Affleck v Police
[2023] NZHC 2643
•21 September 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-143
[2023] NZHC 2643
BETWEEN DYLAN WILLIAM AFFLECK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 September 2023 Appearances:
A J Greaves for Appellant C E Martyn for Respondent
Judgment:
21 September 2023
JUDGMENT OF MANDER J
This judgment was delivered by me on 21 September 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
AFFLECK v POLICE [2023] NZHC 2643 [21 September 2023]
Introduction
[1] Dylan Affleck pleaded guilty in the Christchurch District Court to two charges of driving with excess breath alcohol (third or subsequent),1 and charges of dangerous driving,2 failing to stop (third or subsequent)3 and driving while suspended (third or subsequent).4 Mr Affleck was sentenced to two years’ imprisonment by Judge Gilbert.5 He appeals that sentence.
Facts
Driving with excess breath alcohol (third or subsequent)
[2] In the early hours of 12 April 2022, Mr Affleck was apprehended travelling 32 kph over the speed limit. An evidential breath test returned a result of 473 mcg of alcohol per litre of breath.
Failing to stop (third or subsequent) and driving in a dangerous manner
[3] On the evening of 23 February the next year, Mr Affleck was the driver of a car on Ferry Road. Police signalled for the car to stop using red and blue flashing lights and their siren. Mr Affleck accelerated heavily and drove on the wrong side of the road at an estimated speed of 120 kph. The speed limit was 50 kph. The road was busy with commuters and pedestrians. Mr Affleck continued to drive until he became trapped in a cul-de-sac blocked by police. Mr Affleck responded by driving onto the footpath for approximately 20 m in order to evade police.
[4] Mr Affleck was located a short time later. He was again driving at a high speed. He swerved towards a police patrol car and pulled the finger at its occupants as he drove past. Mr Affleck’s speed was recorded at 136 kph in a 60 kph zone. Police went to the vehicle’s registered address to conduct enquiries. While they were there,
1 Land Transport Act 1998, s 56 — maximum penalty two years’ imprisonment or a $6,000 fine, and a minimum mandatory one-year disqualification from holding or obtaining a driver licence.
2 Section 35(1)(b) — maximum penalty three months’ imprisonment or a $4,500 fine, and a minimum mandatory six-month disqualification from holding or obtaining a driver licence.
3 Section 52A(1)(a)(ii) — maximum penalty three months’ imprisonment and a mandatory two- year disqualification from holding or obtaining a driver licence.
4 Section 32(1)(c) — maximum penalty two years’ imprisonment or a $6,000 fine, and a minimum mandatory one-year disqualification from holding or obtaining a driver licence.
5 New Zealand Police v Affleck [2023] NZDC 14259.
Mr Affleck arrived in the vehicle. On seeing police, he reversed out of the driveway and drove away at high speed.
[5] Mr Affleck has two previous convictions for failing to stop for red and blue flashing lights.
Driving with excess breath alcohol (third or subsequent)
[6] On the night of 22 April 2023, Mr Affleck’s driving came to the attention of police because he was swerving across both lanes of the road. He was stopped and evidential breath test procedures were carried out. The test returned a result of 708 mcg of alcohol per litre of breath.
Driving while licence suspended/revoked (third or subsequent)
[7] Mr Affleck was suspended from driving for 28 days from 22 April 2023 as a result of returning a positive evidential breath test exceeding 650 mcg of alcohol per litre of breath. He was also subject to bail conditions not to drive any vehicle at that time.
[8] On 11 May 2023 at 12.35 am, Mr Affleck was again observed driving. His vehicle was spiked by police and he came to a stop. Mr Affleck ran from the vehicle and was tracked by a police dog before he surrendered himself to police.
