SANDS v NEW ZEALAND POLICE [2018] NZHC 3048

SANDS v NEW ZEALAND POLICE [2018] NZHC 3048 [23 November 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000110[2018] NZHC 3048BETWEEN IAN CRAIG SANDSAppellantAND NEW ZEALAND POLICERespondentHearing: 22 November 2018Appearances: N R Wham for AppellantP A Norman for RespondentJudgment: 23 November 2018JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Sands, pleaded guilty to a charge of driving with excessbreath alcohol (third or subsequent). On 2 November 2018, Judge Garland sentencedhim to 17 months' imprisonment and two year's disqualification from holding orobtaining a driver's licence. He also granted the appellant leave to apply for homedetention if that could be served at a residential treatment facility.[2] The appellant appeals against both the length of the sentence imposed and therefusal to grant home detention on the conditions outlined in the PAC report.Background[3] At around 11.30 pm on 14 February 2018, the appellant was found in thedriver's seat of his vehicle. He had been revving the engine for a period of about fiveminutes which awoke local residents. They saw the appellant was heavily intoxicatedand intervened. The appellant was required to undergo an evidential breath test. Itreturned a level of 1025 micrograms of alcohol per litre of breath.[4] The appellant pleaded guilty but only on the morning of his trial. He has12 previous convictions for drink driving between 1998 and 2012. The PAC reportassesses him as being at a medium risk of reoffending and causing harm to others. Thereport writer recommended community detention and intensive supervision.District Court decision[5] Judge Garland noted that the appellant engaged well with the alcohol and drugassessment ordered. The appellant had described more than a decade of heavy andproblematic drinking but with significant changes in recent years. He said that he wasdisappointed he had driven impaired because he thought he was under the limit todrive. The Judge noted that a driving change programme was available in early 2019which may be of benefit to the appellant.[6] It must be noted, as Judge Garland mentioned, that the appellant's breathalcohol reading was over four times the legal limit. He said also, however, that therehad been a gap of approximately six years between the present offending and theappellant's most recent drink driving conviction.[7] The Judge took a starting point of 20 months' imprisonment and reduced it by15 per cent, being three months for the late guilty plea. Judge Garland considered thathome detention simpliciter was not appropriate here and did not satisfy the purposesand principles of sentencing. He noted that there was no proposal at the moment forthe appellant to enter a residential treatment facility but gave leave for him to applyfor home detention if that could be served at a residential treatment facility. Thesentence he imposed of 17 months' imprisonment included standard and specialrelease conditions.Principles on appeal[8] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 It is only appropriate for this court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.2SubmissionsAppellant's submissions[9] The appellant contends that the Judge erred with respect to the length of thesentence imposed by failing to:(a) Consider the mitigating factors in Clotworthy3 and the sentence startingpoints in Samson;4 and(b) Adjust for there being only a single charge when relying on McQuillan5and Stoves.6[10] The appellant also submits that the Judge erred in refusing to allow him toserve a sentence of home detention in his own home by:(a) Identifying an artificial distinction between home detention with a non-residential programme condition and home detention with a residentialprogramme condition in respect of the purposes and principles ofsentencing;1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].3 Clotworthy v Police [2003] 20 CRNZ 439 at [20].4 Samson v Police [2015] NZHC 748 at [15].5 R v McQuillan CA129/04, 12 August 2004.6 R v Stoves CA264/06 7 November 2006.(b) Implicitly considering the appellant's residence unsuitable even thoughthe PAC report had identified it as suitable;(c) Failing to sufficiently articulate why home detention was being refused;and(d) Failing to consider s 8(g) of the Sentencing Act 2000.Respondent's submissions[11] Ms Norman, for the respondent, argues that Judge Garland did not err in settingthe starting point, which is within the appropriate range for offending of this nature.Although there has been a gap since the last offending, Ms Norman submits that thenumber of previous convictions may still be treated as a personal aggravating feature.This would put the offending within the category identified by Whata J as requiring astarting point of between 12 and 18 months. To this, Ms Norman suggestedJudge Garland had included an appropriate two or three months uplift for aggravatingfactors such as the seriously excessive breath alcohol reading, previous record andother factors.