B v Police Cri-2009-404-268 HC Auckland

[2010] NZHC 320

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000268

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 March 2010

Counsel:         B Murphy for the appellant

L Farmer for the respondent

Judgment:      16 March 2010

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

B Murphy, PO Box 121 464, Henderson, Waitakere 0650

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

B V NEW ZEALAND POLICE HC AK CRI-2009-404-000268  16 March 2010

Introduction

[1]      On 28 April 2009, B   (the appellant) pleaded guilty to two charges under the Land Transport Act 1998 (the Act).  First, there was a charge of driving with excess blood alcohol on 15 March 2009 contrary to s 56(2) of the Act. Second, there was a charge of driving while suspended on 28 March 2009 contrary to s 32(1)(c) and (3) of the Act.   The appellant was sentenced in the Waitakere District Court by Judge Kerr to 200 hours community work and was disqualified from holding or obtaining a driver’s licence for six months.  As part of the sentence, the Judge took into account the fact that the appellant had fines of around $1,300 outstanding and that these would be remitted as part of the sentencing process.

[2]      Unfortunately, I do not have the benefit of reading the sentencing notes of the Judge when he sentenced the appellant on that occasion.  All efforts to locate such notes have been unsuccessful.

[3]      The  appellant  has  appealed  against  her  sentence  on  the  grounds  that  a sentence of 200 hours community work was unduly excessive and harsh in all the circumstances, bearing in mind that it was a first offence, or more correctly first offences.

Factual background

Excess blood alcohol

[4]      At about 3.20am on Sunday, 15 March 2009 the appellant was the driver of a black Mitsubishi motor vehicle on Don Buck Road, Massey.  The Police observed the appellant driving at excessive speed and therefore pulled her over.  She exhibited signs of recent intake of alcohol.  Breath test procedures were carried out and a blood sample was later taken.  When spoken to by the Police, the appellant denied that she was intoxicated.

[5]      Upon analysis, the appellant’s blood sample was later found to contain 215 milligrams of alcohol per 100 millilitres of blood.   At that time, the appellant’s driver’s licence was suspended for 28 days pursuant to s 95 of the Act.

Driving while suspended

[6]      At about 1.59pm on Saturday, 28 March 2009, Police observed the appellant driving at speed in a Mitsubishi motor vehicle north bound on State Highway 1 near Kaiwaka.  Police subsequently stopped the vehicle north of the town and the driver identified herself as the appellant.  Computer checks were carried out and established that the appellant’s driver’s licence was suspended on 15 March 2009 for 28 days for excessive breath/alcohol concentration.

[7]      In explanation, the appellant stated that she could not remember much about the earlier incident.

Approach to appeals

[8]      Section 121(3) of the Summary Proceedings Act 1957 provides that the Court may only interfere with the sentence imposed if it is in excess of jurisdiction, or clearly excessive or inappropriate.   If so, then the Court may quash the sentence, vary it, or pass the sentence which the Court thinks ought to have been passed.

[9]      The Court of Appeal in R v Shipton [2007] 2 NZLR 218 at [138] stated with regard to sentence appeals:

The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentence.  There must be an error vitiating the exercise of the original sentencing discretion.  In short, this Court must proceed on an “error principle”.

[10]     Accordingly, the key question on this appeal is whether or not the sentence imposed was manifestly excessive.   Part of the difficulty for the Court is the fact that, as already noted, the sentencing notes of the Judge in the District Court are not

available.  In that sense, the appeal has essentially involved sentencing the appellant afresh.

Recent developments

[11]     Originally this  appeal  was due to be heard  by me on 27  October 2009. Having read the written submissions filed on behalf of the appellant, I noted that the appellant had successfully completed a Community Alcohol and Drugs Service (CADS) course at CADS West.   A certificate of completion was annexed to an affidavit filed by the appellant in support of her appeal.

[12]     The CADS programme was a four week introductory course comprising four two hour sessions.   Essentially, it is an introductory programme to assess the willingness of the participants to address their alcohol-related issues.  The course did not, however, go the further step of commencing the rehabilitation process.  Neither did it assist the participants in how to control their intake of alcohol and/or drugs.

[13]     At  the  proposed  sentencing,  I  discussed  with  counsel  for  the  appellant whether this might not be a suitable case to adjourn the appeal pursuant to s 25(1) of the Sentencing Act 2002 to enable the appellant to undertake a rehabilitation programme of eight weeks duration.

[14]     In  addition,  I  was  informed  at  that  time  that  the  appellant  had  been undertaking voluntary work at Tirimoana Primary School.  She had, until the point where the appeal was filed, completed some 16 hours of community work.  I am not certain about the accuracy of that figure, but the correct figure will be known to the personnel at the Department of Corrections.