District Court sentencing
[9] Mr Affleck received a sentence indication from Judge Gilbert on 23 May 2023 in respect of all charges.6 The Judge indicated a starting point for the first driving with excess breath alcohol charge that represented his fifth conviction of 10 months’ imprisonment with an uplift of two months for the dangerous driving and failing to stop charges from 23 February 2023. He then indicated an uplift of 12 months for each of the disqualified driving charge, being his fifteenth conviction, from 11 May, and the driving with excess breath alcohol charge on 22 April 2023 that was his sixth conviction. The resulting starting point of three years’ imprisonment was then reduced
6 New Zealand Police v Affleck DC Christchurch CRI-2022-009-2693, 23 May 2023.
to an indicated starting point of two years and six months’ imprisonment to take into account totality.
[10] At sentencing, the Judge recorded this starting point took into account Mr Affleck’s driving history, which includes over a dozen convictions for driving while disqualified and four previous convictions for driving with excess blood/breath alcohol, as well as multiple convictions for failing to stop, dangerous driving and other driving offences.
[11] In the sentencing indication, the Judge then adopted a 10 per cent uplift for the offending having occurred whilst on bail and that the first offence for driving with excess breath alcohol having been committed while subject to a sentence. The Judge applied a 20 per cent discount for guilty pleas which had not been entered at the first opportunity but following a sentence indication.
[12] At the time of indicating a 27-month imprisonment starting point, it was acknowledged there may be personal factors which may warrant a further discount at sentencing. However, the Judge remarked:
[11] It may be that any additional mitigating features bring the sentence in to the two-year range which would have a different arrangement in terms of parole or release conditions but given that the last lot of offending involved a recently lengthy period of home detention and that ongoing offending has resulted, the sentence is going to be a term of imprisonment either way.
[12] There is potentially some merit to a Parole Board sentence because it would give Mr Affleck a better opportunity to get on the drug treatment unit and get some better rehab-based interventions in prison and once he has done that it may mean that the Parole Board looked more favourably on him for an early release but as I say I am prepared to have a look at these matters in a couple of months’ time.
[13] Mr Affleck accepted this sentence indication and pleaded guilty to the charges. He was sentenced by Judge Gilbert on 7 July 2023.7 The Judge was satisfied the indicated 27-month imprisonment sentence was still appropriate but allowed a further three-month reduction for Mr Affleck’s background and upbringing. The effective end sentence imposed was thus two years’ imprisonment.
7 New Zealand Police v Affleck, above n 5.
[14]The Judge declined leave to convert the sentence to home detention.
Approach to appeal
[15] An appeal against sentence may be allowed by this Court only if satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.8 As the Court of Appeal noted in Tutakangahau v R when approving the approach taken by the lower court, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It will only be appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and cannot be justified upon the application of the relevant sentencing principles.10
The appeal
The appellant’s argument
[16] On behalf of Mr Affleck, Mr Greaves submitted the starting point adopted by the sentencing Judge was too high and that home detention ought to have been the sentencing outcome. He argued the starting point of 30 months’ imprisonment was excessive, although no issue was taken with the 10-month starting point for the first charge of aggravated driving with excess breath alcohol, nor with the discounts applied.
[17] Mr Greaves submitted the Judge erred in declining to commute Mr Affleck’s sentence to one of home detention. As the possibility of such a sentence was ruled out at the sentence indication hearing, no potential address where such a sentence could be served had been checked. Accordingly, Mr Greaves suggested this Court should grant leave to Mr Affleck to apply for home detention should a suitable address become available.11 He submitted the Judge’s primary reason for not considering home detention was because of a prior home detention sentence having failed to deter further offending by Mr Affleck.
8 Criminal Procedure Act 2011, s 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
11 Sentencing Act 2002, s 80I.
[18] Mr Greaves argued the sentencing Judge had erred in taking that position. In particular, he submitted that Mr Affleck’s lack of engagement in prior treatment was not entirely for reasons within in his control because his ADHD made it difficult, if not impossible, for him to engage in rehabilitation and is a condition that drives his offending. Mr Greaves argued this meant the sentence, which may have otherwise been appropriate, was disproportionately severe. He also submitted that because the failure of prior interventions was not entirely Mr Affleck’s fault, he should be given a further opportunity to serve a similar sentence which better meets his rehabilitative needs, including the imposition of judicial monitoring.
