Goldstone v Police [2014] NZHC 2529 (15 October 2014)

Last Updated: 4 January 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-321 [2014] NZHC 2529

BETWEEN	LYNDON GOLDSTONE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 October 2014
Appearances:	J C Harder for the Appellant L Mills for the Respondent
Judgment:	15 October 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 15 October 2014 at 1.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:...............................

Counsel/Solicitors:

J Harder, Public Defence Service, Auckland L Mills, Meredith Connell, Auckland

GOLDSTONE v NEW ZEALAND POLICE [2014] NZHC 2529 [15 October 2014]

[1] Mr Goldstone pleaded guilty in the District Court to one count of driving with excess blood alcohol (third or subsequent) and two charges of failing to comply with a prohibition (driving while disqualified). Judge Ryan sentenced him to 10 and a half months’ imprisonment and disqualified him from holding or obtaining a driver’s licence for 18 months. She made an order authorising him to apply for a zero alcohol licence once the disqualification was complete.

[2] Mr Goldstone appeals that sentence. In particular he says that the Judge was wrong not to commute his sentence of imprisonment to one of home detention.

Facts of the offending

[3] On 3 August 2013, Mr Goldstone was stopped by Police whilst driving. He was an unlicensed driver and was forbidden from driving until he obtained a current driver’s licence. The consequences of driving whilst forbidden were explained to him.

[4] At approximately 7.35pm on 11 November 2013, Mr Goldstone was driving on O’Donnell Avenue in Mt Roskill, Auckland. He was stopped by police at a breath test checkpoint. Mr Goldstone was tested and found to have 614 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms. He had still not obtained a current licence.

[5] On 13 February 2014, while on bail for the 11 November offending, Mr Goldstone again drove whilst forbidden. He was convicted and discharged for this offence.

District Court sentencing

[6] Judge Ryan noted that Mr Goldstone has 72 previous convictions, that this was his seventh drink-driving conviction, and that he had offended again while on bail. She recorded that Mr Goldstone’s last excess breath alcohol offence was in 2011 with a level of 561 micrograms per litre of breath. For this offence and a charge of burglary, he received a sentence of four months’ home detention and was disqualified from
holding or obtaining a driver’s licence for a year. The Judge noted that since then Mr Goldstone had failed to answer District Court bail.¹

[7] Judge Ryan considered the probation officer’s report, which assessed Mr Goldstone as being at medium to high risk of re-offending and a medium risk of harm to others, but which recommended a sentence of home detention. The Judge noted that Mr Goldstone had a significant leg injury, which his counsel had submitted would make imprisonment disproportionately severe.

[8] Mr Goldstone’s lawyer had signalled his client’s intention to reconnect with The Right Track programme after being exited because he missed a bus and arrived an hour late. The Judge was sceptical that he would have been exited without a prior warning, and noted that The Right Track had not provided anything to the Court confirming his reconnection, even though they knew he was being sentenced.

[9] The learned District Court Judge adopted a starting point of 12 months’ imprisonment. An uplift of four months’ was imposed to reflect Mr Goldstone’s extensive criminal history of similar offending and failures to abide Court directions.

[10] In terms of Mr Goldstone’s personal circumstances, the Judge said: ²

Your counsel submits that you have had a significant injury to your leg because you were run over and as a result you wear a moon boot, you have a mobility scooter and you have had surgery which he says has been unsuccessful. He says that further surgery has fused your bone but it has not been completely fused so further attention is required. Your counsel says that imprisonment will be unfairly disadvantageous to you given that situation.

[11] Although she had no evidence about Mr Goldstone’s current medical condition or involvement with The Right Track Programme, she was willing to allow a deduction of two months.

[12] After deducting 25 per cent for Mr Goldstone’s guilty plea, the Judge arrived at an end sentence of 10 and a half months’ imprisonment. In determining that home detention could not be the least restrictive outcome, the Judge expressed concern that

¹ For that offence he was convicted and discharged.

² New Zealand Police v Goldstone, above n 3, at [11].

