Davis v Police

[2014] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-27 [2014] NZHC 2191

BETWEEN

KARAMEA DAVIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 September 2014
Appearances:	Appellant in person MB Smith for Respondent
Judgment:	10 September 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 September 2014 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Marsden Woods Inskip & Smith (Whangarei) for Respondent

Copy to:            Appellant in person

DAVIS v POLICE [2014] NZHC 2191 [10 September 2014]

Introduction

[1]      On 12 October 2013 at about 10:30 pm, Mr Davis was driving a motor vehicle on State Highway 1 near Moerewa.   He was pulled over by Police at a roadside checkpoint and exhibited signs of recent alcohol intake.  Mr Davis refused to go with the Police for an evidential breath test and was arrested.  He was taken to the Kerikeri Police Station where he again refused to undergo an evidential breath test and refused to have a blood specimen taken.

[2]      On 24 July 2014, Mr Davis came before Judge Duncan G Harvey in the District Court at Kaikohe having pleaded guilty to one charge of refusing to supply a blood  specimen,  having  been  convicted  on  at  least  two  previous  occasions  of specified offences under the Land Transport Act 1998.  The maximum penalty is two years’  imprisonment  and  the  Court  must  disqualify  the  driver  for  more  than

12 months.

[3]      The previous offending by Mr Davis is historical.   In 1987, he refused an officer’s request for a blood specimen; in 1994, he was convicted of driving with excess breath alcohol; and in 2002, in a scenario which was repeated in 2013, he refused a request for blood and refused a request to accompany an officer.

[4]      Judge Harvey accepted that, against this background, imprisonment could be contemplated.  However, having regard to the purposes and principles of sentencing, he thought that would be too restrictive.   His Honour decided that imprisonment would not be appropriate.   He looked at the sentencing hierarchy and decided community detention was the appropriate penalty.   The Judge expressed the view that community work is not appropriate for offending of this sort:

The Court has to make itself very clear not just to you, but to everybody else in the community that it is simply unacceptable to take a risk with other peoples’ lives. That is what you do when you drink and then drive.

[5]      The final sentence was:

Community detention – 3 months

Supervision – 12 months

Disqualification from driving – 15 months

[6]      Mr Davis represents himself.   In his written submissions, he asks for the sentence of community detention to be removed, the sentence of supervision to be either removed or reduced to six months, and for the disqualification from driving to be reduced to a period of less than a year.  He does not, in his written submissions, say why.

[7]      Today, before me, Mr Davis first applied for only his submissions to be heard because the respondent’s submissions were served on him late.   I granted the application and ruled that the respondent would not be permitted to respond to Mr Davis’s submissions.   I emphasise that I am not critical of the respondent.   I granted Mr Davis’s application because this is a straightforward case, Mr Davis represents himself, and I did not want there to be a distraction from the issues which need to be resolved.

[8]      As  it  happens,  Mr  Davis  made  no  submissions  on  why  the  sentence  is excessive.  His complaint is that he should not have pleaded guilty to the charge.  He said he had wanted to have a trial by jury but had accepted the advice of the Duty Solicitor, to whom he had confided that he had refused to supply a blood specimen, that the offer by the Police to withdraw associated charges in return for a plea of guilty was a good one.

[9]      Mr Davis told me in open Court that he had  refused to supply a  blood specimen and the reason was he resented the way he had been treated.

Issue

[10]     Mr Davis has appealed his sentence.  He has not withdrawn it.  He has not applied to vacate his plea – and manifestly has no basis for doing so.   I will, therefore, examine the sentence imposed on him to determine whether it was within the range available to the Judge.

Discussion

[11]     My jurisdiction  to  hear  Mr  Davis’s  appeal  is  conferred  by  the  Criminal Procedure Act 2011.   Section 250(2) states that I must allow the appeal if I am satisfied that:

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

(b)      A different sentence should be imposed.

[12]     My task is to look at the Judge’s sentence to see whether it is manifestly excessive.    It  will  be  manifestly  excessive  if  it  is  clearly outside  the  range  of sentence available to the Judge.

[13]     When a person is convicted of refusing to give a blood sample, he is treated in the same way as if he had been found to be driving with excess blood alcohol or excess breath alcohol.  If it were otherwise, a person could exempt himself from the drink driving laws by being uncooperative with the Police.  The offences have the same maximum penalty.

[14]     Therefore,  Mr  Davis  presented  to  the  Judge  in  the  position  of  a  person appearing on his fourth drink driving conviction.   On the case law, the Judge was right to say that imprisonment was the starting point for the sentence consideration.

[15]     I have no doubt that, giving full allowance for the plea of guilty, a sentence of three  months’ community  detention  was  well  within  the  range  available  to  the Judge.1   It could have been significantly higher.

[16]     The sentence of 12 months’ supervision is unexceptional, and sensible having

regard to Mr Davis’s criminal history.

1      Spooner v Police HC Rotorua CRI-2010-463-55, 31 August 2010; Gilles v Police (2003) 20

CRNZ 677 (HC); Woolston v Police [2013] NZHC 3225; Jensen v Police HC Napier AP 28-02,
9 August 2002; Rogers v Police HC Hamilton CRI-2010-419-44, 9 July 2010; Sala v Police
[2012] NZHC 421; Aleluia v Police [2014] NZHC 40.

[17]     The  sentence  of  15  months’  disqualification  from  driving  is  lenient. Mr Davis was disqualified for seven months in 1987, six months in 1994, and one year in 2002.  An uplift of three months in the disqualification period for the current offending is modest given that the Act requires a period of longer than one year. Indeed, Mr Davis’s criminal record includes other types of driving offences which might have been taken into account in setting a significantly higher period of disqualification.

[18]     The appeal is dismissed.

Brewer J