Alloway v New Zealand Police [2017] NZHC 779

Alloway v New Zealand Police [2017] NZHC 779 [26 April 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2017-463-12[2017] NZHC 779BETWEEN REBECCA LEAH ALLOWAYApplicantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Counsel: TV Barclay for applicantSP Casey for CrownJudgment: 26 April 2017(ORAL) JUDGMENT OF FITZGERALD J[Appeal as to sentence]Solicitors: Crown Solicitor, RotoruaTo: T Barclay, RotoruaIntroduction[1] Ms Alloway is currently serving a sentence of 12 months' imprisonment, imposed in respect of various driving-related charges. Mr Barclay has confirmed to me this morning that Ms Alloway is due for release in approximately 5 to 6 weeks. Ms Alloway appeals against her sentence on the grounds that the sentencing Judge erred by not considering whether to impose home detention. I must allow Ms Alloway's appeal if I am satisfied that:1(a) First, for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[2] The appeal was filed out of time but it appears steps to file within time had actually been taken.[3] The Crown does not oppose leave to appeal being granted and I grant that leave today.[4] I also acknowledge the presence in Court this morning of the supporters of Ms Alloway.Factual backgroundTurning the facts, in December 2016, Ms Alloway pleaded guilty to charges resulting from three particular driving incidents. On 29 September 2016, she had driven with her licence suspended (third and subsequent),2 drove dangerously,3 and failed to stop for red and blue flashing lights (when it was third and subsequent).4These charges arose after the Police had initiated a pursuit after they observed Ms Alloway's car speeding and she had failed to stop. She had reached speeds of1 Criminal Procedure Act 2011, s 250.2 Land Transport Act 1998, s 32(1)(c) and 32(4); maximum penalty, two years' imprisonment or $6,000 fine, and minimum six months' disqualification.3 Land Transport Act, s 35(1)(b); maximum penalty, three months' imprisonment or $4,500 fine, and minimum six months' disqualification.4 Land Transport Act, s 52(1)(c) and 52(4); maximum penalty, three months' imprisonment or a$10,000 fine, and one year disqualification.90 km/h in a 50 km/h zone, and she was consistently swerving and driving on the wrong side of the road. The pursuit was abandoned for public safety reasons, but her vehicle was located and found a few hours later.[5] A few months later, during the afternoon of 28 November 2016, Ms Alloway again drove with her licence suspended.5 At that time, she was in a significant state of emotional distress and was speaking with a Police Officer on her mobile phone about threats to harm herself. She also told the officer she would deliberately crash her vehicle into an oncoming truck if she was attempted to stop. She was later found to have been driving with a blood-alcohol level of 95 mg/L.6[6] A few hours later, just after midnight the next morning, Ms Alloway committed the offence of reckless driving.7 She again drove at speed through the Tokoroa area, passing through several stop signs. Due to her earlier threats, the Police did not attempt to pull her over at this time, but ultimately used road spikes to bring her vehicle to a halt. Upon searching her car, the Police found two glass methamphetamine pipes and three empty point bags.8[7] Upon arrest, Ms Alloway was taken to Tokoroa Hospital for a mental health assessment. Her car was impounded, and she has since signed ownership of it over to the tow yard.District Court decision[8] On 12 January 2017, Ms Alloway appeared for sentencing before Judge JF Munro.9 The Judge outlined the facts behind Ms Alloway's convictions as I havesummarised earlier, and set out the basis on which she would conduct sentencing, including that imprisonment would be the only option for Ms Alloway:[6] You have four previous convictions for driving while your licence is suspended and so it is the two charges of driving while suspended that are the lead charges in this case because they carry a maximum term of5 Above n 2.6 Land Transport Act, s 56(2); maximum penalty, three months' imprisonment or $4,500 fine.7 Land Transport Act, s 35(1)(a); maximum penalty, three months' imprisonment or $4,500 fine, and minimum six months' disqualification.8 Misuse of Drugs Act 1975, s 13(1)(a); maximum penalty, one year imprisonment and $500 fine.9 Police v Alloway [2017] NZDC 304.imprisonment of two years. The charges of reckless driving and dangerous driving carry maximum sentences of three months each and so I intend to sentence you on the basis of the two charges of driving while your licence was suspended to pick a starting point on the basis of that offending and then take into account the other charges when arriving at an actual term of imprisonment. As you know and as I indicated to you yesterday imprisonment is the only option for you today.[7] In arriving at the term of imprisonment there are a number of factors to take into account and one that is important is the totality principle; that is that I cannot simply impose a term for each of these sentences, add them all up and come to something that would be unrealistic and out of proportion.(Emphasis added).[9] Unfortunately there is nothing on the file to indicate what the nature of those earlier interactions were and Mr Casey has made inquiries of the Police but there is no information available from that source either.[10] After discussing the metal-health background to Ms Alloway's offending,Judge Munro noted that the pre-sentence report recommended a sentence of imprisonment followed by a lengthy period of release conditions. The Judge, however, said she considered it essential for Ms Alloway to keep the term of imprisonment to a minimum, but with a maximum term of release conditions so she could get necessary help.[11] Turning to calculate the sentence of imprisonment, Judge Munro noted that Ms Alloway had pleaded guilty to her charges, although not all at the first instance.She also remitted Ms Alloway's outstanding fines of more than $12,000 on the basisthat she have a clean slate upon her release. The Judge began with a starting point of10 months' imprisonment on the charge of driving while suspended, uplifted that by six months to account for the other charges, but then reduced that by four months torecognise the guilty plea. This resulted in a total end sentence of 12 months'imprisonment.