Dhedadig v Police HC Auckland CRI 2007-404-104
[2007] NZHC 1969
•6 August 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000104
PESA MINO DHEDADIG
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 30 July 2007
Appearances: J Edgar for the appellant
M Gatland for the respondent
Judgment: 6 August 2007
JUDGMENT OF STEVENS J
This judgment was delivered by me on Tuesday, 6 August 2007 at 4pm pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, AucklandJ Edgar, PO Box 952, Shortland Street, Auckland
DHEDADIG V NZ POLICE HC AK CRI 2007-404-000104 6 August 2007
Introduction
[1] The appellant pleaded guilty on 28 November 2006 to two charges of driving with excess breath alcohol (EBA) and two charges of driving while disqualified. These offences relate to two similar but separate incidents. The appellant was sentenced by Judge B N Morris in the District Court at Auckland on 8 March 2007. He received concurrent sentences of 19 months’ imprisonment on each of the four charges. He was disqualified from driving for a period of three years.
Background facts
[2] In terms of the first incident, during the early hours of Saturday 8 April 2006, the appellant was seen by Police passing through a red light at an intersection in Mt Albert. The Police pulled the appellant over and on speaking to him noted signs that he had been drinking. He admitted having drunk alcohol prior to and while driving. He was breath tested, the result showing 625 micrograms of alcohol per litre of breath. The appellant said that he had only had two bottles of beer on the way home from work. He admitted being disqualified. This incident was the subject of one EBA charge and one driving while disqualified charge.
[3] In respect of the second incident, at 5.00am on 31 August 2006 the appellant was stopped by Police as they had noticed his vehicle was in poor condition. When speaking to the appellant, the Police observed signs of recent alcohol consumption. They breath tested the appellant, who was found to have 761 micrograms of alcohol per litre of breath. This incident resulted in the second EBA charge and the second driving while disqualified charge.
The sentence under appeal
[4] Judge Morris sentenced the appellant to 19 months’ imprisonment on each charge to be served concurrently, meaning that the total sentence was one of 19 months’ imprisonment. In addition, he disqualified the appellant for three years.
The Judge denied the appellant leave to apply for home detention, but gave no reasons for doing so.
[5] In sentencing the appellant, Judge Morris noted the long list of convictions that the appellant had amassed, including 21 charges of driving whilst disqualified and nine for EBA or excess blood alcohol offending. The Judge noted that he had spent some 11 years in custody for his various convictions, which were largely motivated by substance addiction and abuse. He further noted the various courses that the appellant had undertaken and his responses in the past to community based sentences.
[6] The Probation Officer had recommended the imposition of a community- based sentence. But Judge Morris did not consider that such a sentence would be in line with the decision of this Court in R v Clotworthy (2003) 20 CRNZ 439. The Judge expressed serious concern at the fact that the appellant committed the August offences whilst on bail for the April offences. Judge Morris was firmly of the view that the public needed protection from the appellant and considered that the appellant’s personal position was of secondary importance.
Appellant’s submissions
[7] Mr Edgar, for the appellant, filed careful and focussed written submissions. The appeal is brought on the basis that the sentence and period of disqualification imposed are manifestly excessive and that leave should have been granted to apply for home detention. On a comparative analysis of the cases canvassed in Clotworthy, counsel submitted that the appropriate sentencing range for this offending should have been 12 to 15 months. Counsel referred to the appellant’s “frank and open” approach to the interview with the Probation Service, his acknowledgement that he was prepared to undertake counselling in order to remain with his family, the fact that he was the main income provider for the family and the fact that he had not offended in this manner since 2002.
[8] In comparing his case with those discussed in Clotworthy, counsel for the appellant relied particularly on a number of District Court decisions, namely,
Police v Gough DC WANG CRN2083015994 & 2083017965 22 January 2003, Crosbie DCJ, Police v Pakuria DC GRY CRI 2003-018-27 12 August 2003, Holderness DCJ, Police v Perajack DC WANG 15 April 2003, Crosbie DCJ and Police v Martin Rapana DC WANG CRN2083017292 11 November 2002, Walsh DCJ.
