Blackler v Police
[2015] NZHC 2372
•29 September 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000084 [2015] NZHC 2372
BETWEEN JASON KARL BLACKLER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 September 2015 Appearances:
L Drummond for Appellant
K J Basire for CrownJudgment:
29 September 2015
ORAL JUDGMENT OF DUNNINGHAM J
[1] On 24 July 2015, the appellant was sentenced to 13 months’ imprisonment in
relation to one charge of driving with excess blood alcohol, third or subsequent. [2] The appellant appeals against that sentence on the following grounds:
(a) the sentence was manifestly excessive;
(b) inadequate recognition was given to Mr Blackler’s attempts to change
and pass compliance with community-based sentences;
(c) the Judge failed to properly take into account the length of time since his last conviction for drink driving;
(d) the Judge failed to consider s 16 of the Sentencing Act 2002; and
(e) the sentence imposed was not the least restrictive outcome in accordance with s 8(g) of the Sentencing Act 2002.
BLACKLER v NEW ZEALAND POLICE [2015] NZHC 2372 [29 September 2015]
Principles applying to this appeal
[3] The appeal is brought under s 244 of the Criminal Procedure Act 2011 and under s 250 of that Act the appeal should be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed. The Court must dismiss the appeal in any other case.
Background
[4] The appellant is a recidivist offender. The offending was his ninth conviction for alcohol related driving charges. He has seven excess blood alcohol convictions and two for refusing a blood specimen. He also has 16 convictions for driving while disqualified.
[5] The offending which was committed on 21 November 2014 was committed while he was subject to a sentence of community detention and community work imposed on 6 November 2014 for unrelated offending. His alcohol level on that day was 673 micrograms per litre of breath.
[6] The appellant has previously been sentenced to home detention for refusing a request for a blood specimen in 2008 and he breached that sentence twice. Prior to this sentence the appellant had received three prison sentences for drink driving related convictions.
District Court sentencing
[7] In the District Court, the District Court Judge adopted a starting point of
16 months’ imprisonment, which he indicated took into account the appellant’s personal aggravating factors in regard to prior convictions and offending while subject to a sentence, before deducting three months for his guilty plea bringing an end sentence of 13 months’ imprisonment.
[8] In deciding to decline home detention the Judge said:
In my opinion sentences of less than imprisonment are precluded by your offending record, your unresponsiveness to the sentences previously
imposed, the need to denounce your offending and to deter you and others from such offending and the need to protect the public from drink drivers.
Appellant’s submissions
[9] The appellant’s submissions referred me to the key cases on sentencing for excess blood alcohol driving of Clotworthy v Police,1 and Samson v Police.2
[10] In Samson, Whata J collated a number of High Court authorities applying Clotworthy and identified the factors which are considered to be aggravating or mitigating factors when sentencing for excess blood alcohol offending, third and subsequent.
[11] In identifying the mitigating factors, Whata J noted the following:
(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/or
(f) lengthy gaps between the current and prior offending.
[12] The appellant argues that in the light of these decisions, the following factors tell against the sentence of imprisonment. In this case the charge related to a alcohol level of 673 micrograms of alcohol per litre of breath and, in Clotworthy, a level of
746 was referred to as relatively low, so the appellant submits that the present level should be considered as relatively low.
[13] The appellant had not appeared for drink driving since 2008 and had successfully completed community-based sentences imposed in relation to other offending within that timeframe. Furthermore, and notwithstanding that this offence was the ninth drink driving conviction, the appellant says that his convictions were spread over a number of decades and again refers to the fact he had not appeared
since 2008 in relation to drink driving. The appellant also says that the Judge failed
1 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
2 Samson v Police [2015] NZHC 748.
to give appropriate weight to the length of time since his last conviction and the genuine attempts he had made to address the underlying causes of the offending. In that regard he provided a letter from Patchworks Otago about his current employment, and a letter from his partner and from his landlord which speak positively of him.
[14] In addition, prior to sentencing, the appellant had completed an impaired-driving course and he explains that he had made attempts to engage in the course earlier, but due to capacity issues he had been unable to start the programme until just before sentencing. He submits therefore, that his attempts to address the underlying courses of the offending were genuine.
[15] In those circumstances, he says that the considerations of s 16 of the Sentencing Act 2002 were not properly taken into account by the Judge and he should have considered home detention.
Respondent’s submissions
[16] However, as the respondent submits, consideration of home detention by the sentencing Court requires the sentencing Judge to adopt a two-step process, by first deciding by reference to aggravating and mitigating factors of the offence and the offender whether the sentence would otherwise be a short term of imprisonment. If
so, a sentencing Judge may commute the sentence to one of home detention.3
However, there is no presumption in the Sentencing Act for or against commutation and the Court’s discretion to grant home detention is wide and the offender’s personal circumstances and history of compliance with Court orders will become relevant.
[17] Thus, while in the decision in Vhavha, William Young P, noted that a sentencing Judge should be “cautious” in imposing a sentence of imprisonment on the basis that a sentence of home detention would not give the right message, I also
take into account the decision in McLeish v Police, where the Court said in relation to a commuting a short term of imprisonment to home detention.4
However, it is also clear from the authorities that the availability of home detention has not rendered otiose the short term of imprisonment. What is relevant is an assessment of the purposes and principles of sentencing (including the requirement to impose the least restrictive outcome appropriate in the circumstances), informed by a consideration of the mitigating and aggravating features applicable to both the offending and the offender. The relative weight afforded to the purposes and principles of sentencing are for the sentencing Judge, though it will be an error of law if one factor is focused upon to the exclusion of others.
[18] The respondent counters the submissions of the appellant by pointing out that the appellant has a 26 year history of driving with excess blood alcohol. He has previously received a wide range of sentencing outcomes, including community- based sentences and terms of imprisonment. He has been sentenced to home detention in 2008 for refusing a blood specimen and before this he had completed three terms of imprisonment for alcohol related driving charges.
[19] The immediate prior offending was six years earlier, but the respondent points out that the appellant has previously had long gaps in his offending, for example, between 1997 and 2006 and yet he has continued to offend after that.
[20] Furthermore, while it appears that the appellant has successfully completed some community-based sentences in 2010, he was then imprisoned in 2013 and committed the current offending while subject to a community-based sentence.
[21] The respondent says the District Court Judge was entitled to take into account the appellant’s history of non-compliance, particularly in relation to the two breaches of home detention for the relevant conviction in 2008.
Conclusion
[22] The Judge was therefore, in my view, entitled to conclude as he did at paragraph 11 of his decision, that a sentence of less than imprisonment is precluded by his offending record. It is clear in that paragraph that he is taking into account the
factors which are raised in s 16 of the Sentencing Act and the Judge has not erred in law.
[23] I therefore find the sentence is not manifestly excessive and the appeal is dismissed.
Solicitors:
L Drummond, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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