Beck v Police
[2021] NZHC 2221
•31 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000058
[2021] NZHC 2221
BETWEEN GRANT JOHN BECK
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 27 August 2021 Appearances:
K E Booker for Appellant
J H Whitcombe for Respondent
Judgment:
31 August 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 31 August 2021 at 2.30 pm.
Registrar/Deputy Registrar Date:
BECK v NEW ZEALAND POLICE [2021] NZHC 2221 [31 August 2021]
Introduction
[1] The appellant, Mr Grant Beck, was sentenced1 by Judge Garland to 18 months’ imprisonment on two charges of driving with excess breath alcohol third or subsequent2 and one charge of driving at a speed dangerous to the public.3 The Judge disqualified Mr Beck from driving for a year and a day and imposed an alcohol interlock sentence.
[2] Mr Beck appeals that sentence on the basis that the Judge erred by adopting a starting point that was too high, failing to provide appropriate discounts to reflect Mr Beck’s personal mitigating factors and declining to commute the end sentence to one of home detention.
Background facts
[3] Mr Beck was stopped at a police checkpoint on 2 July 2020 and subjected to an evidential breath test. He gave a positive result of 736 micrograms of alcohol per litre of breath. He stated he had drunk five to six stubbies of beer.
[4] Mr Beck pleaded guilty to a charge of driving with excess breath alcohol third or subsequent and was remanded on bail pending sentencing on 15 January 2021.
[5] On 6 February 2021 at 4.30 pm, while on bail, Mr Beck drove his late model Jaguar vehicle down State Highway 75 between Gold Links Drive and Tancreds Road at a steady 200 km/hr. Road conditions were dry with clear visibility and there were a number of other road users.
[6] State Highway 75 between Gold Links Drive and Tancreds Road is a straight two lane stretch of road governed by a 100 km/hr speed limit that bisects a semi- rural/residential area. There are numerous driveways, the majority of which are either obscured or made invisible by overhanging trees and plant growth, that provide access
1 Police v Beck [2021] NZDC 5727.
2 Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty two years’ imprisonment.
3 Land Transport Act, s 35(1)(b); maximum penalty three months’ imprisonment.
to the stretch of road for residential property and business owners in the area. Advisory signs alerting traffic to side roads giving access to sports clubs are also present.
[7] As Mr Beck sped down the road he was detected by a police officer in a stationary highway patrol vehicle. Police indicated Mr Beck should stop with lights and siren and after a distance he complied. He underwent roadside breath testing which produced a result of 747 micrograms of alcohol per litre of breath.
District Court decision
[8] Judge Garland considered the leading authorities on drink-driving4 and the more recent High Court decision of Samson v Police.5 As aggravating factors in relation to the first charge, the Judge considered the fact Mr Beck was tested at nearly three times the legal limit and that it was his seventh conviction for drink-driving. The Judge did, however, note there was a gap of 13 years since his last previous similar offence.
[9] In relation to the second incident, the Judge considered the fact Mr Beck was again tested at three times the legal limit, the seven-month gap between this and the last charge, the fact this was Mr Beck’s eighth conviction for drink-driving and that he was driving at an extremely high speed. The Judge found there was an extremely high risk to the public. The Judge summarised this incident as nothing short of a recipe for disaster. He also found Mr Beck had an underlying alcohol problem.
[10] The Judge considered the fact fines, periodic detention, disqualification, community work, supervision, home detention and imprisonment have all been imposed on Mr Beck in the past. He concluded that the Court has tried a wide range of sentencing options to change Mr Beck’s behaviour without success.
[11] The Judge noted that the Court had a maximum penalty of 48 months’ imprisonment available to it for the two drink-driving offences and, placing Mr Beck’s
4 Clotworthy v Police (2003) 20 CRNZ 439 (HC); R v McQuillian CA129/04, 12 August 2004; and
R v Stoves CA264/06, 7 November 2006.
5 Samson v Police [2015] NZHC 748.
offending into the fourth category in Samson, he adopted a starting point of 24 months’ imprisonment.
[12] In terms of mitigating factors, the Judge gave a six-month (25 per cent) discount for Mr Beck’s guilty plea. That resulted in an indicative sentence of 18 months’ imprisonment.
[13] The Judge referred to the fact that Mr Beck was granted leave for home detention on the only previous occasion that imprisonment had been imposed. The Judge opined that leave was granted to Mr Beck to serve that sentence by way of home detention to enable rehabilitative options to be facilitated.
[14] Next, the Judge considered whether to impose home detention but found it would be insufficient to meet the purposes and principles of sentencing in this case. He expressed the view that had the offending stopped with the first incident he would have been minded to impose home detention, but because of the second incident home detention was not an appropriate sentence. The Judge found rehabilitative intervention would be best delivered as part of release conditions after Mr Beck had served a term of imprisonment. Although he did not expressly state why it is reasonable to do so, I infer that Mr Beck’s failure to rehabilitate when given a sentence of home detention for that specific purpose previously alongside the seriousness and propinquity of the most recent set of offending required increased deterrence as part of the hierarchy of sentencing. In addition, that rehabilitation be part of post-release conditions to ensure significant oversight by authorities of Mr Beck’s compliance.
[15] Mr Beck’s end sentence was 18 months’ imprisonment, an alcohol interlock and disqualification from driving for a year and a day.
Principles on appeal
[16] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be
imposed.6 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
Submissions
Appellant’s submissions
[17]Mr Booker, on behalf of Mr Beck, submitted the Judge erred in three respects:
(a)adopting a starting point that was too high;
(b)failing to provide appropriate discounts to reflect Mr Beck’s personal mitigating factors; and
(c)not commuting the end sentence to home detention.
[18] Mr Booker acknowledged there is no tariff decision governing excess breath alcohol offending but submitted Clotworthy v Police,9 as affirmed by Whata J in Samsom v Police,10 outlines several potentially aggravating and mitigating factors of such offending. He submitted the aggravating factors here are the multiple charges, Mr Beck’s high breath alcohol level and his recidivism.
[19] Mr Booker referred to Whata J’s comments in Samson that starting points beyond 12 to 18 months’ imprisonment are typically reserved for cases involving “multiple offences with seriously aggravating factors” or “multiple offences and very serious aggravating factors”. Mr Booker submitted this was not one of those cases.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
9 Clotworthy v Police, above n 4.
10 Samson v Police, above n 5.
He accepted the fact that there are two charges is a serious aggravating factor, but submitted the other identified factors are moderate only.
[20] Mr Booker referred to Deadman v Police,11 Ching-Joyce v Police12 and Wilson v Police13 and submitted the appropriate starting point was in the range of 12 to 18 months’ imprisonment.
[21] Turning to mitigating factors, Mr Booker argued the Judge should have granted a discount for Mr Beck’s remorse and capacity for rehabilitation. Mr Booker referred to the pre-sentence report writer noting Mr Beck had expressed regret and embarrassment regarding the offending. Mr Beck has also engaged with drug and alcohol rehabilitation. Mr Booker submitted these factors warranted a discount in the range of 10 per cent.
[22] Mr Booker also submitted the Judge ought to have commuted the sentence of imprisonment to home detention. He referred to the mitigating factors outlined by Whata J in Samsom14 and argued the following were present here:
(a)high level of remorse;
(b)genuine attempts to address the underlying causes of the offending;
(c)lack of prior sentences of imprisonment; and
(d)lengthy gaps between current and prior offending.
[23] Mr Booker identified the Judge’s focus was on imposing a deterrent sentence but submitted that was inappropriate in light of Mr Beck’s previous good response to community-based sentences and his personal circumstances. Mr Booker did concede that there was no evidence of Mr Beck having done anything to address his alcohol
11 Deadman v Police [2021] NZHC 1406.
12 Ching-Joyce v Police [2016] NZHC 1019.
13 Wilson v Police [2019] NZHC 2066.
14 Samson v Police, above n 5.
dependence, either when previously given a sentence of home detention to allow him to do so nor immediately after the first of the two most recent offences.