[9] In relation to the decision to decline leave to apply for home detention, Mr Edgar submitted that the reasons for its denial should have been traversed in the sentencing notes, as was required by the Court of Appeal in R v Husband (2000)
18 CRNZ 229 at [33]:
Sentencing is a public exercise and a Judge’s reasons for taking a particular course should be expressed in public and in the presence of the person being sentenced. While the Judge was in this case no doubt seeking to be helpful to this Court, the appearance of an ex post facto minute can be one of retrospectively bolstering an earlier conclusion in the face of a challenge on appeal. The statement in R v Barton [[2000] 2 NZLR 459] at para 13 that “extensive” reasons cannot be expected for home detention decisions, does not mean that very compressed reasons can then be expanded following an appeal. The proper course is for the Judge to give at the time of sentencing such reasons as the circumstances require. While nothing extensive is required, the Judge should give sufficient reasons for the refusal to grant leave to explain the basic reasoning process. This both informs the person being sentenced and facilitates review on appeal, if such becomes relevant.
[10] Because of the Judge’s failure to give reasons, the appellant seeks a rehearing of the application for leave to apply for home detention. Counsel further submitted that a grant of leave to apply for home detention is appropriate in this case. This is because, while the nature and seriousness of the offending is considerable, there are a number of factors that support the grant of leave in the appellant’s person circumstances. These are based around his position in his family: he is father to three young children and was the major income earner for the family. Home detention would still ensure the protection and safety of the community.
[11] Finally, counsel for the appellant submitted that three years’ disqualification was an excessive increase in the period of disqualification, given that the last period of disqualification received by the appellant was one year.
Respondent’s submissions
[12] Ms Gatland, counsel for the respondent, also filed helpful and comprehensive written submissions. She submitted that the sentence was not manifestly excessive, as two years’ imprisonment was available on each charge. Moreover, the appellant’s recidivism placed him at the serious end of the scale, the sentences were in line with the authorities and the totality principle was correctly applied. Counsel for the respondent submitted that the sentence could even be considered to be moderate in the light of the relevant authorities.
[13] Ms Gatland accepted that the failure to give reasons for declining leave to apply for home detention meant that the home detention issue should be considered afresh, as was done in Halley v Police HC AK CRI 2006-404-000320 20 October
2006, Lang J. However, counsel suggested that when the sentencing notes are considered as a whole, the requirements of s 97 of the Sentencing Act 2002 were taken into account adequately and that the Judge did not err in declining leave to apply for home detention.
[14] Further, counsel for the respondent submitted that three years was within the available range for disqualification, relying on McKinlay v Police HC CHCH CRI 2006-409-000116 7 August 2006, Panckhurst J and Katuke v Police HC AK CRI 2006-404-000014 2 March 2006, Frater J. Those cases both involved sentence reductions, but significant periods of disqualification were upheld.
Appeal
[15] The appellant has brought this appeal under the general power of appeal contained in s 115 of the Summary Proceedings Act 1957 (SPA). Section 121 of the SPA sets out the powers of the High Court in relation to determining such an appeal against sentence:
121 High Court to hear and determine appeal
(1) The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without
limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.
…
(3) In the case of an appeal against sentence, the High Court may— (a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
…
(6) In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.
…
[16] Section 119(1) of the SPA provides that all general appeals are by way of rehearing. The principles relating to appeals by way of rehearing where the appeal is from the exercise of the sentencing discretion are well established. The appellant must demonstrate that the sentence was manifestly excessive, i.e. that it was outside the permissible sentencing range.
Comparable case law
[17] Counsel for the respondent referred to Adams v Police HC CHCH CRI 2006-409-000237 & CRI 2006-409-000238 21 February 2007. There, Lang J considered an appeal against a total sentence of 28 months for two EBA offences,
one charge of dangerous driving and a charge of breaching bail. The appellant was stopped on two separate occasions six months apart and found to have 881 micrograms and 940 micrograms of alcohol per litre of breath respectively. These were the appellant’s 12th and 13th EBA offences. The District Court Judge had sentenced him to ten months on the first charge and 18 months on the second to be served cumulatively. The successful ground of appeal was that the totality principle was not correctly applied, as the sentence was not in line with R v McQuillan CA129/04 12 August 2004 and the cases referred to in Clotworthy. On considering
the matter afresh, Lang J held that the overall circumstances were slightly more serious than that in McQuillan, but not so as to attract an extra four months’ imprisonment. The sentence was quashed and a term of 25 months was imposed in its place.
