JENNISON v NEW ZEALAND POLICE [2022] NZHC 2070

JENNISON v NEW ZEALAND POLICE [2022] NZHC 2070 [19 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-106[2022] NZHC 2070BETWEEN JASON KERRY JENNISONAppellantAND NEW ZEALAND POLICERespondentHearing: 18 August 2022Appearances: T Aickin for AppellantG E R Alloway for RespondentJudgment: 19 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 19 August 2022 at 11.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 8 June 2022, Jason Jennison was sentenced to 16 months' imprisonmentand disqualified from driving for two years on one charge each of dangerous drivingand driving while impaired.1 He appeals his sentence of imprisonment saying heshould have been sentenced to home detention.Facts[2] Mr Jennison has five previous convictions for driving with excess breathalcohol.[3] At 4:50 pm on 22 March 2021, Mr Jennison was driving a vehicle onSelwyn Road, Rolleston. Police had received multiple driving complaints about hisvehicle being driven erratically and crossing the centreline before it crashed and hit afence. He was spoken to at the scene and exhibited signs of being under the influenceof a drug. He failed a compulsory impairment test. Blood test procedures were carriedout and an ESR analysis of the sample showed Mr Jennison was under the influenceof Lorazepam and Tramadol.[4] His defence that the Lorazepam was taken involuntarily was rejected at a JudgeAlone Trial.2 Indeed, the Judge formed the view that Mr Jennison and his mother"contrived" the explanation for how he came to have taken the drugs and concludedhe lacked credibility.3District Court sentencing decision[5] The Judge described Mr Jennison's erratic driving in his sentencing decisionas follows:1 Police v Jennison [2022] NZDC 10467.2 Police v Jennison [2022] NZDC 4316.3 At [53](e) and (g).[6] It included Mr Jennison driving over the speed limit and crossingthe centre line on numerous occasions to the point of causing so much concernthat not only did the complainant phone Police but she followed him. Herevidence included pleading with the operator for help. She provided updateson a long stretch of Brougham Street which of course is a very busy road withthe driving continuing onto the motorway swerving out form his lane into theone beside it and ending right up hard against the median fence. Cars werepassing and taking a wide berth to avoid being hit if he veered into their lane.[7] At the end of the Southern Motorway he took the Shands Road exit.He sat completely through the first green arrow and almost through the secondbefore going through very late. At this point the complainant described hisdriving as "truly terrifying", driving fast and travelling far too close to peoplein front before they would turn off. He would cross the centre line intooncoming traffic and then correct again hard left. He would be driving up thegrass verge and then back to the centre line and back to the centre and acrossto the centre line again.[8] On Shands Road alone he crossed into oncoming traffic at least fourto six times with some very close calls. One oncoming car beeped loudly withthe complainant continually on the phone to the operator. He managed to turnright into Selwyn Road almost colliding with an oncoming car and continuedhis pattern of crossing the centre line with another couple of very close calls.He went right across the centre line of the opposite lane nearly missing a caron the way. He crashed into a hedge on the opposite side of the road.[6] The Judge noted Mr Jennison's driving only stopped because he crashed. TheJudge found Mr Jennison knew he was impaired and unwell and that he ought to havepulled over. The Judge took as aggravating factors that this was his sixth convictionfor driving while impaired, that his previous convictions had very high readings andon the last occasion he received a sentence of imprisonment. He acknowledged therehad been a gap since his last conviction for such offending.[7] The Judge considered Mr Jennison's background, including that he isemployed, in a long-term relationship with a partner who has three children, that heparents those children and that he is the main income provider for the family. Hispartner and mother explained their concerns about how hard Mr Jennison had beenworking. The Judge noted Mr Jennison accepted he should not have taken medicationwhich was not prescribed to him and that he ought not to have driven when feelingunwell.[8] While the Judge acknowledged the availability of an electronic sentence, henoted some concerns about the proposed address due to the restrictive nature of thesentence and the potential for family violence at the address.[9] The Judge took deterrence and denunciation as the principal issues whensentencing. He found Mr Jennison needed to be deterred personally and that a messageof general deterrence needed to be sent in relation to people who continue to driveunder the influence of drugs or alcohol. The Judge found Mr Jennison's appallingdriving also needed to be denounced.[10] The Judge adopted a starting point of 16 months' imprisonment and granted nocredit for mitigating factors. He determined Mr Jennison's driving was egregious andMr Jennison was still not getting the message, so a sentence of imprisonment wasappropriate.