Davis v Police

[2012] NZHC 2618

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-426-37 [2012] NZHC 2618

DAVID JAMES DAVIS

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:         Appellant in person

L Cole for Respondent

Judgment:      9 October 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

DAVID JAMES DAVIS V NEW ZEALAND POLICE HC INV CRI-2012-426-37 [9 October 2012]

[1]      Mr Davis pleaded guilty in the District Court to an aggravated charge of refusing to permit a blood specimen to be taken and a charge of dangerous driving.

[2]      On 3 August 2012, Judge Phillips sentenced him to an effective term of one year five months imprisonment.  The Judge also imposed special release conditions requiring Mr Davis to undertake alcohol and drug assessment and any further counselling or programme as may be considered appropriate and as directed by his probation officer.  He also disqualified him from driving indefinitely.[1]

[1] New Zealand Police v Davis HC Invercargill CRI-2012-025-001348, 3 August 2012.

[3]      Mr  Davis  appeals  against  the  sentence  of  imprisonment  that  the  Judge imposed.  He contends that the sentence was manifestly excessive, notwithstanding the gravity of his offending.

[4]      In his notice of appeal, Mr Davis also sought to appeal against the special conditions that the Judge imposed.  During the hearing today, however, he accepted that he is in need of all the help he can get to overcome his addiction to alcohol.  For that reason I took him to effectively abandon his appeal against the imposition of the special release conditions.

The facts

[5]      In order to understand the sentence that the Judge imposed, it is necessary to set out the background to Mr Davis’ offending.

[6]      Both  charges  arise  out  of  a  series  of  events  that  occurred  in  the  early afternoon of 17 May 2012.  On that date, Mr Davis drove his Nissan Utility motor vehicle in a southerly direction on South Hill End Dipton Road towards the intersection with Hundred Line Road East.   That intersection is controlled by a compulsory stop sign requiring vehicles approaching the Hundred Line Road East intersection to give way to traffic on Hundred Line Road East.  This meant that Mr Davis was required to stop and give way to any vehicles travelling from his left, or

right, on Hundred Line Road East.

[7]      When Mr Davis arrived at the intersection, he failed to stop.   Instead, he drove directly into the intersection and turned right.  In doing so, he cut off a vehicle travelling west on Hundred Line Road.  This required the driver of the other vehicle to brake fiercely, and caused the occupants of that vehicle some discomfort as their vehicle lurched forward.

[8]      The occupants of the other vehicle were then  able to observe Mr Davis driving in a highly erratic manner in a westerly direction along Hundred Line Road East.  The driver of the other vehicle attempted to overtake Mr Davis, but he drove straight across in front of her and she was required to brake hard again in order to avoid a collision.  Eventually, however, the driver of the other vehicle was able to overtake Mr Davis.  She then telephoned the police to report the dangerous nature of his driving.

[9]      Thereafter,  Mr  Davis  attempted  a  U-turn.    He  did  so  in  a  slow  and uncoordinated manner and was required, in fact, to undertake the manoeuvre in five or so separate stages.  He then drove his vehicle back in an easterly direction down Hundred Line Road in the direction from which he had just come.

[10]     The occupants of the other vehicle were so concerned about the manner of Mr Davis’ driving that they turned around and continued to follow his vehicle.  They also kept the police advised of his movements.  In addition, they took the responsible step of flashing their headlights at oncoming vehicles to warn them of the danger that Mr Davis posed.  On one occasion, they saw him travel on the wrong side of the road for more than 300 metres.  Eventually, he turned left into South Hill End-Dipton Road and was subsequently stopped by police.

[11]     The police officer who stopped Mr Davis had noticed his erratic driving. When Mr Davis got out of his vehicle, the officer could see that Mr Davis was visibly affected by alcohol.  His speech was heavily slurred, and he was not making sense when he spoke.  His eyes were bloodshot, and he smelt heavily of liquor.  He also stumbled, and had great difficulty in standing upright.

[12]     The police officer required Mr Davis to undergo a breath screening test.  He was unable, however, to produce sufficient breath to enable the device to operate. As a result, he was required to accompany the officer back to the local police station. When he arrived at the police station, he was taken into the evidential breath testing room.   At that point he was observed to be so impaired by liquor that he was stumbling against the wall.  He refused to undertake an evidential breath test, and also refused to provide a specimen of blood for analysis.

The sentence

[13]     The Judge observed that this was an appalling piece of driving.  He noted that Mr Davis  has  a lengthy history of  previous  convictions  for  alcohol-related  and driving offences.  He took the view that the community needed to be protected from Mr Davis for a significant period.  He also noted that the pre-sentence report stated that Mr Davis is at high risk of reoffending, and that he only remains marginally committed to address the obvious problems that he suffers as a result of his alcohol addiction.

[14]     The Judge took an overall starting point of 22 months imprisonment.  He said that a starting point near the maximum was appropriate, given the appalling nature of Mr Davis’ offending.  He then gave Mr Davis a discount of five months to reflect his guilty pleas.  This left the end sentence of one year five months imprisonment.  The Judge imposed that sentence on that charge of refusing to allow a blood specimen to be taken.  He imposed a concurrent sentence of three months imprisonment on the charge of dangerous driving.

Grounds of appeal

[15]     On  appeal,  Mr  Davis  points  out  that,  although  he  has  a  lengthy  list  of previous convictions, most of them are now reasonably historic.  He acknowledges that he offended in 2009 in a reasonably serious way.  On 9 February 2010, he was sentenced in respect of charges of driving under the influence of alcohol, refusing to accompany an enforcement officer and two charges of refusing to give a  blood specimen.     Those  charges  were  laid  as  a  result  of  events  that  occurred  on

22 February 2009, 28 June 2009 and 22 November 2009.  On that occasion he was sentenced to an effective term of eight months imprisonment on all charges.

[16]     Mr Davis points out that the sentence that the Judge selected was nearly three times the end sentence imposed in relation to the 2009 offending.  He also points out that he had gone for a significant period without being convicted of any alcohol related or driving charges.   He also relies on the fact that his offending was not aggravated, as is often the case in charges of this type, by the fact that he was driving whilst disqualified at the time of the offending.

Decision

[17]     There is no doubt that the driving in this case was appalling, and placed other road users at risk.

[18]     During the hearing today, Mr Davis endeavoured to persuade me that he had not drunk any alcohol at all on the day of the offending, and said that he was concussed.  Having regard to the material contained in the summary of facts, I reject that submission as did the Judge. The summary records numerous factors pointing to the conclusion that Mr Davis was severely affected by alcohol at the time of the offending.

[19]     Although the manner of Mr Davis’ driving placed all other road users at risk, the charge of dangerous driving carried a maximum sentence of three months imprisonment.  Assuming that the Judge considered that the maximum penalty was appropriate in relation to the charge of dangerous driving, he added an uplift of 19 months to reflect the refusal to give blood.  That is an uplift of more than two and a half times the end sentence imposed when Mr Davis appeared for sentence in February 2010.

[20]     There is some force in Mr Davis’ submission that most of his alcohol related offending is relatively historic.   Prior to the 2009 offending, Mr Davis was   last convicted on a charge of driving under the influence of alcohol in 1990.  During the ten year period leading up to that conviction, however, he appeared before the Court

relatively frequently on that charge.   In all, he has seven previous convictions for driving with excess breath alcohol.

[21]     I consider, however, that the gap of nearly 20 years between the offending in

1990 and the 2009 offending needed to be reflected in setting the starting point.  On its own, I do not consider the 2009 offending warranted an uplift on the present charge of two and a half times the end sentence imposed on that occasion.

[22]     I consider that a starting point of no more than16 months imprisonment could be justified on the charge of refusing to give blood on this occasion.  That is twice the end sentence imposed on the previous occasion.  That sentence must be increased by three months, being the maximum penalty available in respect of the charge of dangerous driving. This leaves an end starting point of 19 months imprisonment.

[23]     Mr Davis pleaded guilty one month after first call of the charges against him. He explains that the delay in entering his pleas arose as a result of difficulties with the Legal Services Agency relating to his legal representation.   For that reason, I accept that he entered his pleas at the earliest opportunity.

[24]     In reality, however, he could never have escaped conviction on either charge. For that reason, I consider that a discount of around 20 per cent was appropriate. This is approximately the same discount that the Judge gave when he reduced the starting point by five months imprisonment.

[25]     If a discount of five months is allowed for the guilty pleas, this produces an end sentence of 14 months imprisonment rather than 17 months imprisonment as imposed by the Judge.  This persuades me that the overall sentence that the Judge imposed was manifestly excessive.

Result

[26]     I therefore quash the sentence of one year five months imprisonment imposed on the charge of refusing to give a blood specimen.  In its place, I impose a sentence of one year two months imprisonment on that charge.  The concurrent sentence of

three  months  imprisonment  on  the  charge  of  dangerous  driving  is  to  remain

undisturbed.  In all other respects, the appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Invercargill

Copy to:

Appellant