C v Police HC Christchurch CRI 2007-409-161

[2007] NZHC 829

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000161

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2007

Counsel:        A J Bailey for Appellant

S C Poore for Respondent

Judgment:      23 August 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant  appeared  in  the  District  Court  on  31  July  for  sentence  in relation to two charges.  The first was an offence of driving with an excess breath alcohol  concentration  on  2  June.    The  appellant  was  stopped,  his  reading  was

667 micrograms of alcohol per litre of breath.   Otherwise the circumstances of the offence were not noteworthy, although the summary of facts records that it was the appellant’s erratic driving which led to his being stopped in the first place.

[2]      The second offence was one of breach of community work.   In November

2005 the appellant had appeared on an earlier charge of drink driving and had been sentenced to 140 hours community work.   He was required to serve that sentence

C V NZ POLICE HC CHCH CRI 2007-409-000161  23 August 2007

within the defined statutory period, but in fact  he had only performed 81 hours within  the  12  month  limit.    He  accordingly  faced  a  charge  of  breaching  his community work obligation.

[3]      Judge Erber sentenced the appellant to eight months imprisonment on the excess breath alcohol charge and two months, cumulative, on the charge of breach of community work.

[4]      The appellant is a young man aged 20 years.  He has a number of previous convictions totalling, on my count, 11 in all.   The bulk of them are for driving offences, although there are a couple for dishonesty and one of assault.   Until this sentencing he had always been dealt with by way of community-based penalties.

[5]      The real problem he faced with reference to the drink driving charge was that it was his fourth offence within a period of two and a half years.   In February of

2005 when he was underage, such that  he was not entitled to drive at  all after consuming alcohol, he incurred the first conviction.   In November of that year his second conviction arose with a reading of 482 and a month later a third conviction with a reading of 597.

[6]      Judge Erber, against this background, indicated that a sentence in the vicinity of  14  months  would  have  been  appropriate  if  the  charge  had  been  defended. However he reduced that to eight months in light of the plea of guilty.   He also imposed a period of disqualification, being 18 months.

[7]      With reference to this sentence Mr Bailey argued that it was simply out of line with the sentences imposed in other comparable cases.  Whilst not disposed to agree with that proposition, Mr Poore at least accepted in his written submission that the  penalty  was  harsh  by  comparison  to  other  cases  which  are,  of  course, conveniently summarised in the decision of R v Clotworthy (2003) 20 CRNZ 439.

[8]      Particular attention has been paid to one case being that of Ussher v Police HC CHCH A12/02 27 February 2002, because this case involved a third excess breath alcohol conviction.  A sentence of five months imprisonment was upheld in

this Court in relation to that offender.   The case was also similar to the present because  the  three  convictions  had  all  been  incurred  within  a  short  period  of

20 months.

[9]      Inevitably there are differences between the two cases.   This case involves effectively a fourth conviction for this offence.   On the other hand, as Mr Bailey pointed out, Mr Ussher’s last conviction involved a reading of 1290 micrograms.

[10]     All in all it seems to me that the eight month term of imprisonment was clearly excessive in this case.  It is out of line with the run of cases for this offence. Indeed, my experience suggests that a third or fourth conviction does not invariably lead  to  a  sentence  of  imprisonment,  although  increasingly  that  is  the  case. Regardless, this sentence is too high.   In my view the maximum sentence for this particular offence should have been no more than five months, as was imposed in relation to Mr Ussher.

[11]     With reference to the breach of community work, Mr Bailey submitted that in order to arrive at an end term of two months imprisonment, the Judge must have adopted a starting-point close to the maximum of three months.  A plea of guilty was entered at a very early stage, namely at a status hearing.   What’s more, counsel contended, this was a situation where the appellant had served 81 hours of a sentence of 140 hours.  Yet he still received a sentence near to the maximum available in all the circumstances.

[12]     Again, in my view, the sentence is too high.  In my view a sentence of one month, made cumulative upon the five month term, is as much as was appropriate, given the appellant’s background and his age of 20 years.

[13]     With reference to the community work sentence, it was open to the Judge to suspend  the  balance  of the  term pursuant  to  s78(2)(a).    Apparently there  is  no invariable practice in relation to suspending the balance of the sentence where prison is imposed for a breach.  In this case it seems to me that a suspension of the balance of the term is appropriate, given that the appellant is subject to a sentence of six months, although only a  fraction of that of course was  imposed  for the  subject

offence.  Accordingly I direct in terms of the section that the balance of the sentence is suspended.

[14]     The final issue which the appeal raises concerns leave for home detention. The Judge said this:

Looking  at  your  record  overall  and  considering  the  question  of  home detention as against the necessity to protect the public and to instil a sense of discipline into you, I am not prepared to grant you leave to apply for home detention.

Mr Bailey challenged this process of reasoning.  He questioned whether, if released to home detention, the protection of the public would be any further imperilled and likewise whether declining leave would help achieve the end of instilling a sense of discipline in the appellant.

[15]     I do struggle somewhat with the notion that protection of the public will be better achieved because the appellant will be less likely to drive when he has been drinking if leave to apply for home detention is denied.   That said, however, the matter was entirely at the discretion of the Judge so long as he had regard to the statutory factors identified in s86 of the Act.

[16]     I am not brought to the view that in light of the appellant’s background, as disclosed in the two pre-sentence reports, he was necessarily a good candidate for home  detention  and  I  do  not  intervene  with  reference  to  the  refusal  of  leave. However,  the  prison  sentences  are  reduced  to  five  months  and  one  month,

respectively, reducing the effect term to six months imprisonment.

Solicitors:

Andrew Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent