Verbitsky v Police [2016] NZHC 2843 (28 November 2016)

Last Updated: 30 November 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000119 [2016] NZHC 2843

BETWEEN	JORDAN VERBITSKY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 November 2016
Appearances:	C Nolan and J Lucas for Appellant E Henderson and B Hawes for Crown
Judgment:	28 November 2016

_{JUDGMENT OF DUNNINGHAM J}

[1] In the early hours of 28 May 2016, the appellant, Mr Verbitsky, was caught driving with excess breath alcohol. At the time he was also driving while disqualified. He was charged on both matters, with the EBA charge laid in its aggravated form, it being his third offence of this kind. A further charge was also

laid in respect of a failure to appear while on bail on 11 July 2016.¹

[2] In a decision dated 21 October 2016,² the appellant was sentenced by Judge Roberts to nine months’ imprisonment with special release conditions for six months.

[3] The appellant appeals his sentence on the basis that it was manifestly excessive, and was not the least restrictive outcome appropriate in the circumstances.

¹ _{In respect of this charge, the appellant was convicted and discharged.}

² Police v Verbitsky [2016] NZDC 20981.

Background to the offending

[4] The charges arose when, at 2:34 am, Mr Verbitsky was driving on Tuahiwi Road, north of Christchurch. He was disqualified from driving at the time. He cut the corner when making a right turn and narrowly missed a parked police vehicle. He was then observed driving erratically and was stopped by the police.

[5] Mr Verbitsky initially gave false particulars, but later confirmed his identity to the police. He also denied the seriousness of his offending, maintaining that the parked police car was in the wrong, and that, despite having fogged up windows, he “knew the road” and could drive. An evidential breath alcohol reading of 470 mcg/L was taken.

Principles on appeal

[6] This is an appeal against sentence and therefore must be determined in accordance with s 250 of the Criminal Procedure Act 2011. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence

should be imposed.³

[7] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. Importantly, as was said in Larkin v Ministry of Development:⁴

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

The District Court decision

[8] The Judge canvassed a range of factors relevant to the offending before articulating the appropriate starting point. These included the fact that the appellant

³ _{Criminal Procedure Act 2011, ss 250(2) and (3).}

⁴ Larkin v Ministry of Development [2015] NZHC 680.

was 22 years old, had not been previously imprisoned, but did have two previous convictions for drink driving in 2011 and 2013, involving high levels of breath alcohol (839 and 1078 mcg/L respectively). At the time of his apprehension, the appellant was disqualified, and so should not have been driving.

[9] The circumstances of the offending were also considered, including the appellant’s assertion that he knew the road and that he was alright to drive, despite the windows of his car being fogged up, and despite his near collision with the parked patrol vehicle that then pulled him over. The Judge also referred to the appellant’s community sentence for EBA offending in January 2013, during which the appellant completed the Sober Driver programme.

[10] On the authorities in Clotworthy v Police,⁵ and Samson and Police,⁶ the Judge adopted a starting point of 12 months’ imprisonment, taking into account the fact that this would be the appellant’s first sentence of imprisonment.⁷ A 25 per cent discount for early guilty pleas was applied, bringing the end sentence to one of nine months’ imprisonment.

[11] The Judge did not consider that home detention was available. At the time of sentencing the Judge recorded that enquiries as to a suitable address for home detention had not been completed as the pre-sentence report indicated that one of the occupants of the proposed address had not provided a signed consent. For that reason, the report had recommended imprisonment and the Judge, accepting that “home detention is not there for argument”, imposed imprisonment, noting “the sentencing principles of denunciation and deterrence must be emphasised”.

Grounds of Appeal

[12] The appellant puts forward three grounds on which he says the appeal should be allowed:

_{(a) The sentence was manifestly excessive.}

⁵ _{Clotworthy v Police (2003) 20 CRNZ 439 (HC).}

⁶ _{Samson v Police [2015] NZHC 748.}

⁷ Police v Verbitzky, above n 2, at [17]-[20].

(b) The Judge erred by failing to give sufficient weight to mitigating features of the offending.

(c) By imposing a sentence of imprisonment, the Judge erred by failing to impose the least restrictive outcome appropriate in the circumstances.

[13] Ultimately, the appellant contends that a community-based sentence of home detention should have been imposed, as a reflection of the least restrictive outcome appropriate in the circumstances, while acknowledging there was no suitable address at the time of sentencing.

