Cowie v Police

[2016] NZHC 2608

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-000289 [2016] NZHC 2608

BETWEEN

LUKE COWIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 October 2016
Appearances:	A Ives for Appellant H Clark for Respondent
Judgment:	1 November 2016

JUDGMENT O F FOGARTY J

This judgment was delivered by Justice Fogarty

On 1 November 2016 at 3.30pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: A Ives, Auckland

Crown Solicitor, Auckland

COWIE v NEW ZEALAND POLICE [2016] NZHC 2608 [1 November 2016]

[1]      This is an appeal agai nst a sentence of three months’ i mprisonment i mposed on the appellant in the Auckland District Court on 13 September 2016 (Judge P I Treston).  The sentence was after Mr Cowie had entered a guilty plea to a charge of refusi ng to provide a blood specimen.

[2]      At 9.45pm on Thursday 12 May 2016, the appellant was driving a  motor vehicle on Great North Road, Point Chevalier.  He lost control of his car and collided with a tree.  He refused an evidential breath test procedure.  He exhibited signs of recent alcohol intake.  He admitted to dri nking five beers before driving.

[3]      Judge Treston recorded:

[4]You have a six-page printout of previous convictions between 1999 and  2014  including  driving  with  excess  breath  alcoho l  on  five occasions:

(a)2001,   a   level  of   558   when   you   were   given   periodic detention.

(b)      2008, a level of 464, community work. (c)   2009, a level of 689, community work.

(d)Two in 2010 at the same time  but arising out of separate incidents  on  separate  dates,  727  and 775,  when  you  were given home detention and community work.

[4]      Mr  Cowie  also  has  numerous  convictions  on  other  matters  for  dr ugs, burglary, possession of weapons, etc.  He is now 35 years of age.  He has a partner, with their  newborn baby,  and  is  a  valued  employee  of a  construction company. There is a very real prospect that he is putti ng his past crimi nal activities behind hi m.

[5]      He advises that after this crash he resolved to give up alcohol and he is now participating i n the ei ght week Getting Star ted group co urse.  He has an i mpressive testi monial from his employer who says:

I am aware  of the charges  Luke is facing,  hence  why I am providing this character reference to acknowledge that Luke is a true asset not only to my team, but this company and the very high demanding industry.  I also wish to highlight the progress he has made over recent months to advance himself.  I have recently given Luke to take on more responsibilities to up-skill himself as I have seen he has great potential, he assists with the train ing of younger apprentices  on a regular basis which shows me he has got great leadership skills, and is therefore respected by his peers … the industry needs skilled workers   and   Luke   is   exactly   that.      Over   recent   months   Luke   has

demonstrated  an  even  more  committed  attitude  to  working  in  order  to provide for his new family.

[6]      He also has the strong support from his partner.   They have a house and a mortgage together.

[7]      The  Probation  Officer  in  the  PAC  report  comprehensively  described  Mr Cowie’s   numerous   previous   convictions   and   background,   incl uding   a   poor compliance record in respect of communi ty based sentences, having accumulated 10 breaches in the past.  The report ends:

I asked him what has changed in the meantime, and he said, “I have a good job, a good woman and a baby on the way.  I’ve gotta keep clean and do the best for my family”.

[8]      The Probation Officer recommended a sentence of supervision, to complete a rehabilitative drink driving programme and other programmes as directed , and a sentence of community detention to be served at ( his home) and some communi ty work.

[9]      Given   his   numerous   convictions,   includi ng  particularly  blood   alcohol convictions, this is a case where imprisonment was clearly an option.

[10]     Judge Treston concluded:

[15]It is the least restrictive outcome which I must adopt but I have got to say that having considered the matter and bearing in mind your very  poor  response  to  community-based  sentences  in  the  past,  a sentence of imprisonment is the only appropriate option today.

[16]I   understand   your   personal   circumstances,   I   understand   your domestic circumstances,  but in my view, a short sharp shock is one that is needed for you to reinforce the steps you have already taken. I consider  the  appropriate  starting point,  bearing  in mind that  the maximum  potential  sentence  is  two  years’  imprisonment,  is  four months’ imprisonment.

[17]I give you credit for your plea of guilty and for the other matters that you  have  demonstrated   through  your  lawyer’s   submissions  and sentence you today to imprisonment for three months and disqualify you  from  holding  or  obtaining  a  driver’s  licence  for  18  months starting now.

[11]     Ms Ives, counsel for the appellant, argued that the learned sentencing Judge failed to consider the hierarchy of sentencing and the obligation to i mpose the least restrictive outcome and the matters set out in s 16(1) and (2) of the Sentenci ng Act

when  deter mini ng  that  a  sentence  of  i mprisonment  is  warranted,  rather  than  a combi nation of community-based sentences, or an adjournment for a home detention address.    She  also  submitted  further more  that  the  learned  sentencing Judge ,  by focussing almost excl usively on deterrence and denunciation, failed to consider the mandatory  obligation  to  take  i nto  account  any  particular  circumstance  of  the offender tha t meant a sentence otherwise appropriate would be disproportionately severe, found i n s 8( h) of the Sentencing Act 2002.   She also submi tted the Judge failed to  consider  the  mandator y obligation  to  take  i nto  account  the  offender ’s background in i mposi ng a sentence with a partly or wholly rehabilitative purpose (s

8(i) Sentenci ng Act).

[12]     Ms Clark, for the Crown, argued to the contrary.  She emphasised particularly paragraphs [15] and [16], the concl uding paragraphs of the j udgment which I have already set out.  She also relied on the decision of the Court of Appeal in Doolan v R1 that:

The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing Judge in all the circumstances of the case.

[13]     She went on to argue that Judge Treston did in fact consider all relevant, personal miti gati ng factors.  She submi tted that it is not appropriate on appeal to re - visit the Judge’s exact weighti ng given to each factor.

[14]     Having heard hi gh quality arguments, both from Ms Ives for the appellant, and Ms Clark for the Crown, I reached the view that the Judge was very alive to the criteria in the Sentenci ng Act.  His end sentence of three months in prison is intended to be a therapeutic sentence, to drive home the i mperative that this young man now should take control of his drinking problem, end his offendi ng, and take advantage of his new found famil y and the loyal support of his employer, and put his past unhappy histor y of offending behind hi m.  My j udgment is that this was a view that the Judge was entitled to take on the evidence before hi m and cannot be said to be i n error. Section 250 of the Cri mi nal Procedure Act 2011 provides:

250 First appeal court to determine appeal

1       Doolan v R [2011] NZCA 542 at [38].

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[15]     In the absence of error, subsection (3) applies.

[16]     The appeal is dismissed.

Fogarty J