Bechan v Police
[2015] NZHC 747
•17 April 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000066 [2015] NZHC 747
BETWEEN KAMEER BECHAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 April 2015 Counsel:
P H H Tomlinson for the Appellant
L M Mills for the RespondentJudgment:
17 April 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on 17 April 2015 at 4.00 pm pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ……………………….
BECHAN v NZ POLICE [2015] NZHC 747 [17 April 2015]
[1] Mr Bechan was sentenced to 10 months’ imprisonment for one charge of driving with excess blood alcohol (third and subsequent). It was Mr Bechan’s fifth EBA offence in four and a half years. The maximum penalty for the charge is two years’ imprisonment and a fine not exceeding $6,000.
[2] The essential point on appeal is that the starting point of 18 months was manifestly excessive by reference to a number of relatively recent High Court decisions. Home detention is also sought.
Background
[3] In a reasonably detailed judgment, Judge Blackie set out the background to Mr Bechan’s prior offending, before turning to his assessment as to the appropriate starting point.
[4] As to the background offending, the Judge noted:
[5] You started off in 2010, and you were sentenced to community work and disqualified for six months.
[6] A few months later in 2010 you drove with excess blood alcohol two and a half times the legal limit, and you were sentenced to supervision and disqualified for six months.
[7] However, it was not long before in May 2011 you were found driving with excess breath alcohol, and also driving recklessly, and this time you were sentenced to three months’ home detention on one charge, and five months’ home detention on the other, and disqualified indefinitely.
[8] In 2011, later that year, the same year, you were before the Court again on a third and subsequent occasion, in fact the fourth occasion, with
562 as a breath alcohol level, and you were sentenced to 10 months’ home
detention with special release conditions. [9] You were disqualified indefinitely.
[10] However, it seems that you managed to get your licence back, no doubt because of some nominal attendance at a breach [sic] alcohol treatment programme, which would seem to me does not reflect well on the administration if a person with your history can get their licence back so quickly, but it meant that in 2014, that will be 24 November, you were seen by members of the public, later by the police, to be driving a Holden car up and down Overton Road in Papatoetoe.
[11] The public were so concerned about the way you were driving they called the police, and I’m now told that you were driving up and down with four passengers, and you were a danger, not only to yourself or to your passengers, but to other road users.
[12] At the time you were hopelessly drunk, 1,048 micrograms of alcohol.
[5] The Judge commenced with a starting point of 18 months’ imprisonment. The Judge cited the leading decision of Clotworthy v Police.1 He took into account Mr Bechan’s breath alcohol level, the length of time between the EBA offending, the fact that Mr Bechan had been convicted of more than two excess blood alcohol charges in close succession, and the manner of driving which he described as being hazardous to the public.
[6] Various mitigating factors to Mr Bechan personally were taken into account, including his completion of a CADS programme, together with a good employment record, support of close family members, and his responsibility for his children. The Judge reduced the starting point from 18 months to 15 months and then, taking into account an early guilty plea, arrived at an 11 month term of imprisonment. His Honour then reduced the sentence further to 10 months, in the light of submissions by counsel. The sentence is extended by six months, so that programmes can be implemented (but without extending the custodial element).
Jurisdiction
[7] The Court of Appeal in Tutakangahau v R2 recently confirmed that s 250(2) of the Criminal Procedure Act 2011 did not change the previous approach taken by courts under the Summary Proceedings Act 1957. In effect, therefore, I may allow the appeal against sentence if I find a material error, including that the sentence is manifestly excessive.
Assessment
[8] As the Judge noted, Clotworthy v New Zealand Police remains the leading case in terms of the aggravating and mitigating factor relevant to EBA sentencing, namely:3
[a] The breath or blood alcohol level.
[b] The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
1 Clotworthy v Police [2003] 20 CRNZ 439.
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
3 Clotworthy v Police, above n 1, at [20].
[c] Conviction for two or more drink driving offences in close succession.
[d] The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
[e] Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
[f] The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
[g] The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
[h] The offender’s record, if any, of convictions for other types of
offending.
[i] Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
[j] Any mitigating personal or family circumstances contributing to the offending.
[9] I regard items [a]-[e] as aggravating factors for the purpose of assessing the starting point for the offending, while [g] and [h] are relevant to uplift for aggravating personal circumstances. Items [f] and [i]-[j] are mitigating factors.
