ROBINSON v NEW ZEALAND POLICE [2022] NZHC 442

ROBINSON v NEW ZEALAND POLICE [2022] NZHC 442 [11 March 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-01[2022] NZHC 442BETWEEN TULLY ISABEL ROBINSONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 February 2022Appearances: K Cook for AppellantR Donnelly for RespondentJudgment: 11 March 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 11 March 2022 at 3.00 pmRegistrar/Deputy RegistrarDate:Introduction[1] Tully Robinson was sentenced1 to four months and two weeks' home detentionby Judge J J Brandts-Giesen on one charge of careless driving causing death2 and onecharge of careless driving causing injury.3 The Judge also ordered reparation totalling$35,000, disqualified Ms Robinson from driving for 18 months, imposed judicialmonitoring, special conditions of home detention and six months of post-detentionconditions and special conditions.[2] Ms Robinson appeals that sentence in relation to the special conditions of homedetention, post-detention conditions and special post-detention conditions, includingthe judicial monitoring. She asserts there was no basis for their imposition.[3] Ms Robinson does not appeal the other aspects of the sentence (homedetention, reparation and disqualification).4Facts[4] In August 2020 Ms Robinson, normally a resident of Sydney, was visiting theQueenstown area.[5] On 22 August at about 9.13 pm, Ms Robinson was driving a ToyotaLandcruiser along Malaghans Road from Arrowtown in a south-west direction. AstinCaldwell and Allanah Walker were driving along Malaghans Road towardsArrowtown.[6] Ms Robinson had been travelling at approximately 108 km/hr beforeaccelerating to 112 km/hr. She travelled over the double yellow centreline, crossingonto the other side of the road. Mr Caldwell observed her vehicle travelling towardshis and attempted to take evasive action by steering his vehicle right, also crossing thecentre line of the road. The vehicles collided on the front passenger side. Ms Walker1 R v Robinson [2021] NZDC 24140.2 Land Transport Act 1998, s 39; maximum penalty three years' imprisonment.3 Land Transport Act, s 39; maximum penalty three years' imprisonment.4 In her notice of appeal, Ms Robinson appealed also against the length of the sentence of homedetention but that aspect of the appeal was abandoned.was killed upon impact and Mr Caldwell was trapped in his vehicle. He sufferedserious injuries.[7] A blood sample taken from Ms Robinson showed she had 59 milligrams ofalcohol per 100 millilitres of blood. Subsequent analysis of her mobile phone showedshe had sent a series of messages on Facebook Messenger between 9.12:36 pm and9.13:50 pm, with an unsent but typed message open at the time of impact.District Court decision[8] The Judge took a starting point of 17 months' imprisonment. He granted a full25 per cent discount for Ms Robinson's immediate guilty plea, a 10 per cent discountfor her previous good character and youth, and a 15 per cent discount for her remorseand participation in restorative justice, resulting in an adjusted starting point of eightand a half months' imprisonment.[9] The Judge did not consider prison appropriate, noting Ms Robinson's youth,personal health, intrinsic integrity and lack of previous convictions. Instead, heimposed four months and two weeks' home detention with the following specialconditions:(a) to travel directly from sentencing to the address set out in the probationreport;(b) not to possess, consume or use any alcohol or drugs not prescribed toher;(c) to reside at the address and not move to any new residential addresswithout prior written approval of a probation officer;(d) to attend an assessment for drug and alcohol counselling or treatmentprogramme as directed by a probation officer, (the "drug and alcoholassessment condition"); and(e) to attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfactionof a probation officer, (the "treatment condition").(The latter two conditions I will refer to as "the assessment and treatment conditions").[10] The Judge ordered six months' post-detention conditions, with the assessmentand treatment conditions repeated.[11] The Judge also imposed judicial monitoring.[12] Ms Robinson's appeal relates to the assessment and treatment specialconditions; the post-detention conditions; and the judicial monitoring.