MCLENNAN v NEW ZEALAND POLICE [2018] NZHC 320

MCLENNAN v NEW ZEALAND POLICE [2018] NZHC 320 [5 March 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000001[2018] NZHC 320BETWEEN JAMIE GREGORY MCLENNANAppellantAND NEW ZEALAND POLICERespondentHearing: 2 March 2018Appearances: M Scally for AppellantC Ure for RespondentJudgment: 5 March 2018JUDGMENT OF GENDALL J[1] On 20 December 2017, following guilty pleas the appellant was sentenced to18 months' imprisonment for two charges of reckless driving causing injury and onecharge of failing to stop following an accident to ascertain injury. The appellantappeals this sentence on the basis that he should have been sentenced to homedetention rather than imprisonment.Facts[2] The charges in question related to two separate driving events. The firstoccurred around 7.40 am on 24 June 2016 when the appellant was driving nearOmakau. As he crested the brow of a hill, he struck a vehicle travelling in the oppositedirection. Both vehicles suffered minor damage and the other vehicle pulled over. Theappellant did not stop. This resulted in the charge of failing to stop following anaccident to ascertain injury.[3] The second occurred around 11.50 pm on 14 October 2016, when the appellantwas driving a vehicle up the overbridge on Ward St, Dunedin. The overbridge is inthe shape of an H and in a 50 kilometre per hour zone. The appellant had onepassenger in his vehicle. The traffic was light and the road dry.[4] As he approached the moderate right hand bend off the Ward Street bridge, theappellant accelerated heavily and, while doing so, turned his vehicle to the right andthen quickly to the left. This put the vehicle sideways as he drove down the oppositeside of the bridge. As he rounded the corner, he continued to accelerate, causing hisvehicle to lose traction, skid and "drift" around the corner at approximately54 kilometres per hour. At this point, the appellant's vehicle crossed the centre lineand collided head on with another vehicle.[5] The crash resulted in serious physical injuries and on-going emotionalconsequences to two young women who were passengers in the other car. The firstvictim received a broken back, a hairline fracture to her cheekbone, bruising about herface and had to have some of her small intestine removed. The second victim requiredan operation to repair her bowel which was split open by the crash. She also receivedbruising throughout her body. Both cars were written off. All this resulted in the twocharges the appellant faced of reckless driving causing injury.District Court decision[6] In his decision in the District Court, Judge Flatley highlighted the appellant'srelevant history of offending, which included two charges for careless driving and onefor reckless driving. In discussing the probation report, Judge Flatley noted that theappellant had told the report writer that he was tired at the time, fell asleep at the wheel,and then woke up and overcorrected, causing the crash. This indicated to the Judgethat, at the time, the appellant did not take responsibility for what he had done. Despitethat, the report assessed the appellant's remorse as genuine but found his risk of harmto others and his likelihood of reoffending was medium.[7] The appellant participated in a restorative justice conference with the twovictims. The report contends that it was successful but Judge Flatley heard from oneof the victims in court that they did not find it so. The appellant, however, hadapologised to the victims and showed remorse, which they accepted. But there hadbeen long-term consequences for them, and one of the victims requires further surgery.[8] Judge Flatley did acknowledge that later the appellant took some responsibilityfor his actions with the restorative justice report saying that he acknowledged heshould not have done what he did. The Judge said that this indicated the appellant didnot fall asleep and then woke up and simply overcorrected, but that the appellantintentionally drove his vehicle in the manner outlined, which makes his culpabilityand the gravity of the offending high. The appellant, according to the Judge, showedcomplete disregard for the potential danger to other road users and the consequencesif an accident occurred.[9] Judge Flatley then assessed the appropriate starting point for the charges ofreckless driving causing injury. In doing so he identified several aggravating features:the seriousness of the harm to the victims; the appellant's intentional driving actions;the fact that the appellant was driving with a passenger in contravention of hisrestricted licence; the presence of two charges; the earlier charge of failing to stop; andthe appellant's history of offending. The Judge also noted the absence of otheraggravating factors often present, such as consumption of alcohol, excessive speedand a prolonged course of bad driving.[10] These factors and relevant case law led him to set the start point at 21 months'imprisonment. The Judge uplifted this by three months to recognise the charge offailing to stop and the appellant's driving history. This was generously discounted by25 per cent to 18 months' imprisonment to recognise what was a very late guilty plea.[11] The Judge then considered whether the sentence should be remitted to one ofhome detention, given the principle that the least restrictive sentence appropriate mustbe imposed. He noted that, while home detention would allow the appellant to workand thus pay reparation, the victims' focus was not on this but they would rather seehim appropriately sentenced.