Bailie v Police [2015] NZHC 3017 (1 December 2015)

Last Updated: 14 December 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000033 [2015] NZHC 3017

BETWEEN	LYNNE MARY BAILIE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 November 2015
Appearances:	D McCaskill for the Appellant R D Smith for the Respondent
Judgment:	1 December 2015

_{JUDGMENT OF NATION J}

[1] At around 1.45 am on 29 March 2015, Ms Bailie was driving her car in Dunedin. The section of road on which she was driving has a sealed surface with a flat gradient and a speed limit of 50 kph. At the time, the road surface was wet from heavy rain. While navigating a left-hand bend, Ms Bailie lost control of her vehicle, crossed the centre line and crashed into the roadside barrier. She then crossed back into the left-hand lane where her vehicle came to a stop after crashing into a power pole. At the time, her nine year old autistic son was in the vehicle with her. Police officers’ attended shortly after the crash. Ms Bailie confirmed to the police that she was the driver of the vehicle. She had a cut to her forehead which was bleeding. One of the officers observed that there appeared to be “blood all over” the driver’s side airbag. A blood test eventually taken at the police station established that she

_{had 138 milligrams of alcohol per 100 millilitres of blood.}

BAILIE v POLICE [2015] NZHC 3017 [1 December 2015]

[2] Ms Bailie defended charges of driving with excess blood alcohol and careless driving on the basis that someone else had been driving the car. The Judge found the charges proved.¹

[3] On the blood alcohol charge, Judge Ingram sentenced Ms Bailie to 150 hours’

community work and disqualified her from holding or obtaining a drivers licence for

18 months.² She was also ordered to pay $285 for blood test costs, to be paid off at

$10 per week. On the charge of careless use, Ms Bailie was disqualified from holding or obtaining a drivers licence for 18 months. She was also sentenced to pay reparation of $3,685 at $10 per week. Ms Bailie has appealed against the sentences imposed.

[4] An appeal must be allowed if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. This Court must dismiss the appeal in any other case.³ To allow an appeal, I must be satisfied that the sentence originally imposed was manifestly excessive.⁴

[5] The grounds for the appeal as set out originally were:

i. the sentence of 150 hours’ community work was manifestly excessive and inappropriate having regard to Ms Bailie’s circumstances;

ii. the appropriate sentence was a fine;

iii. the 18 months’ disqualification was manifestly excessive;

iv. the order for reparation of $3,685 on the careless driving charge was wrong because there had been no break-down of how the figure was calculated; and

v. a sentence of 18 months’ disqualification on the careless use charge was manifestly excessive.

¹ _{Police v Bailie [2015] NZDC 19509.}

² _{Police v Bailie [2015] NZDC 19656.}

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

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[6] As a result of discussions between counsel, the Court was asked to obtain a pre-sentence report before the appeal was heard, with appendices so that the High Court could consider the appropriateness or otherwise of a community-based sentence. Mander J directed that such a report be obtained. He also directed that more information should be obtained as to Ms Bailie’s son’s ASD issues.

[7] Since then, there have been various developments which have significantly impacted the issues which I need to consider.

The pre-sentence report

[8] The report from the Department of Corrections informed me:

• Ms Bailie continued to assert she was not the driver of the vehicle;

• she was appealing her sentence because of her dispute with all the inaccuracies in the police summary of facts;

• she disputed the reparation which was referred to in that report;

• sentences for previous offending had predominantly involved fines but on one occasion supervision for one year had been imposed and she had met the requirements of that sentence;

• her likelihood of reoffending and risk to others was assessed as low based on her past offending history;

• Ms Bailie asserted she was the sole carer and parent of her severely disabled nine year old child, she had no professional, community or familiar support available to her for caring for her child and this raised questions around her ability to comply with any community-based sentence;

• a sentence of supervision could be considered, not in relation to offending-related factors but because it might provide a means of obtaining support for her in caring for her son;

• Ms Bailie would not agree to any electronically monitored sentence because of the way this could impede the way she cared for her son; and

• 250 hours of community work were available for consideration.

Substitution of a community-based sentence

[9] In written submissions filed for Ms Bailie, Mr McCaskill argued that this was a case where an order should have been made pursuant to s 94 of the Land Transport Act 1998. He submitted that community detention should have been imposed instead of disqualification because of her particular circumstances and the needs of her nine year old son.

[10] Given Ms Bailie’s response to the possibility of electronic monitoring, community detention could not be available as an alternative to a sentence of disqualification pursuant to s 94 of the Land Transport Act. Mr McCaskill thus did not pursue that option which had been highlighted in his written submissions.

