FRANCIS v NZ POLICE [2018] NZHC 2307

FRANCIS v NZ POLICE [2018] NZHC 2307 [4 September 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2018-488-000028[2018] NZHC 2307BETWEEN ROSEMARY JAN FRANCISAppellantAND NEW ZEALAND POLICERespondentHearing: 4 September 2018 (via AVL)Appearances: A Harvey for the AppellantJ Johnson-Aufa'i for the RespondentJudgment: 4 September 2018JUDGMENT OF WOOLFORD JSolicitors: Thomson Wilson, WhangareiMarsden Woods Inskip Smith (Office of the crown Solicitor), Whangarei[1] On 13 July 2018, having pleaded guilty to driving with excess blood alcoholon a third or subsequent occasion and dangerous driving, Rosemary Jan Francis wassentenced to six months home detention and six months post-release conditions.Ms Francis was also ordered to pay reparation in the sum of $1500 and medicalexpenses and analysts fees in the sum of $209.25. In addition, Ms Francis wasdisqualified from driving for a period of 12 months and one day on the blood alcoholcharge and 12 months on the dangerous driving charge. Finally, the Judge orderedthat once Ms Francis regained her licence, it was to be a zero alcohol licence for aperiod of three years.[2] Ms Francis now appeals against sentence, in particular against the length of thesentence of home detention on the basis that it deviated from a sentence earlierindicated by another Judge.Sentence indication[3] On 15 May 2018, Judge GL Davis gave Ms Francis a sentence indication. Hestated that if Ms Francis pleaded guilty he would adopt a starting point of around eightmonths imprisonment. Ms Francis would also receive credit for guilty pleas, whichmeant that the Court would be prepared to commute the sentence of imprisonment ifthere was a favourable pre-sentence report and an electronically-monitored addressavailable. Judge Davis stated whether it would be community detention or homedetention would be a matter that could be debated on sentencing, but that his instinct,given Ms Francis' three convictions in a little over five years, would be home detentionrather than community detention. It was on the basis of this sentencing indication thatMs Francis pleaded guilty to the two charges.District Court sentencing[4] On 13 July 2018, Ms Francis appeared before Judge DJ Sharp for sentencing.Judge Sharp was obviously aware of the sentence indication of an electronically-monitored sentence, but appears to have overlooked the indication given byJudge Davis that he would adopt a starting point of about eight months imprisonment.After reviewing the facts of the case, Judge Sharp stated that the starting point to himwould be something in the vicinity of 14 months imprisonment. He then gave creditfor Ms Francis' pleas of guilty and commuted the otherwise appropriate sentence ofimprisonment to one of six months home detention, which is said to be the equivalentof 12 months imprisonment.Appellant's submissions[5] Ms Francis submits that Judge Sharp erred by not first indicating to her thatthe sentence indication was not to be followed and then by failing to provide anopportunity for counsel to seek instructions on whether the guilty pleas were to bemaintained. Given this error, Ms Francis submits that her convictions should bequashed and the matter remitted to the District Court. Alternatively, she submits thatthis Court on appeal could impose the sentence that was initially indicated.Respondent's submissions[6] The respondent submits that while it does appear that an error has occurred inthe sentencing process, the sentence ultimately imposed is not otherwise manifestlyexcessive. The respondent submits that the matter could be remitted back to theDistrict Court to provide the opportunity for Ms Francis to confirm her wish to pleadguilty to the charges. Alternatively, the sentence imposed should be upheld on thebasis that it is not manifestly excessive.Discussion[7] The sentence of six months home detention imposed on Ms Francis wasapproximately double what Ms Francis could have expected following the sentenceindication. Section 115 of the Criminal Procedure Act 2011 requires a Court to grantleave to a defendant to withdraw a plea of guilty if the Court proposes to impose asentence of the same type or types, but a greater quantum than that specified in asentence indication. Judge Sharp unfortunately did not do so.[8] The focus in this appeal is not on whether the sentence is manifestly excessive,but on the expectation of the appellant. As explained by the Court of Appeal inTaylor v R:11 Taylor v R [2013] NZCA 55 at [23].[23] Finally, in relation to challenges such as the present, regardless ofwhether the challenge is made to the sentencing judge or on appeal, it isnecessary to keep the correct focus. It is not a protracted inquiry into fault,nor into the merits of the accused, nor into the merits of the sentence actuallyimposed. A sentence indication generates an expectation. If it is relied upon,and then for whatever reason the expectation is not met, the accused must begiven the opportunity to vacate the pleas. What is in issue is the integrity ofthe sentence indication system.[9] The respondent submits, however, that the sentence imposed is not manifestlyexcessive and therefore if the matter is not remitted back to the District Court, thesentence should be upheld. Counsel submits that a starting point of 14 monthsimprisonment is consistent with the decision of Samson v Police,2 where Whata J, withreference to the continued applicability of Clotworthy v Police,3 identified thegeneralisations as to the appropriate starting points for excess breath/blood alcoholoffending. One of those generalisations was that a starting point of 12 – 18 monthsimprisonment was appropriate for offending with one or more seriously aggravatingfactors. In this case, the respondent submits that the level of intoxication (being overdouble the legal limit),and the dangerous driving are features that would increase thestarting point, such that a starting point of 14 months imprisonment was appropriate.[10] However, I adopt the approach of McKenzie J in Te Tau v Police in which hestated:4[13] In the circumstances, I consider that the Judge ought not to havedeparted from the indicated discount without giving a prior indication of herintention to do so. In those circumstances, I consider that, whether or not theend sentence was within the available range, the sentence needs to be adjustedon this appeal to conform with the indication.[11] I am of the view that quashing the sentence and remitting the matter back tothe District Court for Ms Francis to confirm her pleas of guilty is not in the interestsof the parties or of justice. A starting point of eight months imprisonment is, in myview, also within the available range. The approach adopted by Judge Davis shouldbe given effect to as that is the basis on which Ms Francis pleaded guilty.2 Samson v Police [2015] NZHC 748.3 Clotworthy v Police (2003) 20 CRNZ 439 (HC).4 Te Tau v Police [2015] NZHC 1716.[12] Accordingly, the sentence of six months home detention is quashed andreplaced with a sentence of three months home detention. All other orders areconfirmed._________________________Woolford J