NISBETT v NZ POLICE [2021] NZHC 1815

NISBETT v NZ POLICE [2021] NZHC 1815 [16 July 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2021-488-25[2021] NZHC 1815BETWEEN TRENT KEVIN NISBETTAppellantAND NEW ZEALAND POLICERespondentHearing: 16 July 2021Appearances:Judgment:JPR Scott for the AppellantCS Taylor for the Respondent16 July 2021Reasons forJudgment:16 July 2021REASONS FOR JUDGMENT OF FITZGERALD JSolicitors: Thode Utting & Co, WhangareiMarden Woods Inskip & Smith, WhangareiIntroduction[1] Trent Nisbett was convicted of driving with an excess blood alcohol level (ona third or subsequent occasion),1 driving while disqualified (on a third or subsequentoccasion),2 and breaching community work.3 On 24 June 2021, Judge D J Orchardsentenced him to thirteen months' imprisonment and declined Mr Nisbett's applicationto commute that sentence to one of home detention.4 Her Honour also disqualifiedMr Nisbett from holding or obtaining a driver's licence for two years.[2] Mr Nisbett appealed against the sentence of imprisonment. He submitted thatit was manifestly excessive, because no uplift should have been given for the drivingwhile disqualified and breaching community work charges, and – in light of a newpre-sentence report completed before the sentencing date – a ten to fifteen per centdiscount for mitigating circumstances ought to have been given. This would have ledto an eleven-month period of imprisonment. He also submitted that the Judge erredin not commuting the sentence to one of home detention.[3] I heard Mr Nisbett's appeal earlier today. It is helpful to record at the outsetthat while the Police opposed the appeal, in his oral submissions, counsel for thePolice, Mr Taylor, did not press that opposition particularly firmly. He accepted thatin light of the more recent pre-sentence report, a sentence of home detention wasavailable.[4] I gave an oral result judgment in court, granting the appeal – not in terms ofthe length of the sentence of imprisonment (interfering in which would have in myview amounted to "tinkering"), but on the basis that the Judge ought to have imposedan end sentence of home detention (with electronic monitoring).[5] I now give my reasons for granting the appeal.1 Land Transport Act 1998, ss 56(2) and 56(4). Maximum penalty two years' imprisonment and a$6,000 fine. Mr Nisbett had a blood alcohol level of 136 milligrams of alcohol per 100 millilitresof blood. The legal limit is 80.2 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years' imprisonment anda $6,000 fine.3 Sentencing Act 2002, s 71(1)(a). Maximum penalty three months' imprisonment or a $1,000 fine.4 Police v Nisbett [2021] NZDC 12486.The offending[6] On 24 September 2020, Mr Nisbett drove a Ute on Peter Snell Road, Ruakaka.He was stopped at a checkpoint, where licence checks revealed that he wasdisqualified from driving. A subsequent blood test revealed a reading of 136milligrams of alcohol per 100 millilitres of blood. He told the Police that he wasdriving to check on a job he was going to do the next day. This gave rise to the chargesof driving while disqualified and driving with excess blood alcohol content.[7] Mr Nisbett presented the following narrative by way of explanation. His fatherhad sadly died three days before the offending and on the day in question, he was homerecovering from that. He received a text from a debtor who owed him and his fathermoney for previous building work, got into his father's Ute, and drove a short distanceto meet the creditor. Mr Nisbett suggested his decision-making was impaired due tothe proximity of his father's death.[8] On 11 April 2019, Mr Nisbett had been convicted of male assaults female in adomestic violence context. He was sentenced to 90 hours of community work. On15 November 2019, he failed to report for community work. He suggested that he wasunder the impression that his hours had been cancelled, and that the subsequentconfusion around COVID-19 meant that he struggled to communicate with the Court.Mr Nisbett's personal circumstances[9] Mr Nisbett was 29 years old at the time of the offending. He has 34 priorconvictions, none of which are particularly serious, but the volume of convictions forsomeone still relatively young is a concern. Relevantly for present purposes is thatthe present offending represented Mr Nisbett's fifth conviction for driving with excessbreath alcohol and his tenth for driving while disqualified. His most recent previousconviction for driving with excess breath alcohol was in September 2016 (theoffending having occurred in November 2015). His most recent conviction for drivingwhile disqualified was in September 2017 (the offending having occurred in August2017). This means that at least on the more serious offending of driving with excessbreath alcohol, prior to the present offending, there had been a period of approachingfive years since Mr Nisbett had been convicted for such offending.[10] In terms of prior sentences, Mr Nisbett was sentenced to one year'simprisonment in September 2017 for three offences of driving while disqualified. Hewas sentenced to home detention in 2016 for driving with excess breath alcohol andwhile disqualified. I also note that he has a number of convictions for breach ofcommunity work, though other than the present offending, the last such convictionwas in November 2013.[11] Mr Nisbett has five sons with his partner (with whom he is in an establishedrelationship and who is supportive of him). Their sons are aged 11, 6, 2, 1, and 2months. His mother died when he was seventeen, and his first conviction for drivingwith excess breath alcohol occurs shortly thereafter. As noted earlier, his father diedthree days before his present driving offending.