Clarke (aka Gilbert) v Police HC Wellington CRI-2010-485-136

[2011] NZHC 54

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-136

NEIL MARTIN CLARKE (AKA PAUL NEIL GILBERT)

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2011

Counsel:         Appellant in Person

A J Ewing for the Respondent

Judgment:      14 February 2011

JUDGMENT OF MALLON J

Contents

Introduction  ............................................................................................... [1] Background

The circumstances of the offending  ............................................................ [3] The circumstances of the appellant  ............................................................ [6] District Court sentencing  ........................................................................... [9] Further information?  .................................................................................. [13] Manifestly excessive?  ............................................................................... [16] Fines  .......................................................................................................... [30] Result  ........................................................................................................ [33]

CLARKE v POLICE HC WN CRI-2010-485-136 14 February 2011

Introduction

[1]      The  appellant  was  sentenced  in  the  District  Court  to  six  months’ home detention on a number of charges.  He appeals against this sentence on the grounds that it was manifestly excessive and that the District Court Judge did not have all the information before him.   For reasons which follow the appeal on these grounds is dismissed.

[2]      At the time of sentencing the appellant on the above charges the Judge also considered  the  appellant’s  outstanding  fines  and  reparation  (totalling  $44,364). These were remitted and in their place the Judge imposed one month’s home detention, to be served cumulatively on the above sentence in their place.  There was no appeal from that decision.  However, for the reasons which follow, I quash the one month’s home detention sentence imposed in relation to the non-payment of fines and reparation.

Background

The circumstances of the offending

[3]      The charges relate to three incidents.   The first incident occurred on  14

August 2009.  The appellant was apprehended for driving above the 100km/hr speed limit on the Wellington motorway.  He was required to undergo a breath screening test but failed to complete the test.  He was required to accompany a police officer but attempted to flee and was arrested for this.   He subsequently underwent an evidential breath test which was positive.  He elected to have a blood test which, on analysis, gave a reading of 278 milligrams of alcohol per 100 millilitres of blood (ie a reading which was over three times the legal limit).  These events gave rise to a charge of driving with excess breath alcohol (s 56(2) of the Land Transport Act

1998) and a charge of refusing to accompany an enforcement officer when required to do so (s 59(1)(b) of the Land Transport Act).

[4]      The second incident occurred on 24 October 2009.  The appellant arrived at an address where he was intending to spend the night.  He was intoxicated and was banging on the door to be let in.  The occupier refused to open the door, whereupon

the appellant picked up a chair and threw it at the door.  The glass pane in the door smashed.   These events gave rise to a charge of intentionally damaging property (s 11(1)(a) of the Summary Offences Act 1981).

[5]      The third incident occurred on 27 January 2010.  On this occasion the police were  at  an  address  where  the  appellant  was  present.    The  police  arrested  the appellant on another matter.  The appellant resisted arrest and had to be physically restrained from going back into the property, and resisted being put into the police car.  At the police station the appellant resisted being searched, charged at an officer and tried to kick him.  These events gave rise to two charges of resisting an officer in the execution of his duty (s 23(a) of the Summary Offences Act).

The circumstances of the appellant

[6]      The appellant has a lengthy list of previous convictions dating back to 1989. There are convictions for assault (including assaults on police officers or traffic enforcement officers), using threatening language, disorderly behaviour, offensive behaviour, wilful damage, resisting police, escaping from custody, refusing to accompany enforcement officers, and refusing to provide driver ’s details, as well as some (relatively minor) dishonesty offending.   In most cases there are several convictions for each of these kinds of offending.

[7]      The previous convictions also include driving over the legal limit for alcohol. One of these convictions was in 2005.  The other was in 1991.  There are also two convictions in 1992 for driving whilst disqualified.  There are four convictions for refusing to provide blood specimens, the most recent of which dates back to 1991.

[8]      The  reports  before  the  Court  indicate  that  the  appellant  has  had  a  long standing alcohol problem and “a short fuse” when under the influence of alcohol. He has previously attended a residential treatment programme.  He has also attended counselling.    On  30  May  2008  he  was  sentenced  to  Intensive  Supervision  for

18 months.    The  first  two  sets  of  offending  above  were  committed  during  this

18 month period.

