Hansch v Police [2014] NZHC 2438 (29 September 2014)

Last Updated: 31 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-241 [2014] NZHC 2438

JASON HANSCH

v

_{NEW ZEALAND POLICE}

Hearing:	29 September 2014
Appearances:	S Clark for the appellant N Small for the respondent
Judgment:	29 September 2014

_{ORAL JUDGMENT OF THOMAS J}

Solicitors:

Meredith Connell, Auckland.

Counsel:

S Clark, Auckland.

HANSCH v NEW ZEALAND POLICE [2014] NZHC 2438 [29 September 2014]

Background

[1] Mr Hansch appeals his sentence of nine months’ imprisonment and two years’ disqualification for driving while disqualified (third or subsequent) and driving with excess breath alcohol (third or subsequent). His appeal is on the ground that the sentence was manifestly excessive as the Judge failed to give sufficient weight to remorse and did not properly consider electronic monitoring.

Facts

[2] On 1 May 2004, Mr Hansch was convicted of driving while disqualified. On

26 April 2007 and again in 11 February 2013 he was convicted of the same offence. On 19 February 2014 he was stopped by police at just after 2 pm. His breath was found to contain 625 micrograms of alcohol per litre of breath. The drink driving charge was laid at the aggravated level given his previous convictions. He has a conviction from February 2013 where the level was 702, April 2007 where the level was 681, May 2004 where the level was 768 and August 2003 where the level 722. He also has a conviction from 2000 at the under 20 level.

District Court decision

[3] Mr Hansch was sentenced on 23 July 2014 in the Waitakere District Court. The Judge recorded that he would treat the driving whilst disqualified as an aggravating factor in coming to a starting point on the driving with the excess breath alcohol (third or subsequent). He noted the aggravating factors of Mr Hansch’s previous convictions. He noted that Mr Hansch had undertaken a CADS course, attended AA sessions, engaged a counsellor, and was in full employment. His family was supportive of him. The pre-sentence report writer had recommended a sentence of intensive supervision, community detention and community work. The Judge referred to the relevant purposes and principles of sentencing and concluded that a sentence of imprisonment was the least restrictive outcome.

[4] He had taken a starting point of 12 months’ imprisonment on the excess

breath alcohol charge. He allowed a 25 per cent discount for the early guilty plea

and concluded that the final sentence should be a sentence of nine months’ imprisonment. Standard release conditions were imposed but it does not appear that any special conditions were imposed. Mr Hansch was disqualified from holding or obtaining a driver licence for a period of two years and a zero alcohol licence was also imposed.

Appellant’s submissions

[5] Mr Clark appears for Mr Hansch today. Although in his written submissions there was some reference to whether the starting point of 12 months’ imprisonment was too high, fairly Mr Clark acknowledged that it was within range, particularly when the driving whilst disqualified (third or subsequent) was factored in. He did refer to the decisions of Tinei v Police,¹ Bidois v Police² and, Drummond v Police.³

Mr Tinei was sentenced to six months’ home detention for his seventh driving with

excess breath alcohol at a level of 945 micrograms per litre of breath and driving while disqualified, having been previously given a final warning. Asher J on appeal considered that 12 months’ was an appropriate starting point and six months’ home detention was within range. Bidois v Police concerned an appeal against 12 months’ imprisonment for a fifth drink driving charge. That was reduced to six months’ on appeal, the Judge noting that the appellant was entitled to “a significant discount” for his guilty plea, remorse, and steps taken to address his alcohol dependency. In Drummond v Police, a sentence of eight months’ imprisonment for excess breath alcohol at a level of over 1,000, dangerous driving, failing to stop, and driving while forbidden was upheld. The District Court Judge had taken a starting point of six months’ imprisonment uplifted by three months to take into account other offences.

[6] The real force of Mr Clark’s submissions was that no consideration or discount was given for Mr Hansch’s personal circumstances and remorse. His steps in attending Community Alcohol and Drug Treatment, the AA and attempts to be accepted into the Alcohol and Drug Treatment Court should have qualified Mr

_{Hansch, in Mr Clark’s submission, to a discount for remorse.}

¹ _{Tinei v Police [2012] NZHC 2003.}

² _{Bidois v Police HC Hamilton CRI 2006-419-123, 1 November 2006.}

³ Drummond v Police [2013] NZHC 2573.