[18] Another comparable case is Hughes v Police HC INV CRI 2003-425-000017
31 October 2003, Panckhurst J. A sentence of four years’ imprisonment was reduced on appeal to three years. The case involved one incident of EBA and driving while disqualified. The breath test showed 562 micrograms of alcohol per litre of breath. The appellant had 14 previous convictions for drink driving and 19 convictions for driving while disqualified.
[19] A further relevant decision is that of the Court of Appeal in McQuillan, referred to in Adams. There, McQuillan pleaded guilty to two sets of charges of driving while disqualified and EBA and excess blood alcohol based on separate incidents 11 months apart. The readings were 750 micrograms of alcohol per litre of breath and 186 milligrams of alcohol per 100 millilitres of blood where the legal limit was 80 milligrams. The appellant had been sentenced to 12 months’ imprisonment on each set of offending, and the two sets were imposed cumulatively. The Judge declined to grant leave to apply for home detention. The appellant was disqualified from driving for three years.
[20] Although the appeal was allowed on a jurisdictional point, the substantive issues were considered in the case. The appellant had an extensive criminal history including dangerous driving causing death, eight convictions for driving while disqualified and five convictions for EBA. The Court concluded at [20] that
“imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending”. The Court added that “This reflects the policy of the Land Transport Act 1998”. This was on the basis that under s 58(3) of that Act a person commits a third or subsequent driving offence involving excess breath or blood alcohol or failing or refusing to permit a blood specimen to be taken, the maximum term of imprisonment becomes one of two years rather than three months.
[21] The Court of Appeal held that the individual sentences of 12 months’ imprisonment imposed on the appellant for the two sets of offending were “not out of the ordinary”. The Court added at [22]:
Clotworthy provides a table of sentences for similar offending in both the District and High Courts and a list of relevant sentencing factors. Both clearly provide valuable guidance in sentencing. It must, however, be remembered, as Wild J said, that sentencing is not an exact science and that the circumstances of offenders and offending, including of the present kind, are widely variable. Comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, accordingly does not dispense with the need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case.
[22] The Clotworthy case referred to by the Court of Appeal was a decision of Wild J that examined a range of sentences on appeal to the High Court for EBA, together with some relevant District Court authorities. Wild J noted at [19] that:
…in providing accurate guidance, and in particular assessing whether a particular sentence is manifestly excessive i.e. outside the permissible sentencing range, High Court Judges need to be aware of sentencing levels being imposed generally in the District Court. …
[23] His Honour noted at [20] that there are various relevant factors in sentencing for EBA cases as follows:
• The breath or blood alcohol level;
• The length of time elapsed since the last conviction;
• Conviction for two or more excess breath or blood alcohol offences in close succession;
• The manner of driving;
• Whether the offender was disqualified or forbidden at the time;
• The pleas and when they were entered;
• The sentences imposed for previous excess breath or blood alcohol offending;
• The offender’s record;
• Any genuine remorse and or willingness to confront alcohol or personal problems; and
• Any mitigating personal or family circumstances contributing to the offending.
[24] The final case to which reference is made is the decision of the Court of Appeal in R v Stoves CA264/06 7 November 2006. This was a case in which the appellant was convicted of two counts of EBA, one of conversion of a motor vehicle and one summarily laid charge of driving while suspended. These offences were based on two incidents and the two readings were 1043 and 734 micrograms of alcohol per litre of breath. The appellant had four previous EBA convictions and had been sentenced to 18 months’ imprisonment with leave to apply for home detention being declined.
[25] The Court referred to the factors in Clotworthy and analysed the facts relevant to each. At [10] the Court stated:
As this Court noted in McQuillan, sentencing is not an exact science, the circumstances of offenders and offending are widely variable, and a comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, does not dispense with the need for the normal exercise of judgment by the sentencing judge. The sentence must not involve a mechanical increase in the length of sentence solely dependent upon the number of times a person has been convicted of this particular type of offence. It is not right, as a matter of principle, for a sentence close to the maximum to be available only when a certain number of offences has been committed.
Discussion
[26] It is convenient to consider the circumstances here by addressing the factors referred to in the judgment of Wild J in Clotworthy.
a) Breath alcohol level.
At 625 and 761 micrograms of alcohol per litre of breath respectively, the levels were each more than one and a half times the legal limit.
b)Length of time since last conviction for excess breath or blood alcohol.
The most recent previous convictions for driving offences, including dangerous driving, driving whilst disqualified and driving with EBA were on 15 October 2002. The appellant received a custodial sentence and was declined leave to apply for home detention.
c) Conviction for two or more excess breath or blood alcohol offences in close succession.
These offences were four months apart and the second occurred whilst the appellant was on bail for the first.
d) Manner of driving.
The appellant’s driving on the first occasion was such as to attract the attention of Police Officers because he went through a red light. The second incident arose because of the poor condition of his vehicle. It is fair to observe that on each occasion the appellant’s driving was not the subject of independent charges.
e) Whether the offender was disqualified at the time.
The appellant was disqualified at the time of both offences. Such offending is serious in and of itself because it involves the flouting of a Court order.
f) The pleas, and when they were entered.
Guilty pleas were entered on all charges at an early stage.
g) Previous sentences and responses to those sentences for excess breath or blood alcohol offending.
The appellant has 21 previous convictions for driving whilst disqualified and nine for excess breath or blood alcohol offences. He has had sentences of fines, non-residential periodic detention, corrective training and terms of imprisonment of ever increasing lengths. None of these have prevented him from committing further EBA and driving whilst disqualified offences.
h) Other offending.
The appellant has numerous convictions for a range of dishonesty and other offences.
i) Remorse or willingness to confront alcohol problems.
There was some indication of remorse and a wish expressed to the District Court Judge that the appellant wanted to attend programmes in order to address his alcohol, drug and gambling addictions.
j) Mitigating personal or family circumstances.
The key factors are that the appellant is married, has three young children and seems to be able to hold down employment when he puts his mind to it.
Sentence of imprisonment
[27] The Court of Appeal acknowledged in McQuillan that sentencing is not an exact science and that the circumstances of offenders and offending will vary widely. There is always a need for the sentencing Judge to exercise normal judgment in the light of the various factors applicable to the case at hand. Here, the respondent submitted that the Judge took into account relevant factors, including those outlined in Clotworthy.
[28] The Court in imposing sentence must not, as the Court of Appeal warned in Stoves, apply a mechanical increase in the length of the sentence based merely upon the number of times a person has been convicted of a particular type of offence. But here the various factors identified above indicate that this offending was very serious
indeed. It involved further flouting of a Court order of disqualification for the 22nd
and 23rd time. Similarly, in respect of the EBA offending, these were the 10th and
11th offences by the appellant. Substandard driving is not a prerequisite in terms of the analysis of the seriousness of the offending, although the first incident involved driving through a red light.
[29] In the light of the comparable cases referred to in [17] to [22] above, and bearing in mind the particular circumstances of this case, I do not consider that the appellant has shown that the sentence was manifestly excessive. If anything, the sentence could fairly be characterised as being quite moderate. If the appellant were to engage in repeat offending of a similar nature, he could well be facing an even more stern sentence of imprisonment. Accordingly, I am not satisfied that the imprisonment aspect of the sentence was manifestly excessive.
Leave to apply for home detention
[30] If a Court sentences an offender to a term of imprisonment of not more than two years or two or more terms of imprisonment to be served concurrently, each of which is not more than two years, the Court must consider granting the offender leave to apply for home detention: see s 97 of the Sentencing Act 2000. The District Court Judge in the present case, having been invited by counsel to consider the grant of leave, did so. However, at [7] of his notes on sentencing it simply states “leave to apply for home detention is denied”.
