Clausen v Police
[2013] NZHC 1240
•29 May 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-463-31 [2013] NZHC 1240
BETWEEN LEIF CLAUSEN Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 29 May 2013 Appearances:
HS Edward for Appellant
LL Owen for RespondentJudgment:
29 May 2013
JUDGMENT OF TOOGOOD J
CLAUSEN v NEW ZEALAND POLICE [2013] NZHC 1240 [29 May 2013]
Introduction
[1] On 20 March 2013, Leif Clausen pleaded guilty to his sixth charge of driving with excess breath alcohol or blood alcohol. He had been stopped for a routine check at 6:24 pm on Sunday, 16 December 2012, and was found to be displaying signs of recent consumption of alcohol. His 13-year-old daughter was with him in the car. The evidential breath test reading showed 946 micrograms of alcohol per litre of breath; nearly two-and-a-half times the permissible limit of 400 micrograms. Because of his previous convictions, Mr Clausen was liable to a maximum penalty of two years’ imprisonment or a $6,000 fine; and there is a mandatory
disqualification period of more than one year.1
[2] Judge McGuire sentenced him to 12 months’ imprisonment and disqualified him from driving indefinitely.
[3] Mr Clausen has appealed against this sentence. His challenge to this sentence is based on the failure of the District Court Judge, in light of the conclusion that a short term prison sentence was appropriate, to consider home detention or another community-based sentence as an appropriate alternative.2
[4] The question at issue, therefore, is whether Judge McGuire erred in refusing
to adopt the probation officer’s recommendation of a community-based sentence.
Assessment of appropriate term of imprisonment not challenged
[5] Mr Edward observed in his written submissions that the appellant was not told by Judge McGuire what discount was allowed to him for his early plea of guilty and what further discount, if any, was allowed for personal mitigating factors, including attempts at rehabilitation and genuine remorse.
[6] It is clear that the District Court Judge wanted to give the appellant a very brief but powerful message that imprisonment was the only sentencing option
justified by the circumstances of the offending and the appellant's disgraceful drink-
1 Land Transport Act 1998, s 56(1) and (4).
2 Sentencing Act 2002, ss 8(g), 10A and 15A.
driving record. In making his views known succinctly, the Judge did not follow the conventional sentencing approach of setting a starting point to reflect the nature of the offending; increasing or reducing the starting point based on personal aggravating or mitigating factors; and then allowing a discount (in this case, of 25 percent) for the early guilty plea. Nevertheless, Mr Edward accepted that, although that course was not followed, the end sentence of 12 months’ imprisonment was one which was available to the Judge. That was a realistic position for counsel to take.
[7] Approaching the sentencing of this offender on a first impression basis, I too would have reached the conclusion that an effective end sentence of at least
12 months’ imprisonment was appropriate. I would have taken a starting point of not less than 15 months’ imprisonment, having regard to the high breath alcohol level,3 and I would have uplifted the starting point by at least three months on account of prior convictions, notwithstanding that the last was entered in 2008, to make the starting point eighteen months. It may be said that a statutory uplift is automatically included where, for a third or subsequent drink driving offence, an offender becomes eligible under s 56(4) of the Land Transport Act 1998 for a maximum of two years' imprisonment4 and a starting point of 12 months' imprisonment is applied. But a further uplift would be justified in this case to recognise that the appellant had previously offended not twice but five times and had received "final" warnings on the last three occasions, those factors demonstrating the need for added denunciation and deterrence.
[8] Allowing a discount of 25 percent for the guilty plea would mean that at least
one year’s imprisonment was well within the available range.
Did the failure of the District Court Judge to look at imposing a community- based sentence amount to an error which ought to be corrected on appeal?
[9] Arguing in support of the probation officer's recommendation, Mr Edward submitted that factors justifying a sentence other than imprisonment are that,
3 In McCrae v Police [2012] NZHC 2008, Dobson J took a starting point of 14 months’ imprisonment where the blood alcohol level of 196 milligrams was more than twice the permitted limit.
4 Compared to a maximum of three months' imprisonment for first and second offences: Land
Transport Act 1998, s 56(3)(a).
although the appellant has had “successive drink driving convictions”, there have been lengthy periods between each appearance; that there does not appear to have been any driving fault in the present case; and that the appellant was not subject to any disqualification order at the time of his latest offending.
[10] Mr Edward also pointed to the appellant’s compliance with all community- based sentences imposed on him at least since 1988. He submitted that the Court should note that the appellant was assessed as a low risk offender by the probation officer who considered that the appellant had “reduced his pattern of offending” on matters of this kind. The probation officer described the appellant as being insightful in terms of the factors of his offending and noted that he had voluntarily undertaken alcohol counselling. The probation officer said that at the time of his offending and sentence the appellant had the full-time care of his 13-year-old daughter and was in receipt of a domestic purposes benefit.
[11] The factors which led to the recommendation of a community-based sentence, and which Mr Edward endorsed, included the self-referral by the appellant to the Raukawa Alcohol and Drug Counselling Service on 14 February 2013. The report from the Service includes an assessment, using the WHO-Audit screening tool for alcohol and drugs, as low risk in terms of his drinking and drug taking behaviour, with three attendances at an education course reinforcing that low risk assessment. It was also reported that the appellant showed remorse for his offending and that he believed it would not occur again.
