Boyle v Police

[2013] NZHC 2794

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-0025 [2013] NZHC 2794

BETWEEN  BEN JOSEPH BOYLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   23 October 2013

Counsel:                  P J Jensen for Appellant

J D Lucas for Respondent

Judgment:                23 October 2013

JUDGMENT OF HEATH J

Solicitors;

Crown Solicitor, Napier
Counsel:

P J Jensen, Napier

BOYLE v NEW ZEALAND POLICE [2013] NZHC 2794 [23 October 2013]

Introduction

[1]      On Saturday 13 July 2013, at about 9.55pm, Mr Boyle was driving a motor vehicle on Kennedy Road, in Napier.  The vehicle was stopped.  Mr Boyle exhibited signs of recent alcohol intake.   Procedures were put into train to test Mr Boyle’s breath alcohol concentration.  Those tests revealed a breath alcohol concentration of

466 micrograms of alcohol per litre of breath.  The legal limit is 400 micrograms of alcohol per litre of breath.

[2]      Mr Boyle pleaded guilty to the charge, which was one of driving with an excess breath alcohol concentration on the third or subsequent occasion.  Following the entry of a plea on 31 July 2013, he was sentenced in the District Court at Napier by  Judge  Treston,  on  4  October  2013.     Judge  Treston  imposed  a  term  of imprisonment of 12 months and made other orders including that of disqualification

from holding or obtaining a driver licence.1

[3]      Mr Boyle, at the time of offending, was only 23 years old.  Despite that, he had amassed six prior convictions for offending of this type. They were:

(a)       21 March 2008 – 545 micrograms of alcohol per litre of breath

(b)      14 December 2007 – 544 micrograms of alcohol per litre of breath

(c)       21 January 2009 – 508 micrograms of alcohol per litre of breath

(d)28 February 2009 – 98 milligrams of alcohol per 80 milligrams of blood

(e)       28 January 2011 – 452 micrograms of alcohol per litre of breath

(f)       11 March 2011 – 849 micrograms of alcohol per litre of breath.

[4]      Initially  the  Courts  responded  to  that  offending  through  sentences  of community work.  Subsequently, community detention was imposed.  When the fifth

1      Police v Boyle DC Napier, CRI-2013-041-1406.

and sixth prior charges came before the Court for sentence at the same time, Mr

Boyle received a sentence of imprisonment of nine months.  That was imposed on 25

May 2011.

[5]      In addition, Mr Boyle has five convictions for driving while disqualified. There are also other convictions: one for assault on a female, others including breach of conditions of community work and release.

[6]      Notwithstanding what I have said, it is clear that Mr Boyle has positive traits as well.   He is regarded as a good worker.   Despite his history, his employer was prepared  to  continue  employment  if  Mr  Boyle  had  been  sentenced  to  home detention.  He also has a supportive partner who may provide the degree of stability that Mr Boyle needs to get his life back on track.

[7]      The pre-sentence report had recommended home detention.  The Judge was live to that.  It is clear that he saw his task as determining the sentencing response that was required given the particular offending before him and Mr Boyle’s previous history of offending in the same way.

[8]      Mr Jensen, for Mr Boyle, has made a number of points that resonate with me. He has pointed to the possible futility in a case such as this of incarcerating a relatively young man and removing him from the possibility of employment in an area that is still suffering the effects of the recession.   Mr Jensen has argued powerfully in favour of a sentence of home detention which would allow Mr Boyle to be placed in an alcohol free environment for a lengthy period of time to retain employment and, as a condition, require him to undergo programmes to rehabilitate.

[9]      Sitting on appeal from a sentence imposed in the District Court, I am required to determine whether the Judge has made any error in the sentence imposed and whether a different sentence should be imposed.   That follows from the terms of s 250  of the Criminal Procedure Act  2011  which applies  given that  the current offending occurred after 1 July 2013. That section states:

250  First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)       a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[10]     There are two discrete issues I am required to address.  The first is whether the Judge erred in failing to impose a sentence of home detention.  The second is whether, if imprisonment were the correct sentencing option, the Judge erred in the length of the sentence imposed.

[11]     Judge Treston referred to the pre-sentence report in which Mr Boyle’s risk of reoffending was assessed as “moderate”.   The Judge commented that that was “probably  pretty  generous”.    That  observation  was  a  reference  to  Mr  Boyle’s previous convictions.2  The Judge continued:

[3]      ... You are a good worker who is reliable, it is said. The report writer says this:

Mr Boyle has been subject to both rehabilitative and punitive sentences in the past.   He has previously completed rehabilitative programmes and counselling to address factors contributing to your offending including alcohol and drug counselling and departmental programmes.

[4]       So   you   have   had  the  opportunities  to  address  your   alcohol difficulties and clearly that has not worked.

[5]       The report writer says an electronically monitored sentence is an alternative to a short term of imprisonment but the recommendation is for home detention.  You are currently residing with your partner of 18 months and I have a letter from her on which she explains the circumstances leading up to this offending and she said that there was a difficulty with the fuses in the house blowing – no lights or power and you went to get some candles and did not think that you would  be  over  the  limit.    She  describes  you  as  a very  reliable, honest, caring person with a great job for which you have a passion and asks me to put aside your past as you are a changed man.  Of course, I do not re-sentence you for what you have already done I

2 Ibid, at para [3].

must sentence you on the merits for this matter as well. You say you do not drink during the week as your employment is your priority.

[12]    Judge Treston embarked upon a consideration of whether a sentence of imprisonment was necessary to mark the offending.  Having regard to his analysis, he rejected the possibility of an electronically monitored sentence.  In determining the sentence to impose, Judge Treston said:

[7]       It is important in the sentencing process to hold you accountable for the harm done to the community effectively by your driving repetitively and repeatedly with excess breath or blood alcohol.  Your responsibility must be underlined and I must denounce your conduct in the strongest possible way and impose a sentence which will deter you and other like minded offenders from this sort of behaviour.

[8]       Part of my job, of course, is to protect the public and particularly the driving public from not only first time drink-drivers but also in your case seventh time drink-driver and I do not overlook your rehabilitation although you have had the opportunity of that, as is said in the probation report, on a number of previous occasions.

[9]       It is the least restrictive outcome that the Court must impose but I must bear in mind the fact that you have already gone to jail for the same sort of thing and that has not dissuaded you from this sort of behaviour again.

[10]     I consider, of course, but reject the possibility of an electronically monitored sentence and that is because of the number of your previous convictions,  for  your  breach  of  the  release  conditions  that  you  have committed and the fact that you are, in my view, such a danger to the public now with your repetitive drink-driving that I have a responsibility to deal with you appropriately.

[11]      In any event, I bear in mind what has been said in the submissions that have been made but despite the low level it is my view that because of all the factors to which I have referred the appropriate starting point bearing in mind that the maximum potential sentence is two years’ imprisonment is a term of imprisonment of 16 months and, of course, it is my view that that is the least restrictive outcome for all the reasons which I have given.

[12]      Giving you credit for your plea of guilty today you are sentenced to imprisonment for 12 months and I release you on the standard release conditions until six months after sentence expiry date and on the special release condition until six months after the sentence expiry date as set out in the probation officer’s report which is as follows: that you must attend and complete alcohol and drug counselling to the satisfaction of your supervising probation officer and the programme facilitator.

[13]     An appeal against a refusal to impose home detention is treated as an appeal against the exercise of a discretion. An appellate Court may only interfere with such

a decision if satisfied that the Judge made an error of principle, failed to take account of any relevant factor, took into account irrelevant factors or was plainly wrong.

[14]     Notwithstanding the powerful points made by Mr Jensen, I cannot say that the Judge failed to consider any of them.   It was simply that he determined that imprisonment was necessary to mark the particular offending.

[15]     In those circumstances,  I can find no reversible error in the sentence of imprisonment imposed.  So far as the length of the sentence is concerned, there may well be some available argument on the level of the starting point taken for sentencing.  However, the ultimate question is whether a different sentence should be imposed.  That, in my view, focuses on the end sentence and whether it was one that could  properly respond  to  the  offending  having  regard  to  applicable  sentencing principles.  On that analysis, there is no discernible error made by the Judge.  I do not interfere with the length of the sentence imposed.

[16]     Had  I  been  dealing  with  this  issue  at  first  instance,  I  might  have  been prepared  to  accede  to  the  type  of  submissions  that  Mr Jensen  made.    I  would probably have needed some reinforcement of those from the defendant himself.  But given that imprisonment will remain the sentence, what is important is that Mr Boyle’s problems with alcohol be addressed as part of the special term imposed by the Judge as part of his release condition.  I expect the probation officer who sees Mr Boyle on his release to take active steps to ensure that Mr Boyle attends a suitable course in order to rehabilitate.  At his age there is probably not much more time left to do that.  It is important that from the community’s perspective, that those steps are taken forthwith upon his release.

[17]     For the reasons I have given, the appeal is dismissed.

P R Heath J