Black v Police

[2012] NZHC 1694

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-000024 [2012] NZHC 1694

CHRISTINE MEKA BLACK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 July 2012

Counsel:         R Plunkett for Appellant

J Rhodes for Respondent

Judgment:      13 July 2012

ORAL JUDGMENT OF WOOLFORD J

Solicitors:

Crown Counsel, Tauranga

Counsel:

R Plunket, Barrister, Whakatane

BLACK V NZ POLICE HC ROT CRI-2012-463-000024 [13 July 2012]

[1]      This is an appeal against a sentence imposed in the District Court at Opotiki on 26 April 2012 in respect of a conviction after a guilty plea on a charge under s 56(2) of the Land Transport Act 1998 of driving with excess breath alcohol, that conviction being the appellant’s third conviction for the same offending.

[2]      In terms of the Act, the maximum penalty is two years imprisonment or a fine of $6000.   As well, the legislation provides for a minimum disqualification from driving of 12 months.  The sentence imposed in the District Court was nine months home detention, 300 hours community work, indefinite disqualification from driving and a special six months post-detention condition.  The special condition imposed was to complete any outstanding programme/counselling as directed to the satisfaction of the probation officer and service provider.

Facts

[3]      The summary of facts records that on 18 February 2012, at about 11:30am, the appellant was the driver of a motor vehicle on State Highway 35 Opotiki.  Police recognised the vehicle because a member of the public, who had concerns about the appellant’s erratic and possibly intoxicated driving, had telephoned the Police earlier in the day.  As Police turned to stop the appellant she turned off the state highway and drove up a driveway on Gows Road in an attempt to hide from Police.   She admitted consuming alcohol that morning.   Subsequent breath alcohol procedures showed the appellant’s breath contained 1247 micrograms of alcohol per litre of breath.

[4]      The appellant has two previous convictions for driving with excess breath alcohol, one in 2005 with a breath alcohol level of 465 and a second in 2010, with a breath alcohol level of 912.  In respect of the first conviction, the appellant was fined

$400 and disqualified from driving for six months.   In respect of the second conviction, she was fined $1200 and again disqualified for six months.

Pre-sentence report

[5]      The pre-sentence report noted that the appellant had no other convictions but that given the increase in breath alcohol readings the appellant’s risk of re-offending was assessed as medium with the risk of harm to others similarly assessed due to the inherent danger to the public by driving while intoxicated.  The appellant’s use of alcohol was assessed as problematic.  However, the appellant acknowledged that her driving whilst under the influence could have disastrous results to her or other road users and she stated that she was ashamed of her actions.  She expressed remorse and displayed insight into her offending and presented as motivated to assess her alcohol consumption through counselling.

[6]      The appellant is in a de facto relationship with two children, aged 2 and 7 years.   She is completing English Unit Standards through Opotoki College Adult Community Education and is planning on undertaking a Level 4 Social Work paper with their assistance.

District Court decision

[7]      The sentencing remarks of the District Court Judge were not recorded.  He has, however, provided a memorandum to the Court.  He states that although it is impossible for him to recall exactly what he said, in every case of this kind he works from a sentencing template under which he would have had reference to authorities,

including  Clotworthy  v  Police[1]    McQuillan  v  R[2]   and  Police  v  Moore[3]   which

[1] Clotworthy v Police(2003) 20 CRNZ 439.

[2] McQuillan v R CA 129/04, 12 August 2004, McGrath, Goddard and Heath JJ).

[3] Police v Moore HC Nelson, CRI 2005-442-000009, 2 December 2005, MacKenzie J.

emphasise that recidivist drink drivers can expect imprisonment.   He would next have referred to ss 7 and 8 of the Sentencing Act 2002 and then would have turned his attention to s 9 of the Act remarking on the danger that drink drivers present in the Eastern  Bay of Plenty,  which  has  the highest  ratio  of drink  drivers of  any population in New Zealand, the vulnerability of the public at large to seriously drunk

drivers, the dates, levels and repetitive nature of the prior offending.  In mitigation,

he  states  that  he  would  have  taken  account  of  the  appellant’s  age,  guilty plea, remorse and prospects for her rehabilitation.

[8]      The District Court Judge recalls in this case that he considered with a very high level such as the appellant had, a sentence of imprisonment was clearly the starting point but that because she was a suitable candidate for home detention with reasonable prospects for rehabilitation, a sentence of home detention should be imposed.  The Judge does not recall the starting point and arithmetical calculation undertaken to arrive at nine months home detention but in cases such as this where part of the home detention sentence is directed at rehabilitative programmes, he would have taken account of the need for her to have a clear 9 months run at the rehabilitative measures required.  He would also have taken into account the fact that home detention is a much easier sentence for someone of her age and stage in life to serve than a sentence of imprisonment would be.

[9]      The District Court Judge also notes that the post-detention conditions would be  aimed  at  rehabilitative  aspects  of  the  sentence  and  that  the  300  hours  of community work was intended to give her meaningful respite from the tedium of being confined to her own home for a lengthy period as well as being a suitable punitive sanction to reflect the very high level of alcohol.

Appellant’s submissions

[10]     Counsel for the appellant notes that the District Court Judge did not identify a starting point.  She submits that in the case referred to by the District Court Judge of R v Clotworthy, Wild J identified at least 10 relevant factors when sentencing as being:

(a)       The breath or blood alcohol level;

(b)The  length  of  time  that  had  elapsed  since  the  last  drink  driving conviction;

(c)      Conviction   for   two   or   more   drink   driving   offences   in   close succession;

(d)      The manner of driving;

(e)      Whether the offender was disqualified or forbidden from driving at the time;

(f)       The plea and if guilty, whether that plea was entered at an early stage;

(g)The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences; and

(h)      The offender’s record, if any, for other types of offending; and

(i)Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and or other personal problems; and

(j)Any mitigation, personal or family circumstances contributing to the offending.

[11]     In  the  present  case,  the  counsel  for  the  appellant  submits  that  the  only relevant aggravating feature is the very high breath alcohol level.   Although the manner of driving was erratic, it was not so bad that it warranted a further charge being laid.   The  appellant  had  also  not  offended  since August  2010.    In  those circumstances counsel for the appellant submitted that the appropriate starting point for this offending was six months imprisonment.

[12]     As  to  the  mitigating  factors,  counsel  for  the  appellant  submits  that  the appellant pleaded guilty at the earliest opportunity and is entitled to receive a 25% discount from the starting point.  Furthermore, the appellant demonstrated genuine remorse as confirmed by the pre-sentence report.  She submits that the appellant has also  not  previously had  the benefit  of the  rehabilitative sentence.   Accordingly,

counsel submits that a further 10 – 15% discount should be given to the appellant for her remorse, her real prospects of rehabilitation and her motivation to participate in rehabilitation.

[13]     What was not known to the District Court Judge at the time is that the appellant is now six months pregnant.  At the time of the offending counsel for the appellant says she was experiencing relationship difficulties, which contributed to her response to abuse alcohol.  The appellant has however demonstrated insight by acknowledging that her actions placed other lawful road users at real risk.  Counsel submits, therefore, that the end sentence should be one of two to three months home detention, 100 hours community work and six months post-detention conditions with special conditions to attend any programmes, assessment or counselling that the probation officer deems necessary.

Respondent’s submissions

[14]     The appeal is not opposed by the respondent.   Counsel for the respondent responsibly submits that it appears that the 9 months home detention imposed in this case is significantly higher than other sentences received for offending of this type and displaying a similar range of aggravating features.  It can, therefore, be classed as excessive.

[15]     Counsel for the respondent submits that from a starting point of 8 to 10 months imprisonment, an appropriate end sentence in the present case would be in the range of three to four months home detention.  Counsel for the respondent states that working backwards from the figure of 9 months home detention, the Judge must have taken a starting point of well over 12 months imprisonment.   Although the alcohol reading was relatively high in the present case, counsel for the respondent accepted that such a starting point is out of line with like cases of offenders for their third such offence.

[16]     Counsel for the respondent also accepts that 300 hours of community work is relatively high and a smaller amount may be warranted, especially as the appellant will be spending less time on home detention.

Discussion

[17]     In Clotworthy v Police, Wild J reviewed 37 sentences stating that to provide accurate guidelines, and in particular, in assessing whether a particular sentence is manifestly excessive (that is, outside the permissible sentencing range) High Court Judges need to be aware of sentencing levels being imposed generally in the District Court,  which  is  the  primary  interface  between  the  Courts  in  their  criminal jurisdiction and the community.

[18]     Of the 37 sentences reviewed in Clotworthy, only three cases involved three convictions for driving with excess breath alcohol.   The other sentences generally involved many more convictions.  Of those three sentences, in one case, a sentence of five months imprisonment was upheld.  In a second case, a sentence of six months imprisonment was overturned and replaced with a sentence of three months imprisonment, while in the third case, a sentence of three months imprisonment was overturned and a sentence of two months imprisonment was substituted.

[19]     One of those cases was Putara v Police.[4]     In that case a sentence of six months imprisonment was quashed in respect of a woman who had two dependent children.  She had a breath alcohol level of 1104 micrograms of alcohol per litre of breath on a third conviction for driving with excess breath alcohol.  A sentence of three months was substituted.   Randerson J held that the sentence was manifestly excessive in all the circumstances, particularly having regard to s 8(g) of the Act which requires the Court to impose the least restrictive outcome that is appropriate in the circumstances.   Randerson J stated that the appellant will have had it brought home to her in no uncertain terms that driving with excess alcohol is not something which is tolerated by the Courts.  He was, however, satisfied that a sentence of three months imprisonment would have been sufficient to achieve the statutory purposes.

[4] Putara v Police HC Auckland A191/02, 29 November 2002.

[20]     In the present case to reach a final sentence of 9 months home detention, the District Court Judge must have used a starting point of about 15 months imprisonment.  That, in my view, is manifestly excessive for such offending.   It is

my view that  an  appropriate starting point is  eight months imprisonment.   The

appellant is entitled to a full 25% discount, which brings the provisional sentence down to one of six months imprisonment.  I agree with the District Court Judge that the appellant was a suitable candidate for home detention with reasonable prospects for rehabilitation. A sentence of home detention is therefore appropriate.

[21]     While the calculation of the length of a sentence home detention should not necessarily be a direct conversion of imprisonment to home detention by a two to one  reduction,  I do  not  see  any reason  to  vary  that  approach  in  this  case  and accordingly am of the view that three months home detention was the appropriate sentence to be imposed in this case.  A sentence of nine months home detention was, in my view, manifestly excessive.

[22]     In addition, I vary the hours of community work required accordingly to 100 hours to match the reduction in the sentence of home detention.   The six months post-detention condition with special conditions to attend any programme, assessments or counselling that the probation officer deems necessary is appropriate. This will enable the appellant to have a clear run at the rehabilitative measures as the District Court Judge intended in that they will continue for six months after the end of the home detention sentence.

[23]     Accordingly,  the  appeal  is  allowed.    A sentence  of  three  months  home detention  is  substituted  for  the  sentence  of  nine  months  home  detention.    The sentence of community work is also varied from 300 hours to 100 hours to match the reduction in the home detention sentence.   All other conditions, including the indefinite disqualification imposed by the District Court Judge, remain.

……………………………..

Woolford J