Mr Goldstone’s breath alcohol in this offending was higher than in his last offending, for which he had served a sentence of home detention. She noted that he had shown poor compliance with community work and had twice breached court orders by driving whilst disqualified.

Grounds of appeal

[13] As I have said, Mr Goldstone appeals on the grounds that the learned Judge erred in principle by:

(a) not regarding home detention as a sentence that can adequately meet the purposes of deterrence; and

(b) not considering the impact of the overall sentence and in particular the disproportionate severity a sentence of imprisonment would have on a person with Mr Goldstone’s medical issues.

Further evidence

[14] Mr Goldstone sought leave to adduce further evidence in this appeal, namely:

(a) a letter from his general practitioner dated 16 September 2014, confirming that he has had unsuccessful surgery on his ankle and that prison would delay his recovery; and

(b) prison medical records, dated 17 September 2014;

[15] Just before the hearing Mr Harder filed a further letter from Mr Goldstone’s GP which said that:

Following his left ankle fusion, he was gradually rehabilitated, first by wearing a moonboot, then a referral to the Orthotic Centre for some orthotic inserts and a rocker bottom adjustment to his shoe. The orthopaedic surgeon

... also recommended a return to work program and assessment on 23/6/14. Unfortunately this was stalled as a result of his current imprisonment.

He would benefit from physiotherapy and occupational therapy in the community to help rehabilitate him back to work. I don’t think he had started on that yet prior to his current imprisonment.

He was last seen by me on 21/8/14. At the time his fused left ankle was still swollen, painful and he was unable to stand for any prolonged period of time. At the time he was still waiting for his special shoe and I am uncertain if he is still awaiting that. If he does, he would need a special trip to the Orthotic Centre.

[16] The Court may order the production of further evidence on an appeal against sentence if it considers that it is necessary or expedient in the interests of justice.³ The Court may only order new evidence if it is sufficiently fresh and sufficiently cogent. If the evidence could, with reasonable diligence, have been called at the trial, it would not qualify as sufficiently fresh.⁴

[17] At sentencing the District Court Judge noted that, while Mr Goldstone’s counsel said that earlier documentation relating to his medical history had been placed on the file, it appeared to have been lost (along with an earlier pre-sentence report). In any case, the Judge noted that out of date reports would not help her properly evaluate Mr Goldstone’s present position. She emphasised that there should have been an updated medical history before her, given that the last time Mr Goldstone had appeared was July (two months’ earlier). She said that there was a “disappointing absence of documentation” on his behalf.⁵

[18] It remains unclear to me why updating medical evidence was not filed at sentencing. I note, however, that in Fox v R the Court of Appeal allowed further evidence about Mr Fox’s mental health issues to be adduced on appeal against sentence.⁶ And as Duffy J recently noted, when further evidence goes to address certain evidential deficiencies in relation to sentence raised by a Judge, the evidence is often allowed to be adduced.⁷

[19] The Crown has not opposed Mr Goldstone’s request to adduce this further evidence. In light of Judge Ryan’s comments as to the inadequacy of current medical evidence before her, I consider that it is in the interests of justice to admit the doctor’s note and prison medical records.

³ Criminal Procedure Act 2011, s 335

⁴ R v Bain [2003] NZCA 294; [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22].

5. New Zealand Police v Goldstone DC Auckland CRI-2013-004-0125478, 12 September 2014 at [14].

⁶ Fox v R [2013] NZCA 577.

⁷ Denden v Police [2014] NZHC 1814 at [26].

Approach on appeal

[20] Section 250 of the Criminal Procedure Act 2011, states 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.

[21] In any other case, the Court must dismiss the appeal.⁸

[22] This section was not intended to change the approach taken by the courts under the former Summary Proceedings Act 1957.⁹ Accordingly, in order for the appeal to succeed, there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”. Such an error may be intrinsic in the reasoning or occur as a result of additional material submitted to the appeal Court.¹⁰

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

Appellant’s submissions

[24] Mr Harder does not challenge Judge Ryan’s starting point of 12 months’ imprisonment. The essence of his appeal is that in refusing to impose home detention, the Judge failed to “take into consideration or give sufficient weight” to Mr Goldstone’s medical condition in terms of s 8(h) of the Sentencing Act 2002 (the Act).¹¹

⁸ Criminal Procedure Act 2011, s 250(3).

