Deadman v Police
[2021] NZHC 1406
•15 June 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-14
[2021] NZHC 1406
BETWEEN JOSEPH DEADMAN
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2021 Counsel:
G M Stone for the appellant G Carter for the respondent
Judgment:
15 June 2021
JUDGMENT OF CULL J
[1] On 25 March 2021, Mr Deadman was sentenced to two and a half years’ imprisonment for several charges occurring between 12 March 2020 and 2 January 2021.1 These charges were:
(a)12 March 2020: excess breath alcohol (EBA) (third or subsequent);2
(b)15 July 2020: EBA (third or subsequent); and driving while disqualified (third or subsequent);3
(c)2 December 2020: driving while disqualified (third or subsequent);
1 Police v Deadman [2021] NZDC 5424.
2 Land Transport Act 1998, ss 56(1) and 56(4): maximum penalty two years’ imprisonment or
$6,000 fine.
3 Sections 32(1)(a) and 32(4): maximum penalty two years’ imprisonment or $6,000 fine.
DEADMAN v THE NEW ZEALAND POLICE [2021] NZHC 1406 [15 June 2021]
(d)18 December 2020: wilful damage;4 and
(e)2 January 2021: threatening behaviour;5 and resisting police.6
[2] Mr Deadman appeals his sentence. He submits that the total cumulative starting point of three years’ four months’ (40 months) imprisonment was too high, and his sentence reached was manifestly excessive.
Summary of Facts
12 March 2020
[3] At 2:20 am, Mr Deadman was found to have been driving with a breath alcohol level of 781 micrograms of alcohol per litre of breath. He attempted to walk away from the vehicle before being arrested. He told police he was not driving the vehicle.
15 July 2020
[4] At about 12 am, Mr Deadman was disturbing the occupants of a residential address in Palmerston North. The police were called, he was spoken to, and told to walk home as he was a disqualified driver. He returned to the premises at 12:43 am and was asked to leave again. The appellant then drove away in his vehicle. He subsequently spotted police, stopped his vehicle and ran away. Police located him in Papaioea Park. He was found with an excess breath alcohol concentration of 840 micrograms of alcohol per litre of breath. The appellant also told the police he had not been driving and was running across the park to get home.
2 December 2020
[5] On 23 August 2020, Mr Deadman’s minimum period of “indefinite disqualification” lapsed. He had to apply for a zero alcohol licence, which he did not do. On 2 December 2020, Mr Deadman drove a Ford motor vehicle west in the Foxton
4 Summary Offences Act 1981, s 11(1)(a): maximum penalty two months’ imprisonment or $2,000 fine.
5 Section 21(1)(a): maximum penalty three months’ imprisonment or $2,000 fine.
6 Section 23(a): maximum penalty three months’ imprisonment or $2,000 fine.
Beach Surf Club Carpark. Police stopped him, after receiving complaints from members of the public regarding his manner of driving.
18 December 2020
[6] Mr Deadman and his partner were staying at a Levin hotel when he accidentally locked himself out of the hallway to his room. He kicked the lower glass pane, causing it to smash. He reached through the hole in the glass and opened the door to get into his room.
2 January 2021
[7] At 3.17 am Mr Deadman was inside his caravan. He was heard by neighbours making loud banging noises. The police were called. Mr Deadman refused to leave his caravan or speak to police through a broken window. Eventually, the appellant grabbed a butcher knife and threated the police that he would stab them if they entered his caravan.
[8] Subsequently, the police opened Mr Deadman’s caravan door with a special tool. Mr Deadman was placed under arrest. The defendant made a comment to his partner saying, “we should just go the police, we have two people, they’re four people.” He then pulled away from the acting sergeant placing handcuffs on him and had to be forcibly restrained.
