BEATTIE v POLICE [2020] NZHC 1831

BEATTIE v POLICE [2020] NZHC 1831 [28 July 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000067[2020] NZHC 1831BETWEEN SHANNON CLIVE BEATTIEAppellantAND NEW ZEALAND POLICERespondentHearing: 16 July 2020Appearances: A J McKenzie for the AppellantS L Dayal for the RespondentJudgment: 28 July 2020JUDGMENT OF NATION JIntroduction[1] On 19 May 2020, Shannon Beattie was sentenced to 18 months' imprisonment,and three years and one day's disqualification from driving for driving whiledisqualified, dangerous driving, failing to stop, failing to assist with a computer search,driving while impaired by methamphetamine and breaching a sentence of homedetention.1 Standard and special conditions of release were also imposed for sixmonths. He appeals against his sentence of imprisonment.Facts[2] At the time of the offending, Mr Beattie had eight previous convictions fordriving while disqualified, or while his licence was suspended or revoked. He also1 Police v Beattie [2020] NZDC 8723.had three previous convictions for failing to stop. He was serving a sentence of homedetention at the time.[3] At about 8.10 am on 4 April 2020, Mr Beattie was driving north on GodleyQuay in Lyttelton with a passenger accompanying him. Police were driving in theopposite direction. Mr Beattie accelerated in an attempt to evade police. Police turnedaround to follow Mr Beattie and activated their lights and siren. Mr Beattie did notstop and continued to accelerate heavily as he travelled north. In a victim impactstatement, his passenger said she told him to stop but he didn't. He continued drivingover 50 km/h through the residential streets of Lyttelton while heading west towardsCorsair Bay. Police lost sight of him due to his speed.[4] At about 8.30 am, Mr Beattie turned onto Old Tai Tapu Road. Police againfollowed him and activated their lights and sirens. Again, he did not stop. Mr Beattiecontinued travelling west on Lincoln Tai Tapu Road, reaching speeds of up to 150km/h. Police abandoned the pursuit due to his driving and because he was approachingthe Lincoln township. He continued speeding through Lincoln. He approached aroundabout at speed, failed to navigate it properly and lost control, causing the vehicleto collide with a wooden power pole, finally bringing the vehicle to a stop. Mr Beattieexited the vehicle and attempted to flee.[5] Police arrested Mr Beattie and a blood specimen was taken. His blood wasfound to contain evidence of methamphetamine. He was also required under s 130 ofthe Search and Surveillance Act 2012 to provide passcodes for three mobile phonesfound in his possession. He failed to do so.[6] Mr Beattie therefore breached his home detention by leaving his house for atime between about 6.30 am and 9 am on 4 April 2020.District Court decision[7] Judge Mark Callaghan noted Mr Beattie's extensive history of drivingoffending, including failing to stop, driving while disqualified (but not taking intoaccount driving while prohibited), dangerous driving and breath alcohol offences.[8] The Judge observed that the pre-sentence report said home detention was notappropriate due to Mr Beattie being at a high risk of causing harm.[9] In arriving at a starting point, the Judge took the (ninth) disqualified driving asthe lead offence. He adopted a starting point of 18 months on that charge. For thebreach of home detention, he made an uplift of two months. He rejected Mr Beattie'sexplanation that he was going to check on his daughter, who was in isolation withsomeone who had tested positive for COVID-19, because he went to Lyttelton, whichwas not where his daughter was.[10] The Judge then made an uplift of one month for the dangerous driving charge,noting the three-month maximum penalty. He made a three-month uplift for thedriving while impaired by methamphetamine (third or subsequent), thus arriving at anoverall starting point of 24 months. The Judge was satisfied there was no need for atotality adjustment, and 24 months was appropriate for the offending as a whole. Therewere no relevant personal aggravating or mitigating features relating to Mr Beattie.[11] The Judge made a full discount of six months (25 per cent) for Mr Beattie'searly guilty pleas. This indicated a sentence of 18 months' imprisonment.[12] The Judge considered intensive supervision was inappropriate because MrBeattie had already been given many community-based sentences in the past (homedetention in 2019 and 2016, community detention in 2016 and intensive supervisionin 2014), all of which he breached or did not take advantage of. For those reasons,home detention was also inappropriate. The Judge said there could have been an upliftfor the offending occurring while Mr Beattie was on home detention but chose not toprovide for such an uplift. In any event, he said the fact all the latest offending hadoccurred while Mr Beattie was subject to that sentence meant home detention wasinappropriate as a sentence for the current offences.[13] On that basis, the Judge sentenced Mr Beattie to 18 months' imprisonment. Onthe disqualified driving charge (third or subsequent), he sentenced Mr Beattie to oneyear and one day's disqualification. On the failing to stop charge (third or subsequent),he imposed a cumulative minimum two years' disqualification (as required by theLand Transport Act 1998). Thus, he imposed a total disqualification period of threeyears and one day.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.2As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court'sdecision, "[an appellate] court 'will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles'".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4 The focus of an appellate court must "primarily be on the appropriatenessof the end sentence, not the means by which that end sentence has been reached".5Submissions[15] For Mr Beattie, Mr McKenzie submitted, while Mr Beattie going for a drivewas not permitted by his home detention conditions, it was not inherently criminal.6He took no issue with the way the nominal sentence of 18 months' imprisonment wasreached. Rather, he submitted the type of sentence imposed was wrong and Mr Beattieshould have been sentenced to a community-based sentence.[16] The thrust of Mr McKenzie's submissions was that the Judge adopted a "youhad your chance" approach in determining the appropriate type of sentencing, rather2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Skipper v R [2011] NZCA 250 at [28].6 I note in addition to being breach of Mr Beattie's home detention conditions (the breach of whichis a statutory criminal offence) it was, given the occurrence of the offending on 4 April 2020, inclear breach of cl 1(a) of the Health Act (COVID-19 Alert Level 4) Order 2020 and therefore anoffence under s 72 of the Health Act 1956. The seriousness of the Alert Level 4 lockdown and theconsequences of breaching it were widely broadcast and advertised across all mainstreammediums at the time.than considering Mr Beattie's need for treatment and his good fortune in havingpositive family support available to him.[17] The Court of Appeal has indicated appellate courts should, in certaincircumstances, hesitate before interfering with a lower court's assessment as towhether a prison sentence should be converted to a community-based sentence. MrMcKenzie submitted there should no longer be such reticence given the later AustinNicholls approach to appeals.7 He also submitted an appellate court should be morewilling to interfere when the court is faced with an appeal against an unreasoneddecision.[18] Mr McKenzie referred to Mr Beattie having been diagnosed previously withbipolar illness but said he was unable to point to information linking this offendingwith that illness. He stressed the availability of the pro-social support through hisbeing able to live with his mother, a matter for which, as Mr McKenzie noted andwhich the Court recognises, he is most fortunate.[19] For the Police, Ms Dayal submitted Mr Beattie's history of non-compliancerendered home detention inappropriate in his case. She noted the Police Summary ofFacts as recording an admission to smoking methamphetamine "a few days" beforethe driving incident on 4 April 2020. She further highlighted that Mr Beattie admittedto the pre-sentence report writer that he "us[ed] methamphetamine at the time of hisoffending". Ms Dayal suggested this was concerning as it shows Mr Beattie was usingmethamphetamine while serving a sentence of home detention.[20] Ms Dayal submitted Mr Beattie's history shows a propensity on his part todrive dangerously and fail to stop for Police. She noted his most recent sentence wasone of home detention which was imposed for similar offending. While sheacknowledged Mr Beattie's need for rehabilitation, she said he continues to reoffenddespite having the benefit of rehabilitative sentences in the past and is assessed asbeing at a high risk of causing harm and reoffending. She also pointed to two Courtof Appeal decisions which state that a sentencing judge rather than an appeal court is7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.often best placed to determine whether home detention should be imposed instead ofimprisonment, particularly in cases "closer to the dividing line".8[21] The respondent's submissions are further reflected in my analysis below.Analysis[22] Mr Beattie has a significant criminal driving and non-compliance convictionhistory, relevantly:(a) eight for driving while disqualified, or while licence suspended orrevoked;(b) six for failing to comply with driving prohibition as an unlicensed driver;(c) three for failing to stop;(d) three for driving while impaired by drug (alcohol);(e) two for dangerous driving;(f) one for reckless driving;(g) one for careless driving;(h) two for breaching a sentence of community work; and(i) one for breach of bail.[23] He also has an extensive history of failing to comply with bail conditions.While on bail he has committed a total of 22 offences and has breached his bailconditions on six occasions.[24] At the time of committing the index offending, Mr Beattie was serving asentence of home detention for dangerous driving and other property offending(although by the time the two-month home detention sentence for dangerous drivinghad ceased, he remained on home detention for the property offending).8 R v D (CA253/2008) [2008] NZCA 254 at [66]; and R v Taiepa [2009] NZCA 120 at [20].