[7] In Mr Clark’s submission the sentencing Judge also failed properly to consider electronic monitoring. He said that he needed to impose the least restrictive outcome but did not, in Mr Clark’s submission, address in reality whether electronic monitoring would have achieved the purposes and principles of sentencing.

Respondent’s submissions

[8] The respondent submitted that the starting point was well within range noting in particular Mr Hansch’s driving record. Ms Small referred not only to Tinei but also to McCrae v Police⁴ where a starting point of 14 months’ imprisonment on a sixth drink driving conviction was taken and the end sentence was 12 months’ imprisonment.

[9] In Ms Small’s submission it was clear that the Judge did consider Mr Hanch’s personal circumstances. He noted the steps he had taken but came to the conclusion that they were not convincing given this was his sixth drink driving conviction.

[10] Ms Small also submitted that the Judge obviously did consider the possibility of electronic monitoring but concluded that imprisonment was the least restrictive outcome.

Appeal against sentence

Approach to appeal

[11] Section 250 of the Criminal Procedure Act 2011 states 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.}

⁴ McCrae v Police [2012] NZHC 2008.

[12] In any other case, the Court must dismiss the appeal.⁵ This section effectively confirms the approach taken by the courts under the Summary Proceedings Act

1957.

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

Case law

[14] As I have already outlined, I have considered the cases referred to by counsel in their submissions. I have also considered other cases such as Dick v Police⁶ and Meredith v Police,⁷ and have taken into account the guidance in the Hughes decision.⁸ I do not intend, however, to traverse the circumstances of those cases in any more detail than I have already done given the acknowledgement by Mr Clark,

quite properly in my view, that the starting point of 12 months’ imprisonment was within range. The real issues to be addressed are whether Mr Hansch should have received a discount for the steps he had taken since the offending to rehabilitate himself and whether electronic monitoring was properly addressed by the sentencing Judge.

Rehabilitation

[15] The Judge said:

I do note that you have however, undertaken eight weeks of CADS courses and also attended AA sessions and engaged with a counsellor to address personal issues. I take that into account. I also noted that you are now in full employment and that is very much to your credit. You have indicated a desire to undertake options in terms of counselling and drink-driving programmes, that too is a good observation.

[16] I want to address at this stage the pre-sentence report. That noted that Mr Hansch had applied to be accepted into the Alcohol and Drug Court. He was declined, it says in the pre-sentence report, as he was not considered a suitable

_{candidate but it is necessary to put that comment into some context. I think the point}

⁵ _{Criminal Procedure Act 2011, s 250(3).}

⁶ _{Dick v Police [2014] NZHC 434.}

⁷ _{Meredith v Police HC Auckland CRI-2010-404-157, 19 July 2010.}

⁸ Hughes v R [2012] NZCA 388.

is better expressed by saying that his problems were not perceived as being serious enough to require acceptance into that Court. What happened, however, is that certain recommendations were made by the psychologist who considered Mr Hansch’s application. The psychologist recommended Mr Hansch engage in an 8 –

12 week intensive outpatient programme, that he attend AA meetings, complete the programme for recidivist drink drivers and undertake any other counselling. Indeed, it is those issues which were not only addressed by him but also suggested by the Community Probation Service as conditions to an intensive supervision sentence to accompany a sentence of community detention.

[17] Mr Hansch’s willingness to engage in such programmes was addressed in the pre-sentence report. The writer clearly assessed such motivation as genuine given the recommendation that was made. The writer also addressed, under the heading domestic and cultural circumstances, the personal issues revealed to the writer of the report by Mr Hansch, which he had discussed when he had undertaken some counselling. Clearly he had suffered some traumatic events when he was a young boy. His domestic or family situation certainly meant he started on the back foot when it came to dealing with alcohol and drugs.

[18] After acknowledging the steps taken by Mr Hansch, no discount was given for remorse or his engagement in rehabilitation. The only discount was the 25 per cent for the guilty plea. The Supreme Court has, of course, in the Hessell v R decision held that separate discounts should be given for remorse and a guilty plea.⁹

The Supreme Court said:¹⁰

Where remorse is shown by the defendant in such a way [that is, where after a robust and proper evaluation of it, the assessment is that remorse is genuine] sentencing credit should properly be given separately from that for the pleas.