The District Court decision
[9] The Judge started with an assessment of the appropriate starting point for the two excess breath alcohol charges.7 He considered that each standalone charge would typically receive a starting point in the region of 18 months’ imprisonment. His Honour also considered the 15 July 2020 charge would require a further uplift for the July driving while disqualified charge. However, recognising that a resulting cumulative sentence of over three years’ imprisonment for this offending would be
7 For the 12 March 2020 and 15 July 2020 offending.
excessive, the Judge reduced the cumulative starting point to two and a half years’ imprisonment for those three charges.8
[10] In respect of the December driving while disqualified charge, although typically engaging a starting point of 12 months’ imprisonment, the Judge considered that this would be excessive if added on to two and a half years’ imprisonment. Accordingly, he imposed a cumulative six-month starting point for this offending. He then uplifted the starting point by four months to account for Mr Deadman’s significant criminal history in this area. The Judge calculated that Mr Deadman has regularly been convicted for driving while disqualified or suspended since 1982, approximately 20 times,9 with 15 previous convictions for drinking and driving or refusing blood. He noted that there was a significant gap in offending of this nature between 2001 and 2018, but in 2018 and 2019 Mr Deadman was convicted of further excess breath alcohol offending of a “moderately serious” nature.10 Despite acknowledging that this was an aggravating factor, the Judge did not wish to overstate that and was cognisant of avoiding the risk of resentencing Mr Deadman again for those matters.11
In summary, the starting point of 40 months’ imprisonment comprised:
(a)two and a half years (30 months) for the March 2020 and July 2020 charges:
(b)six months for standalone driving while disqualified charge on 2 December 2020; and
(c)a four-month uplift for significant criminal history in this area.
[12]The Judge gave discounts totalling 25 per cent:
(a)15 per cent (six months) for Mr Deadman’s guilty plea. The times at which guilty pleas were entered for each charge varied. Ultimately, the Judge concluded the 15 per cent discount awarded was “arguably
8 Police v Deadman, above n 1, at [17].
9 At [7]. This is in fact 28.
10 At [8].
11 At [19].
generous” given the late nature of some of the pleas but was “prepared to accept it in the mix with the legitimate requirement to see through legal issues that needed to be dealt with.”12
(b)10 per cent (four months) for personal circumstances, namely mental health factors. The Judge acknowledged that Mr Deadman’s mental health issues could account for his repeated offending.13
[13] The Judge did not accept Mr Deadman’s expressions of remorse or his willingness to address alcoholism, stating that, due to his extensive criminal history offending in this way, expressions of remorse are easily made.14
[14] In relation to the remaining charges (of intentional damage, threatening behaviour and resisting police) concurrent sentences of one-month imprisonment for each were imposed.15
[15] The Judge considered the end sentence reflected the totality of the offending.16 Accordingly, Mr Deadman was sentenced to two and a half years’ (30 months’) imprisonment, made up as follows:
(a)15 months’ imprisonment for July 2020 drink driving, with a concurrent sentence of eight months’ imprisonment for driving while disqualified;
(b)Nine months’ imprisonment for March 2020 drink driving, to be served on a cumulative basis; and
(c)Six months’ imprisonment for driving while disqualified on 2 December 2020, to be served on a cumulative basis.
12 At [20].
13 At [22].
14 At [21].
15 At [27].
16 At [23].
Approach to Appeal
[16] This appeal is brought under s 250 of the Criminal Procedure Act. The Court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.17 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.18 The Court will not intervene when the sentence is within the range that can be properly justified by accepting sentencing principles.19
Parties positions
Appellant
[17] Mr Stone for Mr Deadman submits that the cumulative starting point adopted was excessive. In particular, the Court’s assessment that each EBA offence in isolation attracted an 18-month sentence of imprisonment was too high. He contends an overall starting point of 30 months’ (two years and six months) imprisonment for all charges was appropriate.
Police
[18] Ms Carter for the Police submits that the starting point was “arguably stern”, but nonetheless was available to be imposed by the Judge. In any event, the Police submit the sentence was not manifestly excessive.
[19] In relation to the excess breath alcohol charges, Ms Carter submits that when applying the Clotworthy factors, three aggravating factors are engaged, namely:
(a)The appellant’s recent and historic conviction history;
(b)That the appellant faced two charges following (in quick succession) two recent convictions, for EBA offending, that being his 2018 and 2019 convictions; and
17 Criminal Procedure Act 2011, s 250(2).
18 Ripia v R [2011] NZCA 101 at [15].
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
(c)That the appellant was disqualified at the time of one of the excess breath alcohol incidents.
[20] On that basis, Ms Carter says, the offending could fit into the second or third categories identified in Samson, with a starting point between 12–18 or 18–20 months’ imprisonment. Although the Clotworthy factors take history for offending into account when setting a starting point, which could lead to a risk of double counting, she submits the sentencing Judge was cognisant of this issue and was careful to note he was not re-sentencing for past offending. When assessed in the context of this offending, the Police submit that the four-month uplift imposed was not unreasonable.
Analysis
[21] Sentencing for multiple offences, particularly historic and repeat EBA and disqualified driving offences, is a difficult task, particularly in a busy list Court. There are no guideline judgments for excess breath alcohol offending but there are two decisions which are helpful. In Clotworthy v Police, Wild J identified a number of aggravating and mitigating factors which are relevant to sentencing. They are:20
(a)The breath or blood alcohol level;
(b)The length of time that had elapsed since last drink driving conviction;
(c)Convictions for two or more drink driving offences in close succession;
(d)Whether the manner of driving was innocuous or dangerous, or accident or injury resulted from such;
(e)Whether the offender was disqualified;
(f)The pleas, and if guilty, whether the plea was timely or not;
(g)The sentences imposed for previous EBA convictions and the response (or lack of it) to those sentences;
(h)The offender’s record, if any, of convictions for other types of offending;
(i)Genuine remorse or willingness to confront his/her contributing alcohol or personal problems; and
(j)Any mitigating personal or family circumstances.
20 Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].
[22] In Samson v Police, Whata J considered that from this list, [a]–[e] are aggravating factors for the purpose of assessing the start point for the offending; [g] and [h] are relevant to uplift for aggravating personal circumstances; and [f] and [i]–
[j] are mitigating factors.21 Whata J also helpfully identified a guiding range of starting
points for third or subsequent excess breath alcohol offences:22
(a)only moderately aggravating factors: 9–12 months’ imprisonment;
(b)one or more seriously aggravating factors: 12–18 months’ imprisonment;
(c)multiple offences with seriously aggravating factors: 18–20 months’ imprisonment; and
(d)multiple offences with very serious aggravating factors (offending of the worst kind): 20–24 months.
[23]For the seriously aggravating factors, Whata J identified those as follows:23
(a)A high level of intoxication;
(b)Dangerous driving;
(c)Very close proximity in previous EBA offending; and
(d)Prolonged and continuous history of driving related offending.
[24] One of two approaches can be adopted to calculate the appropriate overall sentence for a range of different offences. The Judge can calculate the sentence for each offence on a concurrent basis. That means the Judge allocates a length of sentence for the most serious offence and then adds an uplift for the other convictions being dealt with in concurrent sentences.
[25] Alternatively, the Judge can calculate a separate stand-alone sentence for each of the convictions, on the basis that they would be served cumulatively. Whichever
21 Samson v Police [2015] NZHC 748 at [14].
22 At [15].
23 At [16].
method is used, the Judge must stand back at the end of the calculation and apply the totality principle. That is to make sure that the total length of the sentence imposed is proportionate to the overall criminality involved in the offending.
[26] The Judge here commenced with a calculation of cumulative sentences for the two EBA charges and driving while disqualified charge totalling 36 months. He then looked at the totality of that offending and reduced this by six months. He went on to consider a discrete sentence of 12 months for the further driving while disqualified charge, assessed this in totality and reduced this to six months cumulative on the EBA starting point. The Judge uplifted this by four months to account for Mr Deadman’s criminal history. He then considered totality of the offending again, material to his decision to impose concurrent sentences of one month imprisonment each for the other minor offending.
[27] If each EBA charge is looked at in isolation, it is correct that they would fall into the second category of EBA offending identified in Samson and warrant a starting point in the range of 12–18 months each. While Mr Deadman’s breath alcohol level was only moderately aggravating, his significant history of drink-driving and driving while disqualified, and the close proximity of this offending to recent convictions for the same offending are all seriously aggravating features.24 The July 2020 offending had a further seriously aggravating factor in that Mr Deadman was driving while disqualified at the time.
[28] However, it is important that the end-sentence is not disproportionate. In reviewing the categories in Samson, I consider Mr Deadman’s offending falls within the third category, being multiple offences with seriously aggravating factors. I note that in Samson, Whata J initially conceptualises a history of EBA and other offending as features relevant to uplift for personal aggravating circumstances.25 However, in
24 In Samson, above n 21, the indefinite disqualification of the defendant at the time of the excess breath alcohol offence and the fact the defendant had been disqualified on eight previous occasions were regarded as seriously aggravating factors. In Koopu v Police [2013] NZHC 1356, the High Court upheld a 16-month starting point for excess breath alcohol offending where it was the appellants seventh drink driving offence. In Sands v Police [2018] NZHC 3048, the defendant had 12 previous convictions for drink driving. He was approached by police after revving his engine for five minutes and had excess breath alcohol of 1025 micrograms per litre of breath. On appeal, the Judge considered a starting point of 18 months was appropriate for this offending.
25 Samson, above n 21, at [14].
practice, and in the analysis of that case, the courts have considered this as a seriously aggravating feature.26 For clarity, I consider this is the correct approach. The sentencing range identified by Whata J as appropriate for cases in the third category is 18–20 months.
[29] I note that the third category only exceeds the sentence an offender may receive for a single EBA offence with seriously aggravating factors by two months. However, I consider that it is consistent with the principles of the Sentencing Act, namely that the Court must consider the seriousness of the type of offences in comparison with other types of offences and be proportionate.27 There is a risk, in sentencing multiple EBA offences discretely and cumulatively, that the starting point reached will ultimately be disproportionate to starting points for more serious types of offending and this has occurred here, in my view. I consider the 30-month starting point for EBA offending adopted by the Judge was too high. A 20-month starting point for the EBA charges, being the highest end of the range for offending in this third category, is appropriate, considering Mr Deadman’s serious and significant history of drink- driving and driving while disqualified.
[30] I also accept Mr Stone’s submission that the additional four-month uplift imposed for Mr Deadman’s criminal history amounted to double-counting, as this is already included as a factor within the 20-month starting point for multiple or repeat EBA offences. When imposing the sentence on Mr Deadman, the Judge did not refer to this uplift. It appears to have been amalgamated into the sentences for EBA offending and the standalone driving while disqualified charge, increasing each by two months (before applying discounts).28 In terms of the EBA offending alone, this brings the cumulative starting point assessed by the Judge to 32 months; twelve months more than I consider to be appropriate in the circumstances.
26 At [18]. See also Sands v Police, above n 24; and Koopu v Police, above n 24.
27 Sentencing Act 2002, s 8(b).
28 I reach this conclusion as taking a 25 per cent discount from a 32 (30 + 2) month starting point results in a 24 month sentence of imprisonment (being the total end sentence for both EBA charges), and taking a 25 per cent discount from an eight (6 + 2) month starting point results in the end six month sentence imposed for the December driving while disqualified charge. Without adding a two-month uplift to the standalone driving while disqualified charge, the Judge imposed the same starting point and end sentence for this offending.
[31] However, the six-month cumulative sentence imposed for Mr Deadman’s standalone driving while disqualified charge, was appropriate and should be imposed, in addition to the 20-month starting point for EBA offending, which is within the range. It is also appropriate to impose sentences for the three remaining charges on a cumulative basis on top of the now calculated 26-month starting point for Mr Deadman’s EBA and disqualified driving charges. Cumulative sentences are appropriate where the offences for which an offender is being sentenced are different in kind and not part of a connected series of offences.29 A further one month for wilful damage, one month for resisting police and one month for threatening behaviour is to be imposed on a cumulative basis.
Conclusion
[32] I therefore quash the sentence of 30 months’ imprisonment. I adopt a starting point of 20 months’ imprisonment for the March and July EBA and disqualified driving charges, with an additional six months for the further disqualification in December 2020; and one month each for wilful damage, resisting police and threatening behaviour, which brings the starting point in totality to 29 months. The discount of 25 per cent was warranted, which brings this to a sentence of 22 months’ imprisonment.
[33] While this converts Mr Deadman’s sentence to a short-term sentence of imprisonment, a sentence of home detention is not appropriate.30 I note that Mr Deadman’s partner refused to provide the Department of Corrections with an address at which a sentence of home detention could be served. I am satisfied a sentence of imprisonment is the least restrictive outcome appropriate in the circumstances.
Result
[34] The appeal is allowed. I quash Mr Deadman’s sentence of two and a half years’ (30 months) imprisonment.
29 Sentencing Act 2002, s 84(1).
30 Section 15A(1); Parole Act 2002, s 4.
[35] I substitute a sentence of 22 months’ imprisonment. The alcohol interlock sentence and disqualification from driving imposed remain.
Cull J
Solicitors:
Winter Woods Lawyers, Palmerston North for the appellant BVA, Palmerston North for the respondent
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