[11] Mr McCaskill also told me that Ms Bailie had applied for a limited licence to avoid the undue hardship which would result to her son if she was not able to drive him to and from school or for other foreseeable requirements. Mr McCaskill explained that the application dealt with his transport needs which could reasonably be anticipated but not with the unexpected or extraordinary. Although the application had not been dealt with, he said the police had indicated they would not be opposing the application on the terms sought.

[12] I thus deal with the issues on this appeal on the basis that the son’s transport needs can be met through the relief which Ms Bailie will obtain through a limited licence rather than through any variation to the disqualification which might be obtained through a successful appeal.

Reparation

[13] Mr McCaskill also indicated to me that there was now no appeal against the order for reparation which was made by Judge Ingram.

Community work

[14] Mr McCaskill did not withdraw the submission that a fine should have been imposed instead of community work. At the time of sentencing, Ms Bailie’s then counsel had told the Judge that, with regard to reparation, she would be able to pay

$10 per week. Counsel gave that advice after she had spoken to Ms Bailie. Mr McCaskill told me that Ms Bailie’s income was from a benefit. Given that she is required to pay reparation of $3,685, I do not consider a fine was reasonably available as a sentence in addition to disqualification at the time Ms Bailie was sentenced. I do not consider it is a sentence which is reasonably available for me to consider now as an alternative sentence.⁵

Ms Bailie’s aggression

[15] A reality I have to deal with in considering issues on this appeal is Ms Bailie’s strong tendency to be aggressive in her interaction with others in a way that alienates them and provokes a reaction which causes more problems for her. She had convictions for assault and aggravated assault going back to 2007. She was abusive towards the police and also abused and threatened ambulance staff when they attended the scene of her crash. She made it difficult for them to treat her injuries to the extent they gave up trying to do so. She was abusive to the police when they offered to transport her home.

[16] The information in the probation officer’s report obtained for the hearing of this appeal suggests to me that, in her dealings with the probation officer, Ms Bailie was combative, despite the fact that the probation officer would have been trying to get information which might have assisted her in obtaining a community-based sentence, something which her lawyer was then seeking in place of disqualification.

[17] On the hearing of the appeal, Mr McCaskill advised me that the boy was still not at school but indicated that this was because of unresolved conflict between the school and Ms Bailie.

Escalation during sentencing

[18] The situation facing the Judge was a difficult one requiring care, particularly given the evidence he had heard when having to determine whether the charges had been proved. In finding Ms Bailie guilty, the Judge referred to the police evidence as to what she said to them when they attended the scene. He said that what was said in the 111 call left him with the overwhelming impression that the call was made by the driver. He said that, after hearing Ms Bailie give evidence, the caller sounded “mighty like” her but she had denied this when giving evidence and had suggested it

might be a man putting on a woman’s voice. The Judge said:⁶

I have absolutely no hesitation in saying that I am completely satisfied that she has simply told me a pack of lies today. She sat there and lied through her teeth to me, quite happy to perjure herself in order to avoid the consequences of a conviction.

[19] Perhaps that reaction to her evidence explains the nature of the exchanges between the Judge and counsel when it came to sentencing.

[20] At the time of Ms Bailie’s sentencing at the end of the trial on 14 September

2015, her then counsel began by asking for a fine and disqualification. Ms Henderson began telling the Judge that Ms Bailie was the sole carer for her son, that he was not at school at that time and there were difficulties in arranging for someone else to care for him if she was to receive a sentence, for example, of community work. Ms Henderson submitted that a fine should be imposed in addition to the disqualification in terms of deterrence.

[21] In response to the initial submissions with regard to a fine, the Judge said:

I am not prepared to fine somebody with this level of alcohol in these circumstances. That’s out of the question. The minimum sentence that I would consider would be a sentence of community work and a substantial one. My view is a fine, community work at best, home detention or prison.

[22] Counsel began suggesting that supervision might be considered but it is apparent the Judge was dismissive of any point in that. In exchanges, he made it

clear that, with her level of alcohol at 138 milligrams and with her “driving around”

with a son in the vehicle, Ms Bailie could well have been facing imprisonment.