Setting the starting point and credit for mitigating factors

[14] It is convenient to consider the first two issues together, as the appropriateness of the starting point, and the weight given to mitigating features of the offending, both affect whether, in the end, the sentence was manifestly excessive.

[15] As the Judge noted, some of the aggravating factors identified in the oft-cited case of Clotworthy v Police are present here.⁸ The appellant’s three convictions for EBA offending were accrued within a five-year span, and he was driving while disqualified. The Judge also noted the problems with Mr Verbitsky’s driving on the day, and his failure to acknowledge he was not driving safely.⁹

[16] The Judge sentenced the appellant concurrently on the driving whilst disqualified charge, dealing with it as a “seriously aggravating” feature of the EBA offending. As the respondent submits, the offences are different in kind and have different objectives,¹⁰ and so the Judge would have been entitled to impose cumulative sentences here (with the necessary caveat about the risk of double-counting). Referring to Samson, the Judge noted the presence of that one seriously aggravating factor suggested a starting point of 12-18 months.

[17] In respect of the mitigating factors to the offending the Judge gave the maximum permissible credit for guilty pleas of 25 per cent. Furthermore, the fact

⁸ _{Clotworthy v Police, above n 6, at [20].}

⁹ _{Police v Verbitsky, above n 2, at [15].}

¹⁰ Hughes v R [2012] NZCA 388 at [22].

that this was the appellant’s first sentence of imprisonment was given expressly as a reason why the Judge adopted a starting point at the lower end of the guideline band to which he considered this offending belonged.

[18] The appellant also argued the sentence did not take into account the following mitigating factors:

(a) no-one else was injured or involved in the accident;

(b) Mr Verbitsky entered a guilty plea at the earliest opportunity;

(c) Mr Verbitsky’s most recent prison conviction for driving with excess breath alcohol related to offending on 22 December 2012, so there had been a gap in his offending;

(d) Mr Verbitsky has never received a sentence of imprisonment or an electronically-monitored sentence;

(e) Mr Verbitsky is remorseful and has completed an alcohol and drug course as part of his previous sentence of supervision;

(f) Mr Verbitsky has a supportive family and was in stable full time employment prior to his imprisonment.

[19] In terms of there being no injury from the accident, I do not consider that a mitigating factor. The near collision was an aggravating factor and, had injury resulted, that would have been a further aggravating factor. Mr Verbitsky was given full credit for entering a guilty plea at the earliest opportunity. The fact Mr Verbitsky only had two previous EBA offences, and the last one was three years ago was, in my view, reflected in the starting point adopted. The fact that Mr Verbitsky completed an alcohol and drug course as part of his previous sentence of supervision does not mitigate the seriousness of this further offending, but rather tends to bring into question the degree of remorse, if, despite such participation, he has reoffended.

[20] Finally, the fact that Mr Verbitzky had never previously received a sentence of imprisonment or an electronically-monitored sentence, and the fact that he has a supportive family and was in stable fulltime employment, are relevant, but they were not ignored by the Judge. In my view, they have more bearing on the question of whether home detention should have been given further consideration, and Mr Verbitsky’s suitability for it.

[21] The appropriateness of the starting point of 12 months’ imprisonment was challenged by the appellant, with Mr Nolan referring to a range of cases where a lesser sentence was imposed. However, not all of them are necessarily comparable. As Ms Henderson pointed out, in the decision of Coles v Police, where an eight month term of imprisonment was held to be “clearly excessive”, the offending did

not have the aggravating feature of driving while disqualified.¹¹ In Hansch v Police,

a starting point of 12 months’ imprisonment for a fourth EBA offence where that was

coupled with the offence of driving while disqualified, was not disturbed on appeal.¹²

Finally, in Tarei, where the defendant was sentenced for his third EBA offence, and for driving while disqualified, the District Court Judge took a starting point in the order of 10 to 12 months’ imprisonment which, with credits for the early plea of guilty was reduced to a sentence of seven months, and that was not disturbed on appeal, with the appellant acknowledging that such a sentence could not be

considered manifestly excessive after a review of the authorities.¹³ I note that in

none of those cases was there the level of driver error which occurred in this case, and which is a further aggravating factor.

