B v Police HC Hamilton CRI 2005-419-159

[2005] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2005-419-159

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2005

Appearances: J Allen for the appellant

J Mackie for the respondent

Judgment:      16 December 2005

JUDGMENT OF ELLEN FRANCE J

Introduction

[1]      The appellant was convicted after pleading guilty to one charge of driving a motor vehicle with excessive breath alcohol, his fourth such offence.

[2]      The appellant was fined $2,000; ordered to pay Court costs of $130; and was disqualified from holding or obtaining a driver’s licence for two years.  He appeals

against the period of disqualification as being manifestly excessive.

B  V NZ POLICE HC HAM CRI 2005-419-159  16 December 2005

[3]      The Judge in sentencing the appellant noted the reading was a high one (765 micrograms  of  alcohol  per  litre  of  breath)  and  there  were  three  previous convictions although 20 years ago.  If they were more recent, the Judge said, a term of imprisonment would have been likely.

Submissions on appeal

[4]      The appellant makes three broad submissions.

[5]      First, no credit has been given for the appellant’s early guilty plea (at first call) or for other mitigating circumstances.  The following are identified as the relevant circumstances:

a)        The appellant is in steady employment.

b)He has two dependants (aged 9 and 13 years) and his wife does not drive.

c)        While the summary of facts refers to his being stopped following a public complaint, there is nothing to indicate bad driving or driving fault.

d)       The level, while high, was not exceedingly high.

e)        He does not have a problem with alcohol and says this is a foolish lapse.

f)        He   is   very   remorseful,   ashamed,   and   regrets   the   stress   and inconvenience to his family.

[6]      I note here that there was no pre-sentence report.  It appears the appellant did not want to undergo any alcohol assessment and was willing to be sentenced without a pre-sentence report.

[7]      Second, Mrs Allen submits the Judge has not imposed the least restrictive outcome as required by s 8(g) of the Sentencing Act 2002.  Mrs Allen draws further support for this submission from the Court of Appeal’s observation in R v Hitchens, CA 380/03, 25 March 2004, at [10] that the period of disqualification should not be so long as to leave no hope for offenders.

[8]      Finally, while the appellant does not challenge the level of fine imposed, on a totality basis the sentence is manifestly excessive.

[9]      The respondent submits that while the disqualification imposed in this case is stern, it is not manifestly excessive.  In developing that submission, the respondent highlights the fact that the Judge was dealing with an offender who had previously received every available sentencing option.  Mr Mackie also emphasises the aim of the Land Transport Act 1998 is public protection and the aggravating features of this offending.

Discussion

[10]     The relevant provision in the Land Transport Act is s 56.  That section sets up a regime of escalating penalties.  For a first or second drink-driving offence, the maximum penalty is three months imprisonment or a maximum fine of $4,500 and a minimum period of six months disqualification.  For a third or subsequent offence, s 56(4)   provides   this   is   an   indictable   offence.      The   maximum   penalty   is imprisonment for up to two years or a fine of up to $6,000 and a minimum period of disqualification of one year.

[11]     In terms of s 56(5), for the purposes of s 56 a conviction for an offence against a provision of the Land Transport Act 1962 corresponding to an offence in s

56(4) is “to be treated as a conviction for an offence specified in” s 56(4).

While not a “three strikes and you’re out” policy, the new penalties signal to the Courts that a much tougher stance is to be taken against recidivists. Arguably a third-time drink drive offender is simply not getting the message and represents a major danger on the road.  Research indicates that drivers in this group cause the overwhelming majority of fatal and serious accidents.

[13]     Certainly,  as  the  Court  of  Appeal  said  in  R  v  McQuillan,  CA  129/04,

12 August 2004, imprisonment is now the usual “if not necessarily the inevitable” consequence of such recidivist offending (at [20]).  That is the context in which the present appeal has to be considered.

[14]     The District Court Judge here has, correctly, seen the appellant’s offending as warranting imprisonment but for the lengthy gap.  That does reflect the requirement in s 8(g) to impose the least restrictive outcome.  The fact the appellant has avoided imprisonment is also relevant to any consideration of totality.

[15]     As  to  the  absence  of  any overt  credit  for  the  early guilty plea  or  other mitigating circumstances, the Judge’s sentencing remarks are brief but, again, the decision to impose a non-custodial sentence can be seen as reflecting a recognition of the plea.

[16]    In any event, I have concluded that the two year term was not manifestly excessive in the circumstances.

[17]     Apart from the fact the appellant was as the respondent put it, on the “cusp” of imprisonment, two aggravating features for this offending can be identified.  First, the level was high – almost twice the legal limit.  That was in the context of the admittedly  much  earlier  offending  which  also  involved  high  levels  –  950  in December 1985; and 600 in October 1985.   No limit is recorded for the 1983 conviction.

[18]    Second, acknowledging the gap, previous terms of disqualification did not appear to have deterred the appellant.  The periods of disqualification imposed were, first, four years for the December 1985 conviction along with a three month term of imprisonment.   (The December 1985 breath alcohol conviction occurred when the

appellant was driving while disqualified, his second such offence.)  Second, one year

(for the earlier 1985 conviction); and, third, nine months (in 1983).

[19]    In that context, it is relevant that the Court of Appeal in McQuillan, while allowing the appeal on an unrelated basis, would have otherwise upheld a three year period of disqualification.  The offending, and the previous offending, in that case were more serious.  But, pertinently, the Court of Appeal said:

The three year period of disqualification was open to the Judge as a further means of bringing home to this appellant that the only way in which he can resume driving lawfully is by changing his attitude as well as addressing his problems with liquor consumption.  (at [25])

[20]     The need for public protection is of course relevant here.

[21]     Finally, a comparison with other cases indicates the two year term, while stern, was not out of the available range.  In Fairbrother v Police (HC Masterton, MA 16/02, 5 December 2002, Ellen France J), two years disqualification was upheld on appeal on a third excess breath alcohol offence.  The two previous convictions for alcohol-related driving dated back to 1997.  That was a decision of my own but I did canvas a number of the authorities and concluded on the basis of that review that periods of disqualification of up to 18 months were within range for a second breath alcohol conviction.  An increase to two years for a third offence did not appear manifestly excessive.

[22]     In Fraser v Police (HC Hamilton, CRI 2005-419-28, 11 May 2005, Ellen France J), I indicated I would have upheld a period of two years disqualification for a third offence where the previous similar offending took place in 1977 and 1989 but for a miscalculation by the Judge of the number of previous offences.

[23]     I do need to address the very helpful schedule Mrs Allen has provided to the Court setting out the disqualification periods imposed in cases in the District Court in  which  she  has  been  counsel  over  the  last  year.    Mrs  Allen  also  provides information about two cases in the High Court and one in the Court of Appeal with which she has been involved as counsel.

[24]     In  terms  of  the  twelve  District  Court  cases  Mrs  Allen  includes  in  her schedule, 18 months is the longest period of disqualification.  She gives one case where the period was 14 months and the other cases all involve the minimum term, i.e. 12 months.  However, with two exceptions, in all of those cases the period of disqualification is coupled with either community work (sometimes with a period of supervision) or terms of imprisonment.  Three of the twelve also involve vehicle confiscation.

[25]     The two exceptions, i.e. where disqualification is coupled with a fine, involve third convictions (not a fourth as here) and lower breath alcohol levels than this case (533 and 559).  Further, the offender in one of these two cases was 64 years of age and is described as having arthritis (the appellant is 43).

[26]     The closest to the present case, at least in terms of the facts as they are set out by Mrs Allen, is the case involving 18 months disqualification.  The offender there had less of a gap to the earlier convictions (1999, 1994 and 1989) but they were more dated than some.  The breath alcohol level was 726.  There, the 18 months disqualification was coupled with 180 hours community work and 12 months supervision.

[27]     The two High Court cases in Mrs Allen’s schedule1  both involve 12 months disqualification.  In one case that was together with 260 hours community work.  On appeal a fine of $1,000 was substituted for the community work which reflected the fact the appellant was in full-time work.  That was on a second conviction.  In the other case, the 12 months disqualification was coupled with 9 months imprisonment (the appeal there related to leave to apply for home detention).

[28]     The one Court of Appeal case involved a tenth conviction and a gap to 19872. The 12 month period was together with 200 hours community work.

1 Wright v Police (HC Christchurch, A104/02, 4 October 2002, Panckhurst J); and R v Bishop

(HC Auckland A177/02, 22 October 2002, Wild J).

2 R v Parker, CA260/04, 6 December 2005.

[29]     In terms of these cases, the period of disqualification in the case under appeal

-  while  longer  -  is  not  out  of  line  when  the  totality principles  in  the  cases  in

Mrs Allen’s schedule are kept in mind.

[30]     In setting out this analysis, I am conscious of the imperative, emphasised in McQuillan, that the sentencing exercise remains a matter of discretion, not some exact science or tabulation.  Further, comparisons are not determinative.  However, the authorities do suggest a two year period of disqualification is not manifestly excessive, even after making allowance for the gap in offending here.

[31]     For these reasons, the appeal is dismissed.

Ellen France J

Delivery time:  16 December 2005, 10am

Solicitors/Counsel:

Crown Solicitor, PO Box 19 173, Hamilton

J Allen, PO Box 328, Cambridge