RANFORD v POLICE [2021] NZHC 132

RANFORD v POLICE [2021] NZHC 132 [10 February 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-32[2021] NZHC 132BETWEEN PHILLIP GRAHAM RANFORDAppellantAND NEW ZEALAND POLICERespondentHearing: 10 February 2021Appearances: NP Bourke for AppellantJE Bourke for RespondentJudgment: 10 February 2021(ORAL) JUDGMENT OF FITZGERALD JSolicitors: C & M Legal, New PlymouthCounsel: N Bourke, New PlymouthIntroduction[1] Philip Ranford has been convicted on one charge of driving with excess breathalcohol (third or subsequent),1 one charge of failing to stop to ascertain injury2 andone charge of driving contrary to the requirements of a zero-alcohol licence.3 This isMr Ranford's seventh drink driving conviction since 1993.[2] On 16 December 2020 in the District Court at New Plymouth, Mr Ranford wassentenced by Judge C D Sygrove on the lead charge of driving with excess breathalcohol (third or subsequent) to 13 months and two weeks' imprisonment, with leaveto apply for home detention.4 Mr Ranford was also disqualified from driving for sixmonths and ordered to apply for an alcohol interlock licence. Leave to apply for homedetention was reserved because while Mr Ranford had identified a suitable address fora sentence of home detention (namely his mother's house), the property did not haveadequate cellular coverage for electronic monitoring.[3] Mr Ranford appeals his sentence on the basis that the Judge failed to imposethe least restrictive outcome that was appropriate in the circumstances. Counsel forMr Ranford, Mr Bourke, submits that the least restrictive appropriate outcome waseither a sentence of intensive supervision coupled with significant community work,or a non-electronically monitored sentence of home detention.[4] A preliminary point arises. Mr Ranford seeks leave to file a memorandumcontaining a recent article from the New Zealand Law Society email bulletin"Lawpoints" published on 4 February 2021. The article notes that the Department ofCorrections has trialled random alcohol and drug testing in the Northern region (thatis, from the Bombay hills north), and is now expanding that programme to the otherregions around the country. This suggests there will be increased testing if the Courtre-sentences Mr Ranford to home detention or intensive supervision with a condition1 Land Transport Act 1998, s 56. Maximum penalty 2 years' imprisonment or a $6,000 fine, and amandatory disqualification from holding or obtaining a driver's license for more than 1 year.2 Land Transport Act 1998, s 35. Maximum penalty 3 months' imprisonment or a $4,500 fine, anda mandatory disqualification from holding or obtaining a driver's license for 6 months or more.3 Land Transport Act 1998, ss 57AA(4) and 57AA(6). Maximum penalty 2 years' imprisonment ora $6,000 fine, and a mandatory disqualification from holding or obtaining a driver's license for 1year or more.4 Police v Ranford [2020] NZDC 26283.requiring him to refrain from consuming alcohol. This, Mr Bourke suggests, increasesthe chances of compliance.[5] The Department of Corrections' press release which accompanies Mr Bourke'smost recent memorandum is dated November 2020. But it does not appearunreasonable that Mr Bourke was not aware of it until it was publicised in the recentLawpoints article. That obviously post-dates Mr Ranford's District Court sentencing.Further, the material contains information that is relevant to this appeal. I am thereforesatisfied it is in the interests of justice to admit it on the appeal.Facts[6] At around 6:25pm on 1 March 2020, Mr Ranford was driving along a street inNew Plymouth when he hit a parked car. He says that he swerved to avoid a cat: thesentencing Judge considered it obvious that the crash was due to his intoxication. MrRanford did not stop. He carried on down the road until he pulled over to assess thedamage to his car. The owner of the parked car came out and called out to Mr Ranford.Mr Ranford got into his vehicle and drove away. This gave rise to the charge of failingto stop after a crash to ascertain injury.[7] The Police found Mr Ranford in a carpark a short time later. A breath test gavea reading of 745 micrograms of alcohol per litre of breath. The adult limit is 250micrograms, having been lowered from 400 micrograms in 2014. For holders of azero-alcohol licence like Mr Ranford, the legal limit is zero. This gives rise to thecharge of driving with excess breath alcohol and driving contrary to the requirementsof a zero-alcohol licence. Mr Ranford suggested that after he pulled into the carparkhe consumed alcohol from a bottle of wine, and hence gave a positive breath testdespite not drinking while driving.