Lankshear v Police [2012] NZHC 3300 (7 December 2012)

Last Updated: 2 February 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-94 [2012] NZHC 3300

CHRISTOPHER FRANCIS LANKSHEAR

v

NEW ZEALAND POLICE

Hearing: 4 December 2012

Counsel: J P Miller for Appellant

A J Ewing for Respondent

Judgment: 7 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.15 pm on the 7 December 2012.

_{JUDGMENT OF WILLIAMS J}

CHRISTOPHER FRANCIS LANKSHEAR V NEW ZEALAND POLICE HC WN CRI-2012-485-94 [7

December 2012]

[1] This is an appeal against conviction and sentence. The appellant is Christopher Lankshear. He pleaded guilty to one charge of dangerous driving causing injury.

[2] The appellant left his parents’ house in Blenheim after an argument with them and then raced off in his car. He drove at speed through an intersection and rear- ended another car, owned by Mr Rhodes. The appellant’s own car then careened off the road and damaged a fence owned by Mr Peipi.

[3] The appellant applied for a discharge without conviction under s 106 of the Sentencing Act, citing several personal mitigating factors including mental impairment. Mr Lankshear now appeals against the learned Judge’s refusal to grant a discharge without conviction.

The offending

[4] The background to the offending was said to be an argument the appellant had with his parents.

[5] I repeat the detailed facts as found by the District Court Judge:

[3] About 8.30 at night on 10 January this year you were driving along Wither Road in Blenheim at an estimated speed of 120 kilometres an hour and where the road is a residential area where the speed limit is

50 kilometres an hour.

[4] The victim was travelling in the same direction as you but in front of you. He was travelling at approximately 50 kilometres an hour. He had just driven past an intersection. He heard a noise, checked his rear vision mirror and saw a vehicle approaching him at speed from behind.

[5] There was another vehicle towing a trailer which was travelling in an opposite direction travelling towards you. Because you were travelling at excessive speed, as I say, the estimate being 120 kilometres an hour, you could not reduce your speed, you could not overtake because there was a vehicle coming towards you.

[6] You were unable to do either of those things. As a consequence you drove into the back of the victim’s vehicle and caused it to stall. It shunted it [sic] approximately 110 metres from the point of impact. You lost control of the car. You were driving. You veered off to the left, mounted the kerb, hit two trees, a fence, letterbox and then came to rest against a third tree in the front yard of a residential property. Emergency services were all called to

the scene and due to the extensive damage to your car you had to be cut out of the car.

[7] The victim’s vehicle suffered major chassis damage. Your car was a right-off [sic]. The victim sustained a wound to his scalp, contusions to his lower legs and he had to go to hospital. You also had to go to hospital suffering from a shoulder sprain and back pain. In fact I think you suffered a broken femur, broken ankle and dislocated ankle.

[8] The victim who suffered the injury says there are no ongoing issues for him as far as actually driving a vehicle is concerned but obviously he was off work for quite some time. He initially claimed about four weeks by way of seeking recompense for lost wages but as I have indicated, that is not something that the Court can award and it seems that he was off for at least a week due solely because of his actual physical injuries. He seeks at the very least that you are held accountable for what you have done.

[9] There is another victim as well and that is the person who owns the fence. He notes that the accident happened in January this year but he has not heard from you at all since that date. He, I think, was friends with your brother and that friendship has become strained. He seeks reparation so his fence can be repaired of $2,264.

[6] After the incident, the Blenheim District Court ordered that s 38 reports under the Criminal Procedure (Mentally Impaired Persons) Act 2003 be prepared to consider fitness to plead and insanity. Two reports were provided:

(1) one by Ms Maggie Dewar, clinical psychologist; and

(2) another by Dr Hanna Pruchniewska, consultant psychiatrist.

Both reports concluded that the appellant was not suffering from a mental illness sufficient to qualify him for the defence of insanity under s 23 of the Crimes Act. However, Dr Pruchniewska did conclude the appellant “had some mental impairment, especially shortly before the alleged offence, mainly distress and anger which he could not control and which could impair his judgment during the alleged offence.”

