Bregmen v Police HC Gisborne CRI-2011-416-000004 [2011] NZHC 288 (5 April 2011)

Last Updated: 10 July 2011

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CRI-2011-416-000004}

BETWEEN SARAH MARGARET BREGMEN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 30 March 2011

Counsel: D D Rishworth for Appellant

F E Cleary for Respondent

Judgment: 5 April 2011

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 5 April 2011 at 10:00 am pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Rishworth Wall & Mathieson (Gisborne) for Appellant

_{Crown Solicitor’s Office (Gisborne) for Respondent}

BREGMEN V POLICE HC GIS CRI-2011-416-000004 5 April 2011

[1] The appellant appeals against a sentence of 22 months’ imprisonment imposed in the District Court at Gisborne on 28 January 2011 by Judge AIM Tompkins. She had pleaded guilty to four charges of driving with excess blood alcohol causing injury.

Facts

[2] On the late morning of 2 June 2010 a vehicle driven by the appellant veered across the centre line on State Highway 35 near Gisborne and collided head-on with a vehicle travelling the other way. It contained a mother and her four young children. The mother was not seriously injured. However, the children all suffered injuries requiring medical intervention. Two of the children were severely injured, including having compound fractures. One required admission to Intensive Care and was placed in an induced coma. The effects on the children were noted by Judge Tompkins as likely to be long lasting.

The appellant

[3] The appellant is an alcoholic. In the pre-sentence report it was noted that she had been drinking wine ―practically continuously‖ over a period of five days prior to the crash. Her blood alcohol concentration was measured as 273 milligrams of alcohol per 100 millilitres of blood (about three-and-a-half times the legal limit).

[4] The appellant has a 2007 conviction for driving with excess breath alcohol for which she was fined and disqualified from driving for six months. She had recognised the damage alcohol was doing to her life previously and had tried to address it. In 2005 she had self-referred to Spring Hill Rehabilitation Centre in Hawke’s Bay for an eight week residential programme. Obviously the programme was unsuccessful.

[5] Despite suffering from Crohn’s disease and alcoholism, and being a single mother with a seven year old son, the appellant managed to obtain a nursing degree

in 2009. At the time of the crash she was working at Gisborne Hospital. Her conviction resulted in the loss of that job, but the indication in the pre-sentence report is that it might be available to her again if she could show that her drinking problem was under control and that she otherwise met the requirements of the Nursing Council.

Appeal

[6] The appeal proceeded on two grounds. The first is that the sentence is

manifestly excessive. No issue was taken with the Judge’s starting point of

30 months’ imprisonment, but the appellant submits that it should have been reduced by more than the eight months allowed by the Judge for the early guilty pleas because:

(a) The Judge’s discount of 25% was pursuant to the decision of the Supreme Court in Hessell v R.1 However, the appellant pleaded guilty to the charges on 1 October 2010, which was in the period when the Court of Appeal’s decision in Hessell v R applied.2 Had the appellant been sentenced at around that time a discount of 33% would have been allowed;

(b) Insufficient or no weight was given to the genuine and palpable remorse shown by the appellant;

(c) Insufficient or no weight was given to the appellant’s efforts and

progress towards her rehabilitation.

[7] The second ground of appeal is that the Judge erred in principle in imposing a term of imprisonment rather than a sentence of home detention.

1 _{Hessell v R [2010] NZSC 135.}

2 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

[8] In my view the appellant was entitled to a greater reduction from the starting point than the eight months assessed by the District Court Judge. Cases such as R v Tai3 illustrate that the Court of Appeal Hessell discount should be given where the circumstances make that fair. In this case the appellant was charged three months after the offending, was summonsed to appear one month later, and entered guilty pleas five days after her first appearance. She was not called upon to appear for sentence for nearly four months. It is recorded that that delay had nothing to do with her; it was an incident of the District Court’s schedule. Under those

circumstances I find that it would be fair for her to have the 33% discount which would otherwise have been hers under the then prevailing Court of Appeal decision in Hessell.

[9] Mr Rishworth argued strenuously that further discount should be given due to the extent of the remorse shown by the appellant and the efforts she had made towards her rehabilitation. However, while I accept that her remorse is genuine, there have been no extraordinary steps taken to demonstrate it and her progress towards her rehabilitation, while encouraging, is not a factor that I would weigh heavily in determining the extent of a reduction from the starting point. The Court of Appeal in its consideration of the Hessell case bundled remorse into the credit to be given for early pleas of guilty. I do not see anything in the appellant’s case which should go beyond that credit.

[10] Accordingly, I would allow the appeal against sentence to the extent of increasing the discount from eight months to 10 months to take account of the appellant’s early pleas of guilty.

The second ground

[11] There is authority for the proposition that the imposition of a sentence of home detention is a matter for the discretion of the sentencing Judge. Accordingly,

3 R v Tai [2010] NZCA 598.

an appellate Court has a more limited jurisdiction on appeal to interfere with a refusal to grant home detention than on the exercise of a substantive sentencing decision.4 However, for the reasons given below, I have reached the view that I need to consider afresh the issue of whether home detention should have been imposed.

[12] That is because I accept the submission of Mr Rishworth that on the face of the District Court Judge’s decision he has not taken into account the material provided in writing by the Defence in support of an application for home detention. Nor has he specifically balanced the purposes of deterrence and denunciation with the need to impose the least restrictive sentence and provide for rehabilitation and reintegration.

[13] Mr Rishworth advised me that when he first read the sentencing notes the lack of reference to the Defence materials so concerned him that he enquired of the Registrar whether the materials he had filed had actually been put on the Court file. He was told that they had. The materials filed then are not on the appeal file which I have, although the sentencing submissions on behalf of the Police and the pre- sentence report are. In addition to written submissions, the Defence had filed a one- page report from an addiction counsellor, Mr Dick Johnstone, dated 24 January

2011; a brief letter from the appellant’s general practitioner, Dr Aitcheson, dated

24 January 2011; a letter dated 21 January 2011 from a registered nurse as to post- crash counselling received by the appellant; a letter dated 21 January 2011 from a friend and fellow nurse of the appellant’s as to her remorse and her post-crash abstention from consuming alcohol; and a letter dated 19 January 2011 from another friend as to the appellant’s post-crash change of lifestyle and continued sobriety.

[14] Mr Rishworth provided me with copies of the above materials and also filed further documents which amplify and expand the information and observations placed before the District Court at sentencing. These are a report dated 2 March

2011 from Oasis Counselling and Therapy Services and a letter dated 10 March 2011

_{from the Reverend Anna Baker, who is a chaplain at Waikato Hospital.}

4 Blackstone v Blackstone [2008] NZCA 312; (2008) 19 PRNZ 40 (CA); May v May [1982] 1 NZFLR 165 (CA).

[15] The material before the District Court Judge, as amplified and expanded by the material now placed before me, paint a picture of the appellant as a person for whom the crash has brought a new realisation of the effect that alcohol has had on her and a new determination to address her problem with it. Judge Tompkins, in his sentencing notes, refers on a number of occasions to the official documentation with which he was provided but not at all to the material provided by the Defence (other

than submissions). For example, at [4] he says:5

The pre-sentence report accepts that imprisonment will be an option open to the Court today but recommends community detention. The report records a degree of insight and remorse and Mr Rishworth, in his submissions (both written and oral) on behalf of Ms Bregmen, emphasised those and the other mitigating factors identified in the report.

[16] In [6], when setting the starting point, the Judge states:

In my view, an appropriate starting point is 30 months’ imprisonment. From that I deduct eight months’ imprisonment to take account of the early guilty plea. Given the length of Ms Bregmen’s alcoholism and the earlier conviction, that, in my view, is all the discount that should be allowed as there is no evidence of, over and above that, remorse, insight or rehabilitative progress, which would allow a greater discount.

[17] And when addressing the options of community based sentences the Judge again referred only to the pre-sentence report:6

That means that the Court is required to consider home detention or community detention. As noted, the pre-sentence report recommends that essentially for rehabilitative purposes. On the other side of the scale, it is very clear that Ms Bregmen has, for many years now, been unable to alleviate her alcohol abuse and it is not at all clear, given the level of that, that if allowed to remain in the community to serve her sentence, alcohol would not feature in future offending. I do not overlook the self-report, as recorded in the pre-sentence report, that Ms Bregmen has not consumed alcohol since this accident. But given the overall severity of the offending, the high level of alcohol in her blood, the enormous effect this has had on the victims, and the need for both individual and general deterrence and denunciation, in my view a full time custodial sentence is required.

Home Detention

[18] When a short-term of imprisonment would otherwise be imposed there is no

―prevailing presumption‖ in favour of home detention — whether it is appropriate depends upon the circumstances of the case.7 An assessment of all the relevant factors must be made.

