Munn v Police [2014] NZHC 2309 (23 September 2014)

Last Updated: 16 October 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-021 [2014] NZHC 2309

BETWEEN	REO REBECCA MUNN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 September 2014
Counsel:	K M Marriner for appellant B C Sweetman for respondent
Judgment:	23 September 2014

_{RESERVED JUDGMENT OF DOBSON J}

Introduction

[1] Ms Munn pleaded guilty to one charge of driving a motor vehicle with an excess breath alcohol level of 985 micrograms. This is her seventh conviction for driving with excess breath alcohol (in addition to one conviction for refusing to provide a blood specimen).

[2] Ms Munn was sentenced by Judge Roberts in the Hawera District Court on

16 July 2014 to 12 months’ imprisonment.¹ She has appealed that sentence on the basis that the Court gave insufficient weight to mitigating factors, and the positive prospects for rehabilitation. On appeal, it was argued that a sentence of home

_{detention was appropriate.}

¹ _{New Zealand Police v Munn DC Hawera CRI-2014-021-298, 16 July 2014.}

MUNN v POLICE [2014] NZHC 2309 [23 September 2014]

Facts and previous history

[3] Ms Munn is a 50 year old solo mother. She was uncooperative and abusive when apprehended by Police at 6.50 pm on 11 April 2014. She has 108 prior convictions, including an extensive history of relevant offending:

(a) January 1982: excess breath alcohol;

(b) March 1992: two convictions for driving with excess blood alcohol in

October and December 1991;

(c) November 1992: unlicensed driving with excess breath alcohol;

(d) January 1997: excess breath alcohol – also convicted in relation to this incident of careless or inconsiderate driving causing death or injury on a road;

(e) January 2009: excess breath alcohol; and

(f) April 2009: refusal to provide blood specimen (sentenced to

10 months’ imprisonment).

[4] There have also been convictions for refusing to accompany an enforcement officer and assaulting Police and traffic officers in the execution of their duty.

The District Court Decision

[5] Judge Roberts noted the details of the present offending, Ms Munn’s lengthy criminal history, her re-engagement with alcohol and drug counselling and her numerous opportunities for rehabilitation. The Judge also noted that Ms Munn had responded well to her last sentence of community work.

[6] Having regard to the very high level of breath alcohol, the proximity of her last conviction and the lack of deterrence of earlier sentences, the Judge adopted a starting point of 10 months’ imprisonment. The Judge elevated this by six months to reflect Ms Munn’s previous relevant convictions and “to a lesser degree” her

“appalling traffic history”. The end sentence of 16 months was reduced to

12 months to reflect Ms Munn’s guilty plea.

[7] The Judge considered that home detention was not appropriate given the serious and repeated nature of Ms Munn’s offending and the ineffectiveness of rehabilitative processes.

Submissions on appeal

[8] For Ms Munn, Ms Marriner submitted that the Judge gave insufficient weight to Ms Munn’s re-engagement with alcohol and drug counselling, her engagement with social services, her positive response to a previous sentence of community work and to the recommendation of home detention in the pre-sentence report. Ms Marriner submitted that Ms Munn has started the process of breaking the cycle of offending by relocating with her family to Whanganui. In particular, Ms Marriner submitted that the uplift of six months was excessive.

[9] Attached to Ms Marriner’s submissions was a letter from Mr Bayne, a Hawera resident who has had some involvement with Ms Munn and her children through his church. Mr Bayne speaks positively of Ms Munn and her chances of rehabilitation.

[10] Ms Marriner advised orally that Child, Youth and Family Services (CYFS) had been in touch with her office on the morning of the appeal to advise that the placement of Ms Munn’s daughter in Whanganui since the sentencing had not worked, and that CYFS have now taken that child into care. Ms Marriner advised that the daughter in question only does well when she is in her mother’s care, so that continuation of the prison sentence would cause additional hardship for Ms Munn’s family.

[11] For the Police, Ms Sweetman submitted that the Judge had correctly identified the relevant considerations on sentencing, and that no error could be made out so that there was no justification for altering the sentence imposed.

[12] Ms Sweetman submitted that even if the six months’ uplift applied for previous convictions could be criticised as being severe, the end sentence was nonetheless still clearly within the appropriate range for what was effectively an eighth drink driving conviction. She suggested that the starting point could well have been 12 months instead of 10.

[13] Given Ms Munn’s appalling driving history, it would arguably dent the deterrent message necessarily required on such sentencings if potential offenders, with as bad a history as Ms Munn’s, thought they could avoid a custodial sentence. Ms Sweetman urged that there was a legitimate consideration in terms of public safety because Ms Munn was a driver who posed a real risk to other road users.

