Bramley v Police

[2020] NZHC 1788

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-59

[2020] NZHC 1788

BETWEEN

MICHAEL JOHN BRAMLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 July 2020 (Heard at Tauranga)
Appearances:	J S Myers for the appellant S J Revell for the respondent
Judgment:	22 July 2020

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

Public Defence Service, Tauranga

Pollett Legal, Crown Solicitor, Tauranga

BRAMLEY v NEW ZEALAND POLICE [2020] NZHC 1788 [22 July 2020]

What happened?

[1]    On 15 May 2019, Michael Bramley, aged 70, drove with excess breath alcohol along what is often a busy main road in Mt Maunganui, in the middle of the day. He abandoned the car and left it in the middle of the road with the engine running. He was arrested after members of the public called Police due to concerns about his driving. The reading was 1,541 micrograms of alcohol per litre of breath, six times the legal limit. This was his sixth drink driving offence though the last offence was in 2012. The maximum penalty for this offence is therefore two years’ imprisonment or a $6,000 fine. On 24 June 2019, Mr Bramley pleaded not guilty on the advice of his then counsel. On 9 August 2019, following further disclosure, Mr Bramley pleaded guilty. There were several adjournments of Mr Bramley’s sentencing to allow preparation of a specialist report to assess his potential addiction to alcohol and to allow him to obtain a suitable address for home detention. No suitable address was obtained. A letter from Mr Bramley’s doctor did exist at the time of the sentencing, but Mr Bramley had apparently not given it to counsel, perhaps because of Mr Bramley’s forgetfulness which is attested to in the letter.

[2]    On 4 June 2020, in the Tauranga District Court, Judge P G Mabey QC sentenced Mr Bramley to 11 months’ imprisonment and disqualified him from driving for the minimum period, of one year and one day.1 The Judge referred to the high alcohol level and Mr Bramley’s previous convictions.   He set a starting point of     12 months’ imprisonment, incorporating provision for Mr Bramley’s previous convictions. He gave a discount of one month for the guilty plea which he characterised as coming “at a late stage”.2 The Judge was satisfied Mr Bramley was within the exception for the alcohol interlock laws which rendered him liable for disqualification. He is able to apply for a zero-alcohol licence, which requires a driver to maintain an alcohol limit of zero while driving. The Judge also convicted and discharged Mr Bramley for an outstanding charge of breach of bail. Mr Bramley appeals the sentence.

1      New Zealand Police v Bramley [2020] NZDC 10500.

2 At [4].

Submissions

[3]    Mr Myers, for Mr Bramley, submits the end sentence was manifestly excessive. He submits the starting point of 12 months was appropriate and, on the basis of other sentences for sixth convictions, a higher starting point was not justified.3 Even if it was slightly higher, he submits an end sentence of 11 months was still manifestly excessive. But he submits:

(a)a discount of two months was warranted for remorse and rehabilitative steps taken;

(b)a further discount of two months was warranted for M Bramley’s age and health, in respect of which Mr Myers applies to adduce the letter from Mr Bramley’s doctor as fresh evidence; and

(c)a full 25 per cent discount was warranted for the guilty plea so the sentence should be in the vicinity of six months’ imprisonment.

[4]    Mr Revell, for the Police, submits the starting point should have been at least 18 months’ imprisonment, having regard to the framework for starting points for more than three drink driving offences set out in Clotworthy v Police and other case law.4 He distinguishes the cases cited by Mr Myers. He accepts that arguably Mr Bramley has been hard done by, in terms of the discounts. A discount closer to 15 per cent for the guilty plea would have been available, rather than the eight per cent granted. He submits no discount was required for rehabilitation and remorse. He does not oppose the fresh medical evidence being admitted on appeal, which I do admit by consent. On the basis of that, Mr Revell accepts there should be some discount for Mr Bramley’s age and health conditions but submits it should be limited. He would not stand in the way of a discount of around 12 per cent. Even with further credit for the issues raised, with the higher starting point he submits the end sentence cannot be said to be manifestly excessive and the appeal should be dismissed. He accepts there is a

3      Todd v Police HC Nelson CRI-2007-442-15, 5 November 2007; Matkovich v Police [2013] NZHC 872; Keats v Police [2014] NZHC 2224.

4      Clotworthy v Police (2003) 20 CRNZ 439 (HC); Dick v Police [2014] NZHC 434; Sands v Police

[2012] NZHC 3011; and Himiona v Police [2012] NZHC 1756.

range of appropriate end points, and the end point advocated for by Mr Myers is within the appropriate range, but so he submits is the end point the Judge determined.

Should Mr Bramley’s appeal succeed?

[5]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. My focus is on whether the end sentence is within the available range.

[6]    I agree with Mr Revell that the alcohol level, the previous convictions and  Mr Bramley’s manner of driving are aggravating factors of the offending. The time since the last offence is not an aggravating factor. I consider most of the cases relied upon by Mr Revell concern more serious offending than that here. But the range for the sentencing of this sort of offence is relatively broad, as Mr Revell acknowledges. I do not consider the cases he relies upon demonstrate that the starting point adopted by the Judge was outside the available range of starting points. I accept Judge Mabey’s starting point of 12 months’ imprisonment was appropriate.

[7]As to the adjustments:

(a)Mr Bramley could have pleaded guilty earlier but he did not plead guilty at a particularly late stage. The initial disclosure information suggested there might have been issues with the procedure sheet, such as the date of calibration of the breath testing device, a breath test result marked “incomplete”, and a blank part of a relevant Police form. In a decision issued since the sentencing judgment the Court of Appeal has noted that “the justification for any delay” may affect the amount of the guilty plea discount.5 On the basis of the information about this delay, which was not obviously available to the sentencing Judge, I consider the guilty plea discount should be two months, or just over 16 per cent. In accordance with Moses v R, that discount is now to be deducted from the starting point along with any others.6

5      Moses v R [2020] NZCA 296 at [23].

6 At [46].

(b)The Judge did not address Mr Bramley’s engagement in rehabilitation or his letter of remorse. The assessment report by a nurse, that was available to him, said Mr Bramley had attended 10 sessions of Alcoholics Anonymous, had self-referred to an addictions service and engaged with the Hanmer Clinic. Mr Revell submits the Court might reasonably be sceptical of the effectiveness of rehabilitation of a recidivist drink-driver. There is something to that, but I consider the rehabilitative efforts Mr Bramley engaged in go beyond the token. I consider a discount of one month, or around eight per cent, is warranted for rehabilitation and the remorse it implies.

(c)The fresh evidence I have admitted verifies Mr Bramley’s alcohol dependence, cognitive impairment (particularly of memory) and ongoing investigations of enlarged glands in his chest. I accept these characteristics mean the impact of imprisonment is significantly greater on Mr Bramley than other offenders. I consider another two months’ discount for his sentence is warranted for this.

[8]    Accordingly, I uphold the appeal of the sentence of 11 months’ imprisonment, which I set aside. Instead I sentence Mr Bramley to seven months’ imprisonment. The other aspects of the District Court sentencing decision remain intact.

Palmer J