[23] Ms Bailie’s counsel was obviously in a difficult situation. After speaking to Ms Bailie about reparation, Ms Henderson said to the Judge that, on the instructions she had received, Ms Bailie would not be able to complete a sentence of community work. Ms Henderson suggested that Ms Bailie might have to consider a sentence further up the sentencing ladder. She began making a request of the Judge. At that point, the Judge suggested it would be better to give everybody time to think this overnight and said Ms Bailie would be remanded in custody to be sentenced in the morning. Ms Henderson began to say something but the Judge intervened with what reads as a rebuke of counsel. Ms Henderson persevered and explained that what she wanted to suggest was that sentencing be put off for a pre-sentence report so that a sentence of, for example, home detention could be looked at. Following that exchange, Ms Bailie appears to have interceded and said “No, I, I’ll do the community work then.”

[24] The Judge said he was not going to be dictated to by the defendant but he wanted confirmation from counsel that Ms Bailie was prepared to and able to do community work. He stood Ms Bailie down in custody for counsel to confirm this was the case. A little later, Ms Henderson confirmed to the Court that, if community work was imposed, Ms Bailie would be able to work around it. She accepted the amount of reparation which was being sought. Ms Henderson referred to the fact that Ms Bailie needed to pick her son up from where he was in care and asked if the disqualification could start from later that day. The Judge said he would make it from midnight.

[25] All that happened before the Judge’s brief sentencing remarks in which he imposed a sentence of 150 hours’ community work and 18 months’ disqualification. The Judge did not have the benefit of a pre-sentence report. He did not have the detailed information which has subsequently been made available to me.

Submissions for the police

[26] Mr Smith, for the police, submitted that the sentences imposed could not be considered manifestly excessive. He referred to the case being unusual in that Ms Bailie had not accepted responsibility for what had happened through pleading guilty, as opposed to other cases where the Court had to consider the appropriate penalty for breath or blood alcohol driving convictions. The Crown referred to aggravating features of the offending including late night driving with what they said was a high blood alcohol level, the presence of the appellant’s young child, the injuries and damage that had resulted from the crash and Ms Bailie’s previous conviction for excess blood alcohol. They acknowledged that conviction was some time ago. It was from 1999.

[27] Mr Smith submitted the sentences as to both disqualification and the hours of community work were within the range available, particularly so having regard to a judgment of mine.⁷ On that appeal, I had upheld a sentence of 140 hours’ community work and disqualification for a period of 12 months (but quashed a sentence of supervision for nine months). The driver had driven through a downtown street in Queenstown at 1.00 am after consuming a significant amount of alcohol, she had then driven two kilometres along the road after leaving town, failed to negotiate a left-hand bend, crossed the centre line and driven into a bank on the

other side. Her reading was 159 milligrams of alcohol per 100 millilitres of blood.

[28] In Mallinder v Police, a 20 year old appellant had a previous conviction for drink driving committed within 12 months.⁸ French J upheld sentences of 130 hours’ community work, 10 months’ disqualification and nine months’ supervision, in addition to a further three months for failing to stop for a police officer and a concurrent four month period of disqualification for careless driving. The driver had

_{been on a three day drinking binge, was sleep deprived and trying to elude police.}

⁷ _{Creegan v Police [2015] NZHC 1513.}

⁸ Mallinder v Police HC Invercargill CRI-2011-425-000030, 30 August 2011.

Submissions for Ms Bailie

[29] Mr McCaskill referred to a judgment from the High Court in McEachen v Police where Thorp and Morris JJ had said a reading of 81 to 160 mcg could be considered “low blood alcohol”.⁹ Mr Smith made the point that that case was decided in 1995. The legal blood and breath alcohol limits have been significantly reduced since then. He suggested, with some logic, that what was considered as potentially a low blood alcohol level in 1995 would probably not be treated the same way now.

[30] Mr McCaskill’s main submission before me was that the Judge had not had sufficient regard to Ms Bailie’s personal circumstances in fixing the sentence. He said it was appropriate and necessary for the Judge to have regard to her particular circumstances given s 8 of the Sentencing Act 2002.

Discussion

Ms Bailie’s person circumstances

[31] I have had regard to the judgments to which counsel have referred me but I consider there are peculiar circumstances which relate to this case which require me to consider whether the sentences imposed are still appropriate given the further information which has been made available to me through both the pre-sentence report and the medical information about Ms Bailie’s son.

[32] Mr McCaskill provided the Court with detailed medical reports as to Ms

Bailie’s son’s ASD. The Crown accepts that he is a boy with severe needs.