[10] The Judge had regard to relevant Clotworthy aggravating and mitigating factors. Save in respect of the reference to dangerous driving, I consider that the Judge’s analysis of the aggravating factors is appropriate and I note in particular the following:
(a) The excess breath or blood alcohol level was very high at 1,048 (or two and a half times the legal limit) – this is a seriously aggravating feature of the offending;
(b)The length of time between the five EBA offences was short (less than five years). Given that Mr Bechan was subject to home detention for a period of 10 months, the offending has largely been continuous – I also consider this to be a seriously aggravating factor;
(c) While I do not think it is available for me to conclude that the driving
was “dangerous” as the Judge concluded, the summary of facts
records that he was driving poorly and a moderately aggravating factor.
[11] Mr Tomlinson nevertheless maintained that the combination of factors relevant to Mr Bechan’s offending should have resulted in a starting point of 12 months, citing Phillipson v Police,4 Vitali v R,5 Matkovich v Police,6 Sands v
Police,7 Koopu v Police,8 Aleluia v Police,9 Motufitutama v Police,10 Kohu v Police11
4 Phillipson v Police HC Invercargill CRI-2004-425-32, 10 September 2004: The defendant in this case was sentenced at the District Court to 15 months’ imprisonment for his fifth EBA offence. He was caught with a breath alcohol reading of 647 micrograms of alcohol per litre of breath. Three of his prior EBA convictions had occurred during the three years previous. On appeal to the High Court, John Hansen J found the sentence to be manifestly excessive and substituted it with an end sentence of 12 months’ imprisonment.
5 Vitali v R [2013] NZHC 1994: Mr Vitali was convicted of EBA and sentenced in the District
Court to 15 months’ imprisonment. He was caught driving with a breath alcohol reading of 536 micrograms of alcohol per litre of breath. He had five previous EBA convictions, the most recent conviction having occurred three years’ earlier. He was also convicted of and sentenced for a charge of dangerous driving arising out of the same set of circumstances. Mr Vitali was not disqualified from driving at the time. On appeal, Katz J held that a starting point of 15 months’ imprisonment was appropriate in the circumstances and maintained the 15 month end sentence.
6 Matkovich v Police [2013] NZHC 872: Mr Matkovich was sentenced to a term of six months’
imprisonment for driving with EBA at the District Court. It was his sixth EBA conviction. There were long gaps of time between his previous convictions for EBA offending, which had occurred in 1991, 1992, May 1998, September 1998 and 2010. He was found with a breath alcohol reading of 901 micrograms of alcohol per litre of breath. Previously, community based sentences had been imposed upon him. On appeal, Gilbert J upheld the sentence of the District Court Judge, which had a starting point of nine months’ imprisonment.
7 Sands v Police [2012] NZHC 3011: The defendant had eight previous drink driving convictions, had a breath alcohol reading of 1064 micrograms of alcohol per litre of breath and 10 other driving-related convictions. A starting point of 20 months’ imprisonment was approved for this EBA offence and the end sentence of 15 months’ imprisonment was not manifestly excessive.
The judgment also dealt with sentencing in relation to another EBA charge and a driving while
disqualified charge which were imposed cumulatively on top of this EBA sentence.
8 Koopu v Police [2013] NZHC 1356: This was an appeal against an end sentence of 12 months’
imprisonment for the defendant’s eighth drink driving offence. The defendant’s seven previous drink driving convictions had occurred over a ten year period and he also had 10 other driving related convictions. The High Court held that the District Court Judge’s starting point of 16 months’ imprisonment was appropriate and took no issue with the end sentence reached.
9 Aleluia v NZ Police [2014] NZHC 40: Mr Aleluia was stopped by the police with a breath alcohol reading of 755 micrograms of alcohol per litre of breath. He was sentenced at the District Court to six months’ home detention. Mr Aleluia had four previous EBA convictions; however, two of these occurred when he was less than 18 years of age. His previous convictions as an adult had occurred six and nine years prior. He also had a history of failing to comply with
Court orders. The starting point of 12 months’ imprisonment was approved in the circumstances
and the sentence of home detention was not disturbed.