[12] Mr Nisbett is a builder by trade. He reports that he is currently making aneffort to rebuild his father's building business, which is in abeyance after disruptioncaused by COVID-19 and his father's passing.The PAC and other reports[13] Two PAC reports were prepared on this file. One was prepared in March, onthe community work charge alone, and one in June, on all three charges. It appearsthat only one report, that prepared in March, was before the District Court Judge priorto sentencing, though the more up to date report was handed up during the hearingitself. But not having that report to consider prior to the sentencing may haveinfluenced the Judge's overall decision.[14] The March report notes that Mr Nisbett had completed 54.5 hours of his90 hour community work sentence. It suggested that he was not motivated torehabilitate or manage his offending behaviour. He attributed part of his offending tothe death of his father in the days before the offending, noting that "Dad normallylooked after the kids" while Mr Nisbett did his community work. The report writerconsidered at that time that he was unlikely to be compliant with a community-basedsentence, and observed that he had (at the time) little prospect of completing hiscommunity work hours by his sentencing date. The writer nonetheless recommendeda community-based sentence.[15] The June report paints a better picture. This apparently followed a "stern"warning to Mr Nisbett at some point during these proceedings by another Judge,presumably at a callover. The June report notes that Mr Nisbett has not previouslycompleted any intervention to address his offending behaviour. It recorded thatMr Nisbett now presented as "owning" his offending behaviour, and appreciating itsimpact on his family. The report writer stated:The factors I consider that have contributed to this offending is Mr Nisbett'spoor decision making, alcohol abuse and his circumstances as previouslyexplained around his family in [the earlier] pre-sentence report. .. I considerhim likely to be compliant on a community based sentence, given he isdemonstrating motivation to address his offending behaviour, coupled withhis wrap around support. His likelihood of re-offending in the same manneris considered to be low – medium, given the aforementioned factors for hiscompliance.[16] The report writer went on to observe that Mr Nisbett appeared to have "turneda corner" in his attitude to his offending behaviour and wanting to address thatbehaviour. It noted that Mr Nisbett had in fact completed his outstanding communitywork hours some time before the report was written, on 30 May 2021. The reportrecommended home detention as the appropriate sentence.[17] I have also reviewed a report which confirmed that Mr Nisbett had got himselfonto the Drive Soba Programme, and had completed eight of 12 sessions by the timeof his District Court sentencing. The author recommended that it would be beneficialfor Mr Nisbett to complete that programme to address his recidivist drink drivingbehaviour. A further report on his attendance at that programme reported that oncethe programme had been completed, further one-to-one counselling sessions were tobe put in place to help monitor progress.The District Court sentencing[18] As noted, the Judge was not prepared to commute the sentence to one of homedetention. A key factor taken into account was Mr Nisbett's negative attitude asevidenced by the March PAC report, and the need for firm deterrence givenMr Nisbett's prior driving and alcohol related convictions. The Judge expressed somescepticism around Mr Nisbett reaching a "turning point", given what she described asthe "great immaturity" shown in the March PAC report. The Judge concluded:5You need to be deterred from offending in this way. Nothing much seems towork but, in my view, the knowledge that every time you appear for this sortof offending, you are likely to get a sentence of imprisonment, is about the lastchance or the last option the Court has to bringing home to you that you mustnot continue to offend in this way.Approach on appeal[19] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed for any reason and that a differentsentence should be imposed.6 A material error requiring correction will be establishedif the sentence is manifestly excessive or wrong in principle, or if there are exceptionalcircumstances.7[20] In a case such as this the real question is whether the effective end sentencewas manifestly excessive. The appellate court will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles.Whether a sentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence is reached.8Mr Nisbett's submission on appeal[21] Counsel for Mr Nisbett accepted the 18 month starting point adopted by JudgeOrchard. Counsel suggested that since Mr Nisbett did in fact complete his communitywork hours, no uplift was appropriate on that ground.[22] Counsel suggested that a clear narrative arises from the facts surroundingMr Nisbett's current offending: his father passed away, and he dealt with the grief byconsuming alcohol. He then attempted to drive to meet with a debtor to his and hisfather's business. Under these circumstances, and taking into account Mr Nisbett's5 New Zealand Police v Nisbett [2021] NZDC 12486 at [24].6 Criminal Procedure Act 2011, s 250.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30] and [31].8 Larkin v Ministry of Social Development [2015] NZHC 670 at [26], applying Ripia v R [2011]NZCA 101 at [15].family situation, Mr Scott submitted that a ten to 15 per cent discount would have beenappropriate for Mr Nisbett's personal circumstances.[23] Counsel suggested that in the time before the sentencing, Mr Nisbett took therisk of a prison sentence to heart and engaged with a rehabilitative approach. Counselobserves that Mr Nisbett researched and engaged with the Drive SOBA programme todeal with the underlying causes of his offending, and submited that an additionaldiscount might have been appropriate for these efforts.[24] Counsel suggested that an appropriate final period of imprisonment shouldhave been, as a result, no more than eleven months, though in his oral submissions,Mr Scott did not press this aspect of the appeal to any significant extent.[25] On the Judge's decision to not commute the sentence to one of home detention,counsel emphasised that imprisonment is a sentence of "last resort",9 to be imposedonly when the aims and objectives of sentencing can be met no other way. Counselsuggested that the District Court Judge gave too much weight to the principle ofdeterrence and not enough to Mr Nisbett's rehabilitation. Counsel suggested thatdeterrence would be adequately met with a 24-hour electronically monitored curfew,and that there is no reason to believe that Mr Nisbett would cut off his bracelet andabscond. As such, community protection would be adequately met by a sentence ofhome detention. Finally, counsel suggested that the needs of Mr Nisbett's children,who are young, and his partner, also ought to be taken into account.The respondent's position[26] Mr Taylor submitted that the Judge did not err in her overall approach, and inparticular, that it was not an error to focus on personal deterrence in setting the endsentence, given Mr Nisbett's unfortunate history of driving related offences. On thatbasis, Mr Taylor submitted that there was no error in the lower court decision for thepurposes of this appeal. He pointed in particular to the Judge's conclusion, set out at[18] above, that as earlier home detention and terms of imprisonment had not deterred9 Fairbrother v R [2013] NZCA 340 at [23]-[31].Mr Nisbett, a further term of imprisonment was necessary to bring home to him thatthe community simply does not tolerate this type of offending.[27] In his oral submissions, however, Mr Taylor acknowledged the matters raisedin the June 2021 PAC report, and that the report writer had accepted that Mr Nisbetthad genuinely adopted a new and accepting attitude to his offending behaviour. Onthat basis, and while not abandoning the opposition to the appeal, Mr Taylor noted thata sentence of home detention would have been open to the Judge in the circumstancesof this case. He also noted that if the appeal were to be granted on this basis, it wouldremain open to the Department of Corrections to apply to cancel the sentence of homedetention should Mr Nisbett revert to his "old ways".Discussion[28] As noted at the outset, I granted Mr Nisbett's appeal. In doing so, I fullyappreciate why the Judge took the approach she did, given Mr Nisbett's offendinghistory. But as she had not had the June 2021 PAC report prior to the sentencinghearing, I am of the view that she placed insufficient weight on its contents, whichwere significantly more positive than the March report, the contents of which featuredprominently in rejecting the notion that he had "turned a corner". I note also in thiscontext that the same report writer prepared the March and June reports, and so therewas consistency of engagement across the two reports.[29] Deterrence in this case was certainly an important factor. But givenMr Nisbett's history, and that he has had previous sentences of home detention andimprisonment which have not deterred him, rehabilitation in my view was also animportant factor. Further, a five month period of home detention (which reflected thejust over three weeks Mr Nisbett has now spent in custody) is not an "easy" sentence.And it will permit Mr Nisbett to complete the Drive Soba programme now, and alsocommence the follow-up one-to-one counselling. I also take into account that his priorconvictions for driving with excess breath alcohol and driving while disqualified aresome years ago, and in the case of the former, five years before the prior offending,which is a reasonable time period in the context of Mr Nisbett's age.[30] Ultimately I was persuaded that the principle of rehabilitation requiredadditional focus in this case, as well as imposing the least restrictive outcome that isappropriate. I also took into account that electronically monitored home detention alsogoes some way to meet the principles of deterrence and denunciation. And as Iconveyed to Mr Scott at the hearing this morning, Mr Nisbett is to be under no illusionthat he is very much in the "last chance saloon" and, depending of course on thecircumstances existing at the time, I do not expect he will be given an opportunity ofa sentence other than imprisonment were he to offend again in a similar way.Result[31] Accordingly, and as noted in a minute issued immediately after the appealhearing, I made the following orders granting the appeal:The end sentence of imprisonment arrived at by the Judge, in my view, wasnot in error and there is no change in that regard. However, given the endsentence enabled a final sentence of home detention, I granted the appeal onthat basis and sentenced Mr Nesbitt to five months of home detention on thoseconditions set out on page 4 of the Provision of Advice to Courts Report dated2 June 2021.I note the proposed electronic monitoring and, pursuant to the standardconditions, a 24 curfew subject to approved absences from the home detentionresidence. I strongly recommended that the Probation Officer require MrNesbitt to complete the Driving Soba programme as soon as possible once heis released on home detention, and that once he has completed thatprogramme, he continue with one-on-one counselling (as recommended in theCourt Alcohol and Drug Assessment from the Northland District Health Boardprepared by Ms Waetford). I also made a recommendation that the ProbationOfficer investigate and where appropriate permit absences from the homedetention residence for employment purposes.___________________________Fitzgerald J