Amai v Police HC Christchurch CRI 2010-409-165

[2010] NZHC 1762

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000165

ROBIN AMAI

Appellant

v

POLICE

Respondent

Hearing:         7 October 2010

Counsel:         A G James for Appellant

A Raj for Respondent

Judgment:      7 October 2010

JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  against  a  decision  of  the  District  Court  Judge  G  S MacAskill of an end sentence of 20 months on a charge of refusing a blood specimen and for driving while disqualified.  In respect of the blood alcohol charge it was a seventh such conviction and in respect of the driving while disqualified it was the eighth.

[2]      The Judge adopted a starting point of two years six months and although the guilty plea was entered on the day of the trial he allowed a 33% discount.   The explanation  for  this  is  that  the  appellant  was  also  charged  with  other  offences

relating to his dealings with the police when he was stopped.  It is not necessary to

AMAI V POLICE  HC CHCH CRI 2010-409-000165  7 October 2010

go into those.  But there is no doubt that one of the outcomes of his altercations with the police is that he ended up with broken ribs which was one of the reasons why he was refusing to allow anyone to take a blood sample as at the same time he was requesting his injuries to be treated.

[3]      It does appear to me as though the police dropped the charges relating to attempting to flee from the scene and resisting attempts to restrain him because of the complications of the injuries that he suffered.   It also, I infer, means that the Judge, who was to be the trial Judge, recognised that the case was only going to go to trial on those charges and when they were dropped the pleas of guilty on the driving charges were entered immediately.  The Judge was clearly of the view that had the police only charged him for the driving charges he would have entered pleas of guilty from the outset and therefore as per Hessell v R [2010] 2 NZLR 298 he was entitled to the 33% discount.

[4]      Mr James’ principal argument was that the starting point in respect of the driving charges of two years six months was out of line with the authorities.

[5]      The argument from the Crown by Ms Raj was that the final sentence was not manifestly excessive.  She advanced a number of authorities relying principally on the cases of R v Stewart HC Christchurch A202/99 28 October 1999, Chisholm J; and Kalo v Police HC Hamilton CRI 2005-419-145, 10 November 2005, Harrison J. In the case of Stewart the appellant had been sentenced to concurrent sentences of

18 months imprisonment on two charges of drink driving, these being his second and fourth EBA convictions and his second and third disqualifying driving convictions. The Judge in the District Court had taken a starting point of 21 months and allowed a credit of three months for guilty pleas.  The decision was upheld on appeal.  There are,  however,  two  distinguishing  features  in  this  case.    In  relation  to  the  first occasion Stewart was highly intoxicated, so intoxicated that the Judge remarked that clinically he should have been dead.  The second offence was within ten days of the first offence.  Neither of these features appear in this case.

[6]      In Kalo the appellant had been sentenced to 18 months imprisonment on his eighth conviction for EBA and his ninth conviction for driving while disqualified.

The decision was not disturbed on appeal.  That was a case in which the sentence was entered following a defended hearing.  So obviously there was no discount for a plea of guilty.   We do not know whether the 18 months was a starting point or whether there was a lower starting point plus aggravating features.  Ms Raj relied on Kalo as indicating that the end sentence here of 20 months was within range.

[7]      My approach to assessing whether or not decisions are manifestly excessive is  to  consider whether  or  not  the sentence can  be built  up following the usual principles of a starting point, aggravating, mitigating features and then any available discount for a plea and then see whether or not the decision was within range. Therefore, I distinguish Kalo as sought to be used by the police but in fact rely upon it as an indicator of the likely starting point of 18 months.   That starting point of

18 months is consistent with a number of authorities relied upon by Mr James which

I will just refer to briefly.

[8]      I am referring to three decisions this year in the High Court:

•Nanthasak v Police  HC Wellington CRI 2010-485-000030, 31 March 2010, Clifford J;   16-18 months for a seventh EBA and eighth driving charge.

•    Watson v Police HC Hamilton CRI 2010-419-000030, 4 May 2010, Ellis J;

18  months  taken  in  the  District  Court  for  EBA  with  four  previous convictions.

•Police v Tawhara HC Whangarei CRI 2010-488-000044, 8 September 2010, Heath J;  cumulative sentence of one year three months imposed allowing an appeal  from  the  District  Court  on  each  of  EBA  where  19  previous convictions and 34 previous convictions.

Of those cases I find Nanthasak and Watson the more helpful.

[9]      Ms Raj was unable to provide any authority showing a starting point of

30 months.  Accordingly, in my view it is appropriate for this Court to intervene on

the basis that the starting point was clearly out of line with comparable decisions, particularly in 2010 and I alter the starting point to 18 months.

[10]     There comes a question as to whether or not there should be any discount from that.  This is a case in which the appellant has recognised his alcohol problems. He is now 46 years of age.  There was a recommendation of home detention from the Department of Corrections but that is not being pursued by Mr James, and quite rightly so, because there was a previous conviction for EBA last year.     The Department of Corrections’ report writers do say, however, that the appellant has been trying to minimise his drinking and anger problems and accompanying that appears to acknowledge that he does have some problems.

[11]     The sentencing Judge accepted that advice saying:  “you seem to be making some effort to address the issues underlying your offending” and it is reported both in  the  judgment,  and  by  counsel  to  me,  that  the  appellant  has  been  seeking counselling or treatment in the community from two trusts.

[12]     For these reasons I think that there is justification for reducing the starting point from 18 months to 16 months and then applying a 33% discount and as a result I allow the appeal in respect of the term of imprisonment reducing it from 20 months to 11 months.   The other orders as to disqualification and sentencing conditions remain in place.

Solicitors:

A G James, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent