PERHAM v POLICE [2016] NZHC 2099

PERHAM v POLICE [2016] NZHC 2099 [5 September 2016]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-25[2016] NZHC 2099BETWEEN GEORGE ALLEN PERHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2016Appearances: M Powell for the AppellantJ W Wall for the RespondentJudgment: 5 September 2016ORAL JUDGMENT OF MUIR J(Sentence Appeal)Counsel/Solicitors:M Powell, Barrister, KerikeriJ W Wall, Crown Solicitor, WhangareiIntroduction[1] This is an appeal from a decision of Judge G L Davis in which, on charges of driving with excess breath alcohol (third and subsequent), driving while disqualified and breaching bail by failing to appear, he sentenced the defendant to 15 months'imprisonment.[2] While acknowledging that such sentence was within range the appellant contends that the learned Judge erred in the exercise of his discretion in not imposing a sentence of home detention.Factual background[3] On the evening of 23 January 2015 the appellant was apprehended by the Police for exceeding the speed limit by 16 km/h in Rotorua. He was breath tested recording a result of 1,163 mg of alcohol per litre of breath. In explanation he said he was driving because he was in better condition than his passengers, that he had not been drinking that day but that he had been drinking heavily over the two days previously.Prior offending[4] This was the appellant's fifth conviction for drink driving.[5] Most recently, he had been convicted on 24 November 2010 with a reading of 801 mg of alcohol per litre of breath for which he was sentenced to community detention, intensive supervision and was indefinitely disqualified from holding a licence. It was on the basis of that disqualification that the relevant prosecution proceeded in this case.[6] While subject to intensive supervision between November 2010 and November 2011 he failed to complete the alcohol and drug counselling component of the sentence. In consequence the Probation Service notes he is at high risk of re- offending.[7] His previous convictions were respectively in July 2009 with a breath alcohol reading of 984 mg of alcohol per litre of breath, in September 2008 with a reading of 653 mg of alcohol per litre of breath and in August 2007 with 480 mg of alcohol per litre of breath. The offence history therefore demonstrates escalating breath alcohol levels over time.[8] The appellant also has numerous other convictions for failing to comply with intensive supervision, community work and failure to answer District Court bail.District Court Decision[9] In his decision Judge Davis reviewed the appellant's history of drink driving and other relevant convictions. He noted in particular the defendant's failure to complete the alcohol and drug counselling requirements of his supervision sentence which he said indicated that "his motivation to address the fundamental causes of his offending remains low.1 He also concluded, based on the appellant's criminal historythat he demonstrated a poor ability to comply with sentences.2[10] He then considered the factors in Clotworthy v Police.3 He adopted a starting point of 16 months' imprisonment. He uplifted that by two months for other charges and then allowed a three month discount for what was a late guilty plea, over a year after the relevant offending. This left an end sentence of 15 months' imprisonment. None of that is under challenge on appeal.[11] The Judge then turned his attention to the exercise of his discretion to commute that sentence to one of home detention. He noted that the appellant's counsel who is counsel before me today had "implored" the Court to impose anelectronically monitored sentence of home detention. A similarly comprehensive and impassioned submission has been made before me today.[12] The Judge stated that, in his assessment, the defendant had "demonstrated acomplete lack of desire to address the fundamental causes of the offending" mainly1 New Zealand Police v Perham [2016] NZDC 10441 at [6].2 At [5].3 Clotworthy v Police (2003) 20 CRNZ 439 (HC).his alcohol "use". That might be more accurately described as his alcohol "abuse". He said that had the defendant been committed to entry into a residential rehabilitation programme he may have delayed sentencing to identify what progress was being made, but since no such programme was in prospect he said he regarded a sentence of imprisonment as inevitable. He said:The Court must arrive at a sentence that holds you accountable for what you have done, sends a very clear message out to the public that drinking and driving simply will not be tolerated, and one that fundamentally protects the public from those who choose to drink and drive with readings of this nature. I am of the view that that fundamental purpose of protecting the public cannot be achieved by a sentence other than imprisonment and that is what I intend to impose today.4Approach to the appeal[13] The appeal is governed by s 250(2) of the Criminal Procedure Act 2011 (the Act) whereby if I am to allow the appeal I must be satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[14] The Court of Appeal has recently confirmed that s 250(2) is not intended tochange the Court's previous approach under the Summary Proceedings Act 1957.5The inquiry remains the same therefore in terms of whether there is a material error in the sentence, as for example it was manifestly excessive, or that it was wrong in principle, or incorrectly calculated. In the context of this case it must be showneither that the learned District Court Judge's decision was based on considerations he should not have taken into account, failed to take into account considerations he should have or is plainly wrong.[15] With regard to appeals against a failure to grant home detention the Court of Appeal has held that in terms of appellate review of such sentencing decisions the4 At [11].5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].Court must focus, as with other appeals against sentence, on the identification of error having regard to the discretionary nature of the decision.