⁹ Tutakangahau v R [2014] NZCA 279 at [26].

¹⁰ Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

¹¹ Section 8(h) requires the Court to take into account:

... any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.

[25] Mr Harder notes that the pre-sentence report of 20 August 2014 recommended home detention and noted that “there are currently no identifiable factors impeding Mr Goldstone’s ability to comply with any community based sentence”. Mr Harder, also points out that Mr Goldstone had gone to some lengths to obtain a suitable address for a sentence of home detention, moving from a caravan where the signal strength of electronic monitoring equipment was an issue, to a suitable flat.

[26] Mr Harder submits that the notes from Mr Goldstone’s GP confirm that a sentence of imprisonment adversely affects Mr Goldstone’s rehabilitation from his unsuccessful ankle surgery. He says that the prison records indicate his ongoing pain in the prison environment due to his injuries. It appears that Mr Goldstone only wears his moonboot while in his cell because it makes him feel vulnerable when mixing with the other prisoners.

[27] Finally, Mr Goldstone notes that he was assessed as being eligible to participate while on home detention in the Medium Intensity Rehabilitative Programme (MIRP) run by the Department of Corrections. That is a 150 hour module run for four hours, four days per week.

Respondent’s submissions

[28] The Crown submits that Judge Ryan made no error of principle. She was aware that the pre-sentence report recommended home detention and was clearly of the view that the appellant’s previous sentence of home detention had not deterred him nor aided his rehabilitation.

[29] The Crown says that, although the Judge did not specifically cite s 8(h) of the Act, she was clearly well aware of the appellant’s medical condition. Indeed she granted Mr Goldstone a discount of two months for it on the basis of the limited information she had about that.

[30] Lastly, Mr Mills noted that Mr Goldstone had not taken any steps to rehabilitate himself prior to his current imprisonment.

Discussion

[31] A court on appeal cannot substitute its own opinion for that of the sentencing Judge properly exercising her home detention discretion. In Doolan v R, the Court of Appeal emphasised:¹²

[38]... the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[32] The real issue on this appeal is therefore whether the new information provided on Mr Goldstone’s behalf is so powerful that it could now tenably said that the Judge was wrong not to order home detention. In particular, does that new information compel the view that a sentence of imprisonment would be disproportionately severe for Mr Goldstone?

[33] I necessarily accept that the physiotherapy which Dr Leow says is desirable will not be available to Mr Goldstone in prison. But against that is the point that he was not receiving physiotherapy and had not commenced the return to work programme at the time of his imprisonment, notwithstanding that his operation took place in February and the orthopaedic surgeon’s recommendation was made two months before his sentencing. Moreover, it seems he is not willing to wear his moonboot, despite having been advised to wear it when his ankle is painful.

[34] I also necessarily accept that home detention is a sentence that in some cases adequately serves the sentencing purposes of denunciation and deterrence. But equally, in R v McQuillan, the Court of Appeal noted that imprisonment is now the usual, if not quite inevitable, consequence of recidivist drink driving offending.¹³

[35] In the present case:

(a) Mr Goldstone has seven previous convictions for drink driving;

¹² Doolan v R [2011] NZCA 542.

¹³ R v McQuillan CA129/04, 12 August 2004 at [20].

(b) his breath alcohol level was higher this time than for his last drink driving offence (for which he was sentenced to home detention); and

(c) he drove while forbidden again whilst on bail for the current offending.

(d) The probation officer considered that he presented a high risk of further offending and a medium risk of harm to others.

[36] In these circumstances, I consider that the Judge was more than justified in finding that a sentence of home detention would not adequately serve the purpose of deterrence, and that there was no outcome open to her that was less restrictive than imprisonment.

[37] The appeal against sentence is dismissed accordingly.







Rebecca Ellis J