Catlin v Police

[2017] NZHC 2485

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-28 [2017] NZHC 2485

BETWEEN

NICHOLAS EDWARD CATLIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 October 2017
Appearances:	L Collins for Appellant S McKenzie for Respondent
Judgment:	11 October 2017

JUDGMENT OF MANDER J

[1]      The appellant, Nicholas Catlin, was sentenced to two years and four months imprisonment on one charge of driving with excess breath alcohol causing injury and one charge of failing to ascertain if injury or death had occurred.1     He was also disqualified from driving for five years and ordered to pay reparation in the sum of

$7,500.  He has appealed his sentence of imprisonment on the ground it is manifestly excessive.

Background

[2]      On the night of the offending, Mr Catlin drank at a pub in Queenstown.  Prior to going out that evening, he had already consumed some six to eight bottles of beer. At around 10.00 pm, he left the pub and got into his car.  Clearly intoxicated, he sped

and swerved his way up the street, reaching a speed of approximately 74 kilometres

1      Police v Catlin [2017] NZDC 12468.

CATLIN v POLICE [2017] NZHC 2485 [11 October 2017]

per hour in a 50 kilometre per hour zone.  He made a sharp turn at speed, braked heavily, and, as a result, careered across the road and onto a footpath, hitting a raised garden edge before continuing on.

[3]      In the path of Mr Catlin’s vehicle was the victim who was standing on the footpath with her bicycle, preparing to ride home. She had just put on her helmet. Mr Catlin’s vehicle struck the victim, causing her to be thrown onto its bonnet before both she and her bicycle were propelled some three to four metres into the air.  The victim landed approximately 10 metres away in the middle of the road.  Mr Catlin drove on for some 100 metres.  He then stopped, got out of the car, and was observed smoking a cigarette before decamping into some bushes.  He later caught a taxi home, where police found him soon after.

[4]      A subsequent blood test showed his alcohol level to be 150 milligrams of alcohol per 100 millilitres of blood, which is about twice the legal limit.  His blood alcohol level at the time of the collision is not known. The victim suffered a traumatic brain injury, complex facial fractures, injury to her left eye and bruising to her lower body.  She spent some two months in hospital, and after discharge continued to have double-vision and memory loss. The long term prognosis of any permanent disability remains unknown.

Sentencing decision

[5]      In  sentencing  Mr  Catlin,  Judge  Farnan  identified  the  salient  aggravating features of his offending. These included the extent of the harm to the victim; the level of alcohol in his blood, being almost twice the legal limit; and the fact he was speeding at the time he lost control of his vehicle.  The Judge assessed Mr Catlin’s culpability as being between “moderate and serious”.

[6]      Judge Farnan took a starting point of three years imprisonment on the charge of drink-driving causing injury, which she uplifted by eight months to mark the additional serious charge of failing to ascertain death or injury.

[7]      In relation to Mr Catlin’s personal circumstances, it was noted he had two previous convictions in the United Kingdom for drink-driving.   The pre-sentence

report highlighted Mr Catlin’s ongoing problems with alcoholism, and assessed him at a medium risk of reoffending.  The sentencing Judge uplifted the starting point by four months to take into account his previous relevant offending.

[8]      From a starting point of four years imprisonment, Judge Farnan then applied a

20 per cent discount for a number of mitigating factors.   Mr Catlin had attended restorative justice and offered to pay $2,500 in reparation.  It was also noted that Mr Catlin had taken other steps, such as attending Alcoholics Anonymous meetings and offering to be interviewed by the Otago Daily Times for an article about the dangers of drink-driving.

[9]      From the reduced starting point of 38 months, the Judge extended a full 25 per cent discount for Mr Catlin’s guilty pleas which, when rounded down, resulted in a total sentence of imprisonment of 28 months.  The Judge ordered an emotional harm payment of $2,500 to be paid immediately, and a further $5,000 in reparation to be paid thereafter.

The appeal

[10]     The appeal is brought on the ground that the end sentence of two years and four months imprisonment was excessive and should be substituted with a lesser term of imprisonment which would allow Mr Catlin to be eligible for home detention.

[11]     Mr Collins who appeared on behalf of Mr Catlin submitted that a starting point of no more than two and a half years imprisonment should have been adopted.  In support of that argument he cited a number of cases, some of which will be considered later in this judgment.  Mr Collins further submitted that the pre-sentence report had wrongly suggested that the only suitable sentence was one of imprisonment because of the likelihood of Mr Catlin being deported.  Further, that the four month uplift for the previous convictions was excessive and constituted a double-punishment.

Analysis

[12]     Dealing with those last two contentions first.   Mr Collins is correct in his submission that the likelihood of Mr Catlin’s deportation is an irrelevant consideration

when determining an appropriate sentence.2     However, there is nothing in Judge Farnan’s sentence remarks to suggest the Judge took the comment in the pre-sentence report into consideration when imposing sentence.   Home detention was not considered an option because of the length of the term of imprisonment arrived at by the sentencing Judge.

[13]     I do not consider Mr Collins’ submission regarding the uplift of four months to mark Mr Catlin’s previous convictions stands scrutiny.  The rationale for an uplift for previous offending is to provide specific deterrence and/or to recognise the increased culpability of an offender where his most recent offending marks a continuation of previous bad conduct.3  While proportionality is important when considering the level of any uplift, there are no rigid rules regarding the appropriate quantum to reflect an offender’s history and personal circumstances.4

[14]     In the present case, I consider it was open to Judge Farnan to impose a four month uplift because of Mr Catlin’s relevant previous offending. Notwithstanding Mr Catlin being convicted on two previous occasions in the United Kingdom for drink- driving, he has continued to drink and drive notwithstanding the inherent risks of such conduct.   That has now resulted in very serious injury to an innocent victim, and markedly increases his culpability for the present offending. The four month uplift for the two previous convictions is consistent with a six month uplift imposed for three previous drink-driving convictions in the similar case of Arrow v Police, which was not disturbed on appeal, and to which I will shortly refer.5

[15]     Mr Collins, in support of his submission that the sentence was manifestly excessive, referred to a number of previous sentencing decisions.   One of those decisions, Arrow v Police, is a recent case particularly analogous to Mr Catlin’s

offending.

2      R v Ondra [2009] NZCA 489; R v Zhang CA56/05, 24 May 2005; R v Ahlquist [1989] 2 NZLR

177 (CA).

3      Beckham v R [2012] NZCA 290; R v Howe [1982] 1 NZLR 618.

4      Ripia v R [2011] NZCA 101 at [10].

5      Arrow v Police [2016] NZHC 3069.

[16]     In that case, the appellant failed to navigate a corner, causing him to drive onto the pavement where he struck two victims, although only one was seriously injured. That person received a skull fracture, several fractured ribs, and internal injuries which required surgery and ongoing treatment. The sentencing Judge adopted a starting point of two and a half years imprisonment, which it has to be remarked is somewhat more lenient than the three years adopted by Judge Farnan in the present case. A six month uplift was applied to reflect the appellant was in breach of a Court order not to drive with alcohol in her system. That is perhaps a similar but less aggravating feature than the failure to stop charge, in respect of which an eight month uplift was applied in the present case. As previously observed, a further six month uplift was applied to mark the appellant’s three previous drink-driving convictions.

[17]     Matters taken into account in mitigation by the sentencing Judge in Arrow were not dissimilar to Mr Catlin’s case.   They included the offender’s offer of $2,500 reparation, a letter of apology, a willingness to attend restorative judgment, and steps to manage his alcoholism together with his remorse.  A five per cent discount was allowed in recognition of those matters before a full guilty plea discount was applied, resulting in an overall sentence of two years and six months imprisonment. On appeal, Nation J observed that while greater allowance could have been extended to reflect the mitigating factors personal to the appellant, the sentence was within range and the appeal was dismissed.

[18]     In attempting to distinguish Arrow from the present offending, Mr Collins submitted that in that case there were two victims, the level of alcohol in the appellant’s system was three times the limit, rather than twice, and the zero alcohol limit which the appellant was subject to in that case.  Those factors provide some support to Mr Collins’ submission that the three year starting point adopted by Judge Farnan in the present case may appear excessive when compared with the base starting point of two and a half years adopted by the sentencing Judge in Arrow.

[19]     That, however, is not the critical focus of a sentence appeal. An appeal Court must be satisfied that there has been an error in the sentence and that an alternative

sentence should be imposed.6   If the sentence under appeal can be properly justified this Court cannot substitute its own views for that of a sentencing Judge. Importantly, and of particular relevance to the present appeal, it is not enough that a Judge makes an error in his or her reasoning, or that some component part of the process by which the final sentence has been reached appears erroneous.  The focus is on the actual sentence achieved, rather than the process by which the sentence was reached.7

Accordingly, the appropriate comparison with Arrow is with the final sentence imposed of two years, six months imprisonment.

[20]     When compared with Arrow, the initial starting point in the present case may appear on the high side, but the total 45 per cent discount for factors personal to Mr Catlin and his guilty pleas can only be described as generous. The overall culpability of the two offenders in each of the cases is comparable, and while Mr Collins can point to some differences, the two month difference between the two sentences and the fact Mr Catlin faced the additional charge of failing to stop, accommodates the distinctions sought to be made.  Accordingly, while the sentence imposed on Mr Catlin may be viewed as stern, as indeed the sentence in Arrow was so described, it cannot be considered to be manifestly excessive, or beyond the range of sentence available in the exercise of the sentencing Court’s discretion.

[21]     For completeness and in deference to Mr Collins’ written submission, I refer to some of the other cases to which he referred.  In Mankipersadh v R, the Court of Appeal substituted a sentence of four months imprisonment with five months home detention, however, that case bears little similarity to Mr Catlin’s.8   Apart from the high blood alcohol level, the offending in that case was less serious. The driving fault involved the running of a red light which, while inherently dangerous, does not appear to have involved speeding or otherwise driving recklessly. The injuries to the victims were less severe, and, importantly, the offender was a 19 year old with no previous convictions.  He did not flee the scene and his actions fell into a different bracket of

culpability for this type of offending.

6      Criminal Procedure Act 2011, s 250.

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Mankipersadh v R [2011] NZCA 452.

[22]     R v Fallowfield was another sentencing decision referred to in support of the appellant’s argument.9   In that case the disqualified offender deliberately accelerated, causing his wheels to spin. He lost control of his vehicle and went over the centreline colliding with another vehicle.   It is debatable whether that driving, described as “exhibitionist wheel spinning” was any less culpable than the driving in the present case, but the overall sentence of three years cannot be viewed as being out of step with the final sentence imposed for the present offending.  The Court of Appeal observed that where the consumption of drink is heavy, the conduct reckless or worse and the consequences serious, terms of imprisonment of up to three years or more should be expected.   In that case a sentence of three years imprisonment was upheld notwithstanding the entry of a guilty plea.

Conclusion

[23]     There is a range of sentence available for this type of offending depending on where it sits on the scale of seriousness and the offender’s individual circumstances. However, the combination of factors present in this case, including a high level of intoxication, speed and recklessness, critical injuries to the victim, and Mr Catlin’s failure to stop and remain at the scene, justified the ultimate sentence imposed.  The appeal is therefore dismissed.

Solicitors:

Liam Collins Barrister, Queenstown

Crown Solicitor, Invercargill

9      R v Fallowfield [1996] 3 NZLR 657 (CA).