Broughton v Police HC Hamilton CRI 2005-419-53

[2005] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2005-419-53

BETWEEN

BROUGHTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:         12 May 2005

Appearances: K Tustin for Appellant

T J Peterson for Respondent Judgment:  12 May 2005

JUDGMENT OF ELLEN FRANCE J

Solicitors:

Crown Solicitor, PO Box 19-173, Hamilton Counsel:

K Tustin, PO Box 9035, Hamilton

BROUGHTON V NEW ZEALAND POLICE HC HAM CRI 2005-419-53 [12 May 2005]

[1]    The appellant pleaded guilty and was convicted on a charge of excess blood alcohol (a reading of 86 with the legal limit being 80). The appellant was disqualified for the mandatory minimum period of 12 months. In addition, a fine of

$1600 and Court costs of $130 was imposed. The appellant appeals against the amount of the fine on the basis that was manifestly excessive. No issue is taken with the period of disqualification.

Factual background

[2]    The appellant was drinking at a local tavern prior to the offending. She explains that she then went to collect her asthma inhaler that she had left at a friend’s place.

[3]    When stopped, the appellant was driving at 79kph in a 50kph zone. She had  a learner’s driving licence and was driving unsupervised so she was in breach of the terms of her licence as well.

[4]    This was the appellant’s third conviction for excess breath alcohol, the first being in 1989 and the second in 1990.

Submissions on appeal

[5]    The appellant first submits that the sentencing Judge gave insufficient weight to the mitigating circumstances when deciding on the level of fine. Counsel for the appellant analyses the relevant factors under the headings set out in Clotworthy v Police (2003) 20 CRNZ 439. The second and primary submission is that the Court erred when imposing a sentence by taking into account aggravating factors that have already been dealt with by way of monetary penalties.

[6]    A fine of $230 was imposed for the appellant’s speeding together with enforcement fees of $30. She was also fined $400 for driving as a learner driver unaccompanied plus an enforcement fee of $30. The appellant’s counsel advises that all fines are under arrangement at $20 per week.

[7]    The submission is that it is relevant to treat the speeding and breach of the learner’s licence as aggravating factors. But, here, it is submitted that to take those factors into account when considering quantum is effectively to double count those matters.

Submissions for respondent

[8]    The respondent submits that the fine imposed was within the range given the circumstances of the case.

[9]    Ms Peterson developed this submission by reference to Bell v New Zealand Police (HC AKLD A184/01, 5 March 2002). In that case, involving a 73 year old superannuitant in poor health and with limited means, the High Court on appeal reduced a fine of $2,500 to $1,000. The appellant in that case also had two prior convictions for excess breath alcohol but there were no other aggravating features. Here, with the aggravating features of driving at speed and in breach of the terms of her licence, a $1600 fine was not manifestly excessive.

Discussion

[10]   The District Court Judge in sentencing the appellant noted that this was her third conviction and that the penalty had increased from a maximum term of imprisonment of three months to a maximum of two years. Further, the minimum disqualification period had been increased to 12 months from six months and the fine increased to a maximum of $6000. The Judge observed that the reason for that  is that Parliament is clear “that repeat drink drivers are to be punished more severely, and indeed face a term of imprisonment, and a significant term of imprisonment.” (At para [2]).

[11]   The Judge acknowledged the gap between this conviction and the appellant’s previous convictions. The Judge also noted the pre-sentence report showed that the appellant had expressed remorse and empathy which the Judge accepted appeared to be genuine. The Judge then made reference to the aggravating features of driving at

speed and the breach of the learner’s licence. A credit was given for the early guilty plea.

[12]   The Judge has accordingly considered all of the relevant factors. Because there is one piece of driving involved, the issue is not one of double-counting but, rather, whether the effective overall sentence (total fines of $2,230) is excessive. In assessing that, the following observation from Bell is helpful:

“Reference to the guideline judgment of Graham v Ministry of Transport [1990] 3 NZLR 249 suggests that the fine imposed on the appellant [$2,500] was one which a third or even a second offence of excess breath alcohol could properly attract, depending on the facts of the case. As Graham emphasises, in accordance with normal sentencing practice, the circumstances of each offender and the circumstances of the offence itself will finally determine penalty. The sentencing Judge must have freedom to tailor the penalty to the individual case.”

[13]   In Tree v Police (HC AKLD, AP211/96, 13 September 1996), a fine of $1500 was substituted in place of a sentence of three months periodic detention. The appellant in that case was convicted of a third offence of excess breath alcohol, the second conviction being seven years earlier. Further, in the case of a second excess breath alcohol conviction, in Bush v Police (HC AKLD, A89/99, 2 July 1999), a sentence of periodic detention was quashed and a fine of $2,200 imposed instead. Finally, in Sinclair v Police (HC INV, AP27/01, 7 September 2001), a fine of $1500 was upheld on appeal on a second excess breath alcohol conviction.

[14]   On the basis of these authorities, the fine imposed here while stern was not manifestly excessive. It was within the available range, for drink driving with these aggravating features albeit the excess blood alcohol level was relatively low.  In Tree, for example, there is no reference to any aggravating factors other than the previous convictions; and Bush involves a fine of $2,200 on a second conviction.

[15]   It is also relevant to note that the sentencing Judge did not impose analyst’s costs and medical expenses ($93 and $69 respectively). Ms Tustin is right that is, to some extent, a matter of luck but it is something that can be put in the mix in considering the appropriateness of the sentence.

Result

[16]For the above reasons, the appeal is accordingly dismissed.

Ellen France J

Delivered at 3.00pm on 12 May 2005