[12] It is accepted by Mr Barclay today that the end sentence was within the range available to the Judge. The real point on the appeal is the suggestion there was an error by not considering home detention in those circumstances.Personal background[13] Ms Alloway is a 30-year-old mother of three. She was not in employment at the time of her offending.[14] The reports on the file which I have read set out Ms Alloway's complex andsad mental-health background. Like Judge Munro, I do not propose to discuss that in open Court today, but have read all of the background papers in relation to thesematters and Judge Munro's summary of those issues and agree with that summary.As Judge Munro stated, it is clear from the reports that there is an extensive psychiatric history for Ms Alloway. There have been suicide attempts and that Ms Alloway has been diagnosed with depression, borderline personality disorder, adjustment disorder and psychosis and, from time to time, been under medication regimes. As Judge Munro noted, there is an underlying background cause to these issues, but again I am not going to traverse that in open Court today.[15] In the pre-sentence report it is noted that Ms Alloway told the author of the pre-sentence report that prior to her remand, she had been living in her car.[16] Ms Alloway has 27 alcohol-related and driving-related convictions, including convictions for reckless driving from 2004 and 2005 for which she also served terms of imprisonment. She has also six convictions for breaching Court orders such as bail, community work, and supervision. Indeed, I also note that the latter two instances for her present offending occurred while she was on bail, which has been properly acknowledged by her counsel, Mr Barclay, this morning. Ms Alloway also has 19 convictions for other miscellaneous and relatively minor offences. As acknowledged by Mr Casey, the author of the pre-sentence report assesses her present offending to be a continuation of this passage of offending, rather than an escalation of it.Submissions on appeal[17] On appeal, Mr Barclay for Ms Alloway submits that Judge Munro erred by not considering home detention as an alternative sentence. Mr Barclay submits that this was an alternative recommendation in the pre-sentence report, and that therewere suitable addresses identified, and that the sentence was available given that Ms Alloway's end sentence was under two years' imprisonment.[18] Mr Casey for the Crown opposes the appeal. He concedes in his written submissions that the Judge did not expressly set out her reasons for declining home detention. But he acknowledged that this may well be an error for the purposes of the appeal today. Mr Casey further submits that it was clear that the Judge had turned her mind to Ms Alloway's circumstances and had also considered the PACReport, which had canvassed the possibility of home detention. As noted, Mr Casey also observes that it clear from the sentencing notes that there had been some earlier interaction prior to the sentencing in which the Judge had made it clear to Ms Alloway that home detention would not be appropriate.Discussion[19] Turning to consider those submissions, home detention only becomes an available sentencing option if the Court would otherwise sentence an offender to a short-term sentence of imprisonment.10 If home detention is available, the Judge must make a considered choice between it and imprisonment.11 There is no doubt that home detention was available in the circumstances of this case.[20] However, there is no presumption in favour of home detention over imprisonment, or vice-versa.12 The choice between the two sentencing options is a discretionary judgment that must engage the principles of the Sentencing Act. Sometimes, the principle that the Court must impose the least restrictive outcome, or the desirability of keeping offenders in the community, will militate in favour of home detention.13 But in other instances, other principles such as deterrence will mean that imprisonment will be appropriate.14 An assessment which focuses only on one principle (such as deterrence), to the exclusion of others, may indicate an error of law on the part of the sentencing judge.1510 Sentencing Act 2002, s 15A.11 Fairbrother v R [2013] NZCA 340 at [30].12 Fairbrother v R, above n 11, at [30].13 Sentencing Act, ss 8(g), 10A and 16.14 Sentencing Act, s 7(1)(f).15 Fairbrother v R, above n 11, at [29].[21] On the face of the Judge's sentencing remarks, it is not completely clear why imprisonment was considered to be "the only option" for Ms Alloway. I can infer,however, that the Judge was influenced by the pre-sentence report, which advisedthat home detention would not be appropriate given Ms Alloway's present needs.And, as noted, the sentencing remarks do reflect some earlier interaction between the Judge and Ms Alloway. That interaction may have canvassed the appropriate sentencing principles and purposes necessary for there to have been a considered exercise of discretion in favour of imprisonment.[22] However, even if the Judge did not expressly consider all of the relevant issues and erred in that respect, I do not regard this as a case where a sentence of home detention ought to be substituted on appeal. Ms Alloway has a raft of prior, driving-related convictions. The offending in respect of the index offences was serious and it was only a matter of good fortune that members of the public were not hurt, or worse. These factors signal to me that deterrence, accountability, and community protection are all relevant to Ms Alloway's case, and that a short-term sentence of imprisonment would be appropriate for sentencing purposes. I am further reminded of Ms Alloway's present needs, and that a sentence of imprisonment (followed by special release conditions) is likely to best cater for her rehabilitation and reintegration. The views expressed in the pre-sentence report as to this matter in particular are very relevant. On that basis, I agree with Judge Munro'sconclusions as to the appropriate sentence in this case.Conclusion[23] I therefore dismiss the appeal.____________________Fitzgerald J