Burgess v Police
[2021] NZHC 1370
•10 June 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-16
[2021] NZHC 1370
BETWEEN DAVID SHAUN BURGESS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 June 2021 Appearances:
M B Ryan for the Appellant
E R Pairman for the Respondent
Judgment:
10 June 2021
ORAL JUDGMENT OF PALMER J
Solicitors:
M B Ryan, Palmerston North
BVA The Practice, Palmerston North
BURGESS v NEW ZEALAND POLICE [2021] NZHC 1370 [10 June 2021]
What happened?
[1] Just before midnight on Friday 31 July 2020, Police alleged they witnessed a vehicle speeding on Main Street, Palmerston North and attempting to evade them. Mr David Burgess was located walking away from the vehicle with the keys in his pocket. He was arrested and refused to undergo breath and alcohol procedures. Just past midnight on Sunday 11 October 2020 in Palmerston North, the Police stopped Mr Burgess and conducted a breath test. There were two passengers in the back of his ute. The reading was 654 micrograms of alcohol per litre of breath. Mr Burgess has been convicted twice before for driving with excess breath alcohol, in January 2017 (at 597 micrograms) and March 2018 (at 472 micrograms).
[2] Mr Burgess was charged with refusing to provide a blood specimen and driving with excess blood alcohol, having been convicted at least twice previously of relevant specified offences. These offences each carry a maximum penalty of two years imprisonment or a $6,000 fine and a mandatory minimum disqualification from driving for 12 months. Mr Burgess pleaded guilty. His guilty plea to the refusal to provide a blood specimen was on the basis that he was not the driver but a passenger in the car. The summary of facts, which was the basis on which he pleaded guilty, did not state he was the driver. He was originally charged with dangerous driving on 31 July 2020 as well, but no evidence was offered when the guilty plea was entered to the other charge.
[3] On 23 April 2021, in the Palmerston North District Court, Judge C D Sygrove sentenced Mr Burgess to home detention for six months and two weeks.1 He identified the following as aggravating factors: these two blood alcohol offences being in quick succession; there being two previous breath or blood alcohol offences in the last five years; and a very poor standard of driving on 11 October 2020 with passengers being in the back of the ute.2 The Judge set a starting point of 18 months’ imprisonment, relying on a range of 12 to 18 months identified by the High Court in Samson v Police.3 He gave a 25 per cent discount for an early guilty plea.4 The sentence of six months
1 Police v Burgess [2021] NZDC 8804.
2 At [3].
3 At [4], citing Samson v Police [2015] NZHC 748.
4 At [4].
and two weeks was for each offence, to be served concurrently. He noted the pre- sentence report recommended community detention and supervision but considered that was not an adequate sentence to reflect the seriousness of the offending.5
[4] Mr Burgess has now spent 47 days on home detention. He appeals on the basis the sentence was manifestly excessive.
Submissions
[5] Mr Ryan, for Mr Burgess, submits the starting point of 18 months was too high, having regard to relevant case law with similarities to Mr Burgess’ offending. He submits a starting point of less than nine months imprisonment is appropriate. He submits the offence of refusing the blood specimen did not involve driving and Mr Burgess has not previously been sentenced to an electronically monitored sentence or a sentence with a rehabilitative focus.6 He submits the sentence should have been six months’ community detention and nine months’ supervision.
[6] Ms Pairman, for the Police, acknowledges the starting point was too high and submits it should have been between nine and 12 months’ imprisonment. She submits the Judge was right to have regard to the length of time since the last conviction and the dangerous driving as aggravating factors. She also submits Mr Burgess’ breath alcohol level was relevant. She relies on Mason v Police where the Court concluded a starting point of six to seven months was available.7 She submits it is appropriate to commute the sentence to a community-based sentence and that six months community detention and nine months’ supervision would address Mr Burgess’ emerging pattern of drink driving.
Was the sentence manifestly excessive?
[7] 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. The focus is on whether the end sentence is within the available range.8
5 At [6].
6 Bechan v Police [2015] NZHC 747.
7 Mason v Police [2017] NZHC 126.
8 Ripia v R [2011] NZCA 101 at [15].
[8] As Ms Pairman responsibly conceded, the end sentence here was not within the available range and was manifestly excessive. The length of time since the previous drink driving convictions was an aggravating factor here, as was the manner of driving, as Mr Ryan concedes.9 But only one of these convictions involved driving, which the Judge did not appear to appreciate. And he did not take into account the lack of Mr Burgess’ previous experience of electronic monitoring. A starting point of no more than 12 months’ imprisonment for both offences was appropriate. I would have started at nine months. No one takes any issue with the 25 per cent discount for the guilty pleas.
[9] Commuting the sentence to a community-based sentence is appropriate given Mr Burgess’ history, his drink-driving problem, and that he had not previously been subject to electronic monitoring. Six months’ community detention and nine months’ supervision would have been appropriate. I adjust that for the 47 days he has been on home detention. I uphold the appeal, quash the sentence and instead sentence Mr Burgess to four months’ community detention and nine months’ supervision from now, subject to the conditions proposed in the original Provision of Advice to Court report.
Palmer J
9 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
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