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court, only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 As the Court of Appeal recorded in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".6 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.7SubmissionsAppellant's submissions[14] Mr Cook, for Ms Robinson, submitted the special conditions of home detentionwere justified neither by the Judge in sentencing nor by counsel in any submissions.He submitted there was not the required link between the imposition of conditions and5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].the purpose of such conditions. In relation to the assessment and treatment conditions,Mr Cook submitted there was no evidence to suggest Ms Robinson had an issue withalcohol. He referred to the probation officer's report that a screening of Ms Robinsonshowed no harmful pattern of use of alcohol. He referred to Ms Robinson's previouslyuntarnished and pro-social record, and also to the clearly remorseful responseMs Robinson has made through a restorative justice conference with Mr Caldwell.[15] In relation to the judicial monitoring, Mr Cook submitted there was noevidence it was necessary, the evidence pointing towards Ms Robinson beingcompliant with the sentence.[16] In relation to the post-detention conditions, Mr Cook submitted the discretionto impose post-detention conditions should be read to allow post-detention conditionsonly if necessary to serve the purposes of sentencing set out in s 7(1) Sentencing Act.He submitted the conditions are a barrier to Ms Robinson's returning to her home toAustralia and there are no rehabilitative or reintegrative needs here.[17] Finally, Mr Cook submitted the Judge could not be satisfied there was asignificant risk of further offending by Ms Robinson and therefore there the Judgecould not impose special post-detention conditions.Respondent's submissions[18] Mr Brownlie, for the Crown, noted the special conditions of home detentionand special post-detention conditions were recommended in the pre-sentence report tooffer Ms Robinson some education around the risks of driving after consumingalcohol. He submitted there was therefore a foundation for the Judge to impose thespecial conditions. However, he acknowledged that, other than in relation to the issuearound alcohol, there was little in support of a finding there is a significant risk ofreoffending. Mr Brownlie submitted that, where conditions are recommended by apre-sentence report writer and not challenged at sentencing, there is a proper basis forthem to be imposed.[19] Mr Brownlie accepted the Judge could not be satisfied judicial monitoringwould be necessary for Ms Robinson's compliance and therefore could not have beenimposed.[20] Mr Brownlie submitted the imposition of a period of post-detention conditionswas discretionary and the rationale for imposing them must be to extend the benefit ofconditions already imposed as part of the sentence of home detention.AnalysisThe assessment and treatment conditions[21] Section 80D of the Sentencing Act 2002 states:80D Special conditions of sentence of home detention(1) In addition to the standard conditions that apply under section 80C,the court may, subject to subsections (2), (3), and (7), impose 1 ormore special conditions described in subsection (4).(2) A court may impose any of the special conditions described insubsection (4) if the court is satisfied that—(a) there is a significant risk of further offending by the offender;and(b) standard conditions alone would not adequately reduce therisk; and(c) the imposition of special conditions would reduce thelikelihood of further offending by the offender through therehabilitation and reintegration of the offender.[22] Similarly, s 80P states:80P Special post-detention conditions(1) A court may impose any of the special post-detention conditionsdescribed in subsection (2) if the court is satisfied that—(a) there is a significant risk of further offending by the offender;and(b) standard conditions alone would not adequately reduce thatrisk; and(c) the imposition of special conditions would reduce thelikelihood of further offending by the offender through therehabilitation and reintegration of the offender.[23] Accordingly, the Judge, if he was to impose special conditions, had to besatisfied there was a significant risk of further offending by Ms Robinson. This wasnot expressly addressed by the Judge or by counsel at sentencing. On appeal theCrown points to the pre-sentence report writer's statement that offending relatedfactors: have been identified as being Ms Robinson's attitude towards beingcomplacent in terms of driving a vehicle while under the influence of alcohol.To address Ms Robinson's use of alcohol and driving a special condition forher to attend drug and alcohol counselling promoted.