Drummond v Police

[2013] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-454-29

[2013] NZHC 2573

BETWEEN

HENARE DRUMMOND

Appellant

AND

POLICE

Respondent

Hearing:	24 September 2013
Counsel:	A P Dye with A J Ross for Appellant A J Ewing for Respondent
Judgment:	2 October 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1] Mr Drummond pleaded guilty in the District Court to  being  under  the influence of alcohol to such an extent as to be incapable of having proper control of a vehicle,1 dangerous driving,2 failing to stop,3 and failing to comply with a direction

prohibiting him from driving while unlicensed.4  In all, four charges.

[2] Judge GM Ross sentenced him to eight months imprisonment on the first charge (together with 18 months disqualification), two months’ concurrent imprisonment on the second charge, and 3 months’ cumulative disqualification on the third. On the fourth he was convicted and discharged.5 An application for home detention was declined.

[3]      From that sentence Mr Drummond appeals.

1       Land Transport Act 1998, s 58(1) and (4).

2       Land Transport Act 1998, s 35(1)(b).

3       Land Transport Act 1998, ss 114(2) and 52(1)(c).

4       Land Transport Act 1998, ss 113(2)(e) and 52(1)(c).

5       Police v Drummond DC Levin CRI-2013-031-596, 24 July 2013.

DRUMMOND v POLICE [2013] NZHC 2573 [2 October 2013]

Background

[4] On 11 May 2013, at 3.22 am, Mr Drummond was seen speeding in the main street of Levin. He was moving at approximately 100 km/h. Double the limit. Police officers attempted to stop Mr Drummond’s vehicle with red and blue flashing lights. He accelerated away, lost control of the vehicle and skidded into the opposite lane. Then he regained traction, overtook another motorist, turned into a side street on the wrong side of the road and switched off his headlights. There he again lost control. He crashed into the garden of a nearby house.

[5] When questioned by police, Mr Drummond was found to have 1,142 micrograms of alcohol per litre of breath. Almost triple the limit. He was so intoxicated that he did not recall anything that happened that evening. At the time, however, he explained that he had been trying to impress some women, standing outside a hotel, with his driving.

[6] This was Mr Drummond’s fifth drink driving conviction. The dates of that offending were July 2004 (x2) (when he was just 18),6 May 2007, July 2010 and now May 2013. The maximum penalty for a third or subsequent such conviction is two years’ imprisonment.7

Appeal

[7]      Mr Drummond submits that the Judge erred:

a)as to rehabilitation: in concluding that “it is a matter of regret that [your desire to do better and attend alcohol counselling] did not exist at an earlier stage and earlier in your offending career” - because the appellant had actually taken substantial steps to address his alcohol issues;

b)as to remorse: in not giving Mr Drummond credit for remorse; and

6       On the first occasion the reading was 302, but culpable because he was under 20.

7       Land Transport Act 1998, s 56(4).

c)as to home detention: in not imposing home detention on the grounds that it could not adequately achieve the sentencing purposes of denunciation and deterrence - because the Judge had already dealt with those matters in uplifts for previous offending.

[7]   This is a general appeal to be heard by way of rehearing.  The onus lies on Mr Drummond to satisfy the Court that the grounds of appeal have been made out and that this Court should differ from the original decision. This Court will not interfere with a legitimate exercise of judicial sentencing discretion, or tinker with a sentence, unless it offends both principle and conscience.

Rehabilitation

[8] Mr Drummond submits that he attended alcohol counselling following his June 2010 conviction for driving with excess breath alcohol. He has significantly reduced the frequency of his alcohol consumption. But when he drinks, he accepts he still drinks to excess – “vast amounts”. He told the pre-sentence report writer that he wants to stop drinking alcohol altogether. Less than a month after the current offending, he  sought assistance  from Te Rununga O Raukawa, a  Maori health service. Mr Ransfield, an alcohol and drug support worker, has written a letter in support of Mr Drummond. He says he has “made great progress” so far.

[9]      The Judge said:

... there are some matters which it is impossible to avoid commenting upon in terms of the desire to do better. I accept that that is there now but it is a matter of regret that it did not exist at an earlier stage and earlier in your career.

The Judge effectively gave Mr Drummond a one week reduction, in effect about 2.5 per cent:

... because I acknowledge that though it was after the offending by approximately a month, you have made a voluntary appearance at Te Runanga O Raukawa and that does indicate that some motivation on your part that you should finally get your affairs in order.

[10] It seems the Judge was not aware  that Mr Drummond had had alcohol counselling before. Given what has happened since, it is a neutral factor. No information or references relating to that programme were before the Court.

[11] There is also evidence that Mr Drummond’s employer (as a painter) is supportive of  him.  It  is  not  clear  at  all  that  that  support  is  dependent  on Mr Drummond remaining out of prison. As the employer says, “good painters are hard to find”.

[12] Mr Drummond’s risk of offending, fuelled by alcohol, is assessed by the pre- sentence report writer as “medium”.

[13] In my view the Judge did not err in allowing a modest 2.5 per cent discount for rehabilitative prospects.

Remorse

[14] The pre-sentence report writer records that Mr Drummond is remorseful and accepts responsibility for his offending. He is concerned about the risk he presented to other road users. And he is concerned about the impact of his actions for his family. Mr Drummond offered to make amends to the family whose wall and garden he damaged, by doing garden work. