Brampton v Police
[2015] NZHC 2618
•23 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-296 [2015] NZHC 2618
TONY BRAMPTON
v
NEW ZEALAND POLICE
Hearing: 20 October 2015 Appearances:
G E Minchin for the Appellant
B Tantrum for the RespondentJudgment:
23 October 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 23 October 2015 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Thomas & Co, Auckland. Meredith Connell, Auckland.
BRAMPTON v NEW ZEALAND POLICE [2015] NZHC 2618 [23 October 2015]
Introduction
[1] The appellant, Mr Troy Brampton, appeals against a sentence of two years and 11 months’ imprisonment on one charge of driving with excess blood alcohol causing death1 and one charge of failing to stop after an accident to ascertain injury.2
[2] The grounds of appeal are that first, the District Court Judge erred in refusing to make a referral to the Alcohol and Other Drugs Trial Court (AODTC), and secondly, the Judge erred by giving:
(a) an excessive uplift for the failing to stop charge; (b) an excessive uplift for previous convictions;
(c) insufficient credit for remorse; and
(d) insufficient credit for time spent on restrictive bail. [3] No issue is taken with the disqualification from driving.
Facts
[4] On 20 March 2015, the appellant had been drinking at a bar in Henderson over a period of a few hours. At around 9.40 pm he then got into his car and drove onto the road.
[5] The appellant was travelling at an estimated speed of 50 to 60 kilometres per hour before colliding with the rear of the deceased’s bicycle. Due to the force of the collision, the deceased was propelled off the rear of his bike on to the appellant’s bonnet. Because the appellant continued to drive forward, the deceased struck the vehicle windscreen and roof, before sliding down the passenger side of the vehicle and back onto the road surface. The deceased’s momentum caused him to slide across the road surface and underneath a parked car which was adjacent to the crash
scene.
1 Land Transport Act 1998, s 61(1)(b).
2 Land Transport Act 1998, s 36(1)(c).
[6] The appellant continued to drive directly to his home address. He went straight to his bedroom and fell asleep.
[7] The victim was pronounced dead by paramedics at the scene at 10.19 pm. He had suffered non-survivable injuries being: significant injuries to the chest cavity; numerous broken ribs down the left-hand side; a broken humorous bone in his left arm; severed right leg about the ankle; internal decapitation.
[8] At about 11.48 pm that night, the Police came to the appellant’s address to undertake breath alcohol procedures. His vehicle was located and described as “severely crash damaged and covered in victim’s blood”. The vehicle was later written off. The Police located the appellant asleep in his bed. His screening test provided a positive result of ‘over 400’.
[9] The appellant failed to cooperate and became physically and verbally abusive towards the Police. He was arrested. His blood alcohol level was 160 milligrams of alcohol per 100 millilitres of blood.
District Court decision
[10] The Judge listed the aggravating factors as the level of alcohol, which was twice the legal limit at the time; the impact on the victim and the far reaching effects on his family and friends, particularly having read the victim impact statement of the deceased’s wife; the speed at which the appellant was travelling; the nature of the injuries sustained by the deceased, indicating the force of the impact; the circumstances of the crash, involving a cyclist with appropriate lighting; the fact that the appellant failed to stop and render assistance; and the period over which he was drinking at the bar prior to getting into his car.
[11] The Judge said the appellant’s catalogue of driving offences spoke volumes. He had had two previous convictions for excess breath alcohol and driving under the influence; one conviction for dangerous driving; one conviction for careless use of a motor vehicle; one conviction for failing to stop for red and blue blights; and two convictions for driving whilst suspended. In November 2010, the appellant’s
offending involved the careless use of a motor vehicle and driving with excess blood alcohol, the reading being 212 milligrams of alcohol per 100 millilitres of blood.
[12] The Judge noted Mr Minchin’s submission to refer to alternative outcomes,
such as the AODTC, which the Judge rejected.
