MCKEEMAN v POLICE [2022] NZHC 1033

MCKEEMAN v POLICE [2022] NZHC 1033 [13 May 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-0034[2022] NZHC 1033BETWEEN JASON MCKEEMANAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2022Appearances: S J Ross for AppellantC S Taylor for RespondentJudgment: 13 May 2022JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 13 May 2022 at 10 ampursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Marsden Woods Inskip Smith, Crown Solicitor, WhangāreiCounsel: S J Ross, WhangāreiIntroduction[1] The appellant, Mr McKeeman, appeals against sentence on one charge each ofdriving with excess breath alcohol ("EBA"),1 driving whilst disqualified,2 and drivinga motor vehicle in a dangerous manner.3[2] The grounds of appeal are that the sentencing Judge, Judge McDonald, failedto give any credit for time spent on EM bail and did not consider a sentence of homedetention.Background[3] At about 6:30 pm on 5 January 2022, Mr McKeeman was driving throughKamo, intoxicated and on his way to purchase more alcohol. He narrowly missed oneoncoming car and then drove his vehicle through a fence and into a house occupied bya young family, including five children. It is entirely a matter of luck that no-one wasinjured or killed.[4] Mr McKeeman fled the scene but was located by the Police shortly thereafter.He subsequently underwent an evidential breath test, giving a reading of 727micrograms of alcohol per breath, and so almost three times the permitted maximumof 250 micrograms.[5] Mr McKeeman pleaded guilty to the offending. Judge McDonald sentencedhim to nine months' imprisonment on the EBA offending, and nine months and onemonth respectively on the other two offences, these sentences to be servedconcurrently with the sentence imposed on the EBA. The Judge also disqualifiedMr McKeeman from driving for 12 months and one day.1 Land Transport Act 1998, ss 56(1) and 56(4): maximum penalty two years' imprisonment or$6,000 fine.2 Sections 32(1)(a) and 32(4): maximum penalty two years' imprisonment or $6,000 fine.3 Section 35(1)(b): maximum penalty three months' imprisonment or $4,500 fine.Submissions[6] Section 9(2)(h) of the Sentencing Act 2002 ("Act") requires the Court, insentencing an offender, to take into account that the offender has spent time on bailwith an EM condition, and in doing so to have regard to the matters in s 9(3A) of theAct.[7] Mr Ross, for Mr McKeeman, submits that the Judge erred in failing to take intoaccount that, by the time of sentencing, Mr McKeeman had spent 39 days on EM bail.As to s 9(3A), Mr Ross advises that Mr McKeeman was on a 24/7 curfew, was fullycompliant, and did not have any permitted absences. In short, the EM bail conditionwas restrictive in its effect. Accordingly, Mr Ross submits that, whatever my decisionon his second submission (as to home detention), at the very least Mr McKeeman musthave some reduction in the duration of his sentence, and he submits this should be atleast two weeks.[8] I am not persuaded to make any reduction to Mr McKeeman's sentence on thisground. Thirty-nine days is a short period to spend on EM bail. In Longman v Police,Simon France J was asked to increase a one month credit given by the sentencingJudge for two and a half months on EM bail.4 The Judge said that any credit for sucha short period of EM bail was far from inevitable. Similarly, in Hemopo v R, the Courtof Appeal said that any discount is a discretionary matter. In my view, no reduction isrequired or merited in this particular case because, as I have said, the period was soshort.5[9] Mr McKeeman's other ground of appeal is that the Judge was required to butdid not consider the imposition of a sentence of home detention.[10] I do not have a copy of the PAC report that was prepared but from theinformation before me I gather that it recommended supervision and communitydetention between 7 pm and 7 am.4 Longman v Police [2017] NZHC 2928 at [13].5 Hemopo v R [2016] NZCA 242.[11] The Judge did not accept that recommendation. He recorded thatMr McKeeman has been subject to oversight from Probation Services for some twoand a half years (in total), and none of it has made any difference to Mr McKeeman'sbehaviour. Importantly, the Judge noted that the time had come to protect thecommunity from Mr McKeeman, even if only for a short period of time.[12] This latter statement stems from the fact that, at age 28, Mr McKeeman alreadyhas an appalling driving record. This most recent EBA offence was his fourth and healso has a conviction for refusing a blood specimen. Mr McKeeman committed hisother EBA offending, including the refusal to which I have just referred, in 2010, 2013,2015, and 2019.[13] Mr McKeeman also has several convictions for driving whilst disqualified. Hecommitted his first at the same time as his 2013 EBA. He accrued the subsequentconvictions in 2015 (when he was also convicted of dangerous driving), 2018, 2019,and 2021. At the time of the present offending, Mr McKeeman was disqualified fromdriving on an indefinite basis.[14] Whilst I am on the subject of Mr McKeeman's criminal history, I record thathe also has several convictions for failing to answer bail, and for breaches ofcommunity work and release conditions.[15] Mr Ross is correct that the Judge did not make overt reference to homedetention or why he did not consider that sentence appropriate. However, nothingturns on that for the purposes of this appeal. Early in his sentencing the Judge referredto the need to impose the least restrictive sentence, and he also referred to s 16 of theAct, the relevant parts of which provide:16 Sentence of imprisonment(1) When considering the imposition of a sentence ofimprisonment for any particular offence, the court must haveregard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with thesafety of the community.(2) The court must not impose a sentence of imprisonment unlessit is satisfied that,—(a) a sentence is being imposed for all or any of thepurposes in section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentenceother than imprisonment; and(c) no other sentence would be consistent with theapplication of the principles in section 8 to theparticular case....[16] Mr Ross submits that does not assist as s 16 is concerned with community-based sentences, which home detention is not. I do not accept that submission.Section 16 requires a Judge to refrain from imposing a sentence of imprisonmentunless no other sentence will be sufficient.[17] Judge McDonald, a very experienced District Court Judge, may not havereferred expressly to the possibility of home detention, and why it was unsuitable but,as I have said, he did refer to the need to impose the least restrictive sentenceappropriate in the circumstances, and s 16 conveys a similar principle. The Judge'sreference to the need to protect the community from Mr McKeeman indicated that heconsidered anything less than a sentence of imprisonment would be insufficient. Thatconclusion was inevitable, given Mr McKeeman's history of driving offences, and ofnon-compliance with Court orders.Result[18] The appeal is dismissed.Peters J