The decision in the District Court

[7] The Judge addressed each aspect of the statutory test for granting a discharge without conviction under s 107 of the Sentencing Act in the following way:

(1) On the gravity of offending: Her Honour found that, this was serious offending. She took into account several factors. First, in relation to the driving itself, the Judge focused on the appellant’s high speed driving (120kph),1 the location of the accident (an intersection in a residential area)2 and the fact the appellant had been driving that way for some time.3 The Judge also took into account the extent of harm suffered (both in terms of personal injury and damage to property) which was “relatively serious as well”.4

Importantly, the Judge also took into account the extent to which the appellant’s mental state may have affected his culpability, and therefore the gravity of his offending, at the time. On that point, there was evidence to show some mental impairment short of a serious mental illness that could in turn have impaired his judgement. However, the Judge concluded that while this factor “need[ed] to be given some acknowledgement ... the gravity of offending [was still] relatively high.”

(2) On the consequences of conviction: The Judge addressed the consequences of a conviction for Mr Lankshear in a slightly more discursive way. She began by noting that, since the accident, Mr Lankshear had suffered several consequences already (namely significant distress, negative publicity exacerbated by his good standing in the community and unemployment) and completed some voluntary community work. More specifically in terms of consequences of a conviction her Honour took into account:

(i) The impact of a conviction on Mr Lankshear’s mental health,

_{given the consequences he had already suffered;}5 _and

1 _{Police v Lankshear DC Wellington CRI 2012-066-000066, 3 October 2012 at [10].}

2 _{At [10].}

3 _{At [11].}

4 At [11].

(ii) Greater consequences in finding employment, given Mr Lankshear had previously worked in industries involving driving. However, the Judge noted “the other side of that is that an employer should be aware of such a history”.6

(3) On whether the consequences would be all out of proportion to the gravity of offending: Put simply, the offending was too serious to be outweighed by the direct and indirect consequences of a conviction to Mr Lankshear. A discharge was refused.

[8] In determining the appropriate sentence, Judge Thomas accepted there were several mitigating factors (early guilty plea, acceptance of the need to pay reparation, “significant” credit for previous good character, voluntary completion of 94 hours of community work, mental health issues and remorse). The Judge imposed 110 hours’ community work, reparation of $7,264 (total) and the mandatory minimum

12 months’ disqualification.

Submissions

Defence

[9] The appellant raises two grounds of appeal:

(a) that the Judge placed too much weight on speed as an aggravating factor;

(b) that the Judge did not take properly into account the significant factors affecting the overall culpability of the offender when assessing the gravity of offending (in particular the appellant’s mental state).

[10] Mr Miller points out several other aspects of background, said to be relevant to sentencing. He notes:

(a) Mr Lankshear’s own car was written off. Mr Lankshear has been unable to replace it as he has received nothing from his insurer due to the fault clause in his policy. The vehicle still had $12,000 in original purchase payments to make;

(b) Mr Lankshear is facing a civil claim from Mr Rhodes’ insurers for

$6,428 for the pre-crash market value of Mr Rhodes’ car;

(c) Mr Lankshear has suffered considerable physical injury. As at 5 July

2012 (date of the Probation PAC report), he was still in pain, had to exercise every day and went to rehabilitative therapy twice a week;

(d) since the accident, Mr Lankshear has been unemployed. He has focused on his physical and mental recovery. He has undertaken counselling with Dr Roz Walker, and has performed some voluntary community work while awaiting sentencing;

(e) draft letters of apology prepared by Mr Lankshear dated 31 May 2012 were held by his previous counsel, but not sent due to counsel’s advice. He also investigated whether he could pay reparation before sentencing, but in a memorandum to the court, the Victims Advisor confirmed the victims were not prepared to accept this;

(f) the Probation PAC reports notes Mr Lankshear poses a low risk of reoffending.

[11] Counsel made extensive submissions in relation to the correct approach to applying s 107 in light of the leading authority on the question, Blythe v R.7 In particular, Mr Miller argued that it is open to the Court to take into account a range of personal factors under s 107 in the context of assessing the gravity of the offending. I will address these matters further below.

[12] The Crown submits that personal aggravating and mitigating factors should not be relevant to assessment of the “gravity of offending”. Counsel also relied on Blythe to support this position (despite it being contrary to the interpretation advanced by the appellant).