[8] Mr Ranford has six previous convictions for driving with excess breathalcohol. They are for offending in 1993, 1996, 2000, 2004, 2011 and 2016. He wassentenced for the 2016 offending in 2017 to four and a half months' home detention,disqualification from driving for a year and a day, and directed to apply for a zero-alcohol licence in accordance with s 65AI of the Land Transport Act 1998. Except forone conviction for cultivating cannabis in 1986 (for which he received a $150 fine),this is Mr Ranford's only criminal record. It is not in dispute that Mr Ranford has beencompliant with all his previous sentences, and with his most recent bail conditions(including a "not to drive" condition).[9] Mr Ranford lost his job due to the COVID-19 pandemic. At his first sentencinghearing date he lived at the Scenic Lodge in New Plymouth. Due to the temporaryand shared nature of that accommodation, the pre-sentence report writer consideredthat an electronically monitored sentence would not be possible, despite this beingrecorded as the "usual" recommendation on offending of this type. The report writeralso noted that Mr Ranford had self-referred to Narcotics Anonymous andindependently verified that he had been attending. By all accounts he was makinggood progress. The sentencing was accordingly adjourned to enable Mr Ranford tofind other accommodation.[10] Mr Ranford then suggested his mother's home. She was supportive of theapplication. While the Police had no concerns, technical feasibility tests indicatedthere was no GPS signal in many rooms at Mr Ranford's mother's house, or at theproperty's perimeter. The pre-sentence report writer, in an updated report, thereforecould not recommend an electronically-monitored sentence. Mr Bourke hasconfirmed this morning that his updated instructions are that Mr Ranford's motherremains supportive of her son living at her house.The District Court decision[11] Judge Sygrove adopted a starting point of 18 months' imprisonment. He thenapplied a 25 per cent discount to arrive at an end sentence of 13 and a half months'imprisonment, with leave to apply for home detention.[12] The Judge noted that counsel for Mr Ranford had suggested 18 months'intensive supervision and 350 hours of community work. The Judge referred to R vRoyal, a case in which the proposed address for a home detention sentence was alsounsuitable for electronic monitoring.5 Grice J had therefore sentenced the offender to18 months' intensive supervision and 350 hours of community work. In this case,5 R v Royal [2020] NZHC 1321.Judge Sygrove did not comment on the proposed sentence of intensive supervision,but considered that 350 hours of community work was unrealistically long and wouldbe setting Mr Ranford up to fail.[13] The Judge noted that Mr Ranford had been given lenient sentences in the past,but concluded that the appropriate sentence was imprisonment. The Judge did not saywhy he considered that sentence best met the relevant sentencing purposes andprinciples, but I infer it was given the aggravating factors of the offending, that MrRanford has had community sentences before yet has continued to offend, theunavailability of electronic monitoring and to suitably denounce the offending.The appellant's submissions[14] Mr Bourke for Mr Ranford accepts that the starting point and discounts wereappropriate. The sole issue on appeal is whether the Judge imposed the least restrictiveappropriate outcome.[15] Mr Bourke again notes R v Royal, where Grice J commuted a nominal endsentence of 21 months' imprisonment to 18 months intensive supervision and 350hours of community work.6 In that case, Grice J noted that there were "very peculiarcircumstances"7 that meant a sentence of intensive supervision and community workwas sufficient to meet the goals of denunciation, deterrence, public safety, andrehabilitation. Counsel submits that this case highlights that imprisonment is not the"default" option where home detention is not available for a person who wouldotherwise have been eligible for it.[16] Counsel argues that the risk Mr Ranford poses to the community relates solelyto his drink driving, and hence rehabilitation must be a key focus of sentencing. Thisis because in the longer term, this will be the best means of protecting the public. MrBourke notes that Mr Ranford has never before been given a sentence of intensivesupervision. Counsel contends that Mr Ranford needs intensive rehabilitation to6 R v Royal [2020] NZHC 1321.7 R v Royal [2020] NZHC 1321 at [60].ensure his cycle of drink driving offending can be broken. He notes that the possibilityof residential programmes would be available on a sentence of intensive supervision.