HIGGINSON v NEW ZEALAND POLICE [2023] NZHC 2273

HIGGINSON v NEW ZEALAND POLICE [2023] NZHC 2273 [22 August 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-17[2023] NZHC 2273BETWEEN JINA MAE HIGGINSONAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2023Appearances: A Younger for AppellantE R Pairman for RespondentJudgment: 22 August 2023JUDGMENT OF GRICE JAppeal against sentenceIntroduction[1] Ms Higginson has pleaded guilty to driving with excess breath alcohol, beingher third or subsequent offence of this type. This offence carries a maximum penaltyof two years' imprisonment or a fine of $6,000.1 The Court must also order the driverbe disqualified for at least one year.[2] Ms Higginson was sentenced in the District Court at Palmerston North on15 June 2023.2 Ms Higginson received a sentence of four months' home detention,special conditions for six months on completion of her home detention sentence, andan alcohol interlock sentence. Ms Higginson now appeals this sentence on the grounds1 Land Transport Act 1998, ss 56(1) and 56(4).2 Police v Higginson [2023] NZDC 12039 [Judgment under appeal].that insufficient discounts were afforded for her personal circumstances, her efforts ofrehabilitation thus far, and her prospects of future rehabilitation.[3] I conclude that although there was an error in the District Court's sentence asa discrete discount was not awarded for Ms Higginson's rehabilitative efforts, thesentence was well within range. Awarding a further discount would be consideredtinkering and I dismiss the appeal.BackgroundOffending[4] On 10 January 2023 at around 2.31 am, Ms Higginson was stopped inPalmerston North for a compulsory breath test. Breath test procedures were followed,and Ms Higginson, in her evidential breath test, produced a result of 936 microgramsper breath. She was also in breach of her restricted licence, being unsupervised at thetime of driving.District Court decision[5] Judge Edwards, after explaining the offending and the reasons Ms Higginsongave for the offending, discussed Ms Higginson's personal background andcircumstances. The Judge said that although the Court has sympathy toMs Higginson's circumstances which were a direct causal link to her drinking, thesewere not a direct and causal link for choosing to drive.3 The Judge emphasised therisk associated with drink driving to her and her whānau as well as the community.[6] The Judge noted that Ms Higginson's circumstances would be taken intoaccount.4 The Judge addressed Ms Higginson's four previous sentences for drinkdriving, with the two most recent being community-based sentences that did not,ultimately, have the required rehabilitative and deterrent effect.5 However, this3 At [3].4 At [5].5 At [5].offending has caused Ms Higginson to get help, committing to her own rehabilitation.The Judge also emphasised the need for deterrence for this kind of offending.6[7] Considering the level of alcohol in her system, the fact Ms Higginson shouldnot have been driving at all, and her previous convictions, she assessed the startingpoint to be 12 months' imprisonment. The Judge then applied a 25 per cent discountfor Ms Higginson's early plea, reducing the sentence by three months to a total of ninemonths' imprisonment. The Judge assessed it was appropriate to commute thissentence to one of home detention, due to Ms Higginson's trauma and her steps toengage in rehabilitation. She also considered the home detention address to be apositive environment.[8] The Judge sentenced Ms Higginson to four months' home detention with thespecial conditions recommended by Corrections that would continue to apply for sixmonths after her sentence of home detention ends. The Judge also sentencedMs Higginson to an alcohol interlock sentence.Approach to appeal[9] As this is an appeal against sentence under s 250 of the Criminal ProcedureAct 2011 (CPA), the appeal will be allowed if the Court is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[10] Despite the lack of express reference to the sentence being "manifestlyexcessive" under s 250(2) of the CPA, that is imported.7 The focus is on whether theend sentence imposed by the Judge was within range, not on whether the processadopted to reach that end sentence was correct.86 At [5].7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].8 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant submissions[11] Ms Younger, for Ms Higginson, accepts the starting point was appropriate andthat the discount for Ms Higginson's early guilty plea was correct, but submits therewas an error in ending the discounts at the early guilty plea. Ms Younger submitsfurther discounts should have been afforded for steps taken towards rehabilitation, forfurther prospects of rehabilitation, her remorse, and her background factors resultingin alcohol addiction. An end sentence of two and a half months' home detention isappropriate in these circumstances.[12] Ms Younger submits the PAC report showed signs of remorse andMs Higginson's self-referral to counselling also shows that she has remorse for heroffending and wants to address the root causes of it. The District Court Judge erred innot recognising this. Ms Younger further submits that there should have been adiscount for her personal circumstances, despite a report not being produced unders 27 of the Sentencing Act 2002. Ms Younger points to authority that shows discountsfor background and personal circumstances were awarded when s 27 reports were notproduced.9 Ms Younger argues that her addiction to alcohol was a proximate andcausative link to her offending and the District Court Judge erred in her conclusion onthis point. Ms Younger points to R v Zhang to show the causal link addiction has tooffending in feeding addiction and that the Supreme Court in Berkland v R reinforcedthis, stating personal circumstances can justify a discount if there is a "causativecontribution".10[13] Ms Younger submits another error in the District Court Judge's approach wasthat the Judge focused solely on deterrence and denunciation, and not on rehabilitation.She submits that rehabilitation is a key factor in sentencing for this type of offending.Ms Higginson has taken real steps towards her rehabilitation and following theSentencing Act and the authorities, there should have been discounts awarded toMs Higginson for her actual steps taken towards rehabilitation.9 Mau v R [2021] NZCA 106.10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [145]; and Berkland v R [2022] NZSC 143,[2022] 1 NZLR 509 at [107]–[129].Respondent submissions[14] Ms Pairman, for the Police, submits that although it is accepted a discountcould have been given for rehabilitation, to vary the sentence on appeal would amountto tinkering as the overall sentence was within range. Ms Pairman does not disputeMs Higginson's alcohol addiction and that being under the influence of alcohol leadsto poor decision-making but says this is not a situation in which it is appropriate toafford a discount for addiction issues.[15] Ms Pairman points to s 9(3) of the Sentencing Act which specifically states thatit is not a mitigating factor that at the time of the offending the defendant voluntarilyconsumed drugs and alcohol. Ms Pairman states this is a clear intention fromParliament and that drink driving is by nature a charge resulting in inebriation fromalcohol. She says there is a distinction between this offending and offending, such asin Zhang, in which offending was committed to support and fuel addiction.[16] Ms Pairman further submits that drink driving is an inherently deterrentoffence, aimed at preventing people from causing harm on the road due to aninebriated state. The Judge was, therefore, correct to focus on deterrence in sentencingMs Higginson. She submits the appeal should be dismissed.Was there an error in the sentence?[17] I accept there was an error in the Judge not awarding a discount forrehabilitation.[18] Ms Younger, in her oral submissions, emphasises that Ms Higginson'sculpability was diminished because of the causal connection between addiction andher offending. Ms Younger submits that case law is not exclusively applied toamphetamine addiction but applies to addiction generally. She notes that for somealcoholics, the addiction to alcohol is more insidious than to illegal drugs because ofits ready availability. She notes Ms Higginson's horrific background, and the morerecent events in her life have led to her mental health difficulties. In relation to s 9(3)of the Sentencing Act, Ms Younger submits consumption of drugs or alcohol is not, inthe case of addicts, voluntary. There was a nuanced difference between voluntarilyconsuming alcohol in cases of addiction.[19] Ms Younger also updated the Court on the progress Ms Higginson was makingwith counselling and her planned steps toward the full rehabilitation programme.Ms Younger notes that the steps taken towards rehabilitation needs recognition. Theforward-looking factor of rehabilitation also deserved a discrete discount to encouragefurther rehabilitation.[20] I accept there was an error in the Judge not awarding a discount forrehabilitation. I do not, however, accept that a discrete discount should be given tothe steps taken as well as rehabilitative prospects. This would result in potentialdouble counting and is not supported by the authorities on the mitigating factor ofrehabilitation.11 The material before me indicates that Ms Higginson has madegenuine efforts towards her rehabilitation which could have deserved a discretediscount in her sentencing.[21] I also do not believe a discount could have been given for addiction in thesecircumstances although I do accept that, when addiction plays a role in offending suchas offending to fuel addictions as seen in the cases of Zhang and Berkland, thatdiscounts should be awarded when appropriate. Drink driving is not an appropriatesentence to award a discount for addiction in this case. In addition, there is nothing tosuggest that addiction had a causative contribution on Ms Higginson's decision todrive. I agree with Ms Pairman's submission that s 9(3) of the Sentencing Act isengaged on these facts, and that it was not an error of the Judge to not award a discountfor her alcohol addiction.Was the sentence manifestly excessive?[22] The sentence awarded to Ms Higginson was well within range. In the recentcase of Letham v Police, in which the defendant was convicted for his fourth offenceof drink driving with a reading of 1,314 micrograms, a sentence of seven months'home detention was imposed after the Court awarded a 25 per cent discount for an11 Sentencing Act, s 8(i); and Berkland v R, above n 11, at [161].early guilty plea and a discrete five per cent discount for a head injury.12 Another case,Ruru v R, in which the defendant was convicted for a third or subsequent offence andproduced a reading of 740 micrograms, a sentence of six months' home detention andcommunity work was imposed after the Court awarded a 25 per cent discount for anearly guilty plea.13[23] Ms Younger submitted that in this case even days or weeks were significant tothis sentence and discounts could not be described as "tinkering". The submissioncould be described as suggesting that "tinkering" was relative. I do not suggest thatargument might not be relevant in some circumstances, however, the sentence herewas within range and I consider that it would be tinkering to make any adjustment inthis case.Conclusion[24] In conclusion, the sentence imposed was within range, and no further discountsshould be made to the sentence. The appeal is dismissed.____________________Grice JSolicitors:BVA The Practice, Palmerston North12 [2022] NZHC 1514.13 [2018] NZHC 114.