[33] An outcome plan review, prepared at the end of 2014 by LifeLinks for her son, provides compelling details as to this young boy’s needs and the impact they must have on his mother’s life. It referred to the fact that his mother was his only carer. Amongst the tasks required of her was physically lifting her son in and out of bed because he was not willing to do this unsupported. At that stage, he still needed

_{full assistance with dressing and undressing and needed to be physically lifted on}

⁹ McEachen v Police [1995] 2 NZLR 251 (HC) at 253.

and off the toilet. He communicated by using a single word or two word sentences, pointing and gesturing and was therefore reliant on people who knew him well and who were able to interpret some of his needs and wants. At his school he was considered by staff to be non-verbal. The report was prepared at a time when he and his mother were living in Timaru. It referred to the need for personal care support for his mother “to lessen some of the pressure in the home environment”. The report referred to his mother being “a very strong advocate” for him. There were earlier reports consistent with that information.

[34] A reality which the Judge had to deal with in sentencing Ms Bailie and which I now also have to consider is that this young boy, with severe needs, has to be virtually constantly in his mother’s care. This must put her under stress of a degree most parents do not have to live with.

[35] Ms Bailie should not have been driving a car having consumed alcohol to the extent that it resulted in a blood alcohol level of 138 milligrams. That level was well over the limit. In driving a vehicle at that level, she was putting herself, others on the road and her own son at risk. Nevertheless, had the Judge known the extent to which the son was dependent on her, he may have been a little less harsh in the comments he made about the son being in the car with her at that time of the morning. Ms Bailie had told the police that she was driving home on her way to Macandrew Bay.

[36] The information I have received also indicates that Ms Bailie will face particular difficulty and probable cost in being available for community work. This will be particularly so if there continues to be delay in her son attending a primary school or another place where he can be cared for.

[37] The grant of a limited licence is the appropriate way of dealing with the hardship that will be caused to her son through the disqualification. From what counsel told me, I am assuming that a limited licence will be granted on terms that would enable Ms Bailie to drive her son to and from school or other activities and appointments that are essential for his wellbeing. The disqualification will, however, have an unusually severe impact on Ms Bailie. Being unable to drive for her own

purposes and having to almost constantly have her son in her presence, she will find it more difficult to leave her home or in some other way obtain the respite she will need from all the stresses which his behaviour and needs place on her. The disqualification will thus have an impact on her which is greater than would normally be the case with other drink-driving offenders.

[38] Taking those matters into account, I am satisfied that there was an error in the sentencing and a different sentence should be imposed.

Appropriate sentences

[39] On the blood alcohol charge, I reduce the period of disqualification to 12 months. The sentence of community work on the blood alcohol charge remains but the hours Ms Bailie must work are reduced to 80 hours. Ms Bailie is to pay reparation of $285 for blood test costs. That is to be paid off at $10 a week, first payment by 19 December 2015.

[40] The careless use associated with the blood alcohol offence has been taken into account as an aggravating factor relating to that offence. The Judge imposed the sentence of disqualification for both offences but he did not need to impose the same disqualification on both charges. I consider it is appropriate to set aside the disqualification in respect of the careless use charge. On that charge, Ms Bailie remains convicted and is ordered to pay reparation in the sum of $3,685 at $10 a week, the first payment to be made by 19 December 2015.

Supervision

[41] It is appropriate, in the particular circumstances of this case, to consider further whether there should be a sentence of supervision. As was pointed out by Asher J in Sherley v Police, s 46 of the Sentencing Act 2002 says that I can impose a sentence of supervision only if satisfied that that sentence would reduce the

_{likelihood of further offending “through rehabilitation and reintegration”.}¹⁰

¹⁰ Sherley v Police [2012] NZHC 1499 at [14].

[42] Section 20(2) requires that, before I can combine a sentence of supervision and community work, I must be satisfied:

• a sentence of community work is appropriate; but

• the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision to address the causes of her offending.

[43] At the time Ms Bailie was being sentenced on the present charges, the police advised the Court that she was facing charges of being unlawfully in a building and common assault. I do not know the ultimate outcome on those charges. The pre- sentence report obtained recently suggested a sentence of supervision could be considered to offer Ms Bailie some support to help her address the stress and frustration that results from her caring role. I consider such support could assist in her avoiding further offending. With further support, she may find it easier to reduce the stress which may have led to her drinking and driving in the way that occurred in this situation.

[44] Accordingly, on the blood alcohol charge, Ms Bailie is also sentenced to supervision for six months with the special condition that she is to attend and complete any treatment/counselling or programme as recommended and directed by her probation officer.

[45] The appeal is allowed and the sentence is varied accordingly. In terms of the sentence imposed of 80 hours’ community work and supervision, Ms Bailie is to report to the Community Corrections Centre within five working days of today.

Solicitors:

D McCaskill, Dunedin

R P Bates, Dunedin.