[12] Ms Norman notes that the appellant has received a number of rehabilitativeand deterrent sentences in the past, which it seems have not successfully modified hisbehaviour in any real way.[13] In light of the lateness of his plea, she says too that the 15 per cent discountgiven by the Judge was generous, and could have been as little as five per cent. Thus,even if the starting point was seen as slightly high, the overall sentence was withinrange, given the aggravating features of the offending and the appellant's personalfactors.[14] Ms Norman also submits that while the appellant may be motivated to change,a sentence of home detention outside of a residential treatment facility would notappropriately meet the principles and purposes of sentencing here. She alsoemphasises that the appellant has a history of failing to comply with court orders.AnalysisSentence length[15] In Clotworthy v Police, the following aggravating and mitigating factors wereidentified for the purpose of sentencing drink driving (third or subsequent) charges:7(a) The breath or blood alcohol level.(b) The length of time that has elapsed since the last drink drivingconviction(c) Conviction for two or more EBA offences in close succession.(d) The manner of driving: innocuous or dangerous; accident and injuryresulting or neither?(e) Whether the offender was disqualified or forbidden from driving atthe time(f) The plea(s) and, if guilty, whether that plea was entered at an earlystage or only belatedly.(g) The sentences (in particular whether they included imprisonment)imposed for previous EBA convictions and the response (or lack of it)to those sentences.(h) The offender's record, if any, of convictions for other types ofoffending.(i) Any genuine remorse shown and/or willingness on the part of theoffender to confront his/her contributing alcohol and/or personalproblems.(j) Any mitigating personal or family circumstances contributing to theoffending.[16] In Samson v Police, Whata J considered Clotworthy and noted that factors (a)-(e) were important for the purpose of assessing the starting point.8 In that case, hereviewed a number of authorities and identified some general trends in starting points.These were:9(a) No serious or only moderately aggravating factors 9-12 months;(b) One or more seriously aggravating factor 12-18 months;7 Clotworthy v Police, above n 3 at [20].8 Samson v Police, above n 4.9 At [15].(c) Multiple offences with seriously aggravating factors 18-20 months;and(d) Multiple offences and very serious aggravating factors (i.e. offendingof the worst kind), 20-24 months.[17] A high level of intoxication and a prolonged and continuous history of drivingrelated offending were both highlighted as seriously aggravating factors.10[18] Whata J also identified the following mitigating factors which support a shorterperiod of imprisonment or home detention:11(a) The absence of seriously aggravating factors;(b) High levels of remorse;(c) Genuine attempts to address the underlying causes of the offending;(d) No previous sentence of imprisonment;(e) No previous sentence with a rehabilitative focus; and/or(f) Lengthy gaps between the current and prior offending.[19] The appellant here has a concerning history of drink driving. The number ofconvictions and the length of time which they span indicates that he has serious issueswith alcohol and driving. As one of the key sentencing principles for offending of thistype is deterrence and protection of the public, a stern sentence is required. Theappellant has previously been sentenced to numerous short sentences of imprisonmentfor drink driving and other offending.[20] Nonetheless, there are a number of features which mean that this offending isnot the most serious of its kind. The authorities are clear that close proximity ofoffending and the manner of driving are aggravating factors. Here, some credit mustbe given for the fact that there has been a gap in offending of this type for six yearsand that, perhaps fortuitously, there was no dangerous driving. Although in his car, itseems the appellant had not yet started to drive at the time. Moreover, the appellanthas acknowledged his issues and is willing to engage in rehabilitative programmes.10 At [16].11 At [16].