Batey v Police HC Christchurch CRI-2011-409-000097

[2011] NZHC 1879

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000097

ROGER WILLIAM BATEY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 October 2011

Appearances: AND Garrett for Appellant

C J Boshier for Respondent

Judgment:      20 October 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      After pleading guilty to a fifth charge of drink driving the appellant was sentenced to four months community detention (daily curfew of 8 p.m. to 6 a.m.),

200 hours community work, and 15 months disqualification.   This is an appeal against the community work and disqualification components of the sentence.

[2]      Mr Batey is 44 years of age.  His four earlier drink driving convictions were between 1987 and 1991.  Thus the most recent of those convictions was 20 years ago.  On this occasion he was stopped because he was exceeding the speed limit and he was found to have a blood alcohol level of 862 micrograms of alcohol per litre of

breath.

BATEY V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000097 20 October 2011

[3]      The probation officer’s report was favourable, with community detention and community work being recommended.   Character references were also supplied. The appellant was assessed as being at low risk of further offending.   Since the earlier drink driving offending, the defendant has two convictions for traffic offences but,  as  the  Judge  accepted,  “nothing  really  serious”.    The  Judge  also  detected genuine remorse on the part of the appellant.  He expressed the view that there was a low risk of re-offending.

[4]      In support of the appeal against the sentence of community work Mr Garrett submitted:   the appellant had turned his life around since the historic alcohol offending;  he is  now “responsible and  mature”;  there  is  a  favourable  probation officer’s report supported by references; personal deterrence beyond that provided by the sentence of community detention is unnecessary; and the additional sentence of community work is manifestly excessive.

[5]      Ms Boshier’s response:  the Judge correctly recognised the need for general deterrence in offending of this nature, especially for a fifth conviction; the current offending involved a high blood alcohol level and speed; and the sentence was within the range available to the Judge.

[6]      Given all the circumstances I have been persuaded that the sentence of 200 hours community work, which is in itself a significant sentence, was excessive.  To the extent that general deterrence is required this could have been provided by home detention plus a more modest community work sentence.  The appellant is entitled to credit for the very big gap since the four previous offences and for all the favourable matters referred to in the probation officer’s report plus the references.  Taking into account these factors the sentence of community work will be halved to 100 hours.

[7]      Those considerations are also relevant to the disqualification.   Mr Garrett submitted that a disqualification of one year and one day is traditionally imposed in this area for offending of this nature.  He explained that after entering his guilty plea and pending sentence the appellant was not permitted to drive as a condition of his bail.  Thus he has been effectively disqualified for a relatively lengthy period which is out of step with other sentences imposed in this district.

[8]      Understandably  Ms  Boshier  was  not  in  a  position  to  respond  to  the suggestion   (which   had   not   been   previously   flagged)   that   the   length   of disqualification was out of step.  She raised the possibility of adjourning the matter so that the police could investigate whether this was so and the Court could make an informed decision on that issue.

[9]      While I can understand Ms Boshier’s position, I have decided to approach the disqualification on the basis of the particular facts here rather than what might be said to be a traditional approach in this district.   Given the 20 year gap since the previous offending, all the favourable matters that the appellant is able to bring to muster, the fact that he could not drive for the two months he was on bail (from

8 July 2011 to 15 September 2011), and his current favourable attitude, I am also going  to  allow  the  appeal  as  to  the  disqualification.    The  disqualification  of

15 months is quashed and reduced to one year and one day.

Solicitors:

AND Garrett, PO Box 2889, Christchurch

Raymond Donnelly, P O Box 533, Christchurch