The respondent’s argument
[19] The respondent’s position was that the effective sentence of two years’ imprisonment was well within the sentencing Judge’s discretion.
[20] It was submitted the first offence of driving with excess breath alcohol could have warranted a 12-month starting point and that a starting point of between 12 and 18 months for the second driving with excess breath alcohol would have been justified, in addition to that of 12 months for the driving while suspended charge. It was argued an uplift of three months would then have been appropriate for the other driving charges, including the failure to stop and the dangerous driving. The Crown submitted the end sentence could be considered generous and one that otherwise would have rendered Mr Affleck ineligible for home detention.
Was the starting point too high?
[21] Mr Affleck contended the starting point for the totality of his offending was manifestly excessive. Because the focus of a sentence the subject of an appeal is on whether the end sentence is manifestly excessive, it is not crucial to examine how the sentencing Court arrived at the final outcome. The focus needs to be on whether the end sentence was manifestly excessive.
[22] I consider it clear the starting points the Judge adopted for the particular charges before him were well within the available range. As noted by Whata J in Samson v New Zealand Police, in the absence of serious or moderate aggravating
factors, a charge of driving with excess breath alcohol in its aggravated form, in the absence of any serious or even only moderately aggravating factors, will ordinarily attract starting points of nine to 12 months’ imprisonment.12 Where there are one or more seriously aggravating factors, 12 to 18 months will be appropriate.
[23] For the first offence on 12 April 2022, Mr Affleck’s excess breath alcohol was measured at 473 mcg of alcohol per litre of breath. He was travelling 32 kph over the speed limit and obviously under the influence of alcohol. It represented his fifth conviction. His last conviction for driving with excess blood alcohol was about a year beforehand, although his prior offending of this type dated back to September 2012. While there was no sustained pattern of drink-driving at that stage, a starting point of 10 months fell well within the range of available sentence.
[24] The second offence on 22 April 2023 involved a higher breath alcohol level (708 mcg of alcohol per litre of breath), being about 1.75 times the legal limit for a conviction offence and is a serious aggravating factor. It was Mr Affleck’s sixth conviction and involved a level of dangerous or, at least, poor driving, as he was observed swerving over multiple lanes. Importantly, this conviction occurred about a year after the last offending. It means Mr Affleck has now had a conviction for drink driving each year for the last three years in a row. This is more serious offending and therefore comfortably justifies a starting point of 12 months’ imprisonment.
[25] The Judge then adopted a 12-month starting point for the driving while suspended charge, which was Mr Affleck’s 15th conviction for driving while disqualified or suspended. This was not directly challenged and accords with earlier authorities.13 The Judge finally adopted a two-month uplift for the remaining charges of failing to stop in its aggravated form and dangerous driving. These charges each carry a maximum sentence of three months’ imprisonment. I consider an uplift of two months’ imprisonment was warranted, particularly having regard to the seriousness of his driving on 23 February 2023.
12 Samson v New Zealand Police [2015] NZHC 748 at [15].
13 See Penney v New Zealand Police [2016] NZHC 816; and Skudder v New Zealand Police [2018] NZHC 1448.
[26] A key aspect of Mr Affleck’s appeal was whether an appropriate adjustment was made for totality. The Judge made an allowance for that factor by reducing the starting point from 36 months to 30 months’ imprisonment. Mr Greaves contended an appropriate overall starting point allowing for totality would have been 24 months’ imprisonment, representing a 10-month starting point for the first driving with excess breath alcohol charge and then a 14-month uplift for the remaining charges.
[27]The following cases provide some guidance:
(a)Koopu v New Zealand Police — this case involved an eighth conviction for driving with excess blood/breath alcohol and a seventh conviction for driving while disqualified.14 The starting point for the driving with excess breath alcohol was 16 months’ imprisonment, and for driving while disqualified, 12 months’ imprisonment was added. This resulted in a starting point of 28 months’ imprisonment. However, the case only involved the one incident.