District Court sentencing

[9]      On 21 June 2010 there was a sentencing indication hearing in respect of the

14 August  2009  offending.    The  prosecution  had  submitted  that  a  sentence  of imprisonment  was  appropriate.    The  appellant’s  counsel  had  submitted  that  a sentence of community detention and intensive supervision was appropriate.   The appellant’s counsel placed emphasis on the huge efforts the appellant had made to find  and  retain  work  and  that  home  detention  would  take  that  away  from  the appellant.   The District Court Judge’s view was that the appellant’s drink driving offending was long enough ago to indicate that the appellant had changed his ways and so imprisonment was not appropriate.  His view was that home detention was appropriate in view of the number of previous convictions, the high blood alcohol level and the aggravating factor of speed.

[10]     The appellant entered guilty pleas to the 14 August 2009 charges and came before the same Judge for sentencing on 7 December 2010 on those charges, and the other two sets of charges on which guilty pleas had also been entered.  The Judge referred to the appellant’s previous convictions, noting the categories they fell into and the periods they covered.  He referred to the difficulties the appellant has had over  the  years  with  the  police  and  that  those  difficulties  had  rankled  with  the appellant  over  the  years.    He  referred  to  the  detail  in  the  pre-sentence  report including that the appellant had “attended residential programmes at the Bridge and NSAD at Marton” and commented that “it is a problem, you, yourself, recognise and in the past have tried to do something about”.   He also referred to the appellant’s employment efforts.

[11]     In setting the sentence of six months’ home detention the Judge said this:

[18]      If I were going to sentence you to imprisonment it would be for a term of six months on the drink driving charge.  It is laid in aggravated form, the blood alcohol level was high and you were initially stopped for speeding. So your manner of driving was what brought you to the police attention on the occasion that they stopped you.   It was accompanied by a fine only offence but refusal to accompany the officer to the police station.   So I would sentence you to six months’ imprisonment for that.  On top of that, on the wilful damage charge I would sentence you to one month and on the assault and resisting police, two months and one month respectively.  So that would be a total of nine months’ imprisonment.

[19]     This offending, in my view, warrants a home detention sentence and will be for a term of six months.

[12]     The  Judge  had  before  him  a  report  under  s  88(1)(c)  of  the  Summary

Proceedings Act 1957 which referred to unpaid fines totalling $43,769.95 of which

$15,400 was made up of enforcement fees.  The report said that the appellant was currently completing 100 hours for $10,000 worth of fines but the remaining outstanding amount was not subject to any arrangement.   The Judge said that he would write off the fines and impose one month’s home detention “on top of” the six months and that at the end of the sentence the appellant would at least not owe any fines.

Further information?

[13]     The appellant submits that the Judge did not have before him all the relevant information.  He refers to a letter that he wrote to the Judge dated 22 November 2010 for the purposes of sentencing.  The appellant says that his lawyer told him that he had not submitted it to the Judge because the lawyer did not think it would assist him.

[14]     The appellant has submitted the letter to me on this appeal.  The letter refers to his attempts to get help, his dissatisfaction with probation, his efforts under the intensive supervision sentence, his explanations for what occurred in relation to the charge for which he received that sentence and his explanation for what occurred in relation to the wilful damage charge arising from the incident on 24 October 2009.

[15]     I  will  approach  this  aspect  of  the  appellant’s  appeal  by  considering  the sentence imposed by the District Court Judge on the information before him and considering whether the letter dated 22 November 2010 would have been material.

Manifestly excessive?

[16]     The appellant submits that most of his previous convictions are very old, that he does take responsibility for his actions, that he has made considerable efforts to address his difficulties, and that the history shows that his problems are not all his

fault (because he has succeeded on many previous occasions in showing that the police have acted wrongly in relation to him).  He submits that the Judge would have had the impression that intensive supervision had not worked and that therefore he needed to move up the hierarchy of sentences to home detention.  He submits that the  reality  was  that  he  did  what  was  required  of  him  under  that  sentence  but probation considered the sentence was not suitable for him.

[17]     The appellant places emphasis on a drug and alcohol assessment report dated

12 August 2010 carried out by Roger Brooking.  That report was before the Judge at sentencing.  In that report Mr Brooking expressed the view that despite the various rehabilitation and counselling programmes the appellant had attended over the years they did not seem to have made much difference because the appellant “appears to have complex PTSD or impulse control disorder which has never been diagnosed let alone treated”.  Mr Brooking referred to therapies that are available for this, but said that first there needed to be a definitive diagnosis.  His recommendations included that, if the appellant was given a community based sentence, he be referred to a psychiatrist or psychologist for assessment and treatment.

[18]     Relying on all of this material, the appellant submits that he should have been sentenced to community detention and community work.   He submits that he was given to understand that if he pleaded guilty on the main charge, the refusing to accompany and the resisting arrest charges would be withdrawn.  He now asks this Court  to  consider  a  discharge  without  conviction  on  them.    He  submits  that  a sentence of community work and community detention would have enabled him to continue to work.  He says that he has work as a self-employed insurance broker and he could employ a driver to get to his appointments.  He says that on home detention he is not permitted to do this work because it involves too much moving around.  He also says that he would like to be referred to a psychiatrist so that he can be treated.

[19]     In light of all these points, the issue for me is whether the sentence imposed was manifestly excessive.   In my view it was not.   A comparison can be made with Toetoe  v  Police.[1]     In  that  case  Mr  Toetoe  was  apprehended  driving  with

[1] Toetoe v Police HC Rotorua CRI-2010-463-586, 15 December 2010.

741 micrograms of alcohol per litre of breath.   Subsequently he demanded to be

driven home, made threats of harming a member of the public if he was not and refused to get out of the patrol vehicle.  He pleaded guilty at an early stage to charges of driving with excess breath alcohol, obstruction of a police officer and behaving in a threatening manner in a public place.  Like the appellant, his previous convictions for driving with alcohol above the legal limit were old.   He had six previous convictions for this but the last conviction was nine years ago and the previous one was 10 years before that.  He was sentenced to six months’ imprisonment and this sentence was upheld on appeal.

[20]     A comparison can also be made with Marquet v Police[2].   In that case Mr Marquet was apprehended driving erratically and with an alcohol level of 1240mg per litre of breath, a reading which is over three times the legal limit.  At the time he was on bail and disqualified from driving.  This was his third such conviction and his last conviction was less than six months earlier.   A sentence of six months’ imprisonment was imposed for the excess breath alcohol offending and concurrent one month sentences were imposed for the related disqualified driving offence and a further offence of disqualified driving committed a short time later.

[2] Marquet v Police HC Christchurch CRI-2010-409-000174, 23 September 2010.

[21]     Recidivist   alcohol   driving   offending   can   mean   that   a   sentence   of imprisonment is appropriate.   Here the Judge correctly viewed the age of the convictions as meaning that imprisonment was not appropriate.  The Judge correctly viewed the aggravating factors as being the speeding, the high alcohol level, the initial refusal to accompany and the two later sets of offending.  When those factors are taken into account a sentence of six months’ home detention is not manifestly excessive.

[22]     There is nothing in the Judge’s remarks to indicate that the previous intensive supervision sentence was relevant in his decision to impose a sentence of home detention for the driving with excess blood alcohol offence.   That sentence was mentioned only by way of background when the Judge was summarising the appellant’s history.   It was not referred to when the Judge was considering what

sentence to impose on the charges before him.

[23]     The appellant is concerned at the Judge’s error when referring to residential treatment programmes he had attended.  The appellant says that he has attended only one such programme and that was from December 2003 until June 2004.  This error was not, however, material to the appropriateness of the sentence imposed.   It is apparent from the Judge’s remarks that the residential treatment programme was relevant to the Judge’s view that the appellant recognised his problem and that he had tried to do something about it.   This was part of the background the Judge referred to.  It was not referred to again when the Judge was setting the sentence.

[24]     At the sentencing indication the Judge had rejected community detention as appropriate  and  the  issue  for  the  Judge  was  whether  home  detention  might  be imposed instead of imprisonment.   At the sentencing the Judge considered home detention should be imposed instead of imprisonment.   The appellant’s previous efforts would have assisted the Judge in determining that home detention rather than imprisonment was appropriate, and the fact that he had attended one rather than two such programmes would have made no difference to this.

[25]     The  Judge  was  also  aware  of  the  appellant’s  desire  to  continue  in employment.    It  was  mentioned  by  the  appellant’s  counsel  at  the  sentencing indication  and  referred  to  by  the  Judge  at  sentencing.     That  the  particular employment in which the appellant was engaged might not be able to be undertaken while serving home detention did not however make that sentence inappropriate.  It is for the probation officer to consider what, if any, employment might be able to be undertaken during the sentence.

[26]     The Judge was also aware that the appellant had difficulties with the police. It was mentioned by him in his remarks.  The Judge may not have been aware of the detail of those difficulties (some of which is set out in the appellant’s letter of

22 November 2010 and some of which is discussed in judgments which the appellant has provided to me).  But that detail would have made no difference to whether the sentence of home detention (rather than community detention and community work) was appropriate.  The most serious offending before the Judge was the excess blood alcohol offence and it was that offending which meant that home detention was appropriate.

[27]     The appellant says that he understood some charges would be withdrawn if he pleaded guilty.   The Crown submitted at sentencing that if a sentence of imprisonment were imposed on the driving with excess blood alcohol charge then a conviction and discharge on the summary charges might be appropriate.  The Judge did not impose a sentence of imprisonment on the driving with excess blood alcohol charge and imposed short concurrent home detention sentences on the summary charges.  That was an approach that was open to him.  The appellant does not now seek to change his plea on those charges but instead seeks a discharge without conviction.  There is a statutory test that must be met before this can be ordered and the grounds here do not meet that test.

[28]     The appellant says  that  he would like to  be assessed and  treated as  per Mr Brooking’s recommendation.   The conditions of his home detention sentence enable him to be assessed and treated as appropriate.   That is something for the appellant to take up with the probation officer.

[29]     The above deals with the matters raised in the letter of 22 November 2010 and the submissions made by the appellant in his appeal.  I am satisfied that none of them would have been material to the sentence imposed by the District Court Judge and that the sentence was not manifestly excessive.

Fines

[30]     The jurisdiction to impose home detention for non-payment of fines arises from s 88 of the Summary Proceedings Act.  That sets out when the Registrar may refer non-payment of fines to a District Court Judge.  One of the options available to a Judge, on consideration of a report from the Registrar, is to impose a sentence of home detention.   However, s 106E of the Summary Proceedings Act  limits the circumstances in which such a sentence can be imposed.  One of those limits is that the Judge must have considered the defendant’s financial circumstances and this must include considering a statement of means.

[31]     The respondent acknowledges that this pre-requisite appears not to have been met.  A statement of means is not on the file and the Judge has not mentioned the

appellant’s financial circumstances when imposing an additional month’s home detention.  The respondent acknowledges that the order remitting the fines should be quashed along with the one month’s home detention  sentence.   The respondent proposes that the issue of the fines be referred back to the District Court for reconsideration.[3]

[3] As was the approach taken in Taunoa v Police HC Napier CRI-2006-441-19, 31 May 2006.

[32]     I will quash the one month’s home detention  sentence in relation to the unpaid fine, but I have decided against referring the matter back to the District Court. A Judge has a discretion to remit fines as part of a sentencing process in order to  provide  an  offender  a  clean  slate  once  he  or  she  has  served  a  sentence  of

imprisonment.[4]   In the present case I consider that the appellant here should have the

[4] As mentioned in Johnson v Police HC New Plymouth CRI-2008-443-9, 10 April 2008.

benefit of that clean slate.  The appellant has completed community work for unpaid fines of $10,000.  A substantial part of the balance is made up of enforcement costs. The appellant has a history of alcohol problems and difficulties with the police but has made efforts to address those.   The gap in his conviction history shows the efforts he has made.   He is now the subject of a not insubstantial term of home detention  for his  latest offending.    It  would  not  assist the appellant’s  efforts  at rehabilitation to have the unpaid fines hanging over his head.

Result

[33]     The appeal against the sentence of six months’ home detention is dismissed. However the one month’s home detention imposed for non-payment of fines is quashed but the order remitting the appellant’s unpaid fines remains.

Mallon J