WHITEHEAD v NEW ZEALAND POLICE [2021] NZHC 734

WHITEHEAD v NEW ZEALAND POLICE [2021] NZHC 734 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000003[2021] NZHC 734BETWEEN RACHEL JANE WHITEHEADAppellantAND NEW ZEALAND POLICERespondentHearing: 29 March 2021Appearances: G MacDonald for the AppellantC Best for the RespondentJudgment: 1 April 2021JUDGMENT OF HINTON JThis judgment was delivered by me on 1 April 2021 at 2:30 pmRegistrar/Deputy RegistrarSolicitors/Counsel:G MacDonald, Barrister, AucklandN E Walker, Crown Solicitor, Manukau[1] Ms Whitehead appeals her sentence of nine months' home detention for twoconvictions of refusing an officer's request for blood specimen (third or subsequent)1and one conviction for driving with excess blood alcohol (third or subsequent).2 Theseconvictions are her 10th, 11th and 12th convictions for such offending.[2] Ms Whitehead initially came before Judge G T Winter for sentence on 24 July2019.3 The Judge indicated a sentence of 18 months' imprisonment but elected tojudicially monitor Ms Whitehead on conditions that she continue to reside at the GraceFoundation to which she had previously been bailed on a 24 hour curfew unlessattending programmes; not consume alcohol; and not operate a motor vehicle. TheJudge adjourned the hearing part-heard and warned Ms Whitehead that if she did notcomply with the conditions, she would be sentenced to 18 months' imprisonment.[3] Due to COVID it was not possible for Ms Whitehead to continue to reside atGrace Foundation so there were bail variations moving her to other supportedaddresses. The sentencing was also further adjourned due to lack of necessary reports.[4] The sentencing was finally completed approximately 16 months later on 1December 2020.4 The Judge commended Ms Whitehead's compliance with the "quitestrict" bail conditions and "converted" the indicated sentence of 18 months'imprisonment to a sentence of nine months' home detention.[5] Ms Whitehead appeals on the grounds the sentence is manifestly excessive inlight of the 16 months she spent with very restrictive bail conditions. Ms Whiteheadsays she should have been sentenced to intensive supervision rather than homedetention.1 Land Transport Act 1998, s 60(1)(a); maximum penalty two years imprisonment or a $6,000 fine,and disqualification up to one year.2 Land Transport Act 1998, s 56(2); maximum penalty two years imprisonment or a $6,000 fine,and disqualification for at least 12 months.3 Police v Whitehead [2019] NZDC 14814.4 Police v Whitehead [2020] NZDC 24961.Offending[6] On 23 August 2018 Ms Whitehead crashed her motor vehicle into a drainageditch. When Police arrived Ms Whitehead smelt of alcohol and her speech was slurred.Police required her to undergo an excess breath alcohol test. Ms Whitehead refusedsaying she was not the driver. Police then requested she supply a blood sample foranalysis. They warned her that if she refused she would be arrested. Ms Whiteheadrefused and was arrested.[7] On 20 February 2019 Ms Whitehead called the Police and stated she intendedto crash her car. The Police found her driving and ambulance staff treated her for anunrelated condition. She was taken to the hospital and a blood sample was taken. Herblood was found to contain 316 milligrams of alcohol per 100 millilitres of blood.[8] On 28 February 2019, a member of the public stopped Ms Whitehead whileshe was driving. The person called Police and said they stopped Ms Whitehead as shewas driving in a dangerous manner and weaving all over the road. When the policearrived, Ms Whitehead refused to undergo any breath and blood alcohol procedures.A police constable warned Ms Whitehead if she did not permit a blood specimen to betaken, she would be arrested. Ms Whitehead continued to refuse and was arrested.Law[9] The appellant has an appeal as of right under Section 244 of the CriminalProcedure Act 2011 ("the Act").[10] Section 250 of the Act sets out how a court must determine a sentence appeal.An appeal must be allowed if the court be satisfied that there is an error in the imposedsentence and that a different sentence should be imposed.[11] The Court of Appeal in Palmer v R outlined the position with respect tosentence appeals, stating that:5the standard of appellate review in sentence appeals requires that theappellant show a material error was made and satisfy the appellate court thata different sentence ought to be imposed. Sentencing is not a science and anappellate court will not ordinarily interfere unless the end sentence wasoutside the range available to the sentencing judge. For that reason, it is notan error to describe sentencing decisions as discretionary, so long as it is clearthat "discretion" means only the sentence enjoys an appropriate margin ofappreciation.[12] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestlyexcessive" continues to apply, and the Court would not intervene where the "sentenceimposed was within a range that could be properly justified by accepted sentencingprinciples".6Sentencing in District Court[13] As noted, the sentencing was completed on 1 December 2020. The Judgereferred to Ms Whitehead's appalling history of offending. He recorded that she hadparticipated in counselling and therapy at the Grace Foundation, Community Alcoholand Drug services (CADS) and Phoenix Foundation for over 15 months. The Judgealso recognised that Ms Whitehead had sold her car and, despite complications arisingfrom the COVID-19 pandemic, had carried on with her determined efforts to maintaina sober lifestyle. The Judge noted that she had only breached her "quite strict" bailconditions four times, only two of which were alcohol-related. It seems none of theseinvolved driving a car.[14] The Judge then recorded that the latest pre-sentence report (dated 24 November2020) recommended a sentence of home detention as the best support to reduce therisk of Ms Whitehead drink-driving. He said he would have expected Ms Whiteheadto have already entered a residential programme but he was satisfied with the supportshe was receiving from the Church and from the Phoenix Foundation.5 Palmer v R [2016] NZCA 541, at [17].6 Tutakangahau v R [2014] 279, at [35]-[36].