Respondent’s submissions
[24] Mr Whitcombe, for the Crown, submitted that in isolation the second charge would have fallen within the top band of Samson, attracting a starting point of 20 to 24 months’ imprisonment. He suggested a higher starting point could possibly have been justified and identified the following aggravating factors:
(a)high breath alcohol reading;
(b)multiple offences in close succession; and
(c)dangerous driving.
[25] Mr Whitcombe submitted that it was appropriate for the Judge not to give credit for Mr Beck’s remorse or capacity for rehabilitation. He referred to R v Ngamo, where the Court of Appeal indicated it would be open to a Judge to place little weight on remorse in the context of an extensive criminal history.15 Mr Whitcombe submitted the Judge was correct to prioritise the purposes of deterrence, denunciation and public protection, having regard to Mr Beck’s history and the gravity of the offending. Finally, he submitted it was open to the Judge to impose a short term of imprisonment as the least restrictive outcome.
Discussion
Starting Point
[26] Whata J did not purport to provide a tariff decision for driving with excess breath alcohol offending.16 His summary of aggravating and mitigating factors in Samson is, however, substantially helpful.
15 R v Ngamo [2009] NZCA 512 at [9].
16 Samson v Police, above n 5, at [17].
[27] Here, in relation to the second and more serious incident, the following seriously aggravating factors are present:
(a)high level of intoxication;
(b)dangerous driving;
(c)very close proximity to previous driving with excess breath alcohol offending (the first charge); and
(d)a prolonged history of drink driving offending.
[28] Whata J in Samson regarded all these aggravating factors as serious.17 So do I. In the present case all the aggravating factors Whata J listed as “seriously aggravating” are present.18
[29] The dangerous driving in this case is a very serious aggravating factor. Mr Beck’s grossly excessive speed of 200 km/hr, in a populated area on a road in use by others while highly intoxicated, was clearly dangerous. I agree with the Judge’s characterisation of the second incident as a recipe for disaster. It was fortune, not behaviour, that shaped the outcome of the incident on 6 February.
[30] The second incident is further aggravated by the fact it occurred while Mr Beck was on bail and awaiting sentence.
[31] Having regard to those facts, the Judge was right to place the offending in the 20 to 24-month category in Samson.
[32] There are no mitigating factors of the offending. I do note the fact Mr Beck’s five previous convictions for driving with excess blood alcohol (and one for refusing an officer’s request for a blood specimen) are dated, with the most recent (before these two) occurring in 2007. Notwithstanding the length of time between the current and
17 Samson v Police, above n 5, at [16].
18 At [16].
previous convictions, the previous convictions still amount to a prolonged history of drink-driving offending
[33] I consider the Judge was correct when he said the maximum penalty available to the Court was 48 months’ imprisonment on the two driving with excess breath alcohol charges. In fact, the maximum penalty available was 51 months’ imprisonment, taking into account the third charge of driving at a speed dangerous to the public.
[34] When a global starting point is set for all of the offending, as was done here, as opposed a starting point for one charge followed by uplifts for other charges, the Court ought to have regard to the maximum penalty available rather than the maximum penalty of one charge amongst multiple.
[35] The global starting point approach is preferable in my view as it ameliorates the risk of double counting multiple charges as an aggravating factor and then additionally imposing an uplift for charges that have already been considered as an aggravating factor. However, if such an approach is adopted, it will be vital to consider the totality of the offending and how it compares to other cases. With that in mind, I now consider the comparable cases.
[36] In Deadman v Police, the offender drove with excess breath alcohol twice within approximately two months. His breath alcohol was 781 and 840 respectively. He had 15 previous convictions for drink driving or refusing blood. He was also disqualified from driving. Cull J held the offending fell within the third category in Samson and adopted a starting point of 20 months’ imprisonment.19
[37] Mr Booker rightly identified that the offender’s breath alcohol was slightly higher and that he had more previous convictions. However, I regard the present offending as more serious than that in Deadman because of Mr Beck’s grossly excessive speed and the manifest danger he posed to public safety. That very serious aggravating factor is what takes this case into the fourth category in Samson.