[17] In combination with a sentence of intensive supervision, counsel submits asteep sentence of community work would achieve the requisite punitive purpose ofsentencing. While the District Court Judge considered and dismissed the possibilityof the suggested 350 hours of community work, Mr Bourke contends that the Judge'sassessment that this would be setting Mr Ranford up to fail was inaccurate in thecontext of Mr Ranford's positive history of compliance.[18] Counsel further submits that if intensive supervision and community work isnot considered appropriate, a sentence of home detention would be the least restrictiveappropriate outcome, as appears to have been acknowledged by the Judge in grantingleave for a substituted sentence. Mr Bourke refers to authorities which confirm thathome detention need not include electronic monitoring.8 Counsel submits that thenature of Mr Ranford's offending, and his prior compliance with community sentencesand bail conditions demonstrate that electronic monitoring is not crucial in this case.The respondent's submissions[19] Counsel for the Police notes that denunciation and deterrence are importantprinciples of sentencing and emphasise that Mr Ranford has continued to offend andhas "progressed up the hierarchy of sentences". Counsel also suggests a lack of insightby Mr Ranford about his offending, noting that the pre-sentence report records him asdenying drinking at the time of driving, but rather doing so after he "parked up" afterthe accident. Counsel accepts there is a "clear need" for rehabilitation in this case, butgiven Mr Ranford's continued offending, there equally needs to be strong deterrenceand denunciation which could be met in this case by the imposition of electronicmonitoring on a substituted home detention sentence, should a suitable addressbecome available.8 R v Seyb CRI-2007-003-000416 HC Timaru, 11 September 2008.Is intensive supervision with community work appropriate?[20] Mr Ranford's appeal is to be considered in accordance with s 250 of theCriminal Procedure Act 2011. An appeal must be allowed only if the Court is satisfiedthere has been an error in the sentencing and a different sentence should be imposed.9[21] I am persuaded that there was an error in the sentencing and that a differentsentence should be imposed. My reasoning follows.[22] First, it is clear that the Judge considered Mr Ranford a candidate for homedetention, but the barrier to such a sentence was a lack of cellular coverage at theproposed home detention address. But the Judge did not consider, expressly at least,the possibility of home detention with manual monitoring, or explain in his decisionwhy this would not be appropriate. Given the nature of Mr Ranford's offending andhis previous compliance with his sentences and bail conditions, I accept Mr Bourke'ssubmission that electronic monitoring would not have been crucial in this case.[23] But I also accept that the primary focus of sentencing in this case must be MrRanford's long-term rehabilitation, which will provide the best protection to the publicgoing forward. For that reason, I am satisfied that a period of intensive supervision,coupled with community work (to serve as a deterrent and to denounce Mr Ranford'soffending) is the most appropriate and least restrictive sentencing option available.Such a sentence allows for intensive supervision of Mr Ranford over a reasonablylengthy period of time, so the relevant authorities can assist him come to grips withthe underlying and long-term issues which are causing his offending. And specialconditions which can be imposed on the sentence provide suitable oversight andcontrol of him.[24] I am not persuaded that 24-hour electronic monitoring, as would be the caseon a "standard" home detention sentence, is necessary to respond to the applicablesentencing purposes and principles, and Mr Ranford's particular need forrehabilitation. Nor am I persuaded that Mr Ranford's suggested lack of insight is abarrier to a sentence of intensive supervision. As Simon France J observed in Tamati9 Tutakangahau v R [2014] NACA 279; [2014] 3 NZLR 482.v New Zealand Police, "the starting point is that often the eligible offenders will berecidivists, and amongst that group insight is not a common virtue".10 As the Judgenoted, a sentence of intensive supervision will involve courses designed to give thatinsight. It appears that Mr Ranford has taken at least some steps to address hisoffending, with his (verified) self-referral to counselling and that he appeared to havebeen making some progress in that regard, prior to the commencement of his sentenceof imprisonment.