[31] Quite apart from the requirement to give reasons as set out by the Court of Appeal in Husband referred to at [9] above, s 31 of the Sentencing Act is a statutory directive to do so. There is no need to give extensive reasons, but some articulation of the basic reasoning process is required. Here there was none. Accordingly, the appellant is entitled to a rehearing of this aspect of the case and I now consider the matter afresh.
[32] The factors which the Court is to consider are set out in s 97(3) as follows:
The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave, taking into account-
(a) the nature and seriousness of the offence; and
(b) the circumstances and background of the offender, and
(c) any relevant matters in the victim impact statement in the case.
[33] Mr Edgar, for the appellant, submitted that whilst acknowledging the considerable seriousness of the offending, it was not such as to preclude a grant of leave, bearing in mind the personal circumstances of the appellant as outlined in the positive pre-sentence report from the Probation Service. In particular, he referred to the fact that the appellant had a supportive wife, three young children between the ages of four to eight years old, he was in employment and was the chief wage earner for his family. His wife works but only earns a part-time income.
[34] Mr Edgar acknowledged that the Judge was correct to bear in mind the safety of the community in cases of this nature. I would go further. Unfortunately, the appellant presents as a serious recidivist offender. His convictions for double EBA and driving whilst disqualified offences within four months of each other indicates that he shows a contumelious disregard to his responsibilities. Plainly, repetitive drink driving offending by disqualified drivers involves disobedience of Court orders, as well as a disregard for public safety. Accordingly, the nature and seriousness of the offending needs to bear these aspects in mind, including the aggravating circumstances involved. Undoubtedly, the purposes of holding the appellant accountable, denunciation, deterrence and protection of the community loom large in this case.
[35] These aspects need to be balanced against the personal circumstances of the offender. In my judgment, the balance clearly comes down in favour of declining leave to apply for home detention.
[36] Quite apart from the need to reflect public safety concerns, there is another aspect of this case which militates against a grant of leave to apply for home detention. That is the fact that the second incident in August 2006 involved the consumption of alcohol with friends at home. Even after a warning from his wife, the appellant continued drinking and when his wife had gone to bed, he went out in his motor vehicle with friends in search of more entertainment.
[37] A report from a drug and alcohol counsellor indicates that the appellant is someone who has difficulty being assertive with his drinking friends when they come around to his house with alcohol. Apparently, this happens regularly and results in binge drinking and inevitable episodes of drunkenness. It is well recognised that, where the home has been used to facilitate the commission of an offence, an application for home detention may be refused where to give leave would undermine the deterrent purpose of the sentence or send the wrong type of message.
[38] For the above reasons, having considered the matter afresh, I conclude that leave to apply for home detention should be declined. Having said that, I agree that there are a number of positive features about the appellant mentioned in the pre- sentence report. The first is the fact that prior to the two incidents involved here, the appellant had kept out of trouble since October 2002. Second, he is a married man with an apparently supportive wife and three young children. Further, he does seem capable of holding down steady employment and this is to his credit. Whether the Parole Board sees fit to take these matters into account in due course will be a matter for it to consider.
Disqualification
[39] The final ground of appeal was that the term of disqualification at three years was manifestly excessive. Mr Edgar submitted that this followed from the fact that his last term of disqualification was one year. He also relied on the factors outlined in the pre-sentence report as indicating that the resumption of his licence to attend work should not be “inordinately delayed”.
[40] The difficulty with this submission is that the appellant has previously been sentenced to periods of disqualification of two years. After that he was sentenced to indefinite disqualification. It seems that, around the time of the first incident in April
2006, he was just about to complete the administrative processes to achieve a return of his licence. The sentencing in the District Court was adjourned to allow this to occur. He then proceeded to offend again in August 2006.
[41] In the light of the authorities referred to at [14] above, I consider that a period of disqualification for three years is entirely appropriate. I conclude that the appellant has not shown that such a term of disqualification was manifestly excessive.
Result
[42] It follows that, apart from allowing a fresh consideration in respect of the leave to apply for home detention application, the appeal is in all other respects dismissed. Upon the fresh consideration, the application for leave to apply for home
detention is declined.
Stevens J
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