[13] The Crown also made submissions on the relevance of an offender’s mental impairment to sentencing more generally. Counsel argued mental impairment, either at the time of the offending or at sentencing, can be relevant to sentencing in one of three ways:

(a) as moderating the culpability of offending: R v M [2008] NZCA 148 at [33], R v Tuia CA312/02, 27 November 2002 at [15];

(b) as making a sentence of imprisonment less appropriate because it is more subjectively punitive: E v R [2011] NZCA 13 at [68]; and/or

(c) as illustrative of a risk of reoffending, suggesting individual deterrence and/or public protection might be particularly important purposes of sentencing in the particular case: E v R [2011] NZCA 13 at [69].

[14] Regarding the application of the law to the facts, the Crown said that, first, Judge Thomas was right to put personal mitigating factors to one side when assessing the gravity of offending. Second, in any event, the Judge did in fact consider mental impairment when assessing gravity, so could not be said to be wrong for failing to do so.

[15] An appeal against a refusal to grant discharge without conviction can be treated either as an appeal against conviction and sentence, or as an appeal against sentence.8

[16] As such, ss 119 and 121 Summary Proceedings Act 1957 apply. The appeal is by way of rehearing.9

[17] The Court of Appeal has recently ruled that an appeal against a refusal to grant a discharge without conviction is subject to normal appellate principles (that is, the Austin, Nichols10 threshold) where the initial discharge was refused by the

Judge’s application of the disproportionality test under s 107 of the Sentencing Act.11

This is to be contrasted with appeals against a refusal to grant discharge where the initial refusal was a result of the Judge’s exercise of his or her own discretion under s 106, notwithstanding the s 107 test had been applied in the appellant’s favour (which is not the case here).

Discussion

The law

[18] The discretion to discharge an offender without conviction is contained in s 106 Sentencing Act 2002, which provides:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

8 Lee v Police HC Auckland CRI 2005-404-28, 27 July 2005 at [15].

9 Summary Proceedings Act 1957, s 119(1).

10 _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

11 H (CA 680-2011) v R [2012] NZCA 198 at [30], [36].

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

[19] Section 106(1) states the court “may” grant a discharge (conferring a discretion), unless an enactment prescribes a minimum sentence.12 In granting a discharge, the court may nonetheless make any of the orders set out in s 106(3).

[20] Before the discretion in s 106 is engaged, the appeal must pass through the

‘gateway’ in s 107. That section provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[21] The leading Court of Appeal authorities on the application of ss 106 and 107 are Blythe v R13 and R v Hughes.14 Blythe is the more recent and corrects some aspects of Hughes.

[22] Both cases make it clear that the correct approach is to consider s 107 first.

That section provides the ‘gateway’ test, which has three steps:

_{(a) first, the court must consider the gravity of offending;}

12. There has been considerable jurisprudence at the High Court level about what “minimum sentence” means. It is not a relevant issue here.

13 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

14 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

(b) second, the court must consider the direct and indirect consequences of conviction; and

(c) third, the court must consider whether the consequences are “all out of proportion” to the gravity of offending.15

[23] Prior to Blythe, the position was thought to be that, when considering the “gravity of offending”, all relevant circumstances of the offence, the offending and the offender and the wider interests of the community (including all the factors set out in ss 7, 8, 9 and 10 of the Sentencing Act) could be taken into account.

[24] Blythe swept that aside, though in terms that contain some ambiguity. Specifically, the Court said:16

[11] That [open ended approach] appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10] is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite at [9]. Secondly, it does not reflect the court’s approach in reviewing the way in which Gendall J applied the s 107 disproportionality test.

[12] As was pointed out in Hughes at [10], the court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes at [38].

[25] The ambiguity arises from the fact that in this passage, the Court refers to s 9 in two ways; the first indicating that the factors listed there should all be included in

15. R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [13], Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12].

16 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [10] – [12].

the analysis relating to the gravity of the offence, and second, suggesting they should not.

[26] This ambiguity is resolved at [15]. There the Court applies the principles enunciated above to the facts in the case in the following way:

Step 1: the gravity of the offending

[15] Judge Inglis began by observing that this step required her to assess Mr Blythe’s overall culpability, including “such matters as a guilty plea, expressions of remorse, the Court’s assessment of how likely it is that the offender will re-offend and the victim’s perspective”. She cited two judgments of the High Court in support. (Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005; Vincent v Police [2007] DCR 277 (CA)). For the reasons we have explained, the Judge erred in her description of the scope of step 1, and the two High Court judgments are wrong in so far as they provide support. However, the Judge’s error is peripheral to this appeal.