[21] In Kucenko v Police, a starting point of 20 months was taken for a man with10 drink diving convictions over 40 years.12 Mr Kucenko was observed drivingdangerously so the police were called. He gave a reading of 252 milligrams of alcoholper 100 millilitres of blood. There had been a six-year gap since his last conviction. Iconsider the present case to be perhaps at a slightly lower level of seriousness becausethere was no concerning driving present. However, the appellant's high alcohol leveland history of offending here, albeit with a break in that pattern, make it analogous toa degree.[22] I find that this case has a number of seriously aggravating factors, putting ittowards the higher end of the second tier set out by Whata J in Samson. Given thevarious factors present, I consider that a starting point of 18 months sufficientlyrecognises the seriousness of the offending and aggravating features.[23] I consider that a small discount should be given for the appellant'srehabilitative prospects and personal circumstances. A discount of five per cent issufficient. A discount of 15 per cent for the appellant's guilty plea, which I agree isappropriate, then brings the final sentence down to 14 months' imprisonment. This issome three months or about 18 per cent less than Judge Garland's final imprisonmentsentence imposed. This, in my view, represents an error requiring the reduced sentenceto be imposed on this appeal.Home detention[24] It is an error of law for a judge, in making a determination on home detention,to give complete priority to the purpose of deterrence without regard to any of thecountervailing purposes of sentencing.13[25] Section 80I provides that, where an offender has been sentenced to a short termof imprisonment and the court would have sentenced the offender to a sentence ofhome detention if a suitable residence had been available, the court must grant the12 Kucenko v Police [2012] NZHC 3398.13 Fairbrother v R [2013] NZCA 340 at [29]-[30]; Manikpersadh v R [2011] NZCA 452 at [17]-[19].offender leave to apply for substitution of home detention if a suitable residence isfound at a later date.[26] By making the order under s 80I, which he did, Judge Garland was implicitlyfinding that the appellant's home address was not suitable. The appellant submits thatthe Judge erred in making this finding and by failing to elaborate on why the addresswas not suitable.[27] In relation to home detention, the Judge said:14It is obvious that you have a long-standing problem with alcohol. You say thatyou are committed to change. There is no proposal at the moment for you toenter a residential treatment facility. So today, I am not minded to imposehome detention because in my view that is not appropriate and does not satisfythe purposes and principles of sentencing. However, under s 80I SentencingAct, I grant you leave to apply for a sentence of home detention if that can beserved at a residential treatment facility.[28] It could be said that Judge Garland might have been better served here byelaborating further on why the purposes and principles did not support the appellantserving a sentence of home detention in his own home. It is a crucial part of thesentencing task to justify the reasons for the outcome.[29] Nonetheless, I agree with the Judge that in all the circumstances here, theappellant should not serve his sentence unsupervised in his own home. It is clear thatthe appellant's offending is rooted in his issues with alcohol. Dealing with that is theclear rehabilitative goal. This goal would be supported if he were to serve his sentencein a rehabilitative facility. His drinking would also be monitored in some supervisedsetting. However, if he were to be in his home, the appellant's drinking would not bemonitored and he would have less support.[30] Deterrence and denunciation are important factors when sentencing offendingof this type.15 While home detention does serve these elements, I consider that thelevel of seriousness here requires a sentence of imprisonment. The purpose of14 At [10]-[11].15 See, for example, Wilson v Police [2006] DCR 655 (HC) at [52].rehabilitation can only justify home detention if it were to be served in a residentialfacility where the appellant would get significant support.Conclusion[31] This appeal is allowed in part. For all the reasons outlined above, theappellant's sentence is reduced from 17 to 14 months' imprisonment. However, thesentence will remain one of imprisonment, albeit with leave to apply for homedetention should a properly supervised position in a residential treatment facility or anequivalent supervised arrangement become available. The two year disqualificationfrom holding or obtaining a driver's licence remains....................................................Gendall JSolicitors:Natalie Wham, Michael Starling, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch