Driver v Police HC Whangarei CRI 2010-488-45

[2010] NZHC 1871

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-000045

JENNY ANN DRIVER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 October 2010

Appearances: Mr S Clark for Appellant

Mr M B Smith for Respondent

Judgment:      21 October 2010

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

Solicitors:

Mr S Clark, Auckland

Crown Solicitor, Whangarei

DRIVER V NEW ZEALAND POLICE HC WHA CRI-2010-488-000045  21 October 2010

[1]      At 10.21 am on Sunday 10 January 2010, Ms Driver was driving a motor vehicle on SH1 near Hukerenui.   Police stopped the vehicle and noticed that she exhibited signs of recent alcohol intake.   They administered the breath testing procedure and this confirmed that Ms Driver had 972 micrograms of alcohol per litre of breath.  She told the police that she had been drinking at a friend’s house on the previous night.

[2]      Ms Driver entered a plea of not guilty to the charge.   On that basis it was adjourned for a two hour defended hearing on 27 July 2010.  On the morning of the hearing, however, she sought leave to vacate her plea and entered a plea of guilty to the charge.

[3]     His Honour Judge Harvey ordered Ms Driver to perform 350 hours of community work and disqualified her from driving for a period of 18 months.  She now appeals to this Court against the sentence in its entirety on the basis that it is manifestly excessive.

Starting point too high

[4]      In   support   of   the   appeal,   counsel   for   Ms   Driver   advances   several submissions.  The first of these is that the Judge selected a starting point that was too high.   He points out that in other cases involving similar circumstances, offenders have been sentenced to between 100 and 140 hours community work.   Those offenders have also been disqualified for periods ranging between 12 and 16 months. Viewed on that basis, counsel submits that 30 hours community work and disqualification for 18 months must be viewed as manifestly excessive.

[5]      Counsel for the Crown disputes this.  He points out that Ms Driver has two previous convictions alcohol-related offences.   The first of these was in 1986 and was a charge of driving with excess breath alcohol.   The second conviction was entered in 2004 and was in respect of a charge of refusing to provide a specimen of her breath.

[6]      Counsel for the respondent points out that, in any situation involving a third conviction for alcohol-related transport offences, there is a risk that the offender will receive a custodial sentence.  At the very least, he or she may be at risk of a sentence of home detention or a sentence of community detention.   He submits that the selection of a significant sentence of community work cannot be criticised in those circumstances.

[7]      I take the view that the starting point that the Judge adopted must be within the range that was available to him.  This is particularly so given the extremely high reading of alcohol in Ms Driver’s breath.  The reading was such that she must have been perilously close to receiving a sentence of home detention or community detention.  I do not consider that the Judge can be criticised for selecting a starting point of around 350 hours community work given that fact.

[8]      I do not consider that a review of four cases decided between 2004 and 2009 in different parts of the country can provide a realistic assessment of sentencing levels nationwide.   Given the absence of greater information in statistical terms, I prefer to approach the matter according to the appropriate sentencing principles.

Insufficient credit for mitigating circumstances

[9]      Counsel’s next submission was that the Judge gave insufficient credit to Ms Driver in respect of mitigating factors.  These were several.  First, there was her plea of guilty, albeit at a late stage.  Secondly, she expressed real remorse.  Thirdly, there was  nothing about  her  driving on  the  date  of  the  offending  that  could  warrant criticism.  Fourthly, she had undertaken, and has continued to undertake, significant efforts to deal with her alcohol-related problems.

[10]     I  deal  first  with  the  guilty  plea.    The  Judge  noted  that  Ms  Driver  had maintained her not guilty plea up until the week prior to the hearing.  This comment reflected the fact that on 19 July 2010 Ms Driver’s counsel had written to the police indicating that his client proposed to enter a guilty plea.  For that reason the police were advised that their witnesses could stand down.  By that stage, however, a firm

plea of not guilty had been entered and the proceeding had been set down for a two hour hearing.  Briefs of evidence had, no doubt, been prepared.

[11]     Counsel for Ms Driver says that Ms Driver was under the impression that it was necessary for her to make arrangements to undergo rehabilitation before she was sentenced.  For that reason she maintained her not guilty plea until a late stage.  I do not accept that submission.  It would have been open to Ms Driver to enter a guilty plea at the earliest opportunity and then to ask for sentencing to be deferred so that she could arrange for rehabilitative intervention.  As matters stood, the police were obliged to prepare witness briefs and no doubt to advise their witnesses of the date of the hearing.  The fact that the plea came so late means that the Judge could only give limited recognition to it.  He noted that that was the case.  He said that the fact that Ms Driver had taken the matter up to a week before the hearing meant that he was unable to give very much credit for the guilty plea.

[12]     Next, I deal with the issue of the manner in which Ms Driver was driving on the day of the offence.  Counsel points out that there was nothing to suggest that her driving was anything other than normal.   That may be the case, but it is not a mitigating factor.  Rather, it is the absence of the aggravating factor that dangerous, or hazardous, driving can introduce to offending.

[13]     Next, I turn to the issues of remorse and the rehabilitation that Ms Driver has undertaken.  The Judge had before him a detailed letter from Ms Driver in which she expressed remorse and indicated that she would never have driven on the morning of the offending if she had had any idea that she was placing other motorists in danger. She also made the Judge aware that she was being forced to step down from her occupation as a real estate agent because her conviction and the sentence that would be imposed upon her.  She pointed out that she had securely stored her motor vehicle for the duration of her disqualification.  She outlined to the Judge the extensive plans that she had arranged for rehabilitative care.  This involved immediate induction into an eight week bridge programme followed by a ten week after-care programme. Thereafter she was to reside close to support services and to review the option of entering Odyssey House in six months time.

[14]     The Judge noted Ms Driver’s acknowledgement that she would not have been driving if she had known the extent to which she was still affected by alcohol.  He also said that he was pleased to hear that she was doing something about what was obviously a serious problem and said that he hoped that that problem could now be overcome.

[15]     I take the view that the Judge recognised all of the mitigating factors that were open to Ms Driver and ultimately elected to impose the sentences that he did in light of those factors.   The Judge did not quantify the extent to which he was reducing  the  sentence  of  community  work  and  period  of  disqualification,  but  I suspect that his conclusion on these points is reflected in the type of sentence that he chose.  It was open, as I have already said, for the Judge to ask for a home detention index  and  also  a  report  covering  other  sentencing  options.    I  consider  that  in selecting a lengthy period of community work, the Judge recognised that a punitive sentence was warranted having regard to the fact that this was Ms Driver’s third conviction and having regard also to the fact that she had been driving on the day of the offending with a very high breath alcohol reading.

[16]     I therefore consider that the mitigating factors to which counsel have referred are reflected, not in the length of sentence that the Judge imposed, but rather the type of sentence that he selected.

[17]     For these reasons I cannot say that the sentence was either wrong in principle or manifestly excessive.  The appeal is dismissed.

Lang J