[12] The Judge considered that the offending was serious and the appellant'sculpability extremely high. The appellant made the decision to drive as he did andhad a poor background of driving with convictions both for driving-related offendingand for other offending including breaching sentences. Therefore, the Judge foundthat a sentence of home detention was insufficient to meet the principles of theSentencing Act, such as denunciation and deterrence. He noted that a clear messageto the appellant and others was required.Principles on appeal[13] 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.2[14] The Court of Appeal has articulated the test in an appeal against a refusal togrant home detention as:3[T]he choice between home detention and a short sentence of imprisonment isthe exercise of a fettered discretion, with appellate review focusing, as in othersentencing appeals to this Court, on the identification of error, if any, in thecourt below.SubmissionsAppellant's submissions[15] The appellant does not take issue with the Judge's starting point, uplifts,discount or the notional end point of 18 months' imprisonment. His focus on thisappeal is the Judge's decision not to remit the sentence to one of home detention.[16] Counsel submits that the Judge placed too much weight on the views of thevictims and the principles of denunciation and deterrence, to the exclusion of a fullconsideration of other relevant factors. Counsel argues that the Judge's assessment1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].3 Manikpersadh v R [2011] NZCA 452 at [12].was brief and did not mention many of the usual factors to be weighed in such cases.Therefore, his decision about home detention was not a 'considered and principledchoice' between the two sentences.[17] Counsel notes that serious offending will not always require a sentence ofimprisonment if other factors weigh in favour of home detention. This can be seen inBryant v Police where a 12 month sentence of imprisonment was replaced with sixmonths' home detention on appeal.4 There the charges were for dangerous drivingcausing injury and failing to stop and render assistance. The appellant was intoxicatedand drove head on into the victim's car. He briefly spoke to her at the scene but fledwithout calling an ambulance. The victim suffered moderate injuries. The appellantlater turned himself into police. The appellant had three prior convictions for excessbreath alcohol.[18] The Court on appeal acknowledged that the offending was serious. However,the length of time since the appellant's prior convictions, his actions in turning himselfinto police, the steps taken to remedy his actions, his remorse, his low risk ofreoffending and the absence of non-compliance with Court orders weighed in favourof home detention. The Court found that the sentencing Judge, while acknowledgingthese matters, did not give them sufficient weight in light of the deterrent value of asentence of home detention.[19] Ms Scally, counsel for the appellant, submits that the following factors supporta sentence of home detention in this case:(a) The appellant's guilty plea signals his acceptance of responsibility forthe offending;(b) His most recent driving charge was six years ago and his recklessdriving charge was 12 years ago;(c) He has not offended since 2013 and his last conviction for non-compliance with a sentence was in 2008;4 Bryant v Police HC Blenheim CRI-2011-406-20, 5 December 2011.(d) He has a good employment record and there were positive characterreferences before the sentencing Judge;(e) He has expressed genuine remorse, attended a restorative justiceconference and apologised to the victims;(f) He is willing to pay emotional harm reparation;(g) His likelihood of reoffending is assessed as medium with poor decisionmaking identified as the 'offending related factor'; and(h) An appropriate address for home detention was available at the time ofsentencing.[20] Ms Scally maintains that the very fact that an 18 month end point was imposedcarries significant denunciative and deterrent effects. Home detention would still giveweight to this. Once a considered and principled approach is taken, it is contendedthat the appellant's personal factors and his prospects for rehabilitation point towardshome detention here being the least restrictive sentence that is appropriate.Respondent's submissions[21] In reply, the respondent submits that the Judge was entitled to find that homedetention was not appropriate in these circumstances. It is said the Judge did not makean error and the sentence of imprisonment was well within the available range, havingregard to the relevant principles and purposes of sentencing.[22] Ms Ure, counsel for the respondent, maintains that the Judge properly turnedhis mind to many factors when considering home detention. These include the effectof keeping the appellant in the community and whether home detention would be theleast restrictive sentence available. While the principle of denunciation and deterrenceand the views of the victim took an arguably prominent position in the sentencingexercise, counsel contends the Judge did not ignore other factors. In fact, it issuggested the Judge made a considered and principled choice.[23] Counsel submits, too, that the Judge's decision is not like that inManikpersadh,5 where the sole focus was on deterrence and no reference was made tothe other purposes and principles of sentencing. Furthermore, unlike the situation inManikpersadh, the appellant's personal circumstances and rehabilitation prospectshere, it is claimed, do not point strongly towards a sentence of home detention. Inresponse to the appellant's proposed considerations, the respondent submits that:(a) The appellant's guilty plea was on the morning of the trial and adiscount of much less than 25 per cent could have been given;(b) He was being sentenced here for his serious driving conduct on twoseparate occasions in one year;(c) While the length of time since his previous convictions tempers anuplift, it does not point towards a sentence of home detention;(d) The expressions of remorse do not accord with the appellant's attemptsto minimise his offending;(e) His risk of harm to others is assessed as medium; and(f) The identification of poor decision making does not lead to any specificrehabilitation requirements.