IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CRI-2023-454-17
[2023] NZHC 2273	

BETWEEN	JINA MAE HIGGINSON
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	17 August 2023	
Appearances:	A Younger for Appellant
E R Pairman for Respondent	
Judgment:	22 August 2023	

JUDGMENT OF GRICE J
Appeal against sentence

Introduction

[1]	Ms Higginson has pleaded guilty to driving with excess breath alcohol, being her third or subsequent offence of this type. This offence carries a maximum penalty of two years’ imprisonment or a fine of $6,000.1 The Court must also order the driver be disqualified for at least one year.

[2]	Ms Higginson was sentenced in the District Court at Palmerston North on   15 June 2023.2 Ms Higginson received a sentence of four months’ home detention, special conditions for six months on completion of her home detention sentence, and an alcohol interlock sentence. Ms Higginson now appeals this sentence on the grounds

1	Land Transport Act 1998, ss 56(1) and 56(4).
2	Police v Higginson [2023] NZDC 12039 [Judgment under appeal].

HIGGINSON v NEW ZEALAND POLICE [2023] NZHC 2273 [22 August 2023]

that insufficient discounts were afforded for her personal circumstances, her efforts of rehabilitation thus far, and her prospects of future rehabilitation.

[3]	I conclude that although there was an error in the District Court’s sentence as a discrete discount was not awarded for Ms Higginson’s rehabilitative efforts, the sentence was well within range. Awarding a further discount would be considered tinkering and I dismiss the appeal.

Background

Offending

[4]	On 10 January 2023 at around 2.31 am, Ms Higginson was stopped in Palmerston North for a compulsory breath test. Breath test procedures were followed, and Ms Higginson, in her evidential breath test, produced a result of 936 micrograms per breath. She was also in breach of her restricted licence, being unsupervised at the time of driving.

District Court decision

[5]	Judge Edwards, after explaining the offending and the reasons Ms Higginson gave for the offending, discussed Ms Higginson’s personal background and circumstances.  The  Judge   said   that   although   the   Court   has   sympathy   to Ms Higginson’s circumstances which were a direct causal link to her drinking, these were not a direct and causal link for choosing to drive.3 The Judge emphasised the risk associated with drink driving to her and her whānau as well as the community.

[6]	The Judge noted that Ms Higginson’s circumstances would be taken into account.4 The Judge addressed Ms Higginson’s four previous sentences for drink driving, with the two most recent being community-based sentences that did not, ultimately, have the required rehabilitative and deterrent effect.5 However, this

3	At [3].
4	At [5].
5	At [5].

offending has caused Ms Higginson to get help, committing to her own rehabilitation.
The Judge also emphasised the need for deterrence for this kind of offending.6

[7]	Considering the level of alcohol in her system, the fact Ms Higginson should not have been driving at all, and her previous convictions, she assessed the starting point to be 12 months’ imprisonment. The Judge then applied a 25 per cent discount for Ms Higginson’s early plea, reducing the sentence by three months to a total of nine months’ imprisonment. The Judge assessed it was appropriate to commute this sentence to one of home detention, due to Ms Higginson’s trauma and her steps to engage in rehabilitation. She also considered the home detention address to be a positive environment.

[8]	The Judge sentenced Ms Higginson to four months’ home detention with the special conditions recommended by Corrections that would continue to apply for six months after her sentence  of  home  detention  ends.  The  Judge  also  sentenced  Ms Higginson to an alcohol interlock sentence.

Approach to appeal

[9]	As this is an appeal against sentence under s 250 of the Criminal Procedure Act 2011 (CPA), the appeal will be allowed if the Court is satisfied that:

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

(b)	a different sentence should be imposed.

[10]	Despite the lack of express reference to the sentence being “manifestly excessive” under s 250(2) of the CPA, that is imported.7 The focus is on whether the end sentence imposed by the Judge was within range, not on whether the process adopted to reach that end sentence was correct.8

6	At [5].
7	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
8	Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant submissions

[11]	Ms Younger, for Ms Higginson, accepts the starting point was appropriate and that the discount for Ms Higginson’s early guilty plea was correct, but submits there was an error in ending the discounts at the early guilty plea. Ms Younger submits further discounts should have been afforded for steps taken towards rehabilitation, for further prospects of rehabilitation, her remorse, and her background factors resulting in alcohol addiction. An end sentence of two and a half months’ home detention is appropriate in these circumstances.

[12]	Ms  Younger  submits  the  PAC  report  showed   signs   of   remorse   and Ms Higginson’s self-referral to counselling also shows that she has remorse for her offending and wants to address the root causes of it. The District Court Judge erred in not recognising this. Ms Younger further submits that there should have been a discount for her personal circumstances, despite a report not being produced under    s 27 of the Sentencing Act 2002. Ms Younger points to authority that shows discounts for background and personal circumstances were awarded when s 27 reports were not produced.9 Ms Younger argues that her addiction to alcohol was a proximate and causative link to her offending and the District Court Judge erred in her conclusion on this point. Ms Younger points to R v Zhang to show the causal link addiction has to offending in feeding addiction and that the Supreme Court in Berkland v R reinforced this, stating personal circumstances can justify a discount if there is a “causative contribution”.10

[13]	Ms Younger submits another error in the District Court Judge’s approach was that the Judge focused solely on deterrence and denunciation, and not on rehabilitation. She submits that rehabilitation is a key factor in sentencing for this type of offending. Ms Higginson has taken real steps towards her rehabilitation and following the Sentencing Act and the authorities, there should have been  discounts  awarded  to Ms Higginson for her actual steps taken towards rehabilitation.