[25] As counsel notes, Mr Ranford has not been subject to intensive supervisionbefore, and the Judge did not appear to consider this option (expressly at least), andwhat special conditions could be imposed to provide a more nuanced approach tosentencing than a sentence of imprisonment where electronic monitoring is notavailable. In this context, I am mindful of the Court of Appeal's observations in R vRawiri, that the court cannot impose a sentence of imprisonment unless it is satisfiedthe sentence is being imposed for a statutory purpose or purposes, that those purposescannot be achieved by a sentence other than imprisonment; and that no other sentencewould be consistent with the statutory principles as applied to the particular case.11[26] I am satisfied that I have jurisdiction to order intensive supervision.12 Inparticular, I consider that a sentence of intensive supervision will reduce the likelihoodof further offending by Mr Ranford through his rehabilitation. I am also satisfied thatthere needs to be supervision of Mr Ranford for a longer period of time that could beachieved through supervision alone;13 and that his rehabilitative needs require theimposition of conditions that are not available through a sentence of supervision.14 Iam also satisfied that a sentence of intensive supervision, together with communitywork, adequately responds in this case to the need to deter and denounce Mr Ranford'soffending, but also to the very real need for rehabilitation.[27] I therefore propose to sentence Mr Ranford to a period of 18 months' intensivesupervision with the following conditions:10 Tamati v New Zealand Police [2017] NZHC 2543 at [13].11 R v Rawiri [2011] NZCA 244 at [19(b)].12 Sentencing Act 2002, s 54C.13 Sentencing Act 2002, s 54C(b)(i).14 Sentencing Act 2002, s 54C(b)(ii).(a) First the standard conditions (as set out in s 54F of the Sentencing Act);(b) Second to attend an assessment for alcohol treatment as directed by aProbation Officer, and to attend and complete any alcohol counselling,treatment or programme as recommended by the assessment anddirected by a Probation Officer. In this context, I direct that steps betaken to ascertain whether a suitable residential programme is availablefor Mr Ranford to attend. In any event, the Court notes that Mr Ranfordlikely requires intensive rehabilitation, and this should shape theprogramme or programmes which he is required to attend.Consideration also ought to be given to Mr Ranford continuing hisengagement with Narcotics Anonymous, either in parallel to any otherprogrammes, or after completion of those programmes to provideongoing support to him.(c) Not to consume alcohol, which will trigger the testing and monitoringregime under s 80ZO of the Sentencing Act, which as noted, is beingexpanded to broaden the extent of random testing. Mr Ranford wouldcertainly appear to be a good candidate for such random testing, i.e.rather than in response only to "reasonable grounds" testing.(d) For the first six months of his intensive supervision, and subject to MrRanford's admission to a residential alcohol rehabilitation programme,Mr Ranford is to reside at his mother's home and not to change addressduring that period without prior permission of a Probation Officer. Thiswill provide him with an ongoing period of stability and support as heprogresses through his sentence.[28] To provide a suitable punitive element to Mr Ranford's sentence, I agree that aperiod of community work is appropriate. For the reasons given by the District CourtJudge and given the relatively strict conditions of Mr Ranford's sentence of intensivesupervision, I do not consider that 350 hours is necessary. I conclude that 100 hoursof community work is suitable in the current circumstances.[29] In adopting these sentences, I take into account that Mr Ranford has nowserved some four months' imprisonment. Against that backdrop, 18 months' intensivesupervision and 100 hours of community work can be seen as a stern sentence. Butthat is warranted in this case. Drink driving is a serious offence, given its potentiallyvery serious consequences. And Mr Ranford's prior six convictions for drink drivingare seriously aggravating factors. They must be reflected in his end sentence.Result[30] The appeal is accordingly allowed. I quash the sentences of imprisonment onall three charges. I impose a sentence on the charge of driving with excess breathalcohol (third or subsequent) of:(a) 18 months' intensive supervision, on the standard and specialconditions referred to above; and(b) 100 hours of community work.[31] The District Court orders of disqualification for six months and therequirement for an alcohol interlock device being fitted are not challenged on appeal,and those aspects of the District Court's sentence are therefore unaffected. No furthersentence or orders are made on the charges of failing to stop to ascertain injury anddriving contrary to the requirements of a zero-alcohol licence._____________________________Fitzgerald J