[15]     The main point was that the appellant had been undertaking voluntary work even after notice of appeal had been given.   I informed the appellant in a Minute issued at the time that, if the appeal were adjourned, I saw no difficulty in the appellant continuing to give time on a voluntary basis at Tirimoana Primary School. That could be taken into account by me when the appeal was eventually heard and determined.

[16]     I therefore adjourned the sentencing and it has come on for hearing again before me today.

Resumed hearing

[17]     For the purposes of the resumed hearing, the appellant filed a further affidavit confirming that she had continued with her volunteer community work at Tirimoana Primary School.  A letter confirming additional voluntary service was provided.  It seems that, since the last hearing, a total of 20 hours voluntary work has been carried out.  Counsel are agreed that, in assessing an appropriate sentence for the purpose of this appeal today, I should take that service into account by way of amends made by the appellant: see s 10 of the Sentencing Act.

[18]     Further, I was informed that the appellant had continued with alcohol and drug counseling at Wai Health & Social Services (Wai Health).  She had now been brought to the point where she recognised that she had a problem and was gaining considerable benefit from the ongoing counselling which she was receiving.  In this regard,  I  have  received  a  letter  dated  15 March  2010  from  Wai  Health.    This confirms that the appellant is making positive changes and is now able to understand herself better and the effects that alcohol has on her life.  She has attended an initial assessment session and has followed this up with five further sessions of counselling. I understand that two further sessions are to be undertaken, and possibly additional sessions after that if necessary.

[19]     I   commend   the   appellant,   and   warmly   encourage   her,   with   these rehabilitation steps.  It is pleasing to see that the provisions of s 25 of the Sentencing Act are able to be used in appropriate circumstances in a positive and constructive way.  That leaves for determination how the appeal should be disposed of.

The appeal

[20]     Counsel for the respondent helpfully approached the issue by considering an appropriate sentence for an offender in the position of the appellant who is unable to

pay a fine.   Mr Farmer suggested that a sentence of around 80 hours community work would have been  appropriate in all the circumstances.   Such a figure for community work would take into account the fact that the appellant had pleaded guilty to both charges at the first opportunity.

[21]     To that figure of 80 hours would need to be added a further number of hours of community work to take into account the remitted fines.  It seems that, bearing in mind that the figure of $1,300 in unpaid fines was to be remitted, an uplift of 20 hours community work would be appropriate.

[22]     However, the sentencing task does not stop there.  That is because, since the matter has been under appeal in the High Court, there have been further positive developments.  These include the rehabilitation efforts that have been made by the appellant undertaking the assessment and follow-up sessions with Wai Health. Secondly, there is the ongoing community work with Tirimoana Primary School that may be taken into account.  This would bring an appropriate figure for community work by way of a final sentence to 60 hours community work.

[23]     Ms Murphy for the appellant acknowledged that this was an appropriate methodology for the Court to follow.  It would take into account the circumstances of the offending, which were acknowledged to be of a relatively serious kind.  This is because the reading was high and there was the aggravating circumstance of the driving while suspended.  It would also take into account the appellant’s inability to pay a fine, the rehabilitation steps taken and the further amends that have been made by means of the voluntary work.

Disposal

[24]     In all the circumstances, I am satisfied that this is a case where the appellant has shown that the original sentence was manifestly excessive.  Even though I have not had the benefit of the sentencing notes of the Judge, I have been assisted by various comparative cases dealing with offending of this type.

[25]     In  particular,  I  have  considered  the  case  of  Clotworthy  v  Police  (2003)

20 CRNZ 439.  This case applies in the cases of third and subsequent excess blood and breath alcohol offending.  However, relevant to the present case are the list of factors that might be taken into account, helpfully set out in the judgment.  These include the breath and blood alcohol level, the manner of driving and whether the offender was disqualified or suspended from driving at the time.

[26]     I therefore propose to allow the appeal and make an order quashing the part of the sentence imposing a sentence of 200 hours community work.

[27]     In its place I impose a sentence of 60 hours community work.  This sentence should not be treated as in any way the norm, or be seen to create a precedent.  That is because I have had particular regard to the circumstances of this case in reaching that figure.  These factors include the rehabilitative steps, the early guilty plea and the amends made by the appellant.

Result

[28]     The appeal is allowed in part as indicated.  For the sake of completeness, I confirm that the disqualification from holding or obtaining a driver’s licence for six months is confirmed.

[29]     Counsel for the appellant will need to ascertain what was the legal effect on the disqualification of lodging the notice of appeal.  For present purposes, all I need to do is confirm that that part of the sentence is not affected by the allowing of this

appeal.

Stevens J