[27] In this paragraph the Court excludes from consideration under “gravity of offending”, those personal factors (such as remorse, guilty plea and the prisoner’s risk of reoffending) contained in s 9(2) that do not go to culpability of the offending.

[28] In my view that is now to be treated as the correct approach to s 107. [29] I turn now to apply the three-step disproportionality test.

Gravity of the offending

[30] I agree with the sentencing Judge that the facts disclosed a moderately serious episode of dangerous driving causing injury. The factors lifting this offending into the moderate seriousness category are:

(a) high speed;

(b) driving through an intersection;

(c) the fact that this kind of driving continued for some time; (d) the injuries both to the appellant and Mr Rhodes;

(e) significant damage to vehicles and property.

[31] The offending involved high speed driving in a vulnerable urban context. The appellant is very lucky not to have killed or more seriously injured someone (or indeed himself).

[32] On the other hand it is also relevant that the appellant was suffering from a depressive episode of some kind at the time of driving. Though this is a factor personal to the offender, it clearly goes to his level of culpability and is a permissible consideration in terms of Blythe. He was in a distressed state after an argument with his parents. Two relevant reports as to the appellant’s mental wellbeing were provided. The reports each concluded that the appellant was not suffering from a mental illness sufficient to qualify for a defence of insanity but the psychiatrist Dr Pruchniewska concluded that he had “some mental impairment, especially shortly before the alleged offence, mainly distress and anger which he could not control and which could impair his judgment during the alleged offence”.

[33] The learned Judge took these matters into account in making her assessment. Like the learned Judge, I am not satisfied that his mental state at the time so robbed the appellant of free will, that his culpability was materially reduced. This was not borderline dangerous driving for which the balance could be tipped to low level seriousness as a result of the mental consequences of his argument with his parents. This was significantly dangerous driving with high levels of accompanying risk. It would, in my view, take much stronger evidence of mental incapacity to reduce the gravity of the offending from the initial assessment made by the Judge to a new assessment of low seriousness.

[34] There are no other factors going to gravity of the offending.

Direct and indirect consequences of conviction

[35] Mr Miller pointed to a number of factors argued to be consequential in terms of s 107, at least in an indirect sense:

(a) the appellant was unable to drive while on bail between February and

October;

(b) he lost his car in the accident;

(c) he still owed $12,000 and had to pay that off; (d) the significant injuries he suffered;

(e) the 94 hours of community work that he undertook.

[36] I do not see these as relevant consequences of a conviction – even indirectly. Rather, they are consequences of the appellant’s driving and the accident. The term conviction here is aimed at the direct or indirect effects of a criminal record, not of the behaviour itself. The only exception might be the bail condition precluding the appellant from driving for eight months, but that is a consequence of the charge not the conviction – not even indirectly, in the sense that I consider that word is employed in the section. That said, these matters are all very relevant to the Judge’s choice of sentence on conviction, and were duly taken into account at that phase.

[37] There are two principal consequences to Mr Lankshear of a conviction here. The first and most important is the risk of deterioration in his mental state given all the circumstances of his case. Those circumstances were summarised by the District Court Judge in her judgment and were set out extensively again in counsel’s very helpful submissions to me. The effect on Mr Lankshear’s mental health is a factor I have given most weight in terms of consequences of conviction.

[38] The second adverse consequence is an increased difficulty in finding employment. That consequence is more general in nature. Any convicted offender will suffer some difficulty in this regard. I have therefore afforded less weight to that.

Consequences out of all proportion to the gravity of offending?

[39] Balancing the two sides of the s 107 test, however, I have come to the clear view that the offending was simply too serious to warrant a discharge without conviction here. While I consider Mr Lankshear’s responses to the offending (in terms of drafting letters of apology and performing community work) are to be applauded and while I have taken into account his mental impairment to the extent I can (in terms of mitigating his culpability for the offending and as a particular consequence of conviction), the risk posed to the public by his offending was simply too great.

Conclusion

_{[40] The appeal must be dismissed accordingly.}

Williams J