[14] Ms Sweetman also denied that a prison sentence should be seen as depriving Ms Munn of all rehabilitative features, given that she will be able to access rehabilitative programmes whilst in prison.

[15] As to the new information suggesting that Ms Munn’s daughter had been adversely affected by the forced separation from her mother, Ms Sweetman suggested that more detailed and compelling evidence would be required before the additional consideration of hardship to a child could make a material difference to the re-evaluation of the sentence on appeal.

Advice from the Department of Corrections

[16] The Probation Officer’s recommendation on sentencing was for a sentence of home detention. Realistically, Ms Munn acknowledged to the officer that she was aware that a sentence of imprisonment was likely. At that time, Ms Munn was resident in Patea but had applied for a Housing New Zealand property in Whanganui, where she would be able to reside with her three children aged 11 and 12.

[17] In an updated memorandum dated 18 September 2014, the Probation Officer questioned the appropriateness of the new address now proposed in Whanganui because electricity was not being supplied to it, the property was on the market for sale, and there was minimal cell phone coverage at the address meaning that a landline would need to be installed for effective monitoring. For those reasons,

Community Probation could not recommend a sentence of home detention at the proposed address.

[18] Ms Marriner did not accept the negative concerns identified in this last report. She advised that the proposed address is owned by a supporter of Ms Munn, that electricity can readily be reconnected, and that if the property does sell, then Ms Munn would be given two months’ notice, which Ms Marriner described as more than adequate time for Housing New Zealand to find alternative accommodation for her.

Standard on appeal

[19] Section 250 of the Criminal Procedure Act provides that the Court must allow the appeal if satisfied that:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed.

[20] In any other case the Court must dismiss the appeal. Section 250 confirms the approach taken, for example, in Yorston v Police where the Court said:²

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an ‘error principle’.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[21] Further, the High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

² Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

[22] The decision not to impose home detention involves the exercise of discretion and therefore the question is whether Judge Roberts applied an incorrect principle, failed to take into account a relevant factor, or took into account an irrelevant one, or was plainly wrong.

Analysis

[23] In my view, the combined starting point of 16 months’ imprisonment was readily justified. This was effectively Ms Munn’s eighth conviction for driving with excess breath alcohol.³ Ms Munn received a sentence of 10 months’ imprisonment in 2009 and has offended again. The end sentence of 12 months’ imprisonment was within the range available to the Judge.

[24] Recidivist drink drivers present District Court Judges with their own range of difficult sentencing considerations. Deterrence, both of the offender and of others, justifiably ranks high among the relevant considerations. As Ms Sweetman suggested in this appeal, something very special is needed for personal circumstances of a person being convicted for what is effectively the eighth time to justify any form of non-custodial sentence as sending an adequate deterrent signal.

[25] In this sentencing, the Judge included the following comments:⁴

... If you take nothing else from this appearance today Munn you are to take with you the clear and uncomplicated warning I provide. You will be imprisoned each time, each and every time from this point onward when you are convicted of drinking and driving.

[26] With respect, it was inappropriate for the sentencing Judge to suggest that a proper sentencing discretion would not be applied on any subsequent occasion when Ms Munn finds herself before the Court for any subsequent offending of the same type. Comments such as the one I have quoted cannot in any way fetter the discretion that a judge would need to exercise in any subsequent sentencing.

_{However, the sad reality is that, absent extremely unusual mitigating circumstances,}

3. Treating the conviction for refusing to provide a blood specimen as such a conviction, which is contemplated by s 60 of the Land Transport Act 1998.

⁴ Police v Munn, above n 1, at [8].

a custodial sentence is more than likely the only realistic alternative for such offending.

[27] I have reflected on the weight that can reasonably be given to the new factor raised by Ms Marriner, namely the difficulties caused by separation from Ms Munn for her daughter. That is most unfortunate, but it is a variation in degree on the extent of dislocation and unhappiness that generally accompanies a prison sentence being imposed on a mother who has custody of relatively young children. It is not a factor that can be given sufficient weight to alter what was otherwise an entirely appropriate decision as to whether to substitute the prison sentence with a term of home detention.

[28] Nor can there be any criticism that the sentencing Judge did not have appropriate regard to all the personal circumstances that might have justified transposing a prison sentence into one of home detention, if the circumstances of the offending had not required so firm a deterrent signal.

Conclusion

[29] I dismiss the appeal.

Dobson J

Solicitors:

Parker & Marriner, Hawera for appellant

Crown Solicitor, New Plymouth for respondent