Avramenko v The Queen
[2015] NZHC 2087
•31 August 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-23 [2015] NZHC 2087
BETWEEN EUGENY AVRAMENKO
Appellant
AND
THE QUEEN Respondent
Hearing: 24 August 2015 Appearances:
K Barker for the Appellant
M McClenaghan for the RespondentJudgment:
31 August 2015
JUDGMENT OF MANDER J
[1] Mr Eugeny Avramenko appeals his effective sentence of 28 months imprisonment. The sentence comprises cumulative sentences of 18 months for a charge of driving with excess blood alcohol, being a third or subsequent offence, and a 10 month sentence for driving whilst disqualified, being a third or subsequent offence.
[2] Mr Avramenko submits that the total term of 28 months imprisonment is manifestly excessive. He argues that its excessive length resulted from an error in the starting point adopted of 18 months imprisonment in respect of the charge of driving whilst disqualified and a failure to apply the principle of totality.
Factual background
[3] In July last year, Mr Avramenko attempted to pull into a park in Mataura. As he did so, he drove onto the kerb and stopped just short of a rubbish bin. This manoeuvre was observed by a police patrol. Mr Avramenko presented as intoxicated, his eyes were glazed and his speech very slurred. He smelt of alcohol.
An evidential blood test returned a result of 330 mg of alcohol per 100 ml of blood.
AVRAMENKO v THE QUEEN [2015] NZHC 2087 [31 August 2015]
[4] Mr Avramenko had previously been convicted for refusing a request for a blood specimen, being a third or subsequent offence, and sentenced to indefinite disqualification from driving.
History of offending
[5] Mr Avramenko was before the Court on his ninth drink-driving conviction. In July 2013, Mr Avramenko was sentenced to 17 months imprisonment for refusing a police officer’s request for a blood specimen, being a third or subsequent offence. In March 2015, he was convicted for driving with excess breath alcohol (level 1314) and sentenced to eight months imprisonment. That period of imprisonment was imposed cumulatively on a sentence of six months imprisonment for the same type of offending (level 615). Prior to those convictions, Mr Avramenko had accumulated five previous drink-driving convictions between January 1999 and November 2007, for which he received various sentences, including intensive supervision, and not insignificant periods of imprisonment (eight and 12 months).
[6] Similarly, Mr Avramenko has a history of driving whilst disqualified. He was before the Court on his sixth conviction for that type of offending. In May 2013, he was sentenced to four months imprisonment for driving whilst disqualified, being a third or subsequent offence, having been convicted for the same type of offending in March 2012. Between May 2004 and May 2008, Mr Avramenko had acquired four convictions for driving whilst disqualified or suspended, for which he had been sentenced to short terms of imprisonment and intensive supervision.
District Court sentence
[7] Judge Turner, after reviewing the facts of Mr Avramenko’s current offending and his previous history, observed that he had a severe alcohol issue. In considering the purposes and principles of sentencing, the learned Judge observed that one of the primary considerations in respect of Mr Avramenko’s case was the protection of the public.
[8] Apart from the number of previous convictions Mr Avramenko has accumulated, the levels of alcohol have been high, described as “astronomic” by the
Judge. The Court referred to breath alcohol levels in excess of 600 mcg and a previous blood alcohol level of 298 mg. The present offending was no different, with a blood alcohol level of 330 milligrams – over four times the legal limit.
[9] Judge Turner observed that imprisonment had not deterred Mr Avramenko, and that rehabilitative approaches had not brought about any change.
[10] The sentencing Judge took a starting point of 22 months imprisonment for the blood alcohol charge, noting the high level and the fact that it was accompanied by driving fault. Affording some allowance for Mr Avramenko’s apparent willingness to address his alcohol problem and credit for his guilty plea, the sentence was reduced to one of 18 months imprisonment. In respect of the driving whilst disqualified charge, Judge Turner observed that a starting point of up to 18 months would be justified, but reduced the sentence that may have otherwise been imposed to one of 12 months to reflect the totality principle. Providing a similar allowance for Mr Avramenko’s late plea, the sentence on the driving whilst disqualified charge was reduced to one of 10 months imprisonment.
[11] The sentencing Judge concluded that it was appropriate to impose cumulative sentences in the circumstances. An effective term of imprisonment of 28 months was thereby imposed. Understandably, there is no challenge to Judge Turner’s decision to impose cumulative sentences.
The appeal
[12] The submission made on behalf of Mr Avramenko distilled in the course of oral argument was that the starting point of 18 months imprisonment for the driving whilst disqualified charge was excessive, and that the sentencing Court failed to adequately apply the totality principle. This, it was submitted, had resulted in the end sentence being manifestly excessive. Except insofar as it is relevant to the issue of totality, an initial submission that a starting point of 22 months for the blood alcohol charge was excessive was abandoned. It was acknowledged that a 20 month starting point would have been legitimate. A two month difference was recognised as an unrealistic basis upon which to disturb that sentence.