10 Motufitutama v Police [2013] NZHC 2484: Mr Tomlinson (in Bechan v R) referred to this case in supplementary submissions. A sentence of six months was imposed by the District Court for a fifth EBA, with an intoxication level of 1138 micrograms. The matter was taken to the High
Court seeking that the sentence be commuted to one of home detention. The appeal was
dismissed. I have not included it as an authority for start points of less than 12 months as the sentence was not considered by this Court and, for my part, was manifestly low given the level of intoxication.
and Hansch v New Zealand Police.12 Mr Tomlinson stressed that the only seriously aggravating factor was the level of alcohol and that the Judge overstated the dangerous element to the driving. He also emphasised that Mr Bechan’s commitment to rectifying his alcohol abuse should have weighed more heavily in the Judge’s assessment of sentence, as it did in Hansch.
[12] But the cases cited by Mr Tomlinson provide a broad band within which a court might impose an indicative starting point, from nine months in Matkovich to 20 months in Sands. Indeed, those cases and others13 serve to illustrate that while the starting point imposed on Mr Bechan was high, it was not “manifestly excessive” when one takes into account the collective severity of the aggravating factors in this case, namely the high level of Mr Bechan’s intoxication and the close proximity of the current EBA offending to the prior offending.
[13] I accept nevertheless that there are authorities with a starting point of 12 months or less14 for comparable or worse offending. It also seems to me that a indicative starting point of 14-16 months would appear to be more commensurate
with the detailed features of the offending in light of some recent authority.15
11 Kohu v Police [2013] NZHC 2758 in which Brewer J allowed an appeal against a sentence of 15 months’ imprisonment for driving with EBA and driving while disqualified. The defendant’s breath alcohol level was 1051 micrograms of alcohol per litre of breath, the gap between his last EBA conviction and the current offence was just under three years, it was his fifth EBA conviction but there was nothing dangerous about the defendant’s manner of driving though the defendant had tried to evade police detection when he realised that there was a checkpoint on the road where the police were breath testing for alcohol. The defendant had served short stints in prison for his previous EBA offending. Justice Brewer adopted a starting point of 12 months’ imprisonment and an end sentence of 13 months’ imprisonment.
12 Hansch v Police [2014] NZHC 2438. Refer below at [18].
13 Toetoe v Police [2013] NZHC 2686: The defendant in this case had an intoxication level of 692 micrograms per litre of breath, a lengthy history of offending, but there was a lengthy gap between a spate of earlier offending and the more recent offending. A starting point of 16-18 months was considered justified and an end sentence of 12 months imposed. Te Papa v Police [2013] NZHC 3218: Mr Te Papa had 6 previous convictions for EBA offending and was tested at
1070 micrograms of alcohol per litre of breath. A start point of 16 months was adopted with an
end sentence of 12 months. Spooner v Police HC Rotorua CRI-2010-463-55, 31 August 2010: Mr Spooner was tested at 887 micrograms of alcohol per litre of breath and was sentenced to 12 months imprisonment from a starting point of 18 months. He had 4 prior EBA convictions. Clotworthy, above n 1.
14 Kohu v Police, above n 11. See also, Tutahi v Police [2014] NZHC 3354: A starting point of 12 months was adopted in relation to excess breath alcohol measured at 1126 micrograms per litre of breath. This was Ms Tutahi’s seventh EBA and she was also facing sentence on a ninth driving while disqualified charge. An end cumulative sentence of 15 months was imposed.
15 Refer also to Toetoe v Police and Te Papa v Police, both above n 13.
[14] Turning to then mitigating factors, a review of recent authorities shows that the following mitigating factors appeared significant in terms of affecting the length of sentence and or type sentence (e.g. home detention):16
(a) The absence of seriously aggravating factors; (b) High levels of remorse;
(c) Genuine attempts to address the underlying causes of the offending; (d) No previous sentence of imprisonment;
(e) No previous sentence with a rehabilitative focus; and
(f) Lengthy gaps between the current and present offending.
[15] The Judge gave a generous discount of four months for personal factors (together with a discount of 4 months for guilty plea).17 This substantially mitigated the punitive significance of the 18 month start point. Indeed, an end sentence of 10 months is not manifestly excessive relative to other end sentences which exhibit a similar (though not identical) scale of aggravating features (including Clotworthy,18
Phillipson,19 Toetoe20 and Te Papa21).