[24] It is not clear whether this was an assessment based on the pre-sentence reportwriter's interview with Ms Robinson or whether it was an inference based on the factsof the offending. Under the heading "Alcohol Use", the pre-sentence report writerreferred to an alcohol, smoking and substance involvement screening test assessmentwhich did not identify Ms Robinson as showing a harmful pattern of use. The reportstated the purpose of the condition would be to "offer her some education around therisks of driving after consuming alcohol". This does not go as far as to identify a linkto a significant risk of further offending that cannot be addressed by standardconditions. The requirement upon a court to be able to explicitly link the impositionon conditions to a general aim of imposing such a condition was illustrated by theCourt of Appeal in R v Riri.8[25] It does not justify the condition that it was a condition recommended by thepre-sentence report writer and not challenged by counsel at sentencing. There muststill be a proper basis for its imposition.[26] Given Ms Robinson's pro-social record, her lack of previous convictions, herdemonstrated remorse including participation in restorative justice, and the fact theevidence did not suggest alcohol use or abuse was an ongoing issue for her, the Court8 R v Riri [2008] NZCA 441 at [16].could not reasonably be satisfied there was a significant risk of further offendingoccasioned by alcohol use. There was therefore no basis on which to impose theassessment or treatment conditions under the Sentencing Act.Judicial monitoring[27] The judicial monitoring order raises similar issues. Section 80D(3) SentencingAct states:(3) A court may only impose a condition of the kind described insubsection (4)(d) (which relates to judicial monitoring) if it is alsosatisfied that, because of the special circumstances of the offender,this is necessary to assist the offender's compliance with the sentence.[28] For the Crown, Mr Brownlie responsibly conceded this aspect of the sentenceshould be quashed. The pre-sentence report writer did not foresee any barriers in termsof Ms Robinson's compliance. There is no evidence judicial monitoring was necessaryhere.Post-detention (standard) conditions[29] The imposition of post-detention conditions as opposed to special post-detention conditions was a discretionary matter. Section 80N of the Act states:(1) A court that sentences an offender to a term of home detention of 6months or less may impose the standard post-detention conditions and anyspecial post-detention conditions on the offender and, if it does so, mustspecify when the conditions expire.[30] The Court of Appeal in R v Janssen held release conditions, as an element ofsentence, were required to serve the purposes of sentencing in s 7(1) Sentencing Act.9The Court also held such conditions had to be exercised consistently with theprinciples in s 8 Sentencing Act.10 I consider release conditions and post-detentionconditions sufficiently analogous and take the same approach here.[31] The standard release conditions imposed, including reporting requirements andoversight by a probation officer, can be seen to meet the purposes of holding Ms9 R v Janssen [2007] NZCA 450 at [14].10 At [15].Robinson accountable for the harm done and promoting in her a sense of responsibilityfor, and acknowledgement of, that harm. Indeed, the detrimental effect on her abilityto return to Australia, although a possibly unintended consequence, might contributeto those ends too. As Mr Donnelly submitted, the very nature of post-detentionconditions is to lengthen the conditions already imposed as part of the sentence ofhome detention. They are a part of the sentence proper and do not necessarily have toachieve the sentencing purpose of rehabilitation or reintegration, the purpose Mr Cookhas focused on here.[32] In any event, there can be no argument the Judge was not within his discretionto impose standard post-detention conditions given the terms of the Sentencing Act.The end sentence here was not manifestly excessive.Post-detention (special) treatment condition[33] As there was no significant risk of further offending here, there was no powerto impose a special post-detention condition. The discussion at [23] to [26] aboveapplies here. There accordingly was an error in the imposition of the post-detentiontreatment condition.Outcome[34] The appeal will be allowed in relation to the assessment and treatmentconditions and the judicial monitoring but otherwise dismissed.Order[35] The appeal against the drug and alcohol assessment condition and theassessment and treatment conditions, both during and post-detention, and the judicialmonitoring, is allowed, and those conditions are quashed.[36] The appeal is otherwise dismissed.Osborne JSolicitors:Crown Solicitor, InvercargillCopy to: K Cook, Barrister, Christchurch