BAILLIE v POLICE [2021] NZHC 1132

BAILLIE v POLICE [2021] NZHC 1132 [20 May 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-000017[2021] NZHC 1132BETWEEN JAMIE ADSLEY BAILLIEAppellantAND NEW ZEALAND POLICERespondentHearing: 6 May 2021Appearances: N Bourke for the AppellantL A Blencowe for the RespondentJudgment: 20 May 2021JUDGMENT OF NATION J[1] The appellant, Mr Baillie, was sentenced to 13 and a half months'imprisonment for driving while disqualified with at least two previous convictions forsimilar offending. He had five previous convictions for driving while disqualified andseven previous convictions for excess alcohol or related driving offences. Mr Baillieappeals the sentence.Subject offending[2] On 7 November 2018, Mr Baillie was disqualified from driving any motorvehicle for an indefinite period.[3] At about 6.25 pm on 29 December 2020, Mr Baillie drove a Mercedes Benzmotor vehicle north of Wanganui, near Okawa. He overtook a vehicle on a bridge,travelling at approximately 130 kilometres per hour. Approaching upcoming blindcorners, he cut across the centre line and crashed into a hedge on a 35 kilometres perhour advisory corner. He exited the driver's seat and ran away. He was found by thePolice a short time later. Police smelt alcohol on his breath and required him toundergo a breath screening test. He refused to blow into the breath testing device. Atthe Hawera Police station, Mr Baillie refused to provide a sample of breath whenrequested and subsequently refused to allow a blood sample to be taken. Inexplanation, he said he was not driving and named someone else as the driver.Previous offending[4] On 29 November 2017, Mr Baillie was stopped by Police and forbidden todrive any motor vehicle until he had obtained a driver's licence. At that time, he hadbeen convicted of alcohol impaired driving related offences five times previously foroffences committed in 2003, 2007, 2009, 2012 and 2015.[5] On 21 March 2018, he drove on the state highway. An evidential breath testgave a reading of 0442 micrograms of alcohol per litre of breath.[6] On 5 August 2018, Mr Baillie was driving in Marton. The vehicle ran out ofpetrol and came to a stop on the side of the road. Mr Baillie was on the side of thestreet. The Police enquired who was the driver. Mr Baillie gave false information asto his identity. At the Police station, Mr Baillie refused to undergo breath testing orprovide a blood specimen.[7] On 7 November 2018, Mr Baillie was convicted of being an unlicensed driverand failing to comply with a prohibition, and the excess breath alcohol offence of 21March 2018. He was also convicted for refusing a request for a blood specimen (thirdor more offence) on 5 August 2018. He was sentenced to home detention for threemonths, indefinite disqualification and subject to a zero alcohol licence.[8] On 11 October 2019, Mr Baillie had been driving on the main state highwaythrough Hawera. He intentionally drove through an intersection, then ploughed into afence and fled the scene on foot. He told the Police he was not driving.[9] On 26 May 2020, Mr Baillie was convicted of driving while disqualified (thirdor subsequent) and operating a motor vehicle recklessly. He was disqualified fromdriving for nine months, sentenced to supervision with special conditions and sixmonths' community detention.District Court decision[10] On 9 February 2021, Mr Baillie pleaded guilty to the three charges arising outof his driving on 29 December 2020. He was denied bail and remanded for sentenceon 14 April 2021.[11] He appeared before the Court on 23 March 2021, initially to apply forelectronically monitored bail. A Provision of Advice to Courts (PAC) report wasavailable. He asked to be sentenced on that day.[12] Judge Harrison referred to his history of convictions. She noted he had thebenefit of rehabilitative sentences in 2015, 2018 and 2019. She said the PAC reportindicated that Mr Baillie was at high risk of repeat driving offences but he wasmotivated to address his drug and alcohol addiction issues. The report referred to hisundergoing drug and alcohol counselling at the time of the latest offending.[13] Consistent with the submission made for Mr Baillie, the Judge adopted astarting point of 18 months' imprisonment for the driving offending, allowed 25 percent discount for a guilty plea to bring the sentence down to 13 and a half months. Shethen considered and rejected home detention. She noted that the rehabilitative aspectof previous sentences had neither helped Mr Baillie nor deterred him. She said theselatest offences had occurred within one month of the expiration of his communitydetention sentence imposed on 26 May 2020 for similar offending and when he wasstill subject to a nine months supervision sentence. The Judge had particular regard tothe nature of his driving and assumed that, with his failure to give a blood sample, hehad a high level of alcohol in his system. She expressed regret that residentialrehabilitation was not available and referred to the PAC report telling her that shortrehabilitative programmes were frequently available in prison but only occasionallyso in the community. She said she needed to keep the public safe. For those reasons,she rejected home detention as a possibility.[14] The Judge sentenced Mr Baillie to imprisonment for 13 and a half months withspecial release conditions. These included conditions that he attend an assessment foralcohol and drug counselling as directed by his probation officer and that he attendand complete any counselling treatment or programme or any departmental shortrehabilitative programme as might be recommended. She imposed a furtherdisqualification period of some 21 days, noting he was a disqualified driver and thathe was subject to an alcohol interlock sentence.Appellant's submissions[15] Mr Baillie accepted that the global starting point of 18 months' imprisonmentwas appropriate.[16] For Mr Baillie, Mr Bourke argued that Mr Baillie's criminal history wasconsistent with him having ongoing substance abuse issues, that his difficultupbringing could be linked to Mr Baillie's ongoing depression, alcohol and drug useand other self-destructive behaviour. He said these were the sort of factors that, hadthey been obtained through a s 27 report, could have warranted a discount of betweenfive to 10 per cent on an appropriate starting point.[17] Mr Bourke argued that s 8(g) of the Sentencing Act 2002 required the Court toimpose the least restrictive outcome that was appropriate in the circumstances. Heargued the Judge had properly recognised there was a need for Mr Baillie to beinvolved in a residential rehabilitative programme but had rejected home detention asa possible sentence in the mistaken belief that a short rehabilitative programme wouldbe available in prison but only occasionally available in the community.[18] He argued that rehabilitative programmes are frequently provided by theDepartment of Corrections when offenders are subject to sentences such assupervision, intensive supervision or home detention. He submitted that, with homedetention, conditions could have been imposed prohibiting Mr Baillie from consumingalcohol and/or controlled drugs. With the constraints of home detention, the publiccould be protected through his not being able to drive. Mr Baillie had in the pastdemonstrated he could comply with electronically monitored sentences andcommunity detention. He argued that Mr Baillie had demonstrated a real desire toaddress his drug issues through his involvement, before his conviction, with the SouthTaranaki Whānau Centre for counselling.[19] Mr Bourke argued a sentence of home detention could have been coupled withsignificant community work. He suggested the Judge could also have promoted MrBaillie's rehabilitation through ordering Mr Baillie to be subject to judicial monitoring.[20] Mr Bourke referred to other cases where the High Court had substitutedrehabilitative sentences of intensive supervision and community work, in which theHigh Court and District Court had approved sentences of intensive supervision orcommunity detention with community work in situations where there was repeatedsimilar offending by offenders with alcohol addiction issues.1Submissions for the respondent[21] For the Crown, Ms Blencowe argued that background matters such as mighthave been addressed in a s 27 report would not have required a discount on the startingpoint because there was no nexus between those aspects of Mr Baillie's backgroundand the offending for which he was to be sentenced.2[22] Ms Blencowe referred to the helpful and succinct explanation of the principlesrelating to appeals against the refusal of home detention of Brewer J in Kanuta v R.3She also referred to statements from the Court of Appeal and the High Court as to howappeals against the refusal of home detention are to be considered.Analysis[23] I do not consider there was any error in the Judge failing to discount thatstarting point for personal matters relating to Mr Baillie. Mr Baillie was 42 at the timeof the relevant offending. His addictions have been a significant factor in his offendinghowever the information put before me does not establish there was such a nexusbetween the aspects of Mr Baillie's family life or even a potential head injury toestablish that those matters have caused his alcohol addiction. His first drink drivingconviction was in 2003. Despite that, he has chosen to drink and drive on thenumerous occasions since then when he has been apprehended and ultimately1 Martin v Police [2019] NZHC 353; Ranford v Police [2021] NZHC 132.2 Similar to the situation in Toohey v Police [2020] NZHC 635.3 Kanuta v R [2016] NZHC 436.convicted of drink driving offences. On a number of occasions, he has beensufficiently conscious of the risks he was taking so as to try to evade the Police aftercrashing and/or provide false information to the Police about whether he was drivingthe vehicle at the time and/or refuse to cooperate with either breath or blood testing.He has also, on repeated occasions, chosen to ignore the fact he was a disqualifieddriver or had been prohibited from driving.[24] Mr Baillie's offending on this last occasion, and on at least two earlieroccasions of which the Court had specific information, was also the more seriousbecause the manner of his driving put actual or potential road-users at risk of seriousharm.[25] It was not suggested that Mr Baillie's addiction problems were, of themselves,reason to reduce the starting point or that matters of accountability and deterrence wereless important because his offending was closely connected to his alcohol and/or drugaddiction. Such an assessment would not have been appropriate given the extent ofMr Baillie's offending and the number of convictions he had for not complying withcourt orders. These were not just in relation to drink driving offences. He hadconvictions for breaching protection orders from 2015. He had a conviction from 2008for obstructing the course of justice for which he was sentenced to two years and threemonths' imprisonment.[26] In Kanuta v R, Brewer J said:4[37] The principles in considering an appeal of this nature are well-established. When considering the imposition of a period of imprisonment fora particular offence, the Court must have regard to the desirability of keepingan offender in the community so far as that is practicable and consonant withthe community's safety. It follows from this principle that the Court mustimpose the least restrictive outcome that is appropriate in the circumstancesaccording to the hierarchy of sentences set out in the Act. The Court cannotimpose a sentence of imprisonment unless it is satisfied:(a) that the sentence is being imposed for a statutory purpose orpurposes, that is: to hold the offender accountable; or to induce inhim or her a sense of responsibility; or to serve the interests of anyvictim; or to denounce the offending; or to deter; or to protect thecommunity;4 Kanuta v R, above n 3 (footnotes omitted).(b) that those purposes cannot be achieved by a sentence other thanimprisonment; and(c) that no other sentence would be consistent with the statutoryprinciples as applied to the particular case.[27] There has been judicial recognition in both the Court of Appeal and High Courtthat, where denunciation and specific and general deterrence are of particularsignificance, an appeal Court will seldom interfere with a sentencing Judge'sassessment of the appropriateness of home detention.5 In such cases, an appellant willneed to show that, in exercising a discretion to decline home detention, the sentencingJudge applied an incorrect principle, gave insufficient or excessive weight to aparticular factor or had been plainly wrong.6[28] The Judge considered whether it was necessary to impose a sentence ofimprisonment to hold Mr Baillie accountable for his offending, to denounce theoffending, to deter him from further offending and to protect the community. In thatrespect, she referred to the way this offending occurred when Mr Baillie was stillsubject to a nine month supervision sentence and just a month after his communitydetention sentence had expired, those sentences having been imposed only 10 monthsafter similar offending for which he had been sentenced in August 2018. She expresslyreferred to the manner of his driving which, self-evidently, put others at risk.[29] The Judge did consider the possibility of involving him in rehabilitativeprogrammes. She indicated that, if a residential rehabilitation programme had beenavailable, she might have been willing to sentence him in a way that would haveallowed him to participate in such a programme. There is no dispute that, at the timeof sentencing, committal in some way to such a residential programme, whether as acondition of a home detention sentence, intensive supervision or otherwise, was notavailable as an option. Corrections had advised in the PAC report only that Mr Bailliehad begun a formal application for residential treatment. His counsellor had alsoadvised the report writer that, while residential treatment was theoretically an option,5 Kanuta v R, above n 3.6 Beattie v Police [2020] NZHC 1831, with reference to R v D [2008] NZCA 254; R v Taieba [2000]NZCA 120; Hampton v Police [2014] NZHC 2423; James v R [2010] NZCA 206.there was a waitlist and she could not confirm that Mr Baillie would be accepted asthis would be dependent on the assessment interview.[30] I do not accept the Judge was in error in saying that short rehabilitativeprogrammes were frequently available in prison. That was the informationCorrections had provided in the PAC report. Mr Bourke said such a programme hadnot been available in the Whanganui prison but probably would have been at theRimutaka prison. However, Mr Baillie had not wanted to be at the Rimutaka prisonbecause he wanted to be close to his family. The PAC report also advised that a shortdepartmental rehabilitative programme would only occasionally be available in thecommunity. Mr Bourke suggested that was an error. The report had referred to MrBaillie attending alcohol and drug counselling through the South Taranaki WhānauCentre at the time of his offending. It was to Mr Baillie's credit that he had beenattending that counselling, but it was while he was doing that and still subject to hissentence of supervision that he committed these further offences. The Judge had notedthis.[31] The Judge also rejected home detention as being likely to achieve the purposesfor which a sentence of imprisonment could be imposed only after referring to earlieroccasions on which sentences short of imprisonment had been imposed forrehabilitative purposes but had not been successful in protecting the community ordeterring Mr Baillie from further offending. There was no error in that regard.[32] Mr Baillie had been sentenced to nine months' supervision with specialconditions and six months' community detention on 26 May 2020. He was still subjectto that sentence when this further offending occurred. He had been sentenced to threemonths' home detention on 7 November 2018 with special post-detention conditionsfor the offending that occurred on 5 August 2018 and 21 March 2018. He had beenfined for failing to comply with a prohibition on 8 June 2018 and was sentenced to100 hours' community work on 2 November 2017 for driving while disqualified.[33] The PAC report advised that Mr Baillie had received counselling to address hissubstance use in 2015, 2018 and 2019.[34] The PAC report assessed him as being at high risk of alcohol impaired drivingand at high risk of causing harm through alcohol use.[35] The PAC report did say that his compliance with prior sentences of homedetention had been satisfactory but counselling in association with those sentences hadnot successfully reduced the risk of further offending.[36] There was thus no error in the Judge deciding that the statutory purposes ofholding Mr Baillie accountable, inducing in him a sense of responsibility, denouncingthe offending, deterring him from further offending and protecting the communitycould not, in all the circumstances, be achieved through a sentence other thanimprisonment.[37] Mr Baillie's alcohol addiction and driving puts the public at risk. It also putshim at risk of further offending and further prison sentences. He needs to address hisalcohol addiction issues but he should have an opportunity to do this with the sentenceimposed if, on release, he is accepted for a residential alcohol addiction treatmentprogramme or if he takes advantage of a non-residential programme that he is requiredto attend in accordance with the release conditions of the sentence imposed. It willnot be easy for Mr Baillie to deal with his addiction issues. However, he needs to dothis to avoid further offending of the sort that led to the sentence of imprisonment onthis occasion.[38] This is not a situation where it would be appropriate for an appeal court tointerfere with the sentencing Judge's assessment of the inappropriateness of homedetention.[39] Mr Baillie's appeal is dismissed.Solicitors:N Bourke, Barrister, New PlymouthCrown Solicitors Office, New Plymouth.