[24] Counsel submits that the seriousness of the offending and the high level ofculpability, against the background of previous relevant convictions and very poordriving on two occasions here, point towards imprisonment as the appropriatesentencing response. The Judge, it is said, did not err in imposing that sentence buteven if there had been some error here, no alternative sentence is appropriate.5 Manikpersadh v R, above n 3.Analysis[25] The Court of Appeal held in Palmer v R that the decision of whether tocommute a sentence to home detention calls for a case by case exercise of judgmentas there is no presumption either way.6 It also identified denunciation and deterrenceas very important sentencing considerations.7 The Court of Appeal earlier held that"it is a matter of judgment for the sentencing Judge to determine whether homedetention is an adequate response to the seriousness of the offending".8[26] In the present case the Judge considered that home detention would beinsufficient to meet the purposes and principles of sentencing. The appellant is correctin noting that the Judge placed emphasis on the particular principles of deterrence anddenunciation. However, to an extent, this was appropriate here as these are theprincipal purposes of punishment when imposing penalties for traffic offences.9 Inaddition, s 8 requires the Court to consider the effect of the offending on the victims.[27] There were also, however, number of aggravating factors in this offending.The appellant had a history of driving offences, albeit some time ago, and was beingsentenced for serious driving misconduct on two different occasions. The level ofharm he caused the two victims was high, as was the level of his culpability due to theintentionality of his actions. All of these factors were valid considerations for theJudge to take into account to conclude that home detention should not be granted inthis case.[28] Counsel for the appellant has put forward a number of factors which shesubmits indicate that a sentence of home detention would be sufficient and appropriatehere. However, I do not find these enough to show that home detention appropriatelymeets the sentencing principles in this case. These factors were largely considered byJudge Flatley, albeit some were only noted earlier in his judgment. I agree with theJudge that the appellant's culpability in this offending was high and that this wasexacerbated by his poor history. This necessitated a sentence of imprisonment to6 Palmer v R [2016] NZCA 541 at [19].7 Palmer v R, above n 6, at [26].8 James v R [2010] NZCA 206 at [17].9 R v Beaman CA177/82, 16 December 1982.sufficiently denounce this offending and to deter the appellant and others from makingbad driving decisions like this.[29] There were few, if any, mitigating factors personal to the appellant that requireda sentence of home detention, distinguishing it from cases like Manikpersadh. InManikpersadh there was clearly an error that required correction in that the sole focusin the lower court was on deterrence with no reference being made to the relevantpurposes and principles of sentencing. Unlike that decision in Manikpersadh theappellant's personal circumstances here and his rehabilitation and reintegration, in myview, do not point strongly to a sentence of home detention. There were a range offactors in Manikpersadh that indicated a sentence of home detention was appropriatefor the appellant in that case. These included the appellant's age, prior good character,early plea, payment of reparation (already completed), and recognition of offendingrelated issues. These are generally not matters of which the appellant in all thecircumstances of the present case can avail himself.[30] Essentially, as I see it, the appellant is contending that his remorse, hisattendance at restorative justice, his plea of guilty and his rehabilitative prospects werenot properly considered in the District Court in this assessment process. To asignificant extent, I disagree.[31] In addition, although here there had been some length of time since theappellant's prior convictions, he was being sentenced for two serious and differentdriving incidents. He did not immediately turn himself into the Police in relation tothe 14 October 2016 offending, and was apprehended only three days later followingthe 24 June 2016 offending. In addition, his guilty pleas came only on the morning oftrial. Although it seems he has shown some remorse, he also said things to minimisehis offending. Furthermore, unlike in Manikpersadh, he has been assessed as havinga medium risk of reoffending and of causing harm to others, not a low risk. Theappellant also has some history of non-compliance with Court orders. He also did notseem to have any particular issue that required rehabilitation and the victims tooindicated to the Judge that they did not particularly feel the need for emotional harmreparation.[32] After considering all the submissions advanced on behalf of the appellant andthe respondent, I am not convinced that Judge Flatley made an error here in refusingto impose home detention. As I have outlined above, refusal to impose home detentionis an exercise of discretion. The appellant must demonstrate that Judge Flatleyconsidered something irrelevant, failed to consider something relevant, or that hisdecision was plainly wrong. None of these grounds exist here. Judge Flatley, as I seeit, in this case properly considered first, the issue of home detention and secondly, heconcluded that in particular because of the appellant's previous convictions, the overalleffect on the victims of this offending and the need for denunciation and deterrence, asentence other than imprisonment would be inadequate to meet the proper purposes ofsentencing in this case. The culpability of the appellant, in my view, was of such anextent that it attracted a high level of denunciation and deterrence. Refusing to imposehome detention was therefore available at Judge Flatley's discretion and I am satisfiedit was appropriate here.Result[33] No error occurred in the Judge's decision in the District Court not to commutethe sentence to one of home detention.[34] This appeal is dismissed....................................................Gendall JSolicitors:Public Defence Service, DunedinRPB Law, Dunedin