[13] The Judge adopted a starting point of four years in totality, which was
uplifted by six months to reflect the appellant’s previous convictions. A discount of
10 per cent was awarded to reflect his remorse and willingness to participate in restorative justice, efforts at rehabilitation whilst on remand and his medical issues. A further two months discount was made to reflect the restrictive nature of his bail conditions (evening curfew condition). The appellant pleaded guilty at an early stage so a 25 per cent discount was given to reflect that.
[14] The end sentence was two years, 11 months’ imprisonment plus indefinite disqualification from holding or obtaining a driver’s license pursuant to s 65 of the Land Transport Act 1998, and a zero-alcohol license condition under s 65(b).
[15] On the charge of failing to stop, the appellant was sentenced to one year’s imprisonment, concurrent, and disqualified from holding or obtaining a driver’s license for four years.
Pre-sentence report
[16] The appellant is 31 years old. He was residing with his mother, with whom he maintains a good relationship, and in receipt of a benefit.
[17] The report notes that the appellant has no recollection of the events after he left the bar. He does not believe the amount he consumed would have caused the blackout. His mother commented that his whanau has sought referral to a neurologist to investigate the possibility that he is suffering long term effects from concussions he experienced while playing rugby league.
[18] His mother is described as being supportive of her son and stated that, on the night of the offending, his presentation did not indicate that he had been involved in
an accident or that he was intoxicated. She said the offending has impacted him and his family.
[19] The appellant is assessed as being genuinely remorseful.
[20] He said he was addressing his alcohol issues by attending the Waitakere Bridge Day programme, which he described as a positive experience. The report writer notes that the appellant was exited from the programme as a result of a positive test for cannabis use although he is able to request re-entry in the future.
[21] The report writer assesses the appellant as being at a low risk of re-offending but his risk of harm to others is assessed as medium to high, given the nature of the charges and his previous convictions for drink driving.
[22] The recommendation was one of community detention, intensive supervision or community work, which, unsurprisingly, the District Court Judge considered unrealistic.
Submissions
Submissions for the appellant
[23] Mr Minchin, appearing for the appellant, submits the Judge should have made a referral to the AODTC. He submits that referral was central to the sentencing submissions and thus reasons were required to be given in accordance with s 31 of the Sentencing Act 2002. In his submission, the offending for which the appellant is responsible is a peril which the AODTC is set up to address.
[24] Mr Minchin submits the Judge had reduced the possibility that the appellant was suffering from shock amnesia to a “hit and run”. He says that although the appellant failed to stop, his concussion and the possibility of shock amnesia should have been factored into the uplift or should have factored more largely in mitigation.
[25] Mr Minchin says he has attempted to obtain a medical opinion on whether or not the appellant was suffering from shock amnesia however the only people who
have expertise in the area were unavailable. In Mr Minchin’s submission, there were a number of factors which would support the appellant having shock amnesia, being: (a) the accident itself which would have been shocking; (b) the appellant’s mother found his behaviour when he returned home strange; (c) on returning home, the appellant went straight to bed, fully dressed (including wearing hat and sunglasses); and (d) he behaved irrationally when Police arrived.
[26] It is also submitted on his behalf that his mother’s responsible behaviour in going immediately to the Police station should count in mitigation since it is somewhat artificial, Mr Minchin says, to divorce an offender’s actions from that of his or her immediate family, particularly in the context of Maori.
[27] Mr Minchin submits that the weight placed on previous convictions is in breach of the double jeopardy rule as contained in the New Zealand Bill of Rights Act 1990. He accepts the 2010 careless driving and high blood alcohol reading is relevant but submits the other related offences are historical and that an uplift of six months was excessive.
[28] In Mr Minchin’s submission, there was insufficient credit for remorse and a standalone discount of 20 per cent would have been appropriate in that regard.
[29] In addition to his medical issues explaining why the appellant failed to stop, Mr Minchin says they are relevant to the extent they have the potential of exacerbating his term of imprisonment. The appellant has been in some way involved in the “Fight Club” at Mt Eden prison and counsel is informed that he has cracked his ribs. It is submitted there is a danger that, if the appellant is struck in the head, it could compound his concussion.
[30] Mr Minchin also submits that a discount of six months should have been awarded to reflect the appellant’s six months spent on restrictive bail. He submits that his freedom of movement was sufficiently curtailed.
Submissions for the respondent
[31] Mr Tantrum, appearing for the respondent, submits the decision to decline to refer the appellant to the AODTC was made under s 25(1)(d) of the Sentencing Act
2002 and did not result in an error in the sentence imposed. In Mr Tantrum’s submission, the exercise of s 25 does not trigger the requirement to give reasons as it does not relate to the imposition of a sentence or of any other means of dealing with an offender.
[32] Mr Tantrum submits the uplift for the failing to stop charge was not made in error as it reflects the appellant’s discrete, further offending. The uplift for relevant previous convictions was appropriate given the need to deter him from committing driving related offences.
[33] In Mr Tantrum’s submission, the Judge gave a sufficient discount for remorse, willingness to participate in restorative justice and efforts at rehabilitation. The focus on the appeals is the outcome rather than the individual parts of the sentence. Additionally, the Judge gave a generous discount for time spent on bail as the appellant’s freedom was not sufficiently curtailed to warrant any discount, Mr Tantrum says.
Approach to appeals
[34] Section 250(2) of the Criminal Procedure Act 2011 states that the 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.
[35] In any other case, the Court must dismiss the appeal.3
[36] The Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.4
Analysis
Is the Judge’s refusal to refer the appellant to AODTC appealable?
[37] The AODTC is a specialized District Court which provides selected defendants with an opportunity to participate in an alcohol and drug treatment programme before sentencing. Defendants may be identified as being potentially eligible for the AODTC by any party, including the defendant or defence counsel, but the decision to refer a defendant to the AODTC is made by a District Court Judge. The defendant must be assessed as alcohol or drug dependant and meet the eligibility criteria. The matter may be adjourned for three weeks to allow a full alcohol and drug assessment to be undertaken. After completion of the assessment, the Judge reviews the assessment report and, where a referral is made, the case is adjourned for it to appear before the AODTC for a determination hearing. Where participation in the AODTC is not offered, the ordinary District Court process is followed.
[38] As I understand Mr Minchin’s submission, his point is that the Judge erred by failing to refer the appellant to the AODTC and by failing to give reasons (in accordance with s 31 of the Sentencing Act) in his decision to refuse to do so. I will deal with the latter point first. Section 31 provides:
31 General requirement to give reasons
(1) A court must give reasons in open court—
(a) for the imposition of a sentence or for any other means of dealing with the offender; and
(b) for the making of an order under Part 2.
(2) The reasons may be given under this section with whatever level of particularity is appropriate to the particular case.
(3) Nothing in this section limits any other provision of this or any other enactment that requires a court to give reasons.
(4) The fact that a court, in giving reasons in a particular case, does not mention a particular principle in section 8 or a particular factor in section 9 or a consideration under section 10 or section 11 is not in itself grounds for an appeal against a sentence imposed or an order made in that case.
[39] I agree with the respondent’s submission that the statutory requirement to give reasons did not arise in the circumstances. Had the Judge exercised his discretion to refer the appellant to the AODTC, it would have been done within his power of adjournment under s 25(1)(d) to enable a rehabilitation programme (being the three phase programme set out by the AODTC) to be undertaken. After completion of the three phases of the AODTC, the appellant would have been sentenced by the AODTC in its capacity as a specialised District Court. Instead, the Judge approached sentencing in the ordinary way. The Judge’s failure to exercise the power of adjournment does not fall within the wording of s 31. The Judge imposed a sentence and gave reasons for it.
[40] Even if the s 31 obligation does arise, I am not convinced the Judge failed to conform. From the sentencing notes, it is apparent that, although the Judge encouraged the appellant to continue with his efforts at rehabilitation, he did not consider referral as being appropriate in the circumstances. The power under s 25 is entirely discretionary and it was within the Judge’s power not to adjourn the sentencing for that purpose.
[41] The other submission Mr Minchin makes is that the Judge erred by failing to refer the appellant to the AODTC. In my assessment, the Judge’s decision not to refer the appellant to the AODTC is not appealable. The scope of statutory appeal rights is set out in s 250 of the Criminal Procedure Act 2011 which states that the first appeal court must allow the appeal if satisfied there has been “an error in the sentence imposed” and that “a different sentence should be imposed”. The appellant is not saying that a different sentence should have been imposed but that an adjournment should have been made to refer him to the AODTC. That decision, in my view, is not appealable.
[42] Although the general rule is that the court, in the exercise of its criminal jurisdiction, should rarely be disturbed by review proceedings, judicial review may be the only suitable remedy in cases such as this where there is not an appeal readily available.5
Other grounds of appeal
[43] On the charge of failing to stop, Mr Minchin submits that the Judge should have added weight to the possibility that the appellant was suffering from shock amnesia. However there has been no medical expert evidence to that effect.
[44] The only medical evidence is that the appellant suffered from a number of post-concussion symptoms from the date of the offending.
[45] The sentencing Judge was provided with a letter from Assessment and Rehabilitation Services, which I understand is an Accident Compensation Commission provider. The letter states that the appellant was assessed on 24 August
2015 by an occupational therapist with their concussion service. The assessment identified that the appellant was continuing to experience a number of post- concussion symptoms from the accident. The appellant was referred for a neuropsychiatric assessment.
[46] In Mr Minchin’s submission, there was, therefore, evidence before the Judge that the appellant had suffered concussion as a result of the accident. Mr Minchin contrasted that with the position of the defendant in R v McClutchie where the defendant was being sentenced on one charge of driving with excess blood alcohol causing death and two charges of driving with excess blood alcohol causing injury..6
Although the offender did not face a charge of failing to stop, he had walked away
from the scene of the accident to an address nearby, asked for a lift, accepted he had been in an accident but said there was no one else in the car. In assessing an
appropriate starting point, the Judge said:7
5 See C v Wellington District Court [1996] 1 NZLR 668 (HC).
6 R v McClutchie [2013] NZHC 1988.
7 At [23].
You endeavoured to depart the scene without alerting people who lived nearby to the fate of your passengers. Having said that, I acknowledge the confused state you would have been in at the time and I do not place much weight on that.
[47] I agree with Mr Tantrum’s observation that the Judge’s approach in that case
could be considered to be a merciful one.
[48] Mr Minchin then submits that a sentence of imprisonment would be disproportionately severe given the appellant’s underlying medical condition.8 He has already cracked his ribs as a result of a fight in prison thus there is a risk, Mr Minchin says, of a further concussion in that environment. I do not consider that the circumstances of the appellant are sufficiently unique so as to warrant leniency in that regard. A reduction in sentence on health grounds is appropriate where ill health
is not able to be managed sufficiently within prison. The appellant’s condition does not fall into that category. There is a difference between deteriorating ill health which triggers the principle of mercy on sentencing and concussions (and other injuries) which result from fights between inmates. The latter is a matter requiring management in the prison system and does not require adjustment to the sentence.
[49] I also do not accept the submission that the responsible acts of the appellant’s mother should be attributed to him in reference to the failing to stop charge. The criminal law does not allow defendants to piggyback on other people’s good behaviour. Defendants are judged by their own behaviour. Mr Minchin, properly, did not advance his written submission based on Maori principles and the recognition of the collective nature of a whanau, hapu or iwi. Such principles do not absolve or reduce a defendant’s culpability on an omission charge.
[50] In the case of McMillian v Police, the offender was sentenced on two charges of driving with excess blood alcohol causing death and two charges of driving with excess blood alcohol causing injury. In respect of the latter charges, an uplift of six months was given.9 Mr Minchin points out that the charge of driving with excess blood alcohol causing injury carries a maximum penalty of five years’ imprisonment,
the same as failing to stop after an accident to ascertain injury. In his submission,
8 Sentencing Act 2002, s 8(h).
9 McMillian v Police HC Christchurch A225/98, 10 March 1999.
therefore, the maximum uplift which should have been applied in this case was six months following the approach of McMillian. The difference, however, is that in McMillian, the same offending caused the death and the two injuries. In this case, the offence of failing to stop to ascertain injury occurred after that of driving with excess breath alcohol causing death.
[51] Failing to stop after an accident where it is clear someone has been injured is reprehensible behaviour and the need for deterrence is important. Although not the case here, it is always possible that, if immediate medical assistance is obtained, a fatality can be avoided.
[52] In this case, there was evidence before the Judge that the appellant had been assessed and considered worthy of a specialist assessment in respect of post- concussion symptoms arising from the accident. I accept there is support for that in the appellant’s behaviour on his arrival home, including going to bed while still wearing a hat and sunglasses, and what could be considered irrational behaviour when the Police arrived. In that regard, I am aware that the appellant has two convictions from 2004 for assault on Police. His behaviour might not, therefore, be considered totally out of character. However, those are the only violent convictions on his criminal history and date from more than 10 years ago.
[53] Although the Judge should have specified the starting point for the lead offence and the amount uplifted to reflect the totality of the offending, I agree with the respondent’s submission that a starting point of three years’ imprisonment was appropriate to account for the charge of driving with excess blood alcohol causing death. However, there is evidence of some causative link between his concussion and the offending which should have been recognised in the uplift for failing to
stop.10 In totality, a starting point of three years, eight months’ imprisonment was
appropriate.
[54] Mr Minchin also submits that reference to the appellant’s previous convictions offends against the principle of double jeopardy. I do not accept that submission. At the District Court sentencing, Mr Minchin accepted that a three
month uplift was appropriate. As the Judge described, the appellant’s list of previous convictions reflects a catalogue of driving offences. Reference to previous convictions in that regard was properly made in two ways. First, it demonstrates the appellant’s failure to act responsibly while behind a wheel, thereby increasing the need for a greater deterrent response, and secondly, it indicates the enhanced degree of culpability in the circumstances. Furthermore, relevant prior convictions are specifically provided for in s 9(1)(j) Sentencing Act as an aggravating factor.
[55] I accept that the 10 per cent discount for remorse was a very modest one given the appellant’s remorse is assessed as genuine – as is evidenced by the pre- sentence report, his willingness to participate in restorative justice, which would have been a gruelling experience in the circumstances (although this was declined), and his letter of apology to the deceased’s wife. Mr Minchin refers to McMillan v Police, where Cooper J uplifted a discount of 11 per cent to one of 20 per cent based on the appellant’s very evident remorse, offer of substantial reparation and the views of the victims who had said that a sentence of imprisonment should not be imposed.
[56] The Judge did, however, apply a two month discount in respect of the appellant’s bail conditions. He was on a night time curfew for approximately six months between the time of his guilty plea and sentencing. The reason for the delay in sentencing was primarily because the defence was attempting to obtain expert evidence about the appellant’s concussion. I observe that a discount in respect of bail conditions should be given only in extreme cases. I note the Sentencing Act’s reference to restrictive bail conditions constituting a mitigating factor is limited to
bail by electronic monitoring.11
[57] Before considering the discount for the guilty plea, the appellant was, therefore, given a total discount of 13 per cent. I accept that, in circumstances where he has done everything reasonably possible, that is a modest discount. Were that the only issue on appeal, I would have been minded not to interfere with the sentence. However, given that there will be some reduction in the sentence, it is appropriate that the appellant’s extensive remorse is recognised by a discount of 15 per cent, to include his bail situation.
[58] For the reasons given, the sentence of two years and 11 months’ imprisonment is quashed and replaced with a sentence of two years and seven months’ imprisonment. This reflects the starting point on a totality basis of three years and eight months’, an uplift of six months for previous convictions, a discount of 15 per cent for remorse and the full 25 per cent discount for a guilty plea. The
disqualification imposed remains.
Thomas J
8