Dobbs v Police

[2013] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-000034 [2013] NZHC 3397

MICHAEL DOBBS Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   16 December 2013

Counsel:                  E Forster for Appellant

J D Lucas for Respondent

Judgment:                16 December 2013

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      On 31 October 2013 Mr Dobbs was sentenced to 13 months’ imprisonment on charges of drink driving (12 months’) and driving while disqualified (one month’

cumulative).1

He appeals on the basis that the starting point was too high and

insufficient credit was given for mitigating factors.

Facts

[2]      Mr Dobbs is now 46 years old.  From the ages of 17 to 26 he was convicted of numerous offences.  Relevant to the present appeal are two convictions for drink driving (breath readings of 600 mg and 987 mg).  There was also a conviction for

refusing to give a blood specimen.

1      Police v Hobbs DC Hastings CRI 2013-020-002077, 31 October 2013, Judge Watson.

[3]      Subsequent to 1993, Mr Dobbs was convicted of no further offending for 18 years.  However, since 19 June 2011 he has committed three drink driving offences. The first was committed on 9 June 2011 when Mr Dobbs had a breath reading of

575 mg.  Then on 15 January 2013 he drove with a breath reading of 543 mg.  Of considerable  significance,  that  2013  offending  was  dealt  with  by  the  Court  on

5 June 2013, at which time Mr Dobbs was given 100 hours community work, six months’ supervision, and disqualified for a year and a day.

[4]      The present offending was committed one month after that sentencing, on

11 July 2013.  It was, in every respect, his most serious incident.  Disqualified only one month earlier, Mr Dobbs was so drunk he eventually ran off the road and into a power pole.  As the sentencing Judge noted, the community can be thankful no one was hurt or killed.  Mr Dobbs’ blood alcohol reading was 324 mg.  The legal limit is

80.

Sentencing

[5]      The Judge noted the obvious aggravating factors.  In terms of a starting point, Judge  Watson  took  16 months  for  the  drink  driving,  and  added  two  for  the disqualified driving.  He then gave a 25 per cent discount leaving a final sentence of

13 months.  Consistent with the starting point approach, the Judge divided these into

12 months’ imprisonment for drink driving and one month cumulative for driving while disqualified.

Decision

[6]      Mr Forster submits that the 16 month starting point is too high for this drink driving offence and that this was exacerbated by separately adding two months for the disqualified driving component.  It is suggested that had the Judge first analysed

the appropriate starting point for the offending itself, as required by Taueki, a lower

outcome would have resulted.2

More generally it is submitted there is insufficient

recognition that three of the six offences occurred so long ago, and that there has been undue emphasis on the number six without regard to the actual circumstances.

2      R v Taueki (2001) 21 CRNZ 769.

[7]      I begin by observing that the key figures on the appeal are the 18 month total starting point and the end final sentence of 13 months’ imprisonment. There are many legitimate routes to the same end point and so the focus must always be not on the structure but the conclusions.

[8]      If I were to accept Mr Forster’s invitation to approach this from a Taueki standpoint, I would first observe that the maximum for a third and subsequent drink driving offence is two years.  Here one has a driver with a staggering level of alcohol in his system who is so drunk he eventually runs off the road and hits a power pole. Given the level of alcohol, the lack of control of the car and the risk to the public inherent in someone driving in this condition, a starting point above the middle of maximum must be required.   Then one would add in that it is Mr Dobb’s third offence in the last two years for this aggravated offence of third and subsequent.  Of itself that would require a significant uplift.  Finally, in terms of aggravation, regard would need to be had to the fact that Mr Dobbs was sentenced on the previous occasion only one month earlier and that on that occasion he was disqualified from driving, a fact he almost immediately ignored.   One could also muse on how he happened to have access to the car, since these were apparently after work drinks he was driving from. Looked at from that perspective, there can be no complaints with an 18 month starting point.

[9]      Mr Forster analysed the starting point in terms of Clotworthy and some other

recent cases, suggesting that the apparent range for a fifth offence is 6–13 months.3   I

disagree.   First, this is properly seen as a sixth drink driving given the refusal to supply a specimen charge. Second, the very first two cases in the Clotworthy list are consistent with the outcome here.  In one, for a sixth offence, the starting point was

18  months,  and  in  the  other,  for  a  fifth  offence,  the  outcome  was  12 months following guilty pleas. This is very similar to the 13 month outcome here. It is also to be recalled Clotworthy is a decision from 10 years ago, and there seems little decline

in the problems this offending is causing.

3      Clotworthy v Police HC Wanganui CRI 2003-483-13, 25 September 2003, Wild J.

[10]     This was bad offending that carried a high level of risk to members of the community.  The alcohol reading cannot be ignored, and the timing of the offending so soon after being sentenced in Court requires a firm response.

[11]     The  second  aspect  of  the  appeal  is  the  lack  of  tangible  recognition  for Mr Dobbs’ insight into his issues, his good work history and his genuine remorse.  In support of this, Mr Forster notes that the bulk of the preceding sentence, which included required courses, has been completed subsequent to the present offence being  committed.    These  programmes  are  apparently  having  some  impact  on Mr Dobbs.

[12]     On an appeal I am not satisfied that the Judge erred in failing to recognise these matters.  There was enough there that another Judge may have given a modest recognition but the circumstances are far from compelling.   The courses were undertaken as part of a sentence which Mr Dobbs had not given an opportunity to work before he acted in the way he has.   I do not consider the Judge erred in not giving separate credit, and I do consider the final sentence is appropriate.

[13]     The appeal is dismissed.

Simon France J

Solicitors:

E Forster, Barrister, Hastings

Elvidge & Partners, Crown Solicitors, Napier