[15] The Judge then "converted" Ms Whitehead's sentence from the previouslyindicated 18 months' imprisonment to 9 months' home detention. He also imposedconditions that Ms Whitehead not possess, consume or use any alcohol or drugs notprescribed for her and that she attend appropriate alcohol treatment programmes andany other treatment directed by her probation officers. The Judge also imposed sixmonths of similar post-detention conditions. Finally the Judge imposed a 12 monthconcurrent disqualification from driving.Submissions[16] Mr Macdonald, counsel for Ms Whitehead, submits that the sentence of ninemonths' home detention was manifestly excessive in particular because the Judge didnot take into account the 16 months of restrictive bail conditions since the indicatedsentence was given. Relying on two decisions of this Court he submits that time spentsubject to restrictive bail may be taken into account in determining whether a sentenceof home detention is appropriate and the length of that sentence.7[17] Mr Macdonald further submits that the Judge had two main purposes insentencing Ms Whitehead: rehabilitative and punitive. He submits that the punitivepurpose has been achieved by the four months and 12 days she spent on remand incustody (which was taken into account at the indicative sentencing) and also by thestrictness of her bail conditions over a long period of time. Mr Macdonald submitsthat the strictness of the bail conditions, together with the threat of imprisonment ifthe conditions were breached, and the length of time such conditions were imposed,are all punitive factors not taken into account at Ms Whitehead's sentencing on1 December 2020.[18] Therefore, Mr Macdonald submits, the rehabilitative purpose of sentencingshould have had greater emphasis in Ms Whitehead's sentencing, the punitive elementhaving already been achieved. Mr Macdonald says the rehabilitative purpose ofsentencing and of ensuring Ms Whitehead continued with her "determined efforts to7 Smith v Police HC Rotorua CRI-2009-463-110, 18 December 2009; R v Hertnon HC PalmerstonNorth CRI-2007-031-536, 18 December 2009. While the principle is correct neither of thesecases is applicable.keep a sober lifestyle" could have been achieved with a sentence of intensivesupervision.[19] Ms Best, counsel for the Crown, submits that the Judge made no error in hissentencing as he clearly took into account the time Ms Whitehead spent on strict bailconditions. She submits that the Judge was not required to award a further discountfor time spent on restrictive bail conditions and that Ms Whitehead's compliance withthe bail conditions was reflected in the fact that the Judge sentenced her to homedetention rather than imprisonment.[20] Ms Best submits that even if an additional "discount" should have been madeto reflect the time spent on restrictive conditions, the failure to do so does not justifyinterfering with the end sentence. She refers to Bennett v R where the Court of Appealstated:8We accept that in principle it will often be appropriate to reflect a significantperiod spent on 24 hour curfew, but we do not agree that we ought to interferewith a sentence on that ground alone.Discussion[21] I agree in substance with the appellant's submissions.[22] The Judge has noted the lengthy time on bail with a 24 hour curfew but thereis no indication he has taken that into account in his sentencing. The Judge was notobliged to do so, but in my view in this case he should have. Ms Whitehead has alreadyserved not far off the equivalent of nine months' home detention and with verysubstantial compliance.[23] The quoted sentence from Bennett read in context is not stating a generalprinciple. The Court goes on to say they take that view because they are satisfied allmitigating features had been reflected in a six month discount already allowed. Alsothe Court of Appeal was considering whether an additional discount of one monthshould have been awarded to reflect six months spent on restrictive bail conditions.This is materially different to the present case where the time on very restrictive bail8 Bennett v R [2012] NZCA 173, at [25].was 16 months since the indicated sentence alone and the appellant is arguing the typeof sentence should be changed rather than the length of sentence.[24] The Judge has followed the recommendation of the pre-sentence report writerbut the writer seems to have assumed following the sentence indication that the optionswere imprisonment or home detention. However the previous pre-sentence reportdated 3 September 2020 in fact recommended a sentence of intensive supervision andsaid this sentence would allow a probation officer to manage Ms Whitehead and ensureshe engages in relevant programmes. (I note that when that report was written MsWhitehead was living in temporary accommodation unsuitable for electronicmonitoring.)[25] The Judge also does not consider whether a sentence of home detention is theleast restrictive outcome that would be appropriate in the circumstances.9 Or whethera sentence of intensive supervision would have been appropriate while also achievingthe purposes of sentencing.[26] In my view, the sentence is in error for the above reasons and the appeal shouldbe allowed. Home detention is excessively punitive in these circumstances.Ms Whitehead's rehabilitation, deterrence and protection of the community need to bethe primary focus of this sentence. Intensive supervision subject to judicial monitoringand further attendance at an alcohol prevention programme would be the mostappropriate and least restrictive sentence as it allows her some freedom but still allowsprobation, the Court and counsellors to monitor her progress and ensure she continuesto get the support she needs.[27] Obviously ongoing support and monitoring is critical here and has provedeffective following the Judge's thoughtful indicative sentence. Mr MacDonald acceptsthat although Ms Whitehead has already served over four months' home detention, aperiod of 12 months' intensive supervision would be appropriate. He also accepts thatthe special conditions imposed below are appropriate.9 Sentencing Act 2002, s 8(g)Conclusion[28] The appeal is allowed.[29] The driving disqualification stands but the sentence of home detention isquashed and substituted with a sentence of 12 months' intensive supervision onstandard conditions plus special conditions that Ms Whitehead attend a SalvationArmy alcohol prevention program and that she be subject to judicial monitoring. TheRegistrar is to fix a half-hour hearing before me on a date approximately two monthsfrom today, which Ms Whitehead is to attend.Hinton J