(b)Hughes v R — the appellant was a recidivist offender with 18 convictions for driving with excess blood/breath alcohol and 24 convictions for driving while disqualified.15 The appellant had driven while disqualified and returned an evidential breath test result of 606 mcg per litre of breath. However, his last conviction for similar offending was some seven years previously. The Judge adopted a two- year starting point for each offence, with the sentences to be served cumulatively. The sentence was upheld both by this Court and the Court of Appeal.
(c)R v Fraser — the appellant pleaded guilty to his 12th conviction for driving with excess breath/blood alcohol being two and half times the legal limit, his 18th conviction for driving while disqualified, and supplying false details during the course of police procedures.16 The
14 Koopu v New Zealand Police [2013] NZHC 1356.
15 Hughes v R [2012] NZCA 388.
16 R v Fraser CA74/06, 12 June 2006.
District Court Judge adopted a starting point of 20 months’ imprisonment for all charges, which, not unsurprisingly, on appeal was held to have been open to the Judge.
(d)Turua v New Zealand Police — the appellant pleaded guilty to two charges of driving with excess breath alcohol and two charges of driving while disqualified.17 The driving while disqualified offences were the appellant’s seventh and eighth offences. The driving with excess breath alcohol were both third or subsequent offences which occurred one month apart. The first was at a level of 745 mcg of alcohol per litre of breath and the second was 656 mcg of alcohol per litre of breath. The Judge adopted a starting point of 18 months’ imprisonment, which was upheld on appeal.
Decision
[28] I consider the overall starting point of 30 months’ imprisonment was within the appropriate range available to the sentencing Judge. While in Koopu and Fraser the starting points were lower than what was adopted in this case, notably there are two incidents of driving with excess breath alcohol in this case and two other incidents of repeat disqualified driving and dangerous driving, respectively. A starting point only two months greater than the 28 months applied in Koopu would indicate it is certainly in range and could be considered generous. Hughes v R is a more serious case in the sense there were far more previous convictions, but there was not the aggravating factor of the breaches being so close together and, again, there was only the one instance of offending. The starting point of 48 months in that case tends to indicate a 30-month starting point was in range for this case.
[29] The case of Turua v New Zealand Police appears to represent a more lenient approach, as there were four charges that involved an offender with a significant criminal history and very high alcohol readings. However, in light of the other authorities, it is not apparent the starting point in this case was out of range. In this case, the District Court Judge prioritised the sentencing principles of deterrence and
17 Turua v New Zealand Police [2013] NZHC 2913.
protection and appears to have adopted a sterner starting point to reflect the fact that previous non-custodial sentences have not in the past deterred Mr Affleck. I do not consider the starting point was excessive.
Should leave have been given to apply to convert the sentence to home detention?
[30] Leave must be given to apply for home detention under s 80I of the Sentencing Act 2002 where a court has sentenced an offender to a short-term sentence of imprisonment and, 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. Home detention is an alternative to a short-term sentence of imprisonment.18 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.19
[31] The following principles have been identified as relevant when determining whether a sentence of home detention is appropriate:20
(a)Imprisonment is a measure of last resort.
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
18 Sentencing Act, s 15A(1)(b).
19 Section 15A(1)(a).
20 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.
(h)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.
[32] The District Court Judge did not grant leave to apply for home detention. In addition to his remarks at the time of providing the sentence indication, set out at [12] above, the Judge summarised his reasons for not doing so at sentencing in the following way:21
Your driving is so bad that you need to realise that the response for continuing to put the members of the public in harms way like this will be a term of imprisonment because that is one thing really in my power to keep the community safe.
[33] The focus in the Judge’s approach was on denunciation, deterrence and public protection. There is clear authority that supports recidivist driving offenders being sentenced to imprisonment. In Swenson v New Zealand Police, Venning J observed that “[i]mprisonment for recidivist offending is now the usual, if not necessarily, the inevitable consequence.”22 Mr Greaves argued that this case is different because of Mr Affleck’s ADHD, and that a sentence of imprisonment would be disproportionately severe in his circumstances. He suggested a sentence of home detention with a condition providing for judicial monitoring would sufficiently address Mr Affleck’s rehabilitative needs as well as provide for the safety of the community.
[34] I accept that Mr Affleck’s ADHD may lead him to make impulsive decisions and that he struggles to regulate his behaviour. These factors were acknowledged by the District Court Judge when reducing Mr Affleck’s sentence for circumstances personal to him. The question that arises on the appeal is whether his ADHD renders a sentence of imprisonment, which would have otherwise been appropriate, disproportionately severe.23
21 New Zealand Police v Affleck, above n 5, at [11].
22 Swenson v New Zealand Police [2016] NZHC 1625 at [5]; and see R v McQuillan CA129/04, 12 August 2004 at [20].
23 Sentencing Act, s 8(h).
[35] Mr Greaves has not articulated why Mr Affleck’s ADHD would make a prison sentence disproportionately severe other than to assert he is not entirely in control of his actions, and therefore should be given a more rehabilitative sentence. This amounts to a submission to prioritise the sentencing purpose of rehabilitation over the sentencing purposes that support a sentence of imprisonment. It does not suggest there is anything particular about Mr Affleck’s ADHD that would make a sentence of imprisonment more difficult for him than if he did not have ADHD.
[36] Unfortunately, Mr Affleck’s condition has impacted on his ability to engage in rehabilitation initiatives. The pre-sentence report writer observed:
Mr Affleck has not completed any rehabilitation programme. Mr Affleck was exited from his SMP (Short Motivational Programme), in 2019 after only 2 sessions. His facilitator stated Mr Affleck’s ADHD made it impossible for any positive engagement. This has been a pattern on previous sentences, with Mr Affleck’s issues proving to be beyond the scope of Community Corrections to address, via any meaningful intervention.
[37]Another pre-sentence report recorded:
Mr Affleck only has two breaches of community-based sentences. In 2019, whilst subject to intensive [s]upervision, Mr Affleck was exited from the Short Motivational Programme, with the facilitator stating, “it was impossible for any positive engagement with Mr Affleck because of his negative attitude towards the programme”.
[38] Although there are likely challenging factors that make Mr Affleck’s rehabilitation more difficult, this does not suggest a sentence of home detention, even with judicial monitoring, would be particularly effective for Mr Affleck or assist in his rehabilitation. The prognosis for any positive outcome appears poor. Perhaps, as the District Court Judge and the pre-sentence report writer noted, the best thing for Mr Affleck is a structured rehabilitation programme based in prison, where he can be provided with close support and structure.
[39] It is plain that Mr Affleck presents as a risk to the community’s safety. Mr Affleck has repeatedly driven with excess breath alcohol and while disqualified. He can accurately be described as a recidivist offender. He has completed a sentence of home detention for driving with excess breath alcohol with no apparent effect. In fact, he offended shortly after the end of that sentence. The rest of his current
offending occurred while Mr Affleck was on bail. Given the nature of the charges of driving while disqualified, it is apparent he has a propensity to disregard court orders.
[40] While his repeated breaches may partially be the product of his ADHD, it is notable the pre-sentence report writer observed that Mr Affleck displayed a sense of entitlement in regard to his current and past offending and gives no thought to the consequences of his actions. He told the pre-sentence report writer that he remains in the “system” because the police “continue to charge [him] with nothing charges”. It is apparent he has little, if any, insight into his offending or the risk he poses. He also stated that he did not care about the consequences of his offending as he will “just go to prison and come out more gangster”. There is no discernible motivation to change which means the community’s protection must be prioritised.
[41] In the circumstances, I consider the District Court Judge had little other alternative but to impose a sentence of imprisonment. While Mr Affleck’s ADHD contributes to his conduct, so do the attitudes he holds about his offending. There is no indication the rehabilitative concerns that arise from his offending cannot be managed or appropriately addressed in prison or would make that outcome an inappropriate sentence. A key purpose of sentencing here must be the need to hold Mr Affleck to account and to protect the public from his illegal driving.
Result
[42]The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Christchurch
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