[13] Mr Avramenko submitted that the starting point adopted for the driving whilst disqualified offence, in comparison with starting points adopted in other cases for a similar number of convictions within a like period, was more obviously excessive. A number of recent sentencing decisions were referred to in support of that submission.
[14] While initially contending that inadequate credit had been afforded to Mr Avramenko for his guilty pleas and personal circumstances, it was acknowledged that he had received combined discounts of 17 and 18 percent on each of the charges, and that it was not realistic to expect any greater discount to be applied in the circumstances. This ground was responsibly abandoned.
[15] Mr Avramenko submitted that Judge Turner had failed to adequately apply the totality principle, which had resulted in the end sentence being manifestly excessive. The sentencing Judge had reduced the starting point of 18 months imprisonment on the driving whilst disqualified charge to 12 months imprisonment to allow for the totality principle. However, it was submitted that the sentencing Court was obliged, having decided to impose cumulative sentences, to have re- examined the total effect of the combined sentence to ensure that the total period of imprisonment was not wholly out of proportion to the gravity of the overall
offending.1
Crown’s response
[16] The Crown, by reference to Clotworthy v Police, observed that a number of aggravating features were present in Mr Avramenko’s offending.2 Firstly, the blood alcohol level was high. Secondly, Mr Avramenko had been sentenced to 17 months imprisonment in July 2013 for refusing a police officer’s request for specimen blood, and the present offending occurred less than 12 months since the entry of that conviction. Thirdly, Mr Avramenko now had three previous convictions for drink- driving obtained in close succession. Sixteen months prior to the July 2013
conviction, Mr Avramenko had been convicted and sentenced to six months imprisonment for excess breath alcohol and driving whilst disqualified. Fourthly, as
had been observed by the District Court, Mr Avramenko’s driving was seriously
1 Sentencing Act 2002, s 85(2).
2 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
impaired at the time of his apprehension after he had driven onto the kerb. That offending took place on a main street with a heightened risk to public safety.
[17] The Crown submitted that previous sentences had not deterred Mr Avramenko. His most recent term of imprisonment was one of 17 months, and that previous alcohol levels at the time of apprehension had been high. It was noted that Mr Avramenko clearly has an alcohol dependency, and presents as a risk to the public. Mr Avramenko also has other criminal convictions, including for breach of Court orders.
[18] The Crown submitted that the starting point of 22 months imprisonment for the excess breath alcohol charge was within the available range, and accurately reflected Mr Avramenko’s culpability. In relation to the driving whilst disqualified charge, the Crown acknowledged that a starting point of 18 months could be considered stern, but that the Judge had deducted, for the purposes of totality, the starting point to one of 12 months and, after a discount for a guilty plea, an end sentence of 10 months imprisonment, it was submitted, was within the available range. This, it was submitted, was particularly so having regard to the fact that Mr Avramenko had been indefinitely disqualified in July 2013.
[19] The Crown acknowledged that the Judge took an unorthodox approach to applying the totality principle, but submitted that it was the end result of the sentence which was required to be examined, and that sentence was within the available range. No adjustment was required to the 28 month term in recognition of the principle of totality, as the net effect of the combined sentences was not “wholly out of proportion to the gravity of the overall offending”.
The approach to the appeal
[20] An appeal Court will only disturb a sentence if the appellant can establish there was an error in the sentence imposed and that a different sentence should be imposed.3 The Court of Appeal has confirmed that the Criminal Procedure 2011 was
not intended to effect any change to the approach taken to appeals under the
3 Criminal Procedure Act 2011, s 250.
Summary Proceedings Act 1957. As recently articulated by Toogood J in Larkin v
Ministry of Social 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.
Previous sentencing decisions
[21] Both Mr Avramenko and the Crown referred to various sentencing decisions in support of the respective arguments. Inevitably, the individual circumstances, both of the offending and the offending, bear on the sentences imposed in the individual cases. However, where the seriousness of the offending relates to the recidivism of the offender, there is an obvious need for consistency in the approach
to sentence.5
[22] In Samson v New Zealand Police, the appellant was sentenced to a total sentence of 26 months imprisonment for offences of driving with excess breath alcohol, being a third or subsequent offence, and driving whilst disqualified, being a third or subsequent offence.6 A 20 month starting point for the excess breath alcohol charge, being the appellant’s fifth conviction, was considered by Whata J to be excessive. After reviewing the authorities, Whata J concluded a starting point of between 12 and 18 months would be available. Similarly, an 18 month starting point for the driving whilst disqualified charge was considered to be excessive, and a 12 month starting point substituted. The appellant in that case was before the Court on
his seventh driving whilst disqualified offence, committed over a shorter period (approximately four years) in comparison to the present appellant. Whata J considered the starting point of between 24 and 30 months provided an appropriate range before allowing for personal factors.