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011. They must be determined in accordance with s 250 of that Act.An appeal against sentence may be allowed by this Court only if it is satisfied thatthere has been an error in the imposition of the sentence and that a different sentenceshould be imposed.4 It is appropriate for this court to intervene and substitute its ownviews only if the sentence being appealed is "manifestly excessive" and not justifiedby the relevant sentencing principles.5[12] Home detention is an alternative to a short-term sentence of imprisonment.6The court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.7 An appeal court must focus onthe identification of error, having regard to the discretionary nature of the decision.8SubmissionsAppellant's submissions[13] Ms Aickin, for Mr Jennison, submitted the Judge erred in failing to account forthe time Mr Jennison had spent on bail without breach or further offending and4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Ripia v R [2011] NZCA 101 at [15].6 Sentencing Act 2002, s 15A(1)(b).7 Section 15A(1)(a).8 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].insufficiently accounted for Mr Jennison's personal circumstances. Ms Aickinsubmitted the Judge ought to have spoken with Mr Jennison's partner regarding theimpact of a prison sentence on her and her children and Mr Jennison's health condition.She submitted Mr Jennison's lack of previous convictions for driving impaired ordangerous driving was given little or no weight by the Judge. Furthermore, he hadlast been convicted for driving with excess breath alcohol four years prior.[14] Ms Aickin submitted home detention would not be an easy option forMr Jennison, leaving him with only limited ability to be absent from his address foremployment or rehabilitative purposes. She submitted the Judge did not consider thefact Mr Jennison has never before received a sentence of home detention. Acceptingthat deterrence and denunciation were relevant purposes, Ms Aickin submitted it wasunsafe to conclude that no other sentence but imprisonment would address them.Respondent's submissions[15] Mr Alloway, for the Crown, submitted it was open to the Judge not to take intoaccount the time Mr Jennison spent remanded on bail given it was only a month andthe conditions were not onerous. He noted the Judge acknowledged Mr Jennison'spersonal circumstances and the fact he was in employment. He submitted the Judgewas correct to place weight on principles of deterrence and denunciation givenMr Jennison's history of driving with excess breath alcohol. He also rejected thesubmission Mr Jennison had not received a prior sentence of home detention sayinghis criminal record shows that his fourth drink drive conviction was converted toimprisonment as a result of a review of home detention.[16] Mr Alloway maintained the Judge sufficiently considered whether a sentenceof home detention would have addressed the purposes and principles of sentencing.He noted police concerns with the proposed address given they had attended familyharm occurrences at the address in February and May 2021.Analysis[17] While Ms Aickin contends the Judge gave insufficient credit for mitigatingfeatures of Mr Jennison's offending, the starting point is not challenged. I am satisfieda starting point of imprisonment was warranted and that the notional sentence ofimprisonment adopted by the Judge was not manifestly excessive. The issue on appealis whether the sentence ought to have been commuted to one of home detention.[18] There were no technical barriers to the imposition of home detention at theproposed address. However, the pre-sentence report noted a request for informationwas sent to the Police. They informed officers had attended the address for familyharm occurrences in February and May 2021. No charges resulted though on oneoccasion Mr Jennison was taken to his mother's home for the night. On both occasionshis use of alcohol was referred to. Police did not support Mr Jennison serving homedetention at the address due to the restrictive nature of such sentences and the potentialfor family violence. The pre-sentence report writer recommended a no alcohol ordrugs condition were home detention imposed. A sentence of community work and afine was recommended.[19] The Judge received information about Mr Jennison's circumstances fromseveral sources. Mr Jennison's employer sent a letter to the Court setting out hishistory with the company, with Mr Jennison working for them between 1999 and 2008and again for the last four years. The employer said he works to a high standard,would be hard to replace and his job remains open to him. His partner also provideda letter. She set out how they have been in a relationship for three and a half yearsnow and that they live together in Rolleston with her children aged seven, 14 and 16.She says her children welcomed Mr Jennison, with her seven-year-old especiallyadoring him. She said Mr Jennison has been supportive of her and expressedfrustration at the fact Mr Jennison would be sentenced to imprisonment so long afterthe offending.[20] Mr Jennison wrote a letter to the Judge. He expressed regret for his actions onthe night in question and acknowledged the harm he caused. He acknowledged hispoor history but said he had turned his life around in the last five years. Mr Jennisondescribed himself as fortunate to meet his partner and her three boys and expressedgratitude for his better circumstances. He asked for a chance to continue movingforward.[21] The Judge set out and considered these circumstances. He determined,ultimately, though that the dominant purposes of sentencing Mr Jennison weredeterrence and denunciation. I do not consider this was an error of law because, ratherthan failing to consider purposes such as rehabilitation,9 the Judge considered anddiscounted those purposes. He also emphasised Mr Jennison needed to be held toaccount and some responsibility promoted in him, noting he did not plead guilty to thedriving while impaired charge and only pleaded guilty to the dangerous driving chargeat a very late stage. The Judge rightly explained that Mr Jennison needed to bepersonally deterred because, whatever he said about what was in his system, hisdriving was "appalling" and he had no control over the vehicle. In my view the Judgewas also entitled to emphasise general deterrence and denunciation givenMr Jennison's offending involved real danger to the public. While I acknowledgeMr Jennison has not previously been convicted of dangerous driving alongside hisprevious driving with excess blood alcohol charges, the very high level of dangerinvolved here was clearly an aggravating factor of his driving while impaired.[22] I do not accept it was necessary, as Ms Aickin submitted, for the Judge to speakto Mr Jennison's partner regarding the effect of a sentence of imprisonment on her. Inmy view, those effects could be readily inferred from her letter to the Court and fromthe pre-sentence report, and the Judge gave due consideration to those matters.[23] Ms Aickin submitted the Judge erred in failing to take into account the timeMr Jennison spent on bail without breach or further offending. The Judge did notexplicitly refer to this factor, though that does not mean he did not consider it.Mr Alloway indicated Mr Jennison was remanded at large from his first appearanceon 28 May 2021 until he was remanded in custody pending sentence on22 March 2022. He was granted bail on 29 April due to his sentencing hearing being9 This would be an error of law—see Fairbrother v R [2013] NZCA 340 at [29]; and Manikpersadhv R [2011] NZCA 452 at [17].adjourned with conditions to reside at his address and not to drive a motor vehicle. Hewas sentenced on 15 June 2022.[24] Mr Jennison was therefore out in the community for nearly a year between hisfirst appearance and being sentenced without incident, including a period where heseemingly complied with a bail condition not to drive a vehicle. During that period,it appears he was in employment and, it appears from his partner's letter, was asupportive breadwinner for his family.[25] I accept Mr Jennison has complied with all previous disqualification periodsand that was a factor which might point to a rehabilitative sentence. Also relevant wasthe gap between this offending and Mr Jennison's last sentence of imprisonment,during which Mr Jennison says he has turned his life around. However, contrary toMs Aickin's submissions, his record shows he was sentenced to home detentionpreviously. On his fourth drink driving offence, his criminal record shows the sentenceof home detention was reviewed and he was resentenced to imprisonment. Thus, hehas had a sentence of home detention but has continued to offend.[26] While I accept there are factors which might point to the suitability of a homedetention sentence, the decision involved the exercise of a discretion and I must besatisfied there was some error in the exercise of that discretion. Here, the Judge hadthe benefit of presiding over Mr Jennison's trial where his case was advanced andwhere he and his mother gave evidence. The Judge was not impressed with thatevidence. He noted there was no suggestion Mr Jennison did not know he wasimpaired nor that he was unaware he was in no state to drive. It is conceivable thatthe Judge might have prioritised different purposes had Mr Jennison pleaded guilty.Ultimately, though, I do not accept he failed to consider any of the information beforehim or to put appropriate weight on it. Having regard to the nature of Mr Jennison'sdriving and the fact he had received previous sentences of imprisonment for drivingunder the influence, the Judge was also entitled to find nothing short of imprisonmentwould satisfy the purposes of denunciation and deterrence.[27] I do not consider the Judge erred in exercising his discretion to decline homedetention. Although noting it was significant Mr Jennison would be deprived of hisemployment, he found the purposes of deterrence and denunciation in this caseoutweighed the need for any rehabilitative sentence.Conclusion[28] The appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:T Aickin, Barrister, Christchurch