. That would improve the prospect ofMr Howe receiving appropriate therapeutic services. But a sentence of intensivesupervision cannot be combined with a sentence of home detention.30 A sentence ofintensive supervision can be combined with community detention: but electronicmonitoring under a sentence of community detention would not include GPSmonitoring, so the risk to the community from Mr Howe's driving while on sentencewould not be addressed as effectively.Crown submissions on appeal[51] Ms Cooke, who appeared for the Crown, accepted that the lack of effectivesupport for Mr Howe's rehabilitation is very troubling. But, she submitted, there wasno error in the approach adopted by the District Court and High Court Judges.The sentencing options available to the Courts below were limited. That is even more30 Section 19(7).plainly the case so far as this Court is concerned, given the limited time left to runbefore Mr Howe's release date.[52] If Mr Howe remains in prison, he will have had some six months of abstinencefrom methamphetamine in total by his release date. The six months of releaseconditions imposed by the District Court will then apply. That provides some supportfor rehabilitation.[53] Ms Cooke submitted that the Judges below were right to proceed on the basisthat the critical issue was public safety. Electronic monitoring would not preventMr Howe from leaving the property and driving. It mitigates the risk of flight, but isnot a fool-proof mechanism. Home detention depends on an attitude of compliance.31Mr Howe's record indicates there is a substantial risk that he will not comply with bailand sentence conditions. There is no less restrictive disposition that would beappropriate in all the circumstances.32Discussion[54] This Court must allow the appeal if satisfied that there is an error in thesentence imposed and a different sentence should be imposed.33[55] Section 8(g) of the Sentencing Act requires the court to impose the leastrestrictive outcome that is appropriate in the circumstances, in accordance with thehierarchy of sentences and orders set out in s 10A. A sentence of home detention isless restrictive than a sentence of imprisonment. So the court must impose a sentenceof home detention, rather than a sentence of imprisonment, unless a sentence of homedetention would not be appropriate in all the circumstances.[56] Section 16(2) of the Sentencing Act underscores the requirement that theimposition of a sentence of imprisonment must be justified by reference to thepurposes of sentencing set out in s 7 of the Sentencing Act:31 Talatofi v R [2018] NZHC 597 at [26]. See also Boughey v Police [2021] NZHC 2760 at [24].32 Sentencing Act, s 8(g).33 Criminal Procedure Act 2011, s 256(2).16 Sentence of imprisonment(2) The court must not impose a sentence of imprisonment unless it issatisfied that,—(a) a sentence is being imposed for all or any of the purposes insection 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case.[57] Section 7(1) of the Sentencing Act, referred to in s 16(2)(a), reads as follows:7 Purposes of sentencing or otherwise dealing with offenders(1) The purposes for which a court may sentence or otherwise deal withan offender are—(a) to hold the offender accountable for harm done to the victimand the community by the offending; or(b) to promote in the offender a sense of responsibility for, and anacknowledgment of, that harm; or(c) to provide for the interests of the victim of the offence; or(d) to provide reparation for harm done by the offending; or(e) to denounce the conduct in which the offender was involved;or(f) to deter the offender or other persons from committing thesame or a similar offence; or(g) to protect the community from the offender; or(h) to assist in the offender's rehabilitation and reintegration; or(i) a combination of 2 or more of the purposes in paragraphs(a) to (h).[58] Section 16(2) is subject to any provision in an enactment that providesa presumption in favour of imposing a sentence of imprisonment, or requires a courtto impose a sentence of imprisonment in relation to a particular offence.34 But in cases34 Sentencing Act, s 16(3).such as the present, where there is no express presumption or requirement to imposea sentence of imprisonment, the Sentencing Act makes it very clear that the lessrestrictive sentence of home detention should be imposed in preference to a sentenceof imprisonment unless imprisonment is the only way in which one or more of thesentencing purposes in s 7(1)(a)–(c), (e), (f) or (g) can be achieved.[59] What, then, is the sentencing purpose that requires a sentence of imprisonmentto be imposed in this case? The District Court Judge and the High Court Judgeconsidered that imprisonment was required in order to achieve the purpose ins 7(1)(g): to protect the community from Mr Howe. More specifically, imprisonmentwould protect the community from the risk posed by his driving.[60] There is real force in Mr Robinson's submission that the protection thatimprisonment provides to the community from the risk of Mr Howe's driving is veryshort-term. From a longer-term perspective, the community would be better protectedby providing Mr Howe with appropriate rehabilitation services to help break the cycleof drug use and offending, including driving offending.[61] However as Ms Cooke submitted, imposing a sentence of home detentionrather than a sentence of imprisonment will not facilitate provision of meaningfulrehabilitation services in the particular circumstances of this appeal. So there is nodifference as between those two sentencing options in terms of long-term communityprotection. And in the short-term, imprisonment provides more effective protectionfor the community from Mr Howe's driving. The use of GPS monitoring in connectionwith a sentence of home detention would go some way to reducing the risk ofMr Howe obtaining drugs and driving. But based on Mr Howe's record of failure tocomply with bail and sentence conditions, a real risk of non-compliance and driving(dangerously) while disqualified would remain.[62] In those circumstances, we are not persuaded that the Courts below erred in theconclusion that a sentence of imprisonment was appropriate, unless a sentence ofhome detention could be served in a residential rehabilitation facility. The sentenceimposed was consistent with ss 7, 8 and 16 of the Sentencing Act.[63] We add that we accept that there is real potential for Mr Howe to turn his lifearound, and we acknowledge the impressive family support available to him to assisthim in pursuing that goal. It is most unfortunate that Mr Howe has not to date receivedthe therapeutic services that his complex needs require, while serving his currentsentence. It would be still more unfortunate if appropriate support — preferablyincluding residential rehabilitation services — cannot be provided in connection withthe balance of his sentence, and the release conditions that will apply followingMr Howe's release date. As discussed with counsel at the hearing, an applicationunder s 94 of the Sentencing Act for variation of Mr Howe's release conditions maybe desirable to facilitate the provision of appropriate rehabilitation services.Result[64] The appeal is dismissed.Solicitors:Robinson Legal, Wellington for AppellantCrown Law Office, Wellington for Respondent