Bryant v Police HC Blenheim CRI-2011-406-20 [2011] NZHC 1952 (5 December 2011)

Last Updated: 5 February 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

_{CRI-2011-406-20}

BETWEEN RODNEY JOSEPH BRYANT Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 December 2011

Counsel: R Harrison for Appellant

M A O'Donoghue for Respondent

Judgment: 5 December 2011

_{ORAL JUDGMENT OF MILLER J}

[1] Mr Bryant was sentenced on 3 October to 12 months imprisonment and three years disqualification for a hit and run incident in which another person was injured. The charges were dangerous driving causing injury and failing to stop and render assistance.[1] He appeals against sentence, saying that the sentence was too long and he ought to have received home detention. At the hearing I allowed the appeal. These are my reasons.

[2] On 21 May 2011 Mr Bryant attended a friend’s birthday party, where he drank all night long. He decided to drive his truck, a Toyota Hilux, home about

7.40am, in a very intoxicated state. At a corner on Renwick Road he swerved and drove head on into a car driven by the victim, who was on her way to work. Her vehicle spun and went over a bank. His stopped.

[3] She managed to extricate herself despite having a fractured left ankle, a fractured rib, whiplash, and a laceration to her left knee. She was in great pain. She

_{spoke to Mr Bryant, who had got out of his vehicle, and told him she was hurt. He}

RODNEY JOSEPH BRYANT V NEW ZEALAND POLICE HC BLE CRI-2011-406-20 5 December 2011

responded by telling her that he had sore fingers. She lay down and asked him to call an ambulance. He told her that he was going to move his vehicle, but he actually got into it and drove away. Fortunately another motorist soon came to her aid.

[4] On the following day Mr Bryant had his hand attended to and took his vehicle in for repairs.

[5] At 7.45 am on 3 June Mr Bryant arrived at the Blenheim Police Station, having decided to hand himself in. Although his behaviour at the scene demonstrated some presence of mind he claimed to have no memory of the crash; in particular, he could not recall talking to the victim. He knew his vehicle had hit something, but he did not appreciate that it was another vehicle. When he learned of publicity surrounding the incident he promptly went to the police.

[6] The victim suffered considerably. She required surgery and was in a wheelchair for four weeks. She has ongoing spinal and neck pain, although she says these injuries will heal. She was a competitive trail rider but can no longer spend long on her horse. She suffered emotionally, as have her family. She suffered financial costs.

[7] Mr Bryant, to his credit, has acknowledged his responsibility. He participated in a restorative justice process, as part of which he has paid emotional harm reparation of $10,000 and expenses of $8,000 to the victim. It also involved an advertisement and photograph in the local newspaper.

[8] Mr Bryant has three previous convictions for drink-driving, in 1990, 1996 and 2000. He was fined and disqualified on each occasion. His only other conviction is for not carrying a time licence. He has never received any form of custodial sentence. Although he is a recidivist drink-driver, he had been offence-free for 11 years at the time of this incident. He claims to abhor drink-driving, a partner having lost her life in a car crash when she chose to drive home from a pub.

[9] However, a report indicated that he still has a harmful pattern of alcohol use. He consumes 12-15 stubbies when he drinks on the weekends, and he occasionally uses cannabis. He has now engaged in alcohol counselling, and he reports having given up alcohol, although that plainly will be difficult for him.

[10] Mr Bryant is aged 41. He is in partnership with his brother in the forestry industry, and the business depends on his specialist driving skills. They employ five staff. References spoke highly of his personal qualities. He has two sons, and a supportive partner.

[11] The pre-sentence report recommended home detention. There is a suitable address.

[12] The District Court Judge began by adopting a starting point of 18 months imprisonment on each charge, having regard to the aggravating features of alcohol consumption and failure to render assistance after speaking to the victim and hearing her plea for help. That was reduced to two and a half years for totality. The previous convictions earned an uplift of three months.

[13] From that the Judge deducted three months for remorse, 10 months for the completed restorative justice plan, and eight months for the guilty plea, resulting in the end sentence of 12 months imprisonment.

[14] He concluded that no sentence short of imprisonment would do. Denunciation and community protection required a custodial sentence, notwithstanding the mitigating factors. The offending was among the most serious of its kind. He highlighted the intoxication, victim injuries, and driving off without seeking help for her. He cited two earlier cases, Police v Singh and Police v Fowler, in which imprisonment had been imposed.

[15] On appeal counsel challenged the starting point, suggesting the Judge had double-counted intoxication and failing to render assistance. The latter is said to be an element of the offence, not an aggravating factor. I reject these submissions. The maximum sentence on each offence was five years imprisonment. The starting point

was available, and it was not double-counting to recognize these factors as the Judge did. In particular, Mr Bryant callously left the scene after learning the victim was hurt and hearing her plea for help. His alcohol consumption does not mitigate that behaviour; at best it is advanced as an explanation for not handing himself in at once. The driving was very bad.

[16] Nor can it be said that Mr Bryant should have been given an additional discount for turning himself in and co-operating with the police. The discount given for his guilty plea, remorse and restorative efforts was a very full one.

[17] The real question, in my opinion, is whether the Judge was right to refuse home detention in the circumstances. There is no doubt that a suitable candidate may be denied home detention where denunciation and deterrence are the dominant sentencing considerations. Imprisonment may be the least restrictive alternative. But home detention does supply deterrence and denunciation, and a sentence may also be manifestly excessive because the Judge has chosen imprisonment instead of the equivalent term of home detention.

[18] In this case I am persuaded that the Judge was wrong. It is true that the offending was serious, but that is not an end of the matter. In this case a long period had passed since Mr Bryant’s previous convictions, and he had turned himself in. He had then done everything that he possibly could to remedy matters and rehabilitate himself. His remorse was not only genuine but also tangible. The reoffending risk is low and he has no history of non-compliance with Court orders. Although the Judge acknowledged these matters, he did not sufficiently weigh them in the balance or recognised the deterrent value of a home detention sentence.

[19] The appeal is allowed in that the sentence of imprisonment is set aside and a sentence of six months home detention substituted. The disqualification remains, as do the post-detention conditions imposed by the District Court.

[20] The home detention address is 18 Lawrence Street, Havelock. Mr Bryant is

to go to that address and there await the security officer and probation officer.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent

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[1] _{Respectively ss 31(1)(b) and 36(1)(c) Land Transport Act 1998.}