Innes v Police [2014] NZHC 1596 (9 July 2014)

Last Updated: 1 August 2014

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-1221 [2014] NZHC 1596

BETWEEN	KATY ANN INNES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 July 2014 (Heard at Wellington)
Counsel:	J A Herd for appellant E J Riddell for respondent
Judgment:	9 July 2014

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Katy Ann Innes, pleaded guilty to charges of driving under the influence of drink or drugs (third or subsequent),¹ careless use of a motor vehicle,² and driving with excess breath alcohol (third or subsequent).³ Ms Innes was sentenced by Judge Zohrab in the District Court at Nelson on 30 May 2014 to nine months’ imprisonment.⁴ Home detention was declined.

[2] Ms Innes now appeals against that sentence. She does not challenge the term of imprisonment, but rather the Judge’s decision to decline to commute that sentence of imprisonment to one of home detention.

¹ _{Land Transport Act 1998, s 58.}

² _{Land Transport Act 1998, s 37.}

³ _{Land Transport Act 1998, s 56.}

⁴ _{Police v Innes DC Nelson CRI-2014-042-000483, 13 May 2014.}

INNES v POLICE [2014] NZHC 1596 [9 July 2014]

Ms Innes offending – the facts

[3] The charges Ms Innes faced reflected separate incidents of driving on

19 November 2013 and 26 February 2014.

[4] On 19 November 2013, Ms Innes was driving a Holden Commodore car on a street in Nelson. She failed to make a left hand turn, collided with the kerb on the incorrect side of the road and came to rest on the pavement. There were a large number of pedestrians in the area, including children who were walking home from school. Ms Innes then accelerated away. Approximately 10 to 15 minutes later Ms Innes arrived back at that location. She accelerated extremely heavily, lost control and side swiped the side mirrors of two parked cars. A concerned resident stopped Ms Innes and demanded that she park and get out of the car. Ms Innes was described as being spaced out, vacant and incapable of controlling a car. Ms Innes stated that she could not stop, and drove off. The witness observed that Ms Innes had completely blown a tyre and was driving on the rim.

[5] The police located Ms Innes’ vehicle sometime later. Ms Innes’ daughter was sitting in the driver’s seat. Ms Innes’ daughter went through the drink-drive procedures and was tested as having 1072 micrograms of alcohol per litre of breath. She maintained that she was the driver. It was then established that Ms Innes’ daughter was disqualified. Whilst Ms Innes’ daughter was being processed, Ms Innes arrived at the Nelson Police Station. Ms Innes was said to be smelling of alcohol, having bloodshot eyes, slurring her words and unable to stand up properly. After some time, including a further unsatisfactory exchange between Ms Innes and the police, Ms Innes acknowledged that she had in fact been the driver. That was confirmed by a witness.

[6] Ms Innes says that she was not under the influence of alcohol, but of prescription medication and that she was having a panic attack.

[7] On 26 February 2014, whilst on bail, Ms Innes was stopped whilst driving and breath tested as having 654 micrograms of alcohol per litre of breath. Ms Innes stated she had had about eight beers during the day, and thought she was okay to drive.

[8] Ms Innes has long-standing alcohol problems reflected in her lengthy criminal and traffic history. Earlier in life, Ms Innes also had drug dependency problems. More recently Ms Innes has been affected by the fact her 21 year old daughter’s partner was the victim of a murder. The stresses that event have placed on the family group have exacerbated Ms Innes’ drinking problem. She was, at the time of this offending living with her four children, aged 21, 19, 11 and 6. Ms Innes slept in a garage, whilst her four children lived in the three bedroom dwelling above the garage.

[9] Electronic monitoring was considered to be technically viable but a sentence of home detention was not recommended by the Department for Corrections. The pre-sentence report noted that police did not object to the proposal, but that the Child, Youth and Family Service were not supportive. Reference was made to a pending Family Group Conference focussed on “substantial emotional abuse and neglect” of the younger children as a result of the drinking and partying activities of Ms Innes and her adult children.

The challenged sentencing decision

[10] In sentencing Ms Innes the Judge was required to balance three considerations:

(a) the circumstances of the offending for which Ms Innes was being sentenced;

(b) Ms Innes’ record of driving offences, breaches of court orders and

disorderly behaviour offending, reflecting a drinking problem; and

(c) Ms Innes’ personal circumstances.

[11] The Judge noted that the incident on 19 November 2013 posed a serious risk of harm to others, particularly children, and involved speed and gross carelessness. The incident on 26 February 2014 was less serious, but troubling because it occurred relatively soon after Ms Innes was charged for the November incident.

