Burdon v Police
[2017] NZHC 3088
•12 December 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-53 [2017] NZHC 3088
BETWEEN ANTONY MARK BURDON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 December 2017 Appearances:
J A Westgate for Appellant
R R Smith for RespondentJudgment:
12 December 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Background to appeal
[1] On 27 May 2017 Mr Burdon, the appellant, was stopped by police for speeding. An evidential breath test disclosed 631 micrograms of alcohol per litre of breath. He was subject to a zero alcohol licence at the time, having previously been convicted for driving with excess breath alcohol.
[2] The appellant was sentenced in the District Court to 20 months imprisonment for driving with an excess breath alcohol while holding a zero alcohol licence.1 He appeals on the grounds that the sentence was manifestly excessive based on the starting
point adopted by the Judge, and insufficient discount given for his guilty plea. Mr
1 Police v Burdon [2017] NZDC 20252.
Westgate, for the appellant, submits that an end sentence of no more than 13 months imprisonment should have been imposed.
Jurisdiction
[3] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. This Court may only allow such appeal if it is satisfied there has been an error in the imposition of the sentence, and that a different sentence should be imposed.2
[4] If the sentence is justified under relevant sentencing principles, it is not for this Court to substitute its own views for those of the sentencing Judge. Only if the sentence is “manifestly excessive” will the Court interfere with the exercise of the Judge’s discretion.
District Court sentencing
[5] In sentencing the appellant, the Judge recognised the following aggravating factors of the offending:
(a) the prolonged and repetitious history of driving with excess breath alcohol;
(b) the recent conviction for that offence;
(c) that the appellant held a zero alcohol licence at the time;
(d) the appellant was speeding at 114km/hr in a 100km/hr zone.
[6] The Judge was sceptical of the appellant’s remorse, as had he been truly remorseful, he would have learnt his lesson from the many times he had appeared
before the court, and whilst in prison.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
[7] The Judge adopted a starting point of 20 months imprisonment and allowed a ten per cent discount for the guilty plea. An end sentence of 18 months imprisonment was imposed. The appellant was disqualified from driving for a further 20 months.
Submissions on appeal
[8] Mr Westgate submits that the appellant’s offending falls within upper category (b), or lower category (c) of Samson v Police.3 Aggravating factors are the high level of intoxication, dangerous driving, the recent conviction for excess breath alcohol and the long history of driving related offending. Mr Westgate submits that a starting point of no more than 18 months was appropriate.
[9] He further submits that the Judge was wrong to allow only a ten per cent discount for the guilty plea, which was entered early in the process. The appellant was co-operative and took steps to get help for his drinking problem. He took responsibility for his offending, and expressed remorse.
[10] Mr Smith, for the Police, submits that the Judge’s starting point of 20 months imprisonment was within the range of Samson, having regard to the aggravating features.
[11] Mr Smith refers to s 8(c) of the Sentencing Act 2002 that the court must impose the maximum penalty described for the offending if it is within the most serious category of cases. On that basis, the Crown submits that a starting point of 20 months imprisonment was within the available range, at the Judge’s discretion.
[12] As to the credit for guilty plea, the Crown submits that the Judge was right to be sceptical about the appellant’s remorse and efforts to get help for his drinking. The Judge noted that the appellant has continued to offend despite the benefit of rehabilitative programmes when in prison. Mr Smith submits that there was nothing exceptional about the appellant’s remorse and his rehabilitative steps were in their
infancy. The Judge was justified in his scepticism.
3 Samson v Police [2015] NZHC 748.
[13] Lastly, Mr Smith submits that it is a significant aggravating factor for the appellant to offend in this way while holding a zero alcohol licence. A sentence of imprisonment toward the upper end of the range is entirely orthodox.
Discussion
[14] Under s 57AA(4) of the Land Transport Act 1998, a person who holds a zero alcohol licence commits an offence if he or she drives while their alcohol level exceeds
250 micrograms per litre of breath. The appellant had 631 micrograms of alcohol per litre of breath. The maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6000; and the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.4
[15] Section 57AA was introduced into the Land Transport Act 1998 by the Land Transport (Road Safety and Other Matters) Amendment Act 2011. When the Bill was first introduced by the then Minister of Transport, the intention was to address New Zealand’s high level of road deaths and injuries by focusing on inexperienced drivers and repeat drink-drivers.5 The Minister noted that drink drivers are responsible for one-third of all deaths on our roads. The Minister said:
Primarily, this bill is about road safety. It is not always the sexiest topic but it is very important, because we all use the roads and we are all at the mercy of whoever else is on the road at the same time as we are. Driving is a serious job, and many of us, I am sure, have been guilty at times of not treating it as seriously as we should…
[16] In Samson v Police, Whata J set out four categories of offending:6
(a) no serious or only moderately aggravating factors, 9–12 months imprisonment;
(b) one or more aggravating factors, 12–18 months; and
4 Land Transport Act 1998, s 57AA(6).
5 (16 September 2010) 666 NZPD 14070.
6 Samson v Police, above n 3, at [15].
(c) multiple offences with seriously aggravating factors, 18-20 months;
and
(d)multiple offences and very serious aggravating factors (i.e. the worst offending of its kind), 20-24 months imprisonment.
[17] He described “serious aggravating factors” as being:7
(a) high levels of intoxication;
(b) dangerous driving;
(c) close proximity to previous EBA offending; and
(d) prolonged and continuous history of driving related offending.
[18] I add that drink driving while holding a zero alcohol licence is a seriously aggravating factor.
[19] In Samson, Whata J determined that a starting point of 20 months imprisonment was too high for the excess breath alcohol offending where the appellant had four previous convictions for excess breath alcohol offending and six previous convictions of driving while disqualified. He considered that the offending fell into the third category, attracting a starting point of 12-18 months imprisonment. Mr Smith submits that in Samson, His Honour found that there was no clear evidence that the appellant was speeding, and regarded his driving behaviour at the time of the offending as neutral. As to the third category of offenders, Mr Smith refers to a number of cases which attracted starting points of 18-20 months imprisonment.
(a) Toetoe v Police– A starting point of 16-18 months imprisonment was justified where the appellant had seven previous convictions for excess
breath alcohol offending, although there was almost a decade between
7 At [13]–[14].
convictions and almost three years since the appellant’s last conviction;8
(b)Koopu v Police where a 16 month starting point was upheld in respect to the appellant’s eighth conviction for driving with an excess breath alcohol;9
(c) Kucenko v Police where a starting point of 20 months imprisonment was upheld in respect to an appellant who had been convicted on nine previous occasions for driving offences.10
Was the starting point was manifestly excessive?
[20] This is the appellant’s tenth conviction for driving with excess breath alcohol, dating back to 1989:
(a) 5 May 1989: Unlicensed Person Driving, Excess breath alcohol, 650 mcg/L
(Disqualified from driving for 6 months.)
(b)1 December 1990: Excess breath alcohol, 550 mcg/L (Disqualified from driving for 9 months,
$250 fine.)
(c) 8 December 1990: Excess breath alcohol, 176 mcg/L
(Disqualified from driving for 9 months,
$250 fine.)
(d) 15 January 1995: Excess breath alcohol, 785 mcg/L
(Disqualified from driving for 6 months, fine
$600, final warning)
8 Toetoev Police [2014] NZHC 434.
9 Koopu v Police [2013] NZHC 2686.
10 Kucenko v Police [2013] NZHC 1356.
(e) 15 June 1996: Excess breath alcohol, 798 mcg/L
(Disqualified from driving for 6 months, fine
$850, final warning) (f)
8 May 2004:
Excess breath alcohol, 3rd or subsequent
(Community Work 250 hours Disqualified from driving for 1 year, fine $100, final warning) (g)
1 October 2010:
Excess breath alcohol 135 mcg/L, 3rd or subsequent
(Imprisonment 3 months, Disqualified from driving for 2 year,)
(h)23 October 2010: Excess breath alcohol 1019 mcg/L, 3rd or subsequent
(Imprisonment 9 months Disqualified from driving for 9 months)
(i)19 March 2015: Excess breath alcohol, 807 mcg/L, 3rd or subsequent
(Imprisonment 1 year Disqualified from driving for 1 year, Apply zero alcohol licence).
[21] The prolonged and patterned offending poses a grave risk to the public, and shows a complete disregard for the law. The Judge observed that the rehabilitative prospects of the appellant are limited and the sentence must primarily reflect denunciation and deterrence. I agree that rehabilitative efforts must never be put aside as a lost cause.
[22] In this case, as identified by the Crown and the Judge, a starting point of
20 months imprisonment is well within the range. The bands in Samson are not fixed but allow a systematic approach to sentencing.
[23] In Hessell v R, the Supreme Court emphasised that all circumstances in which the plea was entered must be addressed, not merely the timing.11 This involves whether it is truly to be regarded as an early or late plea, and the strength of the prosecution case.12 Only then can a court decide the mitigatory effect of the guilty plea. The Court held:13
The policy reasons for giving credit for guilty pleas in sentencing do not justify an approach which treats as irrelevant, or of peripheral relevance, the circumstances in which the plea is entered and what they indicate about acceptance of responsibility for the offending. The credit given should also legitimately reflect the benefit provided to the system and to participants in it. Overall, the sentencing task remains one of evaluation that leads to what the judge is satisfied is the right sentence for offending in light of the offender’s acknowledgement of guilty and all other relevant circumstances.
[24] In light of Hessell, the Judge was not bound to apply a 25 per cent or even
20 per cent discount for a guilty plea. While the appellant’s guilty plea saved the cost of a trial, a conviction was likely. The Judge was also entitled to be sceptical of remorse demonstrated by the appellant and no allowance was warranted for that in itself.
[25] It is true that the discount for a prompt guilty plea is often 20 per cent or 25 per cent, but as discussed above, it is not fixed. It is so frequently applied that a substantial departure from it should be clearly justified. Mr Westgate acknowledges that there was no obvious technical defence to the charge, but the discount should still be available to those who promptly enter a plea of guilty, so there is no attempt to game the judicial system simply to gain time before facing the inevitable, or hoping for some prosecution misfortune, such as witness unavailability. A discount in that sense is an encouragement to facilitate the judicial process and that is why delay in entering a guilty plea hardens the approach to discounting. Sometimes the delay may be understood, as information about the prosecution evidence becomes available to the defence. Every case will turn on its own facts.
[26] I conclude that a greater discount may have been allowed, not necessarily
25 per cent, perhaps 20 per cent, and while that may arithmetically lead to an
11 Hessell v R [2010] NZSC 135 at [51].
12 At [74].
13 At [65].
adjustment in sentence, I conclude that the offending is so serious that the end sentence cannot be described as manifestly excessive. It is the end sentence with which the court is concerned on appeal. Indeed, I would be inclined to have stepped outside the sentencing bands, and adopted a starting point in excess of 20 months. This is extremely serious and troubling offending, to the Court, and the community.
Disposition
[27] The appeal is dismissed.
…………………………………………….
Nicholas Davidson J
Solicitors:
J A Westgate, Dunedin
RPB Law, Dunedin
0
5
0