Daniels v Police

[2012] NZHC 3364

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-370 [2012] NZHC 3364

BETWEEN  PAUL JAMES DANIELS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 December 2012

Counsel:         C Wilkinson-Smith for Appellant

J Pridgeon for Respondent

Judgment:      12 December 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

C Wilkinson-Smith, PO Box 1544, Shortland Street, Auckland

DANIELS V NEW ZEALAND POLICE HC AK CRI 2012-404-370 [12 December 2012]

Introduction

[1]      Mr Daniels appeals against a sentence of 18 months imprisonment imposed by Judge Tremewan in the District Court at Waitakere on 12 October 2012.1

[2]      Mr  Daniels  was  charged  with  driving  with  an  excess  breath  alcohol concentration on a third or subsequent occasion.

[3]      He had previously been convicted of such an offence on 14 occasions.

Facts

[4]      On Saturday 23 April 2011, at about 10.25pm, Mr Daniels was driving a motor vehicle on Hillary Heights Avenue, Glendene.   When stopped he exhibited signs of recent alcohol consumption.   Following breath test procedures being undertaken, he was found to have a breath alcohol reading of 859 mgs of alcohol per litre of breath. The legal limit is 400 mgs of alcohol per litre of breath.

[5]      Mr Daniels stated that he had been arguing with his wife and was driving to his brother’s house.   While he was located in a cul-de-sac, it appears that he had driven about four kilometres from his home in Rathgar Road, Henderson to get to the Glendene address.

[6]      As  indicated,  Mr  Daniels  has  been  convicted  and  sentenced  on  alcohol related driving offences on 14 previous occasions.  They spanned a period from 1983 until 2005.  Seven of those involve alcohol levels in excess of twice the legal limit, with two coming close to being three times over the limit.  On the last occasion that he came before the Court, he received the maximum available sentence of two years

imprisonment.

1      Police v Daniels DC Waitakere CRI 2011-090-003058, 12 October 2012.

Personal circumstances

[7]      At the time of the incident, Mr Daniels was 49 years old.   In discussing relevant issues with the probation officer who prepared a report for the District Court, he acknowledged that, prior to his remand on bail on the charge on which he was sentenced, he would drink six cans of beer every night.   He accepted that alcohol abuse had been a “life-long problem”.

[8]      Mr Daniels had made some attempts to address his alcohol problems.  They surfaced relatively late in the piece.  Following his being charged on 26 April 2011, and entering a not guilty plea on 5 May 2011, it was not until 14 June 2012 that the plea was changed to guilty.   The Probation report indicated that Mr Daniels had “recently engaged with community alcohol and drug services” and “was to have commenced an eight week getting started group on 18 September 2012”.

[9]      It appears that efforts to embark upon such programmes did not emerge until well after the defended hearing date had been scheduled for 26 September 2012. That date was vacated as a result of the guilty plea.

District Court sentencing

[10]     In  sentencing Mr Daniels,  Judge Tremewan,  after reciting  relevant  facts, observed that it was not until June 2012 that Mr Daniels took responsibility for the offending.   She observed that if he had pleaded guilty earlier it might have demonstrated to the Court some change in attitude, particularly if a residential alcohol-related treatment programme had been undertaken.   It is clear from later remarks that the Judge made on sentencing that she felt that the efforts to address the alcohol related problems were “too little and too late” in the context of sentencing.

[11]     The Judge concluded that “in the circumstances of [his] case today anything other than a term of imprisonment is simply not available” for a combination of reasons.   While the Judge did not refer specifically to the need to impose imprisonment  to  denounce  conduct  or  to  deter  the  offender  or  others  from

committing similar offences,2  I am satisfied from reading the sentencing notes as a whole, that that was what the Judge intended her comments to be based on.

Analysis

[12]     Mr Wilkinson-Smith, for Mr Daniels, raised three points on appeal.  The first challenged the methodology adopted by the Judge in sentencing Mr Daniels; the second, the level of credit given for the guilty plea; the third involved the Judge’s decision not to consider home detention.

[13]     On the latter, Mr Wilkinson-Smith framed the issue in that way because of information conveyed to the Court that there was a technical difficulty with the sentence of home detention due to the lack of a landline at the proposed address. That has now been remedied, as is made clear in an affidavit sworn by Mr Daniels’ wife, for the purposes of this appeal

[14]     The  first  point  concerns  the  methodology  adopted  by  the  Judge.    The approach mandated by R v Taueki3 was not followed to the letter.

[15]     The District Court Judge did identify a starting point for sentence and then made a global allowance for mitigating factors.  Having inferentially decided that the starting point should be the maximum available sentence of two years imprisonment Judge Tremewan identified those factors for which she intended to give credit:

[19]     Firstly, I do accept that there has been some time since this offence and the last one.

[20]      Secondly, you did earn a positive pre-sentence report and it seems that the probation officer still holds out some hope that you might be capable of change, and I do note that you seem to have a supportive personal relationship and other close relationships within your family and that is no doubt a positive for you as well.

[21]     Thirdly, I have noted the comments that Ms Hart has made in her submissions that tell me about a very unfortunate background you have had where you were in a boys’ home, which was a very abusive situation – so much so that apparently there are going to be legal proceedings taken in relation to that matter as a class action and you are likely to be involved in

2      Sentencing Act 2002, s 16(2).

3      R v Taueki [2005] 3 NZLR 372 (CA) at para [8].

those proceedings as one of the alleged victims.  I do understand Ms Hart’s point that it is perhaps partly due to that unfortunate background that you have turned to alcohol abuse and misuse over the years and this, in turn, has been a situation where you have continued to offend and appear in Court. And so it is that, perhaps, if you are able to get some sense of peace and work through, with counselling, some of those issues and get some other supports and oversight, you may start to make some in-roads in terms of those issues.  So I do note what she is telling me about that and I do factor that in today.

[22]     Lastly, I wanted to mention that you have, yourself, addressed me from the dock and I do consider that the comments that you have made are sincerely made.   So, although on the one hand it is an egregious case of repeat drink-driving and you have done very little to help yourself while the case has been before the court, on the other hand I am still going to give you some credit for those matters that I have mentioned.

[16]     In assessing the final sentence it is necessary for me to consider whether it was manifestly excessive or not.4    The extent to which it might be possible to chip away at starting points and credits given for mitigating factors must yield to an overall assessment on a sentence.

[17]     In this case, I know what starting point was used and I also know the overall credit given for mitigating factors.  The transparency of the sentencing is sufficiently clear for me to address on appeal the issues involved.

[18]     As Mr Wilkinson-Smith appeared to accept, the credit for mitigating factors might have been generous given that the guilty plea was entered so late.  The Court of Appeal  in  R  v  McQuillan5   has  previously  indicated  that  the  inevitability  of conviction on a charge such as this is something that ought to be taken into account in  fixing  a  credit  for  a  guilty  plea.    Since  the  Supreme  Court’s  decision  in Hessell v R,6 the strength of the prosecution case has been reinstated as a factor to be taken into account in assessing the credit for a guilty plea.

[19]     Given that, in my view, a credit for the guilty plea of no more than 10%

ought to have been available.  The credit for mitigating factors of six months overall was extremely generous.

4      R v Xie [2007] 2 NZLR 240 (CA) at para [17].

5      R v McQuillan CA 129/04, 12 August 2004 at para [24].

6      Hessell v R [2011] 1 NZLR 607 (SC) at para [74].

[20]     Moving to the starting point, the focus is not purely on the particular driving in issue.  It is necessary to consider the effect of recidivist offenders and the potential impact  on  road  safety  issues.    This  case  is,  as  Ms  Pridgeon,  for  the  Crown, submitted, similar to one on which I gave judgment, in Wilson v Police.7

[21]     Wilson   also   involved   an   appellant   who   challenged   a   sentence   of imprisonment following conviction on a third or subsequent occasion for driving with an excess alcohol concentration.  I said:

[50]      However,   when   the   sentencing   is   viewed   as   a   response   to accumulated convictions over a lengthy period of time and a failure on the part of Mr Wilson to recognise that he ought not to drive when subject to the influence of alcohol, the criticisms do not affect, in any meaningful way, the approach one should take to sentencing.  Indeed, the reference in para [13] of Judge Everitt’s sentencing remarks to “this man’s attitude” emphasises that very point.  In my view the Judge was right to hold that this offending was not  just  a  lapse  in  Mr  Wilson’s  judgment  but  a  reflection  of  a  wider attitudinal problem in addressing his alcoholism.

[51]     It was no doubt harsh for the Judge to take a starting point of the maximum term of imprisonment.  But, s8(c) and (d) of the Sentencing Act

2002 provide:

8    Principles of sentencing or otherwise dealing with offenders

…

(c)      must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(d)     must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

…

[22]     Similarly to Wilson, it might be seen as harsh that the Judge took a starting point of the maximum available term of imprisonment but, even if that were the case, the extent to which that might be reduced would not affect the overall sentence

of imprisonment, given the very generous approach to mitigating factors.   In the

7      Wilson v Police HC Rotorua CRI 2005-063-000081, 2 December 2005.

absence of an ability to challenge the sentence on the basis that home detention was more appropriate, a sentence of 18 months imprisonment cannot be gainsaid.

[23]     The issue on home detention is whether it is appropriate for this Court to interfere with the exercise of a discretion by the sentencing Judge.

[24]     A decision to impose imprisonment rather than home detention is one that the Court of Appeal has relatively recently emphasised to be a discretionary decision.8   It is also the case that, when a sentencing Judge in the District Court comes across many more cases of a particular type than would an appellate Court, weight must be given to the assessment made by the sentencing Judge of the need or otherwise to impose imprisonment to respond to the sentencing goals of denunciation, deterrence, accountability and protection of the community.9     The latter10  does assume importance in the context of people who continue to drive under the influence of alcohol and in excess of the legal limits.

[25]     As  I  read  Judge  Tremewan’s  sentencing  notes,  she  was  not  swayed  in refusing home detention purely by the technical difficulties.  Rather, she formed the positive  view  that  imprisonment  was  necessary  to  respond  to  the  particular offending.

[26]     In those circumstances, I cannot say that the Judge erred in law, took into account irrelevant factors, failed to take into account relevant factors or was plainly wrong.11     In those circumstances, the challenge to the decision of the Judge to imprison Mr Daniels cannot succeed.

Additional issue

[27]     One further point was raised in submissions on behalf of Mr Daniels.   It concerns the fact that Mr Daniels appears to have been transferred to a high security

area within the prison in which he is serving his sentence.  On the face of it, that

8      Doolan v R [2011] NZCA 542 at paras [38] and [39].

9      R v D(CA253/2008) [2008] NZCA at para [66].

10     Sentencing Act 2002, s 16(2)(a) and 7(1)(g).

11     The bases for an appeal against the exercise of a discretion: May v May (1982) 1 NZFLR 165 (CA) at 169-170.

appears to be an unusual state of affairs, given what I know about Mr Daniels. However, that is not a factor that can be taken into account on a sentencing appeal.

[28]     The  issue  is  one  that  should  be  taken  up  with  those  responsible  for administering the sentence within the Department of Corrections.   Counsel are at liberty, of course, to make available a copy of this judgment to the responsible officers, if this is an issue that is intended to be challenged.

Result

[29]     For the reasons I have given, the appeal against sentence is dismissed.

P R Heath J