[19] I am satisfied that a proper robust evaluation of all the circumstances demonstrates that Mr Hansch was genuinely remorseful and he should have received a discount for that. Two months in my assessment would have been an appropriate

_{reduction in the circumstances. The reduction should, of course, have been made}

⁹ _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607}

¹⁰ At [64].

prior to the 25 per cent discount for a guilty plea. The issue however remains whether the sentence was manifestly excessive. It is at this point that I will turn to a discussion on home detention.

Home detention

[20] The Court of Appeal has said on numerous occasions that a home detention sentence is a deterrent one.¹¹ It has said that the closer the sentence is to the two year maximum the more likely home detention will be inappropriate and the lower the appropriate prison sentences the more likely home detention will be appropriate.¹² The onus is on the appellant to establish that the sentencing Judge acted on a wrong principle, took account of an irrelevant consideration, failed to take into account a relevant consideration or plainly was wrong.¹³ As the Court of Appeal noted in the case of Osman v R a sentence of home detention is still holding the offender accountable and sending a signal of deterrence.¹⁴

[21] I accept the submission on behalf of Mr Hansch that the Judge’s decision on home detention or indeed electronic monitoring at all is unclear. It is not clear from his sentencing notes whether he took into account the relevant consideration that home detention is a real alternative to imprisonment and carries with it in considerable measure the principles of deterrence and denunciation.

[22] The Judge did note that the recommendation of the pre-sentence report was intensive supervision, community detention and community work. He acknowledged the steps that the appellant had taken, the fact that he was in employment, had engaged in counselling and with the AA for the first time.

[23] When Mr Hansch’s criminal history is analysed it is clear that he has never in the past been subject to an electronically monitored sentence nor, despite his extremely poor history of drink driving, has he ever been sentenced to a sentence

_{with a rehabilitative focus. That is a shame.}

¹¹ _{Osman v R [2010] NZCA 199; R v Iosefa [2008] NZCA 453 at [41].}

¹² _{Manikpersadh v R [2011] NZCA 452 at [22].}

¹³ _{James v R [2010] NZCA 206.}

¹⁴ Osman v R, above n 11.

[24] Furthermore, although Mr Hansch was sentenced to imprisonment in respect of his most recent conviction for drink driving in 2013, that sentence was concurrent with a sentence for assault. It is not clear how that sentence was constructed in the circumstances.

[25] It is notable however, as I say, when considering the hierarchy of sentencing and given Mr Hansch’s history of drink driving, that he has never received either a rehabilitative or an electronically monitored sentence. Although the sentencing Judge said that he had to impose the least restrictive outcome and one with some rehabilitative value, it is not evident from his sentencing notes that he gave consideration to an electronically monitored sentence or considered rehabilitative sentencing. There are no special release conditions attached to the sentence of imprisonment to address counselling.

[26] For those reasons I am satisfied that the appeal must succeed.

Outcome

[27] Mr Hansch was sentenced to nine months’ imprisonment. He has already served over two months. In a short sentence of imprisonment, that is anything two years or under, half the sentence is served.

[28] Given that I am allowing the appeal, I will consider the appropriate construction of his sentence. I take a starting point of 12 months’ imprisonment and there is no dispute with that. In respect of remorse and Mr Hanch’s rehabilitative efforts I give a discount of two months resulting in a sentence, before the credit for the guilty plea, of 10 months. After full credit for the guilty plea is given, the result is a sentence of seven and half months’ imprisonment.

[29] That means that Mr Hansch would be released after three and three quarter months and he has, as I say, already served two months. The effect of all of this is that Mr Hensch has under two months’ imprisonment to serve. Against all of that however, Mr Clark has confirmed that he seeks a sentence of electronic monitoring and a sentence which is focused on rehabilitation.

[30] I agree that, had no sentence of imprisonment been served, then home detention might well have been the end result. However given what he has served to date, in my assessment, the proper sentence is a sentence of six months’ community detention coupled with 12 months’ intensive supervision. The conditions of the intensive supervision shall be those in the pre-sentence report. In many ways this results in a harder sentence for Mr Hansch. It will last for longer than if he simply served out his remaining time. It will require him to work hard in terms of rehabilitation. To his credit that he has effectively asked for this and one can only hope that a focus on rehabilitation will finally mean the end to his drink driving.

[31] I decline to interfere with the period of disqualification or of course with the mandatory zero alcohol licence.

Thomas J