Daley v Police

[2012] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000020 [2012] NZHC 1251

BETWEEN  THOMAS WILLIAM DALEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 May 2012

Appearances: N P Chisnall for Appellant

P V Cornege for Respondent

Judgment:      6 June 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 6 June 2012 at 3:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………….

Solicitors:           Almao Douch, P O Box 19173, Hamilton

Fax: [phone] – P V Cornege

Counsel:             Public Defence Service, DX GX 10005, Hamilton 3240

Fax: [phone] – N Chisnall

DALEY V NZ POLICE HC HAM CRI-2012-419-000020 [6 June 2012]

Introduction

[1]      Thomas   William   Daley   appeals   against   a   sentence   of   six   months imprisonment imposed by Judge Tompkins on a charge of driving with excess breath alcohol.[1]      The  grounds  of  the  appeal  are  that  the  term  of  imprisonment  was manifestly  excessive  and,  secondly,  that  the  Judge  erred  in  failing  to  properly consider home detention as the least restrictive sentence that could be imposed in the circumstances.

[1] Police v Daley DC Hamilton CRI-2011-0119-009646, 30 April 2012.

[2]      The Judge also made an order under s 65(4) disqualifying Mr Daley from holding   or   obtaining   a   driver   licence.      However,   the   Judge   framed   the disqualification as a “permanent disqualification…together with a finite disqualification of 18 months from today”.  This was an order that the Judge could not make; under s 65(4) an order for disqualification can only prevent a person “from holding or obtaining a driver licence until the [Land Transport Authority] removes that disqualification under s 100”.  I can deal with this issue immediately by quashing the order for finite disqualification and substituting an order under s 65(4) disqualifying Mr Daley from holding or obtaining a driver licence until the Land Transport Authority removes that disqualification under s 100 of the Land Transport Act 1998.

Was the term of imprisonment manifestly excessive?

[3]      Mr Daley was aged 20 years at the time of the offence in December 2011.  It was his third excess breath alcohol offence and his breath alcohol reading was 932 micrograms. In 2009 Mr Daley was convicted on a reading of 650 and fined.   In

2010 he was convicted on a reading of 735 and received a community work sentence which he completed without any problem.   However, also in 2010 and in close proximity to his second breath alcohol offence Mr Daley committed breaches of community  work  and   intensive   supervision  sentences   imposed  in   2009   for shoplifting and burglary.   Among the special conditions imposed as part of those

sentences were requirements regarding alcohol counselling.

[4]      The pre-sentence report had recommended a short term of imprisonment with release conditions.  At sentencing Mr Daley’s counsel (not Mr Chisnall) sought to persuade  the  Judge  that  a  non-custodial  sentence  was  appropriate.    The  Judge rejected that, citing the Probation Service assessment of Mr Daley as being at high risk of re-offending and causing harm to others, his previous non-compliance with intensive supervision, community work and special conditions and Mr Daley’s attitude, concluding that:

[4]       Given the imperative need to protect the public from Mr Daley’s escalating drink driving, and I note that the level of alcohol in his breath when he drove on 21 December last is part of an increasing trend on his part of increasing levels when he gets drunk and drives.   In my view the recommended  imprisonment together  with release conditions is the least restrictive option consonant with the safety of the public.

[5]      Mr Chisnall submitted, first, that the term of six months imprisonment, which reflected Mr Daley’s guilty plea, suggested a starting point of eight months which was excessive.  He referred me to a number of cases involving offenders of a similar age, with previous convictions.  Most though had distinguishing features.   I found the decision in Coles v Police to be the most comparable.[2]     In that case an end sentence of five months was imposed on a 20-year-old offender appearing on his fourth EBA offence.

[2] Coles v Police HC Christchurch CRI-2007-409-000161, 23 August 2007.

[6]      Although comparable, however, Mr Daley’s readings were higher than those in Coles and, in addition he had passengers in his car at the time of the third offence. There was, fortunately, no injury to them.  But the risk is demonstrably higher when an intoxicated driver is carrying passengers.  In the circumstances I do not consider that the Judge erred in the term he imposed.

Was  home  detention  the  least  restrictive  sentence  that  could  have  been imposed?

[7]      Mr Chisnall submitted that, even allowing for the fact that public safety is a relevant consideration in this kind of case, the Judge’s approach to the question of home detention was flawed because he failed to adequately recognise that Mr Daley

had completed his second community work sentence without difficulty and had no

convictions for driving while disqualified.  This meant that, in reality, public safety could be reasonably assured.

[8]      I do not accept this analysis.  It is evident from the timing of the breaches of the community work sentence that even in 2010 Mr Daley was not observing court orders.  The fact that the breaches did not relate to the excess breath alcohol offence and the fact that Mr Daley had no convictions for driving while disqualified are neutral against the fact that he was clearly prepared to breach court orders.   I also accept as valid Mr Cornege’s point that, given that Mr Daley was to have counselling for his harmful pattern of alcohol use, the third excess breath alcohol offence is especially concerning.

[9]      Mr Daley’s general situation did not give any assurance that he would not lapse back into his cavalier attitude towards court orders.  He is unemployed, with limited education and in receipt of a sickness benefit.  He lives with his mother and apart  from  helping  around  the  house  has  little  structure  or  purpose  to  his  day. Mr Daley’s  personal  circumstances,  attitude  and  previous  failures  to  respond  to alcohol counselling were all factors that the Judge legitimately took into account in considering whether the important objectives of public safety and deterrence could be achieved through a sentence of home detention.  I do not think he made any error in his assessment.

Conclusion

[10]     The appeal is dismissed.

P Courtney J