[25] There is no statutory guidance on when a sentence of home detention will beappropriate. However, the Court of Appeal has clearly said, where the offences inquestion are frequently tried in the jurisdiction of the sentencing judge, theirdetermination as to the appropriateness of home detention as an alternative sentenceassumes greater weight.9 That is clearly the case with driving charges such as thepresent. Additionally, where denunciation and specific and general deterrence are ofparticular significance, the Court of Appeal has said an appeal court will seldominterfere with a sentencing judge's assessment of the appropriateness of homedetention.10[26] Despite Mr McKenzie's suggestion that the Court should be more willing nowto depart from those indications, I will not do so because the Court's justification forthe approaches they referred to remains appropriate. In any event, I note those Courtof Appeal decisions were decided after Austin, Nichols.[27] Mr Beattie's offending was more serious because it occurred through his beingin breach of a sentence of home detention. It was also more serious because of theway his refusal to stop for the Police and dangerous driving put other road users atrisk, evident in his ultimately crashing at a roundabout.[28] The pre-sentence report confirmed that Mr Beattie's mother and step-fatherhad consented to his residing at their home. At the time of the sentencing, CommunityCorrections were not in a position to assess whether the address was technicallyfeasible for home detention but considered it would not be appropriate for anelectronically monitored sentence. This was because, in the probation officer's view,if Mr Beattie was confined to the address, it could put further pressure on the familygiven his complex mental health issues and current family circumstances, with asister's poor health requirements including frequent hospitalisation and intensivemedical monitoring.[29] With the suggested sentence of intensive supervision, Mr Beattie would havebeen residing at that address. If confined there, there would still at particular times9 R v Taiepa, above n 8, at [20].10 R v D (CA253/2008), above n 8, at [66].have been stress for the family. If not confined, then, at times when his mental statemight be most likely to put him and others in the community at risk, he would be freeto leave. When away from the home, his family would no longer be able to influencehis behaviour and would not be in a position to ensure he received the care he neededor that otherwise there was no risk of his being a danger to himself or to others.[30] In the pre-sentence report, the probation officer advised the District Court thatCommunity Corrections was not equipped to address Mr Beattie's mental healthissues. The report therefore suggested he be encouraged by his probation officer toseek appropriate treatment through his family health doctor or the District HealthBoard's mental health services.[31] In Mr Beattie's letter to the District Court there was what appeared to be anexpression of heartfelt remorse for the upset he had caused his mother and his wish tobe able to help her in caring for his sister. His mother also explained in her letter whythe family wanted to have Mr Beattie at home to assist in caring for his sister. Therewas nothing however in those letters to indicate Mr Beattie recognises he needs to re-engage with mental health treatment and appropriate services to address the mentalhealth issues which seem likely to have been a significant factor in his offending, muchof the troubles he has faced in his life and the trouble and sadness he has caused hisfamily.[32] I do not accept that the Judge refused to impose a sentence of intensivesupervision without giving adequate reasons. The Judge carefully went through thedetails of the offending. He referred to the letters he had received from Mr Beattieand his mother, and the information in the pre-sentence report.[33] The Judge carefully and without error arrived at an appropriate end prisonsentence.11 He then said he did not consider interim intensive supervision a properresponse for Mr Beattie's actions and summarised why. He referred to Mr Beattie'shistory of offending, his non-compliance with previous community-based sentences11 Due to the absence of any aggravating and mitigating features of Mr Beattie's personalcircumstances, the Court of Appeal's recent decision, changing the application of a guilty pleadiscount in Moses v R [2020] NZCA 296, does not affect the appropriate end sentence here.and non-compliance with conditions that were imposed to assist in his receivingtreatment or appropriate counselling.[34] The Judge also said home detention was not appropriate. He noted this wasthe sentence Mr Beattie had breached when all the offending occurred and summarisedwhy he had reached that view.[35] The Judge was justified in taking the view that a community-based sentencewas inappropriate, especially when Mr Beattie had repeatedly shown himselfincapable of complying with sentences designed to help and rehabilitate him. Underthe Sentencing Act 2002, a court only has discretion to impose a sentence of intensivesupervision if it is satisfied it would reduce the likelihood of reoffending throughrehabilitation and reintegration.12 The Judge was clearly entitled to find himself notso satisfied in relation to Mr Beattie's circumstances.[36] In all the circumstances, there was no error in the Judge sentencing Mr Beattieto imprisonment rather than imposing a sentence of home detention.[37] Mr Beattie's appeal against the sentence of imprisonment is dismissed.Solicitors:A J McKenzie, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.12 Sentencing Act 2002, s 54C.