9	Mau v R [2021] NZCA 106.
10	Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [145]; and Berkland v R [2022] NZSC 143,
[2022] 1 NZLR 509 at [107]–[129].

Respondent submissions

[14]	Ms Pairman, for the Police, submits that although it is accepted a discount could have been given for rehabilitation, to vary the sentence on appeal would amount to tinkering as the overall sentence was within range. Ms Pairman does not dispute Ms Higginson’s alcohol addiction and that being under the influence of alcohol leads to poor decision-making but says this is not a situation in which it is appropriate to afford a discount for addiction issues.

[15]	Ms Pairman points to s 9(3) of the Sentencing Act which specifically states that it is not a mitigating factor that at the time of the offending the defendant voluntarily consumed drugs and alcohol. Ms Pairman states this is a clear intention from Parliament and that drink driving is by nature a charge resulting in inebriation from alcohol. She says there is a distinction between this offending and offending, such as in Zhang, in which offending was committed to support and fuel addiction.

[16]	Ms Pairman further submits that drink driving is an inherently deterrent offence, aimed at preventing people from causing harm on the road due to an inebriated state. The Judge was, therefore, correct to focus on deterrence in sentencing Ms Higginson. She submits the appeal should be dismissed.

Was there an error in the sentence?

[17]	I accept there was an error in the Judge not awarding a discount for rehabilitation.

[18]	Ms Younger, in her oral submissions, emphasises that Ms Higginson’s culpability was diminished because of the causal connection between addiction and her offending. Ms Younger submits that case law is not exclusively applied to amphetamine addiction but applies to addiction generally. She notes that for some alcoholics, the addiction to alcohol is more insidious than to illegal drugs because of its ready availability. She notes Ms Higginson’s horrific background, and the more recent events in her life have led to her mental health difficulties. In relation to s 9(3) of the Sentencing Act, Ms Younger submits consumption of drugs or alcohol is not, in

the case of addicts, voluntary. There was a nuanced difference between voluntarily consuming alcohol in cases of addiction.

[19]	Ms Younger also updated the Court on the progress Ms Higginson was making with counselling and her planned steps toward the full rehabilitation programme.   Ms Younger notes that the steps taken towards rehabilitation needs recognition. The forward-looking factor of rehabilitation also deserved a discrete discount to encourage further rehabilitation.

[20]	I accept there was an error in the Judge not awarding a discount for rehabilitation. I do not, however, accept that a discrete discount should be given to the steps taken as well as rehabilitative prospects. This would result in potential double counting and is not supported by the authorities on the mitigating factor of rehabilitation.11 The material before me indicates that Ms Higginson has made genuine efforts towards her rehabilitation which could have deserved a discrete discount in her sentencing.

[21]	I also do not believe a discount could have been given for addiction in these circumstances although I do accept that, when addiction plays a role in offending such as offending to fuel addictions as seen in the cases of Zhang and Berkland, that discounts should be awarded when appropriate. Drink driving is not an appropriate sentence to award a discount for addiction in this case. In addition, there is nothing to suggest that addiction had a causative contribution on Ms Higginson’s decision to drive. I agree with Ms Pairman’s submission that s 9(3) of the Sentencing Act is engaged on these facts, and that it was not an error of the Judge to not award a discount for her alcohol addiction.

Was the sentence manifestly excessive?

[22]	The sentence awarded to Ms Higginson was well within range. In the recent case of Letham v Police, in which the defendant was convicted for his fourth offence of drink driving with a reading of 1,314 micrograms, a sentence of seven months’ home detention was imposed after the Court awarded a 25 per cent discount for an

11	Sentencing Act, s 8(i); and Berkland v R, above n 11, at [161].

early guilty plea and a discrete five per cent discount for a head injury.12 Another case, Ruru v R, in which the defendant was convicted for a third or subsequent offence and produced a reading of 740 micrograms, a sentence of six months’ home detention and community work was imposed after the Court awarded a 25 per cent discount for an early guilty plea.13

[23]	Ms Younger submitted that in this case even days or weeks were significant to this sentence and discounts could not be described as “tinkering”. The submission could be described as suggesting that “tinkering” was relative. I do not suggest that argument might not be relevant in some circumstances, however, the sentence here was within range and I consider that it would be tinkering to make any adjustment in this case.

Conclusion

[24]	In conclusion, the sentence imposed was within range, and no further discounts should be made to the sentence. The appeal is dismissed.

Grice J
Solicitors:
BVA The Practice, Palmerston North

12	[2022] NZHC 1514.
13	[2018] NZHC 114.