Dawson v Police
[2014] NZHC 2991
•28 November 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000109 [2014] NZHC 2991
MAXWELL DAWSON
v
POLICE
Hearing: 27 November 2014 Counsel:
J Lucas for Appellant
K B Bell for CrownJudgment:
28 November 2014
JUDGMENT OF WHATA J
[1] Mr Dawson was sentenced to 12 months imprisonment on one count of driving with excess alcohol (third and subsequent). It was his eighth conviction for such offending. He now appeals to this Court seeking home detention. He submits that the Judge:
(a) erroneously found that Mr Dawson lied about the reason for driving with excess breath alcohol; and
(b) did not have proper regard to Mr Dawson’s personal circumstances.
DAWSON v POLICE [2014] NZHC 2991 [28 November 2014]
Background
[2] Judge MacAskill’s sentencing notes are succinct and helpfully set the context
for the appeal. He stated:1
[2] On 25 May 2014 you were the driver of a Mazda motor vehicle on Logistics Drive, Christchurch. You were stopped by the police at a compulsory breath test checkpoint. The evidential breath test gave a result of 995 micrograms of alcohol per litre of breath which is well in excess of twice the legal limit. You admitted consuming two stubbies of beer prior to driving. That was clearly a lie. You now say that you were driving in response to a call from your wife who had left her heart pills at home and that you exercised a serious misjudgement in driving. That explanation was not offered to the police at the time and I do not accept it as true.
[3] You pleaded guilty reasonably promptly.
[4] It is important that I review your offending record. You have an extensive offending record. It includes a great deal of offending other than drink-driving, but I am going to focus on the drink-driving. You first appeared for driving with excess breath alcohol in 1982 when you were sentenced to imprisonment with other offending. Then you appeared on two drink-driving charges in 1983 and were sentenced to imprisonment for three months and, on the same date, on another charge with the level also appallingly high of 1000, you were sentenced to imprisonment for three months. In 1991 you appeared with a high level again, of 912, and you were sentenced to imprisonment for 10 months with other offending, In 1993 you appeared with a level of 1024 and were sentenced to imprisonment; that was a sentence imposed in isolation from other offending. Then, most recently, in 2005, you appeared with a relatively modest level of 497, when you were fined. Now you are back to your old ways, with driving with a very high level, putting not only yourself but, more importantly, other road users at high risk.
[5] I take into account your counsel’s submissions and his emphasis on the fact that it is some years since you last appeared and then some years prior to that. I do take that into account but, given your record and sentences imposed on your earlier offending, I view your current matter as particularly serious with emphasis on the high level. I take into account also that you currently have some family responsibilities which you have taken on. That is to your credit but you are not going to be able to shelter behind your family responsibilities to avoid the appropriate sentence.
[6] The specially relevant purposes of sentencing are the need to denounce your offending and to hold you to account, importantly to deter you and others from offending, particularly with such high levels. There is an element of the need to protect the public. And, of course, the Court must take into account the need to rehabilitate you.
1 Police v Dawson DC Christchurch CRI 2014-009-005150, 7 October 2014.
[7] I am satisfied that a sentence of less than imprisonment, including home detention, is precluded by the seriousness of your offending, your offending record and the need for deterrence.
Jurisdiction
[3] As the appeal concerns the exercise of a discretion to impose a term of imprisonment instead of home detention, Mr Dawson must demonstrate an error by the Judge exercising his sentencing discretion,2 for example incorrect application of principle, insufficient or excessive weight to a particular factor or he was plainly wrong.3
Grounds of appeal
[4] As noted there are two grounds of appeal:
(a) an erroneous finding that Mr Dawson was lying about the reasons for his drink driving; and
(b)failure to have proper regard to Mr Dawson’s personal circumstances for the purpose of the requirement to impose the least restrictive sentence in the circumstances.
[5] I turn now to each ground.