[12] In terms of previous offending, the following convictions from Ms Innes’

criminal and traffic history are relevant:

(a) 1989: unlicensed person driving with excess breath alcohol; (b) 1989: operating a vehicle carelessly;

(c) 2000: driving with excess breath alcohol (1010); (d) 2001: driving whilst disqualified;

(e) 2004: incapable/unlicensed driver failing to comply with prohibition

(x 2);

(f) 2005: driving with excess breath alcohol (third or subsequent x 2) and driving whilst disqualified;

(g) 2006: operating a motor vehicle recklessly;

(h) 2006: driving whilst disqualified (third or subsequent);

(i) 2010: driving with excess breath alcohol (third or subsequent).

[13] There are, in addition, two relatively recent (2010) breaches of a community detention sentence imposed for a range of offending, including driving with excess breath alcohol (third or subsequent), and a number of other instances where Ms Innes has failed to comply with Court orders.

[14] Ms Innes has, in the past, been sentenced to imprisonment with respect to drink driving offending, with leave granted to apply for home detention. I was advised that Ms Innes had been granted home detention in the past.

[15] With reference to the decision of this Court in Clotworthy v Police,⁵ the Judge fixed starting point sentences for the two separate incidents of drink driving of eight and six months’ imprisonment respectively, and then reduced the overall starting point sentence to 12 months’ imprisonment by reference to totality. Ms Innes was entitled to a credit for her guilty plea of 25 per cent, which resulted in the end sentence of nine months’ imprisonment.

[16] Home detention was considered, but declined.

Case on appeal

[17] In arguing this appeal for Ms Innes, Ms Herd submitted that the issues the Child, Youth and Family Service may have had, referred to in Ms Innes’ pre-sentence report, were not directly relevant to Ms Innes’ sentencing. Moreover, no Family Group Conference had taken place and, other than keeping a watching brief, Child, Youth and Family were not actively involved with Ms Innes’ children at the present time.

[18] Put simply, the sentence of imprisonment was too harsh. The Judge had failed to give proper weight to the accepted deterrent value of sentences of home detention and the rehabilitative potential for Ms Innes of such a sentence. Given that the police did not oppose a sentence of home detention, that such a sentence had rehabilitative potential, and that it would enable Ms Innes to assist with the care of the two younger children, whilst her eldest daughter was coping with the trial of her partner’s alleged murderer, home detention was the appropriate sentence.

[19] For the police, Ms Riddell supported the Judge’s reasoning. He had clearly considered the possibility of home detention, and the factors that counted both for and against that sentence. In Ms Innes’ circumstances, the need for deterrence and protection of the community outweighed the personal circumstances of Ms Innes which, Ms Innes argued, made home detention the appropriate sentence.

Analysis

[20] The Court of Appeal stated in James v R that:⁶

... an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his [or her] sentencing discretion: that is, did he [or she] apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he [or she] plainly wrong?

[21] When considering the possibility of commuting Ms Innes’ sentence to one of

home detention the Judge observed:

[20] When I consider that you were dealt with on the last occasion by way of a merciful sentence, when I consider your history of repeat drink- drive, your breaches of community-based orders and your breaches of community detention I can have no confidence that anything other than prison is the appropriate response. I can have no confidence that you would comply with the conditions of an electronically monitored sentence. Also I can have no confidence that it would meet the aims and objectives of sentencing, particularly to deter you and others from repeatedly drinking and driving.

[22] I am not persuaded that the Judge has erred in any relevant way in reaching his decision. He was aware of, and referred to, Ms Innes’ personal circumstances at [8] to [12] of his sentencing notes. Given the careful way he recorded those matters, I do not think it is possible to argue that he failed to consider them. He had regard to the significance of Ms Innes’ previous convictions. He was also aware that Ms Innes had received a non-custodial sentence for similar offending in the past, and that that sentence had not promoted her rehabilitation or deterred her. In my view the Judge did not take account of any irrelevant consideration and, finally, cannot be said to be plainly wrong.

[23] Although the police did not oppose home detention, the Judge was required to reach his own view on that matter, which he did.

[24] I therefore dismiss Ms Innes’ appeal.

[25] I note one further matter.

[26] For the respondent, Ms Riddell noted in her written submissions that the Judge was in error in having sentenced Ms Innes to an indefinite disqualification from holding a licence. This matter was not referred to by counsel at the hearing of the appeal before me. In her written submissions, Ms Riddell said that s 65(4) of the Land Transport Act 1998 did not apply because convictions were entered at the same time for the two separate incidents of driving offending. I do not consider it satisfactory to leave this matter outstanding. Ms Riddell should file a further

memorandum as to how that matter should now be dealt with. If Ms Herd concurs, I

will deal with it on the papers.

“Clifford J”

Solicitors:

Zindels, Nelson for appellant

Crown Solicitor, Nelson for respondent