[19] The sentencing judge must have regard to the need to assist in the offender’s rehabilitation and reintegration into the community,8 the principle that the Court should impose the least restrictive outcome appropriate in the circumstances,9 and the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.10 Rehabilitative considerations are important in determining whether to sentence to home detention.11 Even in cases where there is a presumption of imprisonment, such as arises under the Misuse of Drugs Act 1975, it can be appropriate to give significant weight to the prospects of

_{rehabilitation.}12

[20] Balanced against these considerations, the Court must ensure that the purposes of denunciation and deterrence are met.13 When dealing with serious offending, imprisonment may be necessary to reflect adequately the need to denounce the offender’s actions and to deter others. This will often be the case for offences of driving whilst intoxicated causing serious injury or death.14 Drink- driving is a widespread problem in New Zealand. It is not to be treated lightly.

[21] Even so, home detention is not a soft option and carries with it in considerable measure the purposes of deterrence and denunciation. It is to be treated

7 _{R v Stacey [2008] NZCA 465 at [21].}

8 _{Sentencing Act 2002, s 7(1)(h).}

9 _{Ibid, s 8(g).}

10 _{Ibid, s 16.}

11. R v Hill [2008] 2 NZLR 381 (CA) at [37]: ―Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits

_{in a sentence of home detention, both from society’s perspective and from that of the offender.‖}

12 _{Ibid, at [38]; see also R v Moana [2008] DCR 326 (HC).}

13 _{Sentencing Act 2002, ss 7(1)(e)–(f).}

14. See the discussion in Police v Caudwell HC Gisborne CRI-2008-404-255, 1 December 2008, John Hansen J at [46]–[50].

as a real alternative to imprisonment.15 The sentencing judge must determine whether, in light of the seriousness of the case and the personal circumstances of the offender, the ss 7(1)(e)–(f) purposes will be sufficiently met by a home detention sentence.16

Is home detention appropriate?

[22] In this appeal the materials provided by Mr Rishworth reveal several relevant mitigating factors personal to the appellant. She self-referred to Oasis Counselling and Therapy Services. The report from Ms Shirley McFayden of Oasis stated that the appellant showed a genuine desire to turn her lifestyle around. She did not attempt to minimise her offending, it being ―a horrific wake-up call and I have no desire to drink currently‖. Reverend Anna Baker ’s letter also disclosed the appellant’s remorse, acceptance of personal responsibility and intention to stay free of alcohol.

[23] The appellant has abstained from using alcohol since the crash, a period of some ten months now. The pre-sentence report assessed her as having a low risk of re-offending given her remorse and insight into her alcoholism and offending. There are also the other mitigating factors summarised at [5] above.

[24] As against these factors, there are those emphasised by the District Court Judge: the seriousness of the appellant’s offending and the ongoing effect it has had on the four victims and their family; the appellant’s long history of alcoholism; the conviction in 2007 for driving with excess breath alcohol; and the strong need to denounce drink-driving and to deter others. The community must be kept safe from such offending.

[25] Nevertheless, in my view the purposes of denunciation and deterrence will in this case be adequately reflected in a sentence of home detention. The appellant has demonstrated a motivation to change and has taken steps to address her alcoholism and offending behaviour over a period of 10 months. I accept that there is a realistic

prospect of success. It appears that Judge Tompkins, in sentencing the appellant to imprisonment, either did not have available the information that Mr Rishworth has provided to this Court, or else gave insufficient weight to the mitigating factors. Relevant factors in the balancing test, for instance s 16 of the Sentencing Act, appear not to have been specifically considered alongside the purposes of denunciation and deterrence.

Conclusion

[26] The appeal is allowed. In fixing the period of home detention, I start with fixing the sentence of imprisonment I would otherwise impose as 20 months.17 This would normally translate to a sentence of 10 months’ home detention. However, the appellant has already served approximately two months of her sentence in prison and she should receive credit for this. I therefore substitute a sentence of nine months’ home detention.

[27] The following conditions will apply:

(a) Upon release from imprisonment, Ms Bregmen is to travel directly to

31 Oswald Street, Mangapapa, Gisborne and await the security guard and the probation officer;

(b) Ms Bregmen is not to be in the possession of or consume either alcohol or illicit substances for the duration of the home detention sentence as directed;

(c) Ms Bregmen is not to leave the proposed address without an approved absence as directed by the probation officer;

(d) Ms Bregmen is to undertake alcohol/drug assessment, counselling to the satisfaction of the provider and the probation officer.

_{Brewer J}

17 For the reasons given in [8]-[10] above.