[16] But, I have come to the view that closer consideration should have been given in this case to the fact that this is the first sentence of imprisonment to be imposed on Mr Bechan. This reflects two important features. First, that Mr Bechan’s prior conduct has not previously demanded a sentence of imprisonment. Second, the escalation to a sentence of imprisonment of ten months does not
immediately present itself as proportionate to the escalation in the offending.
16 Tinei v Police [2012] NZHC 2003; Fonoti v Police [2015] NZHC 200; Afamasaga v Police
[2013] NZHC 2763; Hansch v Police, above n 12; Carran v Police [2013] NZHC 1450.
17 At [30]. Note the Judge applied a four month discount for guilty plea on a starting point of 15 months. This exceeded the 25 per cent maximum laid down by Hessell v R [2010] NZSC 135,
[2011] 1 NZLR 607 at [75]. In the result, a discount of 8 months on a start point of could only be
achieved by a discount of 4.5 months for personal factors (or 25 per cent).18 Clotworthy, above n 1.
19 Phillipson v Police HC Invercargill, above n 4.
20 Toetoe v Police, above n 13.
21 Te Papa v Police above n 13.
Notably, while this is a case with seriously aggravating features, it is not a case involving multiple offences in the one act, for example driving while disqualified. This also acknowledges the fact that Mr Bechan has made a genuine (though unsuccessful) attempt to address his offending by taking all the necessary steps to obtain his licence after an indefinite disqualification. It seems to me therefore, that an end sentence in the order of eight months better reflects the offending in this case
and the personal circumstances of the offender.22
Home detention
[17] The appellant also seeks that I reconsider the custodial sentence and instead impose a sentence of home detention.
[18] While I am satisfied that the combination of factors in this case justifies a reduced term of imprisonment, I am not persuaded that home detention is appropriate. Mr Bechan has ignored drink driving laws on a repetitive basis over the last four to five years. His level of intoxication was more than two and half times the legal limit. A lengthy sentence of home detention (ten months) for prior
offending plainly was not a sufficient “signal of deterrence”.23 I have taken into
account Mr Bechan’s efforts to address his underlying alcohol abuse and that he successfully completed various courses, including while on home detention, as stressed by Mr Tomlinson. But I share the view expressed by the author of Mr Bechan’s sentencing report that participation in various alcohol programmes “appears to be ineffective in addressing in his offending”. The report recommended imprisonment. Lastly I have considered Mr Bechan’s relative youth – he was 22 at the time of his offending. Had Mr Bechan not already served a lengthy sentence of home detention, I would have been minded to commute sentence especially in light of his age. But as I have said, even a lengthy sentence of home detention failed to have the requisite deterrent effect. In my view therefore, a sentence of imprisonment is now necessary to provide the appropriate deterrence in terms of future conduct, to
denounce his conduct, to hold him accountable and to protect the public.
22 A similar approach appears to have been taken in Bidois v Police HC Hamilton CRI 2006-419-
123, 1 November 2006 and the cases cited therein.
23 In Osman v R [2010] NZCA 199 the Court of Appeal noted that in sentencing the function of home detention served as a signal of deterrence.
[19] For completeness I have carefully considered Hansch on the issue of home detention. Mr Hansch was also convicted on his fifth EBA offence. His level of intoxication was assessed at 625 micrograms of alcohol per litre of breath. A sentence of seven and half months was commuted to a sentence of community detention coupled with 12 months’ intensive supervision (Mr Hansch having already served two months of a sentence of imprisonment). But in that case the Judge noted that Mr Hansch “had never been sentenced to a sentence with a rehabilitative
focus”.24 The pre-sentence report also recommended intensive supervision,
community detention and community work. These are relevant points of difference.
Outcome
[20] I acknowledge that the Judge’s end sentence of 10 months can be supported by existing authority. But on careful examination of the facts and the authorities, I consider that the end sentence was disproportionate to the circumstances of the offending and the offender. More specifically I consider that the escalation to a 10 month sentence did not properly reflect the escalation in the offending or the genuine, though unsuccessful, attempts made by Mr Bechan to address his offending. Balanced against this, I endorse the Judge’s conclusion that home detention is not appropriate. A previous sentence of ten months’ home detention plainly did not have the requisite deterrent effect.
[21] Accordingly, the appeal is allowed to the extent that the end sentence of ten months is replaced with an end sentence of eight months.
Whata J
24 Hansch v Police, above n 12, at [23]. See also, Carran v Police, above n 16.
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