[16] In Manikpersadh v R6 the Court of Appeal confirmed that:[12] [The] proper approach of an appellate court in cases such as this is that the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion with appellate review focusing as in other sentencing appeals to this Court on the identification of error, if any, in the Court below.SubmissionsThe Appellant's submissions[17] As I have noted, the appellant accepts that the sentence of 15 months'imprisonment was within range, the sole ground of appeal being that the judge should have imposed home detention. Underlying all of the appeal is the proposition that the learned Judge focused too heavily on the principle of deterrence.[18] The appellant further says that the decision contains factual errors in relationto assessment of the appellant's rehabilitation prospects. Mr Powell refers inparticular to the statement in the decision in terms:You have demonstrated a complete lack of desire to address the fundamental causes of the offending, your alcohol use.[19] He says that although it is correct that the appellant failed to complete the alcohol and drug counselling requirements of his intensive supervision sentence in 2010, Judge Davis was incorrect in concluding that the appellant remained unmotivated to address his alcohol issues. He says that in submissions before the District Court he identified the appellant's acceptance into the Salvation Army Bridge Programme which is a non-residential group based counselling course. Such acceptance apparently occurred very shortly before the sentencing in June 2016. Mr Powell also says that he provided to the Court an appointment card confirming an intention to enrol in a one on one counselling programme with Community Health Services at Kaitaia Hospital.6 Manikpersadh v R [2011] NZCA 452.[20] Next, Mr Powell submits that the judgment gives no or inadequateconsideration to the appellant's personal circumstances. He emphasises that the appellant has now returned to Kaitaia with the intention of resuming a relationship with the mother of his child. He emphasises that the index offending like most similar offending preceding it, had occurred in the Bay of Plenty where the appellant had gone after breaking up with his partner in 2014. He says that without the support of his partner he had reverted to his previous pattern of offending based on renewed associations with old and inappropriate friends. Mr Powell says that theappellant's return to Kaitaia in February of this year, with the intention of reconciling with his partner and to face the charges which he had been avoiding for over a year, evidences sufficient level of domestic support that the Court can be satisfied that, in combination with an electronically monitored sentence, the relevant requirement for protection of the public is adequately met. He says that Judge Davis simply omitted, in his consideration of the s 8 principles, this important feature.[21] He relies generally on the Pre-Sentence Report to indicate a hopeful trend ofreform of the appellant's life. He says, emphasising the criteria of s 16(2) of the Sentencing Act 2002, that the relevant purposes of sentencing under s 7(1)(a)-(c), (e), (f) and (g) may be met by a sentence other than imprisonment. He points out the most recent sentence imposed for excess breath alcohol was that of community detention and that the defendant did not breach that sentence. He says that having regard to the hierarchy of sentences identified in s 10A that home detention is the most appropriate sentence. He relies particularly in that context on my own decision in Fonoti v Police.7The Crown's submissions[22] For the Crown Mr Wall focues on the fact that the appellate jurisdiction is error focused. He says that the District Court Judge was entitled to give significant weight to deterrence and denunciation in the context of so serious an offence and in the context of the defendant's previous history. He refers in particular to the recent7 Fonoti v Police [2015] NZHC 200.decision of Woolford J's in Raman v New Zealand Police where the learned Judge stated:8[17] In this case, Judge Spear focussed on individual and general deterrence. Although another Judge may have given more weight to rehabilitation, I am of the view that Judge Spear was not in error in giving prominence to the principles of deterrence.[23] As in Raman, the Crown submits that the appellant's history is far fromencouraging in terms of efforts to rehabilitate himself and Mr Wall therefore says that the Judge was correct to focus on the principles of accountability, denunciation and the protection of the public.Discussion[24] Section 15A(1) of the Sentencing Act authorises the imposition of home detention only if:(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.[25] For a sentence of home detention to be imposed the sentencing judge must follow a two step process. The first requires that the sentence must be for two years imprisonment or less and that is clearly satisfied in the present case. The sentencing judge must then exercise his or her discretion as to whether it is appropriate to commute that sentence to one of home detention. There is no presumption that either imprisonment or home detention is to be preferred.9 What is required is an evaluative exercise, with the Judge required to consider all those ss 7 and 8 purposes and principles relevant to the particular case.10[26] The Court of Appeal has also observed that the closer the relevant prison sentence is to the two year maximum the less likely it is that home detention is8 Raman v Police [2016] NZHC 1368.9 Manikpersadh v R, above n 5.10 R v Vharvha [2009] NZCA 588, as cited in Manikpersadh v R, above n 5.appropriate. Conversely, the lower the appropriate prison sentence the more appropriate home detention will be.11[27] The focus is, as Mr Wall says, on the identification of "error". Where, as here, a "fettered discretion" is engaged that must be exercised within the framework of the Sentencing Act 2002, with particular regard to the ss 7 and 8 principles and the purposes of sentencing. Thus, for example, a focus solely on the principle of deterrence would be an error and has been held to be so.12[28] In this case the Judge has not focused exclusively on deterrence and denunciation, although in my view he has given proper prominence to it. It was a significant factor in his reasoning, and for good reason. He considered that a sentence of imprisonment sent a strong message to the public that habitual drinking and driving will not be tolerated, and that it was appropriate to hold the appellant accountable. However he also considered that the principle identified in s 7(1)(g) of the Sentencing Act was engaged namely the requirement to protect the public. He concluded that home detention would not adequately serve that purpose.