[22] Thus, while it is quite possible to find cases where lower sentences of imprisonment were imposed, I cannot say that the end sentence of nine months’ imprisonment is manifestly excessive. Accordingly, there was no error in imposing

_it.

¹¹ _{Coles v Police HC Christchurch CRI-2007-409-161, 23 August 2007.}

¹² _{Hansch v Police [2014] NZHC 2438.}

¹³ Tarei v Police [2012] NZHC 3393.

Home detention

[23] The second key aspect of the appeal was based on the Court’s alleged failure to have regard to imposing the least restrictive outcome, with the appellant arguing that imprisonment is only justified when no other sentencing outcomes are appropriate. However, a complicating factor in this case was that the pre-sentence report recorded that Mr Verbitsky had failed to follow up with getting the consent of both occupants of the address at which he proposed to serve home detention. Thus, at the hearing, it was assumed that no potential home detention address was available. Counsel for Mr Verbitsky now informs the Court that the landlord, who also resides at the address, had provided a consent form and was told by the Probation Service that this was all that was required and so the consents required before undertaking a suitability check are available. Indeed he sought an adjournment to allow the suitability of the address to be checked.

[24] There is no evidence that, in the District Court, counsel sought leave to apply for home detention if the issues over the availability of the address could be resolved. It is unsurprising, therefore, that the issue of granting leave to apply was not directly addressed. Instead the Judge proceeded on the basis that home detention would not be an available option.

[25] In deciding on imprisonment he referred to the pre-sentence report which commented on the fact that the appellant’s previous offending had not deterred him and, accordingly, “a more punitive element to sentencing will be required”. The Judge also acknowledged that denunciation and deterrence were important principles which needed to be reflected in the sentencing exercise in this case, noting the seeming lack of impact of previous attempts to address the appellant’s offending.

[26] It is not clear therefore whether the Judge has simply overlooked the issue of whether to grant leave to apply for home detention or, whether he intended to decline it because he determined that imprisonment is the only option. If the former, that was an error.

[27] Section 80I of the Sentencing Act 2002 provides that if:

At the time of sentencing, the Court would have sentenced the offender to a sentence of home detention if a suitable residence had been available, then the Court must grant the offender leave to apply for commutation of the sentence of imprisonment to home detention at a later date.

[28] The usual course in cases such as this is for the Court to either grant leave under s 80I, or to clearly articulate its reasons as to why imprisonment is required, notwithstanding the mandatory obligation to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A.¹⁴ A failure to do this makes the decision amenable to appeal.

[29] The principles applying to an appeal against a Judge’s refusal to grant home detention (or in this case, leave to apply for home detention) were outlined by the Court of Appeal in Fairbrother v R:¹⁵

[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.

[30] While the Judge articulated his reasons for moving beyond a sentence of community work and supervision, such as was imposed on Mr Verbitsky for his last EBA offence, he did not address whether the ability to apply for home detention

_{should be reserved in this case under s 80I.}

¹⁴ _{Sentencing Act 21002, s 8(g).}

¹⁵ Fairbrother v R [2013] NZCA 340 (footnotes omitted).

[31] In my view, there was a clear factual basis for considering home detention, and for reserving leave to apply for it in the event consent of the occupants of the proposed address was forthcoming (as has subsequently occurred), or an alternative address was found. The factors which support home detention in this case include that this offender has never been in prison before and has advised the Court that his custodial remand had been a “wake up call”. Furthermore, he had a supportive employer who was prepared to support him through a home detention sentence. While Mr Verbitsky did not have a perfect record of compliance, there was no particular concern expressed in the pre-sentence report on this count. Indeed, the pre-sentence report only rejected home detention as an option because of the lack of formal consent from both occupants.

[32] Given Mr Verbitsky’s general suitability for home detention, and the fact that, in my view, that would better assist his rehabilitation, particularly his ability to maintain his employment, I think the Judge was in error to not address the appropriateness of granting leave pursuant to s 80I. Had he turned his mind to this and considered the factors traversed above, the outcome would have been that a sentence of home detention would be considered appropriate if there was a suitable residence and an order made under s 80I.

Result

[33] For the reasons set out above, leave is given in accordance with s 80I to apply under s 80K for cancellation of the sentence of imprisonment and substitution of home detention if Mr Verbitsky finds a suitable residence.

[34] Other than this, the sentence is unchanged.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch