Bright v Police

[2015] NZHC 231

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-0006 [2015] NZHC 231

BETWEEN

TROY LIONEL BRIGHT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 February 2015
Appearances:	J C Hannam for Appellant A W M Britton for Respondent
Judgment:	20 February 2015

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 February 2015 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Hannam & Co Lawyers, New Plymouth

C & M Legal, Crown Solicitor, New Plymouth

BRIGHT v POLICE [2015] NZHC 231 [20 February 2015]

[1]      I allowed this appeal having heard counsel’s submissions and these are my reasons.

[2]      The Appellant is the holder of a “zero alcohol” licence.  On 4 February 2015 he  pleaded  guilty  to   driving  with  breath  containing  alcohol  not   exceeding

400 micrograms (as was the maximum permitted at the time) of alcohol per litre of breath.1

[3]      The  maximum  penalty  for  the  offence  is  imprisonment  for  a  term  not exceeding three months or a fine not exceeding $2,250. The Court is also required to disqualify the defendant from holding or obtaining a driver licence for three months or more.2

[4]      Judge A C Roberts convicted and sentenced the Appellant to two months’ imprisonment and disqualified him for four months, commencing 4 February 2015. The Judge also imposed various release conditions.   The Appellant takes no issue with either the period of disqualification or the conditions. The issue on the appeal is whether a sentence of imprisonment was required and if so the term of that sentence.

[5]      The appeal  is  brought  pursuant  to  s 244(1) Criminal  Procedure Act  2011

(“CPA”).  Sections 250(2) and (3) CPA provide:

250     First appeal court to determine appeal

…

(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.

1      Land Transport Act 1998, s 57AA(1).

2      Section 57AA(3).

[6]      The ground of appeal is that a period of two months’ imprisonment was manifestly excessive.   That remains the test on an appeal against sentence of this nature – see Tutakangahau v R.3

Background

[7]      The Appellant was issued with a zero alcohol licence on 9 October 2014. Such a licence takes effect for three years.4     Less than one month later, at about

11.45 pm  on  7 November  2014,  the  Appellant  was  stopped  by  Police  and  a subsequent evidential breath test returned a result of 390 micrograms of alcohol per litre of breath.  Counsel agreed that nothing in the Appellant’s driving that evening drew the Police’s attention to him. The Appellant pleaded guilty at an early stage.

[8]       It would not have been an offence as at 7 November 2014 for a person holding the usual licence to drive with a reading of 390 micrograms of alcohol per litre of breath.  A holder of a zero alcohol licence, however, is subject to a more onerous regime.

[9]      The summary of facts records that the Appellant had consumed six bottles of beer  at  home  before  driving.   A pre-sentence  report  prepared  prior  to  sentence recorded the Appellant as saying that he was on his way to his ex-partner’s house to look after their children as her sister was in labour.

[10]     The Appellant has five previous convictions for driving with excess breath or blood alcohol.  These earlier offences were committed in October 1996, May 2006 (x 2), December 2009 and April 2013.  A Judge must order a driver to apply for a zero alcohol licence if, amongst other things, they are convicted of driving with

excess breath or blood  alcohol  twice within five  years.5     The Appellant’s 2013

conviction was within five years of his conviction in 2009 and presumably that led the Judge to make the order to which I have referred.   In addition, on that 2013

conviction,  the  Appellant  was  sentenced  to  three  months’  imprisonment  and

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].

4      Land Transport Act 1998, s 65B(2).

5      Section 65B.

disqualified from holding a licence for 12 months.   On the face of his record he observed that period of disqualification.

[11]     The  pre-sentence  report  to  which  I  have  referred  recorded  that  that  the Appellant has shown he was motivated to alter his behaviour, and that his attendance at the “One for the Road” programme had brought about “a completely new attitude towards road safety” from the Appellant.  I agree with the Judge that it is difficult to reconcile that new attitude with the Appellant’s actions in driving as he did.

[12]     Probation recommended a sentence of community work.   The Appellant is employed, has four children and a suitable address is available for a sentence of community detention.

Submissions

[13]     The Judge took a starting point of two months’ imprisonment, uplifted by one month for the Appellant’s prior offending and then reduced the term by one month for the Appellant’s guilty plea.

[14]     Counsel for the Appellant submits that the Judge’s starting point was too high at two thirds of the maximum, and that an uplift of one month for prior offending (50 per cent of the starting point and one third of the maximum) was excessive. Crown counsel submits both were within the range available to the Judge, although at the upper end.

[15]     I accept the submission of counsel for the Appellant that the Appellant’s recent convictions for excess breath or blood alcohol are the very reason he was subject to the more onerous “zero alcohol licence” regime and that the Judge’s uplift of one month, to the extent it reflected those convictions, was too high.  If those are put to one side, then the convictions to which one might have regard are those in and prior to 2006.  As the Judge said, however, the principal aggravating feature is how soon the Appellant offended after receipt of the licence.

[16]     I also accept Crown counsel’s submission that the discount the Judge gave for the early guilty plea might be considered generous.   Despite that, however, I have come to the conclusion that the end sentence was manifestly excessive.

[17]     Looking at the matter afresh, like the Judge I would not have considered community  work  a  satisfactory  response  to  the  offending  or  to  be  a  sufficient deterrent to repeat offending.   Some form of detention is necessary but could be achieved by a sentence of community detention, in keeping with the requirement that the Court impose the least restrictive outcome appropriate in the circumstances.6

[18]     I take as the starting point for the offending six weeks’ community detention. I uplift by two weeks given the aggravating factors to which I have referred and reduce by two weeks (25 per cent) for the early guilty plea.  As the Appellant has already served two weeks’ of the sentence imposed by the Judge, I reduce the term to two weeks community detention.  The Appellant will be subject to a curfew of 7 pm to 7 am, Monday to Sunday inclusive.

Result

[19]     For the reasons given, I set aside the order imposing a term of imprisonment and in its place substitute a sentence of two weeks’ community detention, with a curfew of 7 pm to 7 am, Monday to Sunday inclusive.  The other orders made by the Judge remain.

..................................................................

M Peters J

6      Sentencing Act 2002, s 8(g).