[29] His decision in that respects seems to have been significantly influenced bythe appellant's desultory compliance history and significantly by his failure in 2011 to complete the alcohol and drug counselling component of his intensive supervision sentence.[30] I likewise regard the appellant's unsatisfactory compliance history as relevant to the exercise of the judicial discretion which is invoked. In circumstances where the evidence is that significant emotional challenges in the appellant's life can be the catalyst for grossly excessive alcohol consumption and where in consequence he has been prepared to drive at an exceptionally elevated breath alcohol level despite a lifetime prohibition, Judge Davis was correct to be cautious about the prospect of home detention adequately meeting the requirements for protection of the public and in concluding that such protection was an animating feature in the exercise of his discretion.11 R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298.12 Manikpersadh v R, above n 5.[31] Further it is relevant that the sentence imposed was one of 15 months'imprisonment which is reasonably close to the threshold for home detention of 24 months. The case is in that sense quite different from that in Fonoti v Police where I substituted a sentence of home detention on appeal.13 I note also that Fonoti was a case where, unlike here, there was no discussion in the judgment under appeal about the factors influencing exercise of the discretion one way or the other and wheretherefore the judgment left "opaque what should be transparent".14 Importantly also, disqualification and home detention served the s 7 purpose of protecting the public because the appellant had no previous history of breaching disqualification orders. The present appellant is in a very different category. He has two relevant convictions for driving while disqualified, the first in 2010 and the second in the context of the present offending. The District Court could have had no confidence that he would adhere to the terms of his lifetime disqualification in the future.[32] In my assessment, the exercise of the Court's discretion was appropriatelyfocused on issues of deterrence, denunciation and protection of the public. The latterrightly loomed large in the Court's approach. By any measure this was anastonishingly high breath alcohol reading. Moreover, the appellant had shown by his past history, if not a defiance of the Court's orders certainly little deference to them.He was clearly a person who when confronting personal stresses in his life took refuge in excessive alcohol consumption. He acknowledged his own history of binge drinking. Had the case been one where either the breath alcohol level was notat such extreme levels, the defendant's history of compliance was better (particularlyas to disqualification but including also the alcohol and drug counselling which he did not complete), or there was, as the District Court Judge pointed out evidence of enrolment in a residential programme then the Court may, in commuting thesentence to home detention, have been influenced by the fact that the appellant's lastsentence was one of community detention.13 Fonoti v Police, above n 6.14 Fonoti v Police at [41].[33] However, as pointed out in Mokotupu v R15 there is no absolute requirement that sentences for repeat offending move by increments up the sentencing hierarchy and I am satisfied that in not so doing Judge Davis was not in error.[34] I do accept Mr Powell's submission that the Court erred in stating that theappellant "had a complete lack of desire to address the fundamental causes of his offending". He had, as I have indicated, secured enrolment in a Salvation Armycounselling course and made an appointment for other one on one counselling. However, in assessing whether on account of that error a different sentence should be imposed I must take into account firstly the previous failure to complete an alcohol and drug counselling course, although mandated to do so, and the fact that thisapparent enrolment occurred in close proximity to the appellant's appearance incourt in circumstances where he had returned to Kaitaia several months earlier.[35] I accept also Mr Powell's submission that the District Court's decisioncontains no obvious consideration of the personal circumstances which he has emphasised in his submissions today, namely the appellant's return to Kaitaia and the support which he is receiving from his partner. I accept that such considerations were relevant in terms of s 8(i) of the Sentencing Act. However, in assessing again whether such factors would lead to imposition of a different sentence I must take into account the fact that there is some history of instability in this relationship, with the defendant only having lived with his partner for what appears to be in the order of two years before separating towards the end of 2014. There then followed in excess of a year when the appellant was either in the Bay of Plenty or in the South Island. Iaccept his partner's support as a positive influence in his life but I must weigh thatagainst the prospect that in the context of previous instability her good influence may or may not be available during the course of a sentence of home detention. To the extent the Court failed to take into account s 8(i) considerations s 250(2)(b) is not therefore in my view engaged.15 Mokotupu v R HC Christchurch CRI-2009-409-19, 19 February 2009.Result[36] I therefore dismiss the appeal.__________________________Muir J