[12] Next the probation officer assessed the appellant’s ability to comply with a further community-based sentence as high and noted that the proposed arrangements for community detention or home detention were satisfactory. Further, there was no apparent reason to suspect that the safety and welfare of the appellant’s daughter would be compromised if an electronically-monitored sentence was imposed.
[13] The probation officer also assessed the appellant’s risk of reoffending as low, based on the decrease and frequency of his offending over the past four to five years, and "his stated motivation and ability to stop offending because of the effect his offending has on his young and impressionable daughter."
Discussion
[14] Mr Edward correctly identified that a sentence of home detention might meet the sentencing purposes of accountability and responsibility; denunciation; deterrence; community protection and rehabilitation.5 Those purposes, however,
must be considered in the light of the principles in s 8 of the Sentencing Act 20026 of
which the gravity of the offending and the offender's culpability; the desirability of consistency in sentencing; and the need to impose the least restrictive outcome that is appropriate in the circumstances are particularly relevant in this case.
[15] By any account this was very serious offending: Mr Clausen’s breath alcohol count was almost two-and-a-half times the permitted maximum. It places him in a category of driver who represented a real risk of serious injury or death to other road users, and it renders him particularly culpable, in my view, that his 13 year-old daughter was a passenger in the car at the time. Furthermore, this was not just a serious drink driving offence; it was the sixth occasion on which the appellant at the age of 48, had broken the drink driving laws despite having been warned on the occasions of his last three convictions that he would be likely to receive a sentence of imprisonment if he reoffended in a like manner.
[16] A final warning has no statutory basis and there is no imperative or necessary consequence when a subsequent breach occurs. However, the appellant cannot have been mistaken about the likely outcome if he chose to drive after consuming what must have been, to him, an obviously excessive quantity of alcohol.
[17] The appellant was assessed as being a low risk with regard to his drinking behaviour as a result of a screening tool for the use of alcohol, and his attendance at three meetings intended to educate him on appropriate drinking behaviour. I do not consider that that assists him. It is more significant in my view that, although the probation officer placed weight on the appellant’s self-referral to alcohol counselling, he did not take that step until 14 February 2013. This was two months
after he was apprehended and six weeks after he had pleaded guilty, having taken
5 Sentencing Act 2002, s 7; Manikpersadh v R [2011] NZCA 452 at [14]-[15].
6 Ibid, at [16].
advice from the duty solicitor. In my view, his attendance at the clinic was not as much an epiphany as a response to impending imprisonment.
[18] The question of whether the appellant has learnt from his past behaviour is not demonstrated as adequately by professional assessment as by reference to his
offending history, as follows:
Drink driving offence No. Date of offence
Offence
Sentence
1
05.09.86
Excess blood alcohol
(157 mg)
Disq 9 months; fine
$400
2
22.01.88
Excess breath alcohol
(no result given)
Disq 6 months; fine
$150
3
01.06.91
Excess breach alcohol
(550 mcg)
Disq 8 months; fine
$500; final warning
4
07.08.02
Excess breath alcohol
(687 mcg)
150 hours community work; Disq 1 year; final warning
5
20.01.08
Refused blood specimen
150 hours community work; 6 months supervision; Disq 1 year and 1 day; final warning
[19] It is noteworthy that, as on this occasion, in the instances of the appellant’s past offending where blood or breath alcohol results are shown in the history, the results were a significant excess over the permitted maximum. The probation officer did not address that important consideration.
[20] One of the two factors leading to the probation officer’s assessment of a low risk of reoffending was a purported “decrease” in the frequency of the appellant’s offending over the past four to five years. This must have been a reference to other offending of an anti-social nature such as resisting the Police, possessing Class C drugs, disorderly behaviour, assault and wilful damage. It is more pertinent to the frequency of relevant offending to consider that although a period of just over
11 years lapsed between the appellant’s third and fourth drink driving offences, the
period between his fourth and fifth offences was just over five years four months and the period between his fifth offence and the present offending was five years two months. It is difficult to resist the conclusion that the gap between convictions owes more to good fortune than to good behaviour.
[21] Furthermore, the second factor relied upon by the probation officer in assessing a low risk of future offending; namely, the appellant’s stated motivation to stop offending because of the effect of his behaviour on his daughter, needs to be weighed against the uncaring disregard for her wellbeing demonstrated by his having his daughter as a passenger in a vehicle driven by him in circumstances which put her life at serious risk. While I acknowledge that the probation officer had the advantage of meeting with the appellant and conferring with him, I disagree with the recommendation made and his assessment of the appropriate outcome of the offending.
Result
[22] For these reasons, I am in complete agreement with what must have been the view of the District Court Judge that a sentence of home detention would not appropriately address the statutory sentencing purposes. Although Judge McGuire did not refer to home detention in his remarks I am entitled, in the circumstances, to come to my own view and I reach the same conclusion as he did.
[23] To the extent that some regard had to be paid to the need to assist the appellant’s rehabilitation, it is provided by Judge McGuire’s imposition of release conditions requiring the appellant to attend appropriate alcohol and counselling programmes and to comply with standard release conditions for a period of six
months.7
[24] For these reasons the appeal is dismissed.
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Toogood J
7 Sentencing Act 2002, s 93(1).
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