[23] The Crown, however, also relied upon Samson v Police and a particular
passage in Whata J’s judgment in support of the proposition that a starting point in
4 Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].
5 Samson v New Zealand Police [2015] NZHC 748.
6 Samson v New Zealand Police [2015] NZHC 748.
the vicinity of 20 months was appropriate where there are multiple aggravating factors:7
[21] In any event, it will be seen that the offending is marked by multiple and seriously aggravating factors and at first blush a starting point of 20 months is supported by authority. But on closer scrutiny, the cases applying a 20 month starting point have been marked by very high levels of culpability across multiple factors, including a very high level of intoxication, indefinite disqualification, a very lengthy history of prior offending, and/or a prior sentence of imprisonment. For my part, the present offending, while serious, is not in this category of offending.
[24] The Crown submitted such aggravating factors are present in
Mr Avramenko’s case.
[25] In Emery v New Zealand Police, the appellant appealed against a sentence of
26 months imprisonment imposed on a charge of aggravated driving with excess breath alcohol and a related driving whilst disqualified charge, to sentences of 18 months and eight months imprisonment respectively.8
[26] Mr Avramenko submitted in that case the blood alcohol level was high, being
231 mg of alcohol per 100 ml of blood, and the appellant had 13 previous convictions for drink-driving, and three convictions for refusing to provide a blood sample. He was therefore before the Court on his seventeenth conviction for a drink- driving offence. In that case, a two year starting point was adopted by the sentencing Judge, which was not disturbed on appeal.
[27] In relation to the disqualified driving charge, a 12 month starting point was adopted. In that case, however, there had been a 10 year gap since the last driving whilst disqualified offence, but the appellant had 12 prior convictions for such offending. Moore J described the 12 month starting point as being stern but available, and the end sentence of 26 months imprisonment was not disturbed on appeal.
[28] In Tutahi v New Zealand Police, the appellant was sentenced to 15 months imprisonment for her eighth drink-driving conviction, committed over a 10 year
7 Citations omitted.
8 Emery v New Zealand Police [2014] NZHC 950.
period, with what was described as “spectacularly high” levels.9 The appellant was also sentenced to a cumulative sentence of 10 months imprisonment for her tenth conviction for driving whilst disqualified.
[29] On appeal, Andrews J reduced the sentence to one of 15 months imprisonment, holding that an appropriate starting point for drink-driving charge would be 12 months imprisonment, and 10 months imprisonment for the driving whilst disqualified charge. Allowing a 30 per cent discount for mitigating factors resulted in an end sentence of 15 months imprisonment.
[30] In Iwikau v New Zealand Police, the appellant was sentenced for his sixth driving whilst disqualified offence, with his most recent prior conviction having been less than 12 months earlier. All of the six previous convictions had been committed within a seven year period.10 A sentence of 10 months imprisonment was imposed for the disqualified driving charge cumulatively on a charge of burglary, adjusted to one of nine months as a result of the application of the totality principle.
[31] On appeal, Collins J observed that the starting point for the driving whilst disqualified charge was well beyond the normal range that should be considered for a person in the appellant’s position, and an end sentence of three months imprisonment was imposed in substitution.
[32] In Sands v New Zealand Police, the appellant unsuccessfully appealed from a sentence of two years and four months imprisonment on his ninth and tenth drink- driving offences.11 He also had three previous convictions for disqualified driving. On appeal, Hansen J held that a cumulative sentence of two years and four months imprisonment on the drink-driving and disqualification offences was not manifestly excessive having regard to the totality principle.
[33] In Lambert v New Zealand Police, the appellant had eight previous convictions for driving with excess blood alcohol, two for refusing requests for
9 Tutahi v New Zealand Police [2014] NZHC 3354.
10 Iwikau v New Zealand Police [2012] NZHC 2027.
11 Sands v New Zealand Police HC Christchurch CRI-2006-409-170, 27 September 2006.
blood, and five for driving whilst disqualified.12 He unsuccessfully appealed against a 22 month term of imprisonment imposed on a charge of excess breath alcohol and disqualified driving. Miller J found that a starting point of 20-22 months for the drink-driving charge was appropriate. A cumulative sentence of six months imprisonment was then imposed for the disqualified driving, which brought the nominal starting point to one of 26-28 months imprisonment before allowance was made for the guilty plea.
[34] In Himiona v Police, a two year term of imprisonment in respect of the appellant’s seventh excess breath alcohol charge and thirteenth driving whilst disqualified charge was not disturbed on appeal.13 The appellant had returned a reading of 1520 mcg of alcohol per litre of breath, which was in line with earlier alcohol levels for previous convictions. The appellant had six previous convictions over a period of 18 years, arising out of alcohol impaired driving, and has also
accumulated some 12 convictions for driving whilst disqualified over that period. The District Court Judge adopted a starting point of 20 months imprisonment for the excess breath alcohol and adopted a 12 month starting point for the driving whilst disqualified charge. The 24 month sentence was arrived at after allowance for the appellant’s guilty pleas.
[35] On appeal, Heath J observed the entrenched recidivism of the offender, and that where an offender persisted to continue to offend there was no option but to respond with a sentence of imprisonment to denounce the conduct and protect the community. The two year sentence was not disturbed on appeal.
Analysis
[36] In terms of the starting points adopted by Judge Turner, I do not consider that either standing alone was outside the range available to the sentencing Judge. The
22 month starting point for the blood alcohol charge is comparable to that applied in cases involving a similar number of previous convictions within a similar period, aggravated by high alcohol levels and poor driving. The 12 month starting point for
the disqualified driving, which was the starting point ultimately adopted by Judge
12 Lambert v New Zealand Police [2013] NZHC 1292.
13 Himiona v Police [2012] NZHC 1756.
Turner, similarly, in my view, while stern remained within the range available. I largely come to that conclusion because of Mr Avramenko’s relatively recent convictions in December 2012 and November 2011 for like offending, which on the last occasion he was sentenced to four months imprisonment. Standing by itself, the disqualified driving charge could have attracted that length of sentence.
[37] Judge Turner sought to give effect to the totality principle by making an adjustment to the starting point for the sentence imposed in respect of the disqualified driving charge. However, as I observed, the adjusted sentence of 12 months was of itself stern. The sentencing Court was required when seeking to impose cumulative sentences to consider whether the combined effect of the sentences remained within range, having regard to the overall criminality of the offending. Stepping back and reviewing the previous sentencing decisions, and being cognisant of the fact that the circumstances in each individual case may vary, I have concluded that the end sentence was outside the general sentencing range for this level of offending.
[38] As I have already observed, in Samson v New Zealand Police, an end sentence of 16 months was reached from a cumulative starting point of 20 months imprisonment in relation to a fifth drink-driving charge and a seventh driving whilst disqualified. In Emery v New Zealand Police, an end sentence of 26 months imprisonment was imposed in relation to a seventeenth drink-driving offence and a thirteenth driving whilst disqualified offence. The other cases referred to by both Mr Avramenko and the Crown would indicate that the effect of the combined end sentence was excessively stern, and therefore some readjustment required.
[39] Lambert v Police would appear to be the case with the greatest parallels to the present. There, a starting point of 26-28 months was considered appropriate, which resulted in a cumulative sentence of 22 months. In the present case, the combined starting point was 40 months or 34 months, depending on whether the adjustment for totality is included, as it was by the sentencing Judge, at that stage in the sentencing exercise. Having regard to the totality of Mr Avramenko’s offending and the guidance provided by previous authorities, I consider an end sentence of 22-
24 months imprisonment would be more appropriate to mark Mr Avramenko’s
culpability and level of recidivism. Judge Turner accurately identified the concerning aspects of Mr Avramenko’s offending. His deep-seated recidivism and the danger his intoxicated driving presented, rightly, led the sentencing Judge to conclude that the protection of the public was a paramount concern. Accordingly, Judge Turner was entitled to impose a stern sentence which gave effect to that sentencing purpose. However, while acknowledging the discretion of the Judge to impose a sentence that had that effect, the ultimate sentence needed to be at least broadly consistent with other sentences for like offending with similar aggravating factors.
[40] I have concluded that after applying the totality principle, the total period of imprisonment of 28 months was excessive, and that in recognition of that principle an adjustment of five months is required, resulting in an effective overall sentence of
23 months.
[41] I do not consider the reduction to be tinkering. It is clear that Judge Turner intended to impose a stern sentence. The adjustment I have made is what I consider necessary to place the sentence back within range and still achieve the sentence purpose which was the objective of the District Court.
[42] In my view, that can appropriately be achieved by reducing the final 18 month sentence for the charge of driving with an excess blood alcohol level by three months to one of one year and three months, and the charge of driving whilst disqualified from 10 months to one of eight months.
Result
[43] The appeal is therefore allowed. The sentence of 18 months imprisonment on the charge of driving with an excess blood alcohol level, being a third or subsequent offence, is quashed and substituted with a sentence of 15 months imprisonment. On the charge of driving whilst disqualified, being a third or subsequent offence, the sentence of imprisonment of 10 months is quashed and substituted with a sentence of eight months imprisonment. That sentence is cumulative on the 15 month sentence imposed in respect of the excess blood alcohol level.
[44] The order disqualifying Mr Avramenko from obtaining a driver licence for one year and six months which is subject to the indefinite disqualification stands.
Solicitors:
Eagles Eagles & Redpath, Invercargill
Preston Russell Law, Invercargill
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