YOUNG v POLICE [2016] NZHC 2330

YOUNG v POLICE [2016] NZHC 2330 [30 September 2016]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2016-463-000020[2016] NZHC 2330IN THE MATTER OF an appeal against sentenceBETWEEN PETER JOEL YOUNGAppellantAND NEW ZEALAND POLICERespondentHearing: 29 September 2016Counsel: W H A Te Are for the AppellantM S Jenkins for the RespondentJudgment: 30 September 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 30 September 2016 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: H S Edward, RotoruaSolicitors: Gordon Pilditch, RotoruaIntroduction[1] Mr Young was charged with one charge of driving whilst disqualified, third orsubsequent.1 He pleaded guilty and was sentenced by Judge Roberts on 9 May 2016to 12 months' imprisonment. Mr Young appeals solely on the Judge's refusal toimpose a sentence of home detention.Background[2] Mr Young was the driver of a vehicle which was stopped at a routine trafficstop at 11.30 am on 19 February 2016. Mr Young was not driving erratically, and therewere no other aggravating features of his driving.[3] Mr Young has 15 other driving related offences. Eight of those are convictionsfor driving whilst disqualified. Two of those offences were committed in June 2015and August 2012, and the remainder were committed between 2003 and 2006. MrYoung has a number of other historical convictions which are unrelated to driving.[4] The provision of advice to courts (PAC) report assessed Mr Young as having amedium risk of reoffending, but posing a low risk of harm to others. The writer alsoconsidered that Mr Young showed motivation to address his offending and expressedremorse for the trouble his offending had caused his family. Mr Young was assessedas likely to respond positively to a community-based sentence, and such a sentencewas recommended with a home detention sentence also deemed appropriate.[5] An undated handwritten letter from Mr Young on the file is addressed to thepresiding Judge. In the letter Mr Young states that he has been in prison for almostthree months and until recently he never took into consideration the consequences ofhis actions for his partner and children. He states that his perception was one of"selfishness, stupidity and truly unfair", and he has now altered his perception. Herefers to a "living without violence" programme which he states will enhance hisfamily relations, which he says were the cause of his wanting to drink. He asks for a1 Land Transport Act 1998, s 32(1). The maximum sentence is two years' imprisonment, or a $6,000fine. A mandatory disqualification period of at least 12 months applies.community-based sentence so that he can endeavour to be the father and partner hedesires to be.District Court sentence[6] The Judge referred to the offending as unremarkable and then proceeded tofocus on Mr Nicholson's prior convictions. He noted that Mr Young had last beenbefore the court for driving whilst disqualified on 15 December 2015 and the currentoffending occurred some nine weeks later. The Judge considered that Mr Young wasnot learning and categorised him as a repeat offender.[7] The Judge referred to the comments in the PAC report including the fact thatit was Mr Young's 16th driving related conviction and the six year gap in offendingbetween 2006 and 2012. He considered the recommendation of community work was"miles and miles adrift of a respectable sentence".[8] In terms of the suitability of an electronically monitored sentence, the Judgenoted that this would mean Mr Young resumed living with a woman who allowed himto drive a vehicle knowing that he was disqualified. He had no confidence that therewould be any positive support in this environment. The Judge directed that a letter besent to the registered owner of the car, stating that if she continued to make the caravailable to Mr Young to drive, then she risked having the vehicle forfeited.[9] The Judge observed that court orders as to disqualification and sentence mustbe obeyed and that those who transgress repeatedly must realise that significantpenalties attach.[10] The Judge adopted a starting point of 10 months' imprisonment, relying onDuffy J's decision in Peterson v Police.2 He referred to there being no aggravatingfeatures such as bad driving, or accompanying charges. He uplifted the sentence bysix months to reflect Mr Young's previous convictions, and gave a full 25 per centdiscount to reflect Mr Young's guilty plea. This resulted in an end sentence of12 months' imprisonment.2 Peterson v Police HC Hamilton CRI-2009-419-011, 20 February 2009.[11] The Judge noted that accountability, denunciation and deterrence wereelevated in Mr Nicholson's case. The sentencing notes records his reasons fordiscounting home detention as follows:(a) The offending is now within the serious category. The proximity ofyour last conviction is a significant aggravating factor.(b) Support or oversight within that home environment is non-existent. Iam asked now to send a warning letter to that person, advising her thatif she continues to make a motor vehicle available to you the car mightultimately be confiscated.(c) You were well alert to the possible consequences and you were quiteundeterred. Apprehension, you see as but an occupational hazard.(d) Finally, there are no rehabilitative needs identified.[12] The Judge sentenced Mr Young to 12 months' imprisonment and disqualifiedhim from holding or obtaining a driver licence for one year and a day, from14 December 2016.Grounds of appeal[13] As noted, the sole ground of appeal is the Judge's refusal to impose homedetention.[14] Mr Young submits that in assessing whether home detention was appropriate,the Judge should have taken into account that he had complied with most of hiscommunity-based sentences, and placed greater emphasis on the PAC reportobservations regarding his remorse and insight into his offending.[15] Mr Young relies on Tua v New Zealand Police in which this Court stated thatthe interests of the community as a whole are not met simply by consideringpunishment and addressing the bare facts of the offence itself.3 A community worksentence was substituted for the sentence of imprisonment in that case. Mr Tua had17 prior sentences for driving whilst disqualified from 1989 to 2011.3 Tua v Police [2013] NZHC 2994 at [18].[16] Finally, Mr Young submits that home detention can meet the needs ofdenouncement and deterrence referring to a number of cases in support of thatsubmission.4Approach to appeal[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the court mustallow an appeal against sentence if it 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.[18] In any other case, the Court must dismiss the appeal.5 An appeal court will notintervene unless there is a material error, and if so, the appeal court will then go on toform its own view of an appropriate sentence.6Analysis[19] As the Judge identified, a sentence of home detention was an available optionfor Mr Young. The fact that the majority of his convictions were committed prior to2006 provides a point of distinction to the cases of Whitley v Police7 and Hawthornev Police8 relied on by the Crown, and provides a stronger case for home detention inthe circumstances. The six year gap in the offending between 2006 and 2012 addsfurther support to home detention as an appropriate sentence.[20] There is also some merit in Mr Young's submission that the Judge appeared toplace significant weight on denunciation and deterrence at the expense of Mr Young'spersonal circumstances. Mr Young's stated remorse and motivation to address the4 Manikpersadh v R [2011] NZCA 452; R v Hill [2008] NZCA 41, [2008] 2 NZLR 381; and R vIosefea [2008] NZCA 453.5 Criminal Procedure Act 2011, s 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].7 Whitley v Police [2016] NZHC 1025.8 Hawthorne v Police [2016] NZHC 243.offending are referred to by the Judge but do not appear, at least on the face of thesentencing notes, to be accorded much weight in the overall analysis. Similarly, thebasis upon which the Judge concluded that there was no support in Mr Young's homeenvironment is not apparent from the file.[21] However, a different view of the merits is not a basis to interfere with theJudge's sentence. An appeal against a refusal to grant home detention operates in thesame way as any other sentence appeal. The focus is on whether the Judge applied anincorrect principle, gave insufficient or excessive weight to a particular factor, or wasplainly wrong.9 I am not persuaded that the Judge erred in that respect.[22] The Judge was entitled to take into account the fact that the offending for whichMr Young was being sentenced occurred nine weeks after a sentence for similaroffending. Against a background of repeated driving offences, there was foundationfor the Judge's view that Mr Young was not learning.[23] Although the Judge placed primary weight on deterrence and denouncement,this was not to the exclusion of all other factors, as was the case in Manikpersadh vR.10 The Judge clearly turned his mind to the other factors relevant to a home detentionsentence and identified and weighed those factors in reaching his decision.[24] Ultimately, I consider the choice between a sentence of imprisonment andhome detention to be close to the dividing line in Mr Young's circumstances. In thosecases, the view of the sentencing judge assumes greater weight.11[25] Although a sentence of home detention was available in Mr Young's case, Iam not persuaded that the Judge erred in his analysis of whether such a sentence wouldmeet the principles set out in the Sentencing Act 2002.[26] For these reasons I dismiss the appeal.Result9 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].10 Manikpersadh v R, above n 4, at [17].11 R v D (CA253/2008) [2008] NZCA 254 at [66].[27] The appeal is dismissed.Edwards J