Erroneous finding
[6] Mr Lucas submits that the Judge should have called for a disputed fact hearing if he was going to find that Mr Dawson was lying, particularly given the practice of sentencing Judges to accept and act on exculpatory statements by counsel for the defence unless the correctness is challenged or passes beyond the bounds of reasonable possibility.4 Instead the Judge rejected the reason given by Mr Dawson because he did not tell the police that he was driving to deliver medication to his
wife. But Mr Lucas says that the police did not question him about his reason for
2 Fraser v R [2013] NZCA 250 at [20].
3 James v R [2010] NZCA 206 at [17].
4 Citing Geoff Hall (ed) Hall on Sentencing (online looseleaf ed, LexisNexis) at [SA24.5].
driving, and no adverse inference should have be drawn about this without affording to Mr Dawson to produce supporting evidence, as he has now done in the form of supporting affidavit evidence from his wife about her medical needs on the night in question. He then says that in accordance with statements in Brown v Police, a good reason for driving may be a mitigating factor in sentence.5
[7] Ms Bell responds that the Judge’s conclusion was available to him on the
evidence.
Assessment
[8] I accept Ms Bell’s basic contention that the Judge had some evidence upon which to make an adverse credibility finding. Mr Dawson had lied to police about the amount of alcohol he consumed, casting doubt on his veracity overall. Furthermore, I also accept that it was available to the Judge to infer that Mr Dawson’s silence at the time of his arrest suggests that the explanation was contrived.
[9] Problematically however, it is not clear to me that the Judge appreciated he should afford Mr Dawson an opportunity to present evidence supporting his reason for driving if that reason was challenged. It appears that there was some discussion about the issue, but nothing to suggest that it was put to the Judge that it was necessary to call for evidence. The issue then is not simply whether the Judge erred by not requiring a disputed fact hearing, but whether the evidence now available to this Court should be taken into account. In L v R the Court of Appeal addressed the
threshold test for admissibility of fresh evidence in this way:6
… The evidence of both witnesses needed to be assessed against the tests which apply to the admission of new evidence after trial, as described in R v Bain and Lundy v R. The tests are freshness, credibility and cogency. Freshness normally entails an inquiry into whether the evidence could with reasonable diligence have been called at trial but was not. However, where the reason for the absence of the evidence is counsel’s failure to call evidence, the freshness requirement may be met even though the evidence was available at the time of trial. In those situations, the focus will be on
5 Brown v Police HC Hamilton CRI 419-87-04, 7 October 2004 at [88].
6 L v R [2014] NZCA 187 at [21].
whether the absence of the evidence has given rise to a miscarriage which will depend on an assessment of its credibility and cogency.
[10] Approaching matters somewhat pragmatically, Ms Bell did not challenge the admissibility of the evidence and did not seek to cross-examine the deponents. Rather she submitted that the reason for driving is not a valid consideration and in any event that the evidence overall does not support Mr Dawson’s asserted reason for driving. She submitted that Mr Dawson had plainly lied about his offending and was not a reliable witness and that Mrs Dawson’s evidence reveals that she did not request or need delivery of the medicines. Accordingly no miscarriage of justice has arisen.
[11] Applying the test in L v R, the focal point is the credibility and cogency of the evidence. While the evidence suggests that Mr Dawson may have decided to deliver medication to Mrs Dawson, I think it falls well short of demonstrating relevant necessity that might otherwise be relevant as a mitigating factor in terms of Brown. In Brown the Court accepted that Mr Brown had stopped drinking eleven hours before driving and that he was driving in response to a family emergency. Those mitigating features are simply not present. So to that extent I see no unfairness arising because of the absence of the evidence.
[12] But it appears that the Judge has been influenced by his finding that Mr Dawson was lying about his reason for driving, and I am satisfied that there is sufficient evidence to suggest that Mr Dawson may have thought that Mrs Dawson needed her medication. While this did not provide a good reason for driving while intoxicated, it rebuts the inference that he was lying about it. I am unable to discern the significance of this, because it is not clear that the finding of untruth overtly affected the rest of the judgment. It is not a factor by itself that would warrant reversal. But I think it provides some justification for a closer look at the reasoning.
[13] As an aside I endorse the practice noted in Hall on sentencing when dealing with exculpatory statements. It seems to me that unless the prosecution challenges the assertions made by defence counsel in sentencing submissions, and the relevant proposition is not obviously unreasonable, then the Court should have regard to the matter asserted. While the normal rule of evidence is that he who asserts must
prove, in a busy sentencing list the Court cannot be expected to demand proof of matters not challenged by the prosecution. Moreover, if the relevant proposition is not challenged, then the prosecution cannot complain if the Judge acts on it.
Personal circumstances
[14] The presentencing report recommends:
This offence could be seen as an aberration; however, the circumstances suggest a rehabilitative sentence is warranted. A supervision sentence with a condition requiring attendance at a programme is proposed, together with community work.
[15] It records:
The Dawsons have two teenage daughters and have adopted two younger boys, one of whom has special needs. They have shared custody of a grandchild who resides with them full time.
My discussion with both Mr Dawson and his wife suggest that he plays a positive part in the care of the children; one reason for the proposed new address is to be close to the family home, but still able to serve a sentence involving electronic monitoring.
When contacted, Mrs Dawson confirmed her husband’s stated embarrassment at having to disclose his offence to his children. He is (sic) acknowledged the thoughtlessness of his actions and his flawed assumption of an emergency situation that was not in fact that serious.
Mr Dawson last undertook a rehabilitative sentence (supervision) in
1998/99, completing the Driver Offender Treatment (DOT) programme with
100% attendance. His then probation officer noted that “he applied himself well to the work of the group and made a strong commitment to stopping his driving offending; he attended the DOT Maintenance groups until terminations, always contributing well and being a useful role model for other group members.”
Mr Dawson is willing to undertake any community-based option. No barriers to his ability to comply have been identified. I have previously noted employment monitoring difficulties if home detention is imposed, but Mr Dawson is willing to forgo his current employment in that event.
[16] The Judge was plainly dismissive of these personal factors. The following
passage is particularly indicative of the Judge’s view:
I have taken into account that you have some family responsibilities which you have taken on. That is to your credit but you are not going to be able to
shelter behind your family responsibilities to avoid appropriate sentence. (emphasis added)
[17] Ms Bell urged me to consider this passage in the context of the notes as a whole, and in particular that the Judge methodically had regard to the various factors that might favour home detention instead of imprisonment. But I consider that the Judge’s dismissive treatment of the family’s circumstances manifests an error and a failure to have proper regard to a relevant consideration when fixing sentence. Furthermore the fact that Mr Dawson might be able to shelter behind these circumstances is a distracting gloss on the punitive consequences for Mr Dawson and his family of a sentence of imprisonment. As the Court of Appeal said in
Ransom v R:7
As indicated above, a significant factor in our decision to allow the appeal and substitute a sentence of home detention has been our concern that, since Ms Ransom went to prison, her husband, Mr Hall, has had to give up work in order to care for their six-year-old child, who has considerable behavioural difficulties, which have been exacerbated by his mother’s absence from the family home.
[18] By parity of reasoning, serious consideration should have been given to the significant consequences for this large family, including a boy with special needs, of a term of imprisonment.
[19] Accordingly, I consider that the Judge erred by placing insufficient weight on the significant impact a sentence of imprisonment would have on Mr Dawson and his family. I turn then to consider whether a sentence of home detention is appropriate.
Remedy
[20] Approaching this matter afresh, I accept that some form of detention is needed to reflect the Court’s concern about repeat offending of this nature. Three factors I think then justify a sentence of home detention as opposed to imprisonment. First, while Mr Dawson qualifies as a recidivist offender, his latest repeat offending has been separated by periods of 12 and nine years respectively. I think the
presentence report put it correctly that this offending is an (unfortunate) aberration.
7 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
Second, home detention is not a light handed sentence. It is only one step short of imprisonment in the hierarchy of sentences. Third, a term of imprisonment has had and will continue to have a very significant impact on Mr Dawson and his family. He is 64 years of age, so even a moderate sentence of imprisonment could be expected to be significant for him. Moreover, he has a large family in need. They already face a drop in family income. Imprisonment of Mr Dawson has loaded the entire responsibility of two teenagers and two boys, one with special needs, on a single parent. In these circumstances I consider that home detention, not imprisonment is the proportionate response to the offending.
Result
[21] The appeal is allowed. Insufficient consideration was given to Mr Dawson’s family’s circumstances. Mr Lucas recommended a sentence of five months home detention plus a large sentence of community work. I think it is preferable that the Court emphasise its concern about this offending by requiring a longer term of home detention. Taking into account the time already served by Mr Dawson, I amend the balance of his sentence to six months home detention to commence on Tuesday,
2 December 2014. I also take up Mr Lucas’ suggestion and impose the following
special condition:
To attend and complete an appropriate driver offender programme such as Right Track or Driving Change to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch
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