19 Deadman v Police, above n 11.
[38] In Ching-Joyce v Police the offender drove with excess blood alcohol twice in eight days, accruing his seventh and eight convictions. His breath alcohol was 675 and 898 respectively. There had been a five-year hiatus since his last conviction. A global starting point of 21 months’ imprisonment was upheld, despite it being regarded as stern.20
[39] Again, the offender’s breath alcohol was slightly higher in one instance, although he had the same number of previous convictions. However, the current offending is similarly more serious because of Mr Beck’s excessive speed. This same reason distinguishes the third case referred to by Mr Booker, Wilson v Police.21 I note also that the appeal in that case was summarily dispensed with and the sentence in the District Court could be categorised as merciful.
[40] In summary, I conclude the Judge’s starting point of 24 months’ imprisonment was stern but within the available range. This case warranted a starting point between 20 to 24 months’ imprisonment.
Discounts
Guilty Pleas
[41]No issue was taken with the 25 per cent guilty plea discount.
Personal circumstances
[42] Mr Booker submitted the Judge erred in failing to give Mr Beck credit to reflect his level of remorse and his capacity for rehabilitation.
[43]The scant pre-sentence report prepared for the sentencing records that:
Mr Beck expresses he is embarrassed and very regretful regarding the offending.
[44]The Judge explicitly referred at [13] to Mr Beck’s level of regret and remorse.
20 Ching-Joyce v Police, above n 12.
21 Wilson v Police, above n 13.
[45] The Judge also recognised at [15] that Mr Beck indicated to the pre-sentence report writer that he would be willing to undertake alcohol and drug treatment. The presentence report recorded that Mr Beck had self-referred and been waitlisted to attend the Hapori Ora drug and alcohol programme operated by Odyssey House. There was also a letter of support from his sponsor at Alcoholics Anonymous before the Court, which showed that Mr Beck had support in the community that was willing and able to assist him in his rehabilitation.
[46] The Judge did not give any discount for these steps taken by Mr Beck. It appears that he chose not to for the following reasons:
(a)Mr Beck’s relationship with alcohol and driving is a very lengthy one, commencing in 1983.
(b)Mr Beck obviously did not successfully rehabilitate when given an earlier opportunity to do so when sentenced to home detention.
(c)Mr Beck committed a second offence only seven months after finding himself in difficulties again, and the earlier offence did not trigger any proactive steps on Mr Beck’s part in relation to his drinking and the danger his drinking and driving posed to the community.
(d)Any remorse expressed had to be assessed in light of the extensive criminal history.
[47] I consider the Judge did not err in not providing a discount for Mr Beck’s personal circumstances. Mr Beck’s articulations, when viewed together, are ambiguous and could be viewed as self-serving. The proof of the genuineness of Mr Becks’ articulated intentions will be in his engaging fully on release and maintaining an improved approach to drinking and driving.
Should the sentence have been commuted to home detention?
[48] When considering whether to allow an appeal against a refusal to commute a sentence to home detention, an appeal court must focus on the identification of error having regard to the discretionary nature of the decision.22 Home detention is an alternative to a short-term sentence of imprisonment.23 The Court must be satisfied the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.24
[49] It is evident from Mr Beck’s history that his behaviour needs to be denounced and deterred.
[50] Given the recency of the two current convictions and the time lapse between them, it is evident that Mr Beck remains a serious danger to the public.
[51] Given these factors, I consider the short period of imprisonment was in the circumstances the least restrictive outcome in Mr Beck’s case. That said, I do not find the Judge to have been in error in declining to commute the sentence of imprisonment to one of home detention.
Conclusion
[52]The starting point was within the range available to the Judge.
[53] The Judge did not err in not giving Mr Beck credit for his personal circumstances.
[54] The Judge did not err in declining to commute the short sentence of imprisonment to home detention.
22 Doolan v R [2011] NZCA 542 at [39].
23 Sentencing Act 2002, s 15A(1)(b).
24 Section 15A(1)(a).
Result
[55]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Christchurch CC:
K Booker, Christchurch
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