Coles v Police
[2013] NZHC 3188
•2 December 2013
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2013-476-0006 [2013] NZHC 3188
BETWEEN MICHAEL DESMOND COLES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 2 December 2013
Counsel: J B Lovely for Appellant
N M Willcocks for Respondent
Judgment: 2 December 2013
(ORAL) JUDGMENT OF HEATH J
Solicitor:
RSM Law, Timaru
Crown Solicitor, Timaru
COLES v NEW ZEALAND POLICE [2013] NZHC 3188 [2 December 2013]
The appeal
[1] Mr Coles appeals against a sentence of one year and three months imposed in the District Court at Timaru on 8 October 2013, on driving related charges.1 The charges before the Court were driving with an excess breath alcohol concentration, driving while disqualified, failing to stop and dangerous driving. Both the excess breath alcohol and driving while disqualified charges were in their aggravated form meaning that Mr Coles had offended on three or more occasions for such offences.
Facts
[2] At about 11.55pm on 5 April 2013, Mr Coles was driving a motor vehicle along Main Street, Otautau. The weather conditions were clear and the road was dry. The particular area in which he was driving had a speed limit of 50km/h. It was residential in nature.
[3] Mr Coles’ vehicle was noticed by a police patrol vehicle as having only one headlight illuminated. The patrol car did a u-turn and fell in behind Mr Coles, activating red and blue lights and sirens to indicate that he should stop. Instead of stopping, Mr Coles accelerated continuing along Main Street and into George Street and then into Grey Street and into Elles Road. During the time he was travelling at speeds of between 50–60 km/h and had failed to slow at give way signs at intersections.
[4] At the intersection of Elles Road and Main Street, Mr Coles drove through a give way sign and over a railway line without slowing or looking for oncoming traffic. He continued along Main Street reaching a speed of 100km/h. He continued on his journey in residential areas and travelling in excess of 70km/h.
[5] As the police chase continued Mr Coles tended to accelerate away from the police vehicle to the point that he reached a speed in excess of 135km/h. Eventually the pursuit was abandoned by the police for safety reasons. Eventually Mr Coles was located at an address in Otautau. When spoken to it was noticed that he was
affected by alcohol and a breath screening test proved positive. The result of the
1 Police v Coles DC Timaru CRI2010-025-000820, 8 October 2013.
evidential breath test was a reading of 739 micrograms of alcohol per litre of breath, compared with the legal limit of 400 micrograms of alcohol per litre of breath.
[6] Mr Coles has previously appeared before the Court on driving related charges of a similar type to those on which he was sentenced by Judge Keller. Between March 1999 and July 2012, he was convicted on five occasions of driving with an excess breath alcohol concentration with his intake of alcohol measuring various levels between 4850 and 851 micrograms of alcohol per litre of breath.
[7] Between April 1999 and February 2005, Mr Coles was convicted of driving while disqualified charges on five occasions with one additional occasion for driving while his licence was suspended or revoked. He has also been convicted on three dangerous driving charges, two of reckless driving, one of careless driving and four of failing to stop.
[8] In sentencing him, Judge Keller was mindful of his history and the obvious fact that Mr Coles’ judgment was often impaired by alcohol consumption. He took the view that the appropriate starting point for the drink driving offending was one of nine months imprisonment, to which a cumulative term of nine months should be added for the disqualified driving. He also added a further two months for the dangerous driving and failing to stop offending. That was offset by a full credit of
25% for the entry of guilty pleas. That resulted in an effective end sentence of one year and three months imprisonment. While other orders were made, including a further disqualification order, the appeal relates solely to the term of imprisonment.
Submissions
[9] Mr Lovely, for Mr Coles, has submitted that the Judge erred in imposing cumulative sentences. While acknowledging that it is appropriate in some cases for such an accumulation of sentences to be ordered he contends that this does not fall within the most serious type of case in which that approach is appropriate. Mr Lovely has referred me to a number of cases, many of which are collected in Wild J’s
judgment in Clothworthy v Police.2 Wild J’s decision was designed to provide some
2 Clotworthy v Police HC Wanganui CRI 2003-483-13.
comparative analysis of sentences imposed in the District Court and in the High
Court on appeal at the time that it was given in 2003.
[10] Ms Willcocks, for the Police, submits that cumulative sentencing was available on the facts of this case. While the sentence is somewhat longer than others where the number of breath alcohol and driving while disqualified offences are lower, Ms Willcocks points to the nature of the dangerous driving on this particular occasion as aggravating the circumstances. She reminds me that Judge Keller’s totality approach reflected not only the disqualified and excess breath alcohol driving, but also the general nature of the road safety concerns arising out of the dangerous driving and failing to stop charges.
Analysis
[11] It is now settled that District Court Judges may, in appropriate cases, impose cumulative sentences where recidivist offenders are before the Court on charges involving both blood and breath alcohol and disqualified driving charges.
[12] In a judgment given on an Informant’s appeal in 2010,3 I outlined a number of cases in which this approach had been taken to determine comparator cases of a more recent vintage than those with which Wild J dealt in Clotworthy. It is important to note that all involved the entry of guilty pleas and “unremarkable” driving at the time of apprehension. Tawhara was, I acknowledge, a more serious case than the present to the extent that Mr Tawhara had 19 previous convictions for alcohol impaired driving and 34 for driving while disqualified.
[13] Following the Informant’s successful appeal, the effective end sentence imposed was one of two years and six months imprisonment. However, Mr Tawhara’s driving was “unremarkable”.
[14] The ability to impose cumulative sentences in cases of this type was confirmed in a subsequent decision of the Court of Appeal in Hughes v R.4
Delivering the judgment of the Court in that case, Randerson J observed that the
3 Police v Tawhara HC Whangarei CRI 2010-488-44, 8 September 2010 (Heath J).
4 Hughes v R [2012] NZCA 388.
jurisdiction to impose cumulative sentences in cases of this kind had been confirmed back in 2004 by the Court of Appeal in R v McQuillan.5 He reiterated the observation in McQuillan that accumulative sentence reflects the failure of previous short terms of imprisonment for drink driving offences to bring home to the offender his or her responsibilities and the need to deter further offending in the interests of public safety.
[15] In both my decision in Tawhara and the Court of Appeal’s in Hughes, emphasis was placed on the need to stand back at the end of the sentencing exercise to determine whether cumulative sentences of imprisonment do not result in imposition of a term which is wholly out of proportion to the gravity of the offending. If they were out of proportion the totality principle would be breached.
[16] I am satisfied in the present case that an end sentence of one year and three months imprisonment to reflect the totality of the particular offending by Mr Coles was available to the District Court Judge. When one views Mr Coles’ history of driving with excess breath alcohol and while disqualified and also considers the aggravating features of his driving on this and earlier occasions which have resulted in charges of dangerous and reckless driving, his case is removed from the type of case where “unremarkable” driving is considered in the context of the cases summarised in Tawhara and to some extent in Clotworthy.
[17] It is difficult to compare cases completely when looking at the type of summaries given in cases such as Clotworthy and Tawhara. Ultimately, as the Court of Appeal observed in McQuillan, sentencing is not an exact science and it is necessary for a degree of judgment to be brought to bear by the sentencing Judge.
[18] Given the particular factors to which I have referred, I am satisfied that the end sentence imposed by the District Court Judge was available to him and properly marked the serious nature of the offending, the use of cumulative sentences in this
particular case did not, in my view, infringe the totality principle.
5 R v McQuillan CA129/04, 12 August 2004.
Result
[19] For those reasons, the appeal is dismissed.
P R Heath J