Blyth v Police

[2012] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000074 [2012] NZHC 875

BETWEEN  ANDREW RAYMOND BLYTH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 May 2012

Counsel:         G J Newell for Appellant

I S Auld for Respondent

Judgment:      2 May 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      The  appellant  was  stopped  at  a  police  checkpoint  in  the  early  hours  of

22 May 2011.  Breath testing procedures were carried out.  Subsequent analysis of the blood specimen taken from the appellant revealed a blood alcohol level of 111 milligrams of alcohol per 100 millilitres of blood.

[2]      The appellant has one previous conviction for driving with excess breath alcohol   on   27   November   2007.      On   that   occasion   he   was   driving   with

479 micrograms of alcohol per litre of breath.  He was fined $500 and disqualified from driving for six months in the North Shore District Court.

[3]      When the appellant again appeared in the North Shore District Court on

28 February 2012 in relation to the events of 22 May 2011 he vacated an earlier plea of not guilty and entered a plea of guilty to the charge.   He was sentenced to 80

hours’ community work and disqualified from driving for a period of 11 months.

BLYTH V NEW ZEALAND POLICE HC AK CRI-2012-404-000074 [2 May 2012]

Grounds of appeal

[4]      The appellant appeals both limbs of the sentence imposed on 28 February

2012.  That is to say, he challenges both the imposition of a sentence of community work and the length of the period of disqualification imposed upon him on the grounds that both penalties are “clearly excessive or inadequate or inappropriate” within the meaning of s 121(3)(b) of the Summary Proceedings Act 1957.

Community work or a fine?

[5]      Counsel for the appellant cited a number of helpful authorities which show that a fine is usually imposed upon those convicted of a second blood/breath alcohol offence.  I will not refer to all of the authorities that have been referred to me by both counsel.  Suffice to record that in Palmer v Police Courtney J said:[1]

[1] Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010 at [5].

A review of recent similar cases indicates that a fine together with disqualification is the usual sentence imposed on second drink-driving offences.

Her Honour cited the following cases in support of her understanding of the usual sentence imposed for this type of offending:

Wright v Police;[2]

[2] Wright v Police HC Christchurch A104/02, 4 October 2005.

Burke v Police;[3]

[3] Burke v Police HC Christchurch CRI-2007-409-165, 20 September 2007.

Jones v Police;[4]   and

Martin v Police.[5]

[4] Jones v Police HC Auckland CRI-2007-404-352, 21 February 2008.

[5] Martin v Police HC Auckland CRI-2008-404-44, 6 May 2008.

[6]      In  Palmer  v  Police  Courtney  J  overturned  a  sentence  of  120  hours’

community work and 12 months’ disqualification for a second drink-driving offence and substituted a fine of $2,000. The disqualification period remained untouched.

[7]      The appellant referred me to Burke v Police where Panckhurst J allowed an appeal from a District Court decision.  The District Court had imposed a sentence of

120 hours’ community work and 12 months’ disqualification following a prompt plea of guilty to a breath alcohol level of 495 micrograms of alcohol per litre of breath. The offender had one previous conviction for driving with excess breath or blood alcohol in 2004.  He appealed against the imposition of the sentence of community work.  Panckhurst J held that the sentence of community work was excessive.  His Honour believed that this type of offence would invariably attract a heavy financial penalty.    Accordingly  a  fine  of  $1,500  was  imposed  in  substitution  for  the community work.

[8]      The appellant also drew my attention to Wright v Police.  That was another decision of Panckhurst J.   In that case his Honour held that for a second offence where the appellant was stopped at a checkpoint and had a breath alcohol level of

546 micrograms of alcohol per litre of breath “a fine is a normal and appropriate penalty for this offence”.[6]    The period of disqualification of 12 months was not disturbed  but  a fine  of  $1,000  was  imposed in  substitution  for the sentence  of

260 hours’ community work that had been imposed in the District Court.

[6] At [6].

[9]      Counsel  for  the  respondent  properly  acknowledged  that  the  authorities indicate “that the imposition of a substantial fine is the more usual course in the case of a second conviction for driving with excess blood/breath alcohol”.   However, Mr Auld also emphasised that because the sentence imposed in this case was not normal, it does not automatically follow that it was clearly an excessive sentence.

Analysis

[10]     In considering whether or not to allow the appeal against the sentence of community work and substitute that sentence with a fine I have:

(1)       followed the approach of Stevens J in  Wright v Police where his

Honour said:[7]

[7] Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009 at [15].

... The crucial question in an appeal against sentence is whether, pursuant to s 121(3) of the Summary Proceedings Act, the High Court should intervene on appeal where a sentence is clearly excessive or inadequate or inappropriate. Normally, the High Court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles.

(2)had regard to the requirements of s 8(e) of the Sentencing Act 2002 which requires reasonable consistency and uniformity in the disposition of similar cases.

(3)had regard to s 8(g) of the Sentencing Act 2002 that requires that a sentence impose the least restrictive outcome that is appropriate;  and

(4)borne in mind s 13 of the Sentencing Act 2002 which directs the Court to impose a fine unless the Court is satisfied that a fine would not achieve the purpose for which the sentence is imposed.

[11]     In my assessment, a sentence of community work was clearly an excessive sentence in this case.  My reasons for this conclusion are:

(1)The offending involved an excessive blood alcohol level at the lower range of offending.   The appellant’s prior offence was also at the lower range of offending.

(2)The sentence of community work was out of line with sentences normally  imposed  on  those  convicted  of  a  second  blood/breath alcohol offence.   The disparity between the sentence imposed upon the appellant and the sentence which is normally imposed upon persons in his position raises an important principle of equity between persons appearing for sentence. As a general principle, those who are sentenced should receive generally consistent sentences to others who are  sentenced   in   relation   to   similar  offending  and   in   similar

circumstances.[8]

(3)The District Court Judge does not appear to have given sufficient weight to the provisions of, s 8(g) and s 13, of the Sentencing Act

2002.

[8] Sentencing Act 2002, s 8(e).

[12]     In my judgment, the appellant should have been fined.   The level of fine which I propose to impose is $1,500.  A lesser fine may have been imposed had the appellant pleaded guilty at an earlier juncture.

Period of disqualification

[13]     Both counsel kindly referred me to the judgment of Rodney Hansen J in

Blanco v Police.[9]   His Honour observed at:[10]

[9] Blanco v Police HC Auckland CRI-2008-404-72, 6 May 2008.

[10] At [12] – [14].

In Graham, a term of disqualification of two years was upheld on a second conviction. In that case, the usual range of disqualification in such cases was said to be 12-18 months and in a case referred to me by Mr Wright, Edwards v Police HC New Plymouth AP 31/02 13 August 2002, Chambers J, a total disqualification period of 18 months for a second offence was held not to have been manifestly excessive.  More recent decisions have suggested the usual range for second convictions is 6-12 months – see for example Lake v Police HC Palmerston North AP14/03 4 June 2003, Ronald Young J.

This trend is supported by a schedule prepared by Ms Harding in which she summarised sentences imposed on clients whom she has represented for second and subsequent excess breath and blood alcohol offences.  This data tends to indicate that the terms of disqualification currently being imposed for second convictions are within the 6-12 months range and, in the absence of serious aggravating circumstances, often not materially greater than the minimum of six months.

I accept that the minimum term of disqualification may be appropriate on a second conviction, particularly where there are no significant aggravating circumstances, the blood or breath alcohol level is not greatly in excess of the limit and a significant period of time has elapsed since the earlier conviction.   However, it does seem to me that the earlier offence will generally be an aggravating factor and all things being equal the period of disqualification for a second offence will be greater than the minimum.

[14]     The general period of 6-12 months’ disqualification has been referred to in

other cases in the High Court.[11]

Analysis

[11] Ineson v Police HC Christchurch CRI-2009-404-008, 19 February 2009 and Martin v Police HC Auckland CRI-2008-404-44, 6 May 2008.

[15]     The  case  law  establishes  that  in  the  general  range  of  cases  where  no exceptional circumstances are present, a period of disqualification of 6-12 months is considered appropriate.  Under normal circumstances I would conclude that a period of disqualification of 11 months in the present case was clearly not excessive, or inadequate or inappropriate.   However, both counsel acknowledge that there is a matter relevant to the period of disqualification that does not appear to have been taken into account in this case.   The appellant is a self-employed person who is apparently dependent on private transport.   He is unable to apply for a limited licence.  These circumstances do not appear to have been known to the District Court Judge (the appellant represented himself in the District Court).  Had that factor been known to the District Court Judge he is likely to have imposed a slightly shorter period of disqualification.

Conclusion

[16]     For the reasons outlined above the sentence of community work will be quashed and a fine of $1,500 imposed.

[17]     The sentence of disqualification will be quashed and substituted with a nine month period of disqualification.

[18]     All other orders made by the District Court will remain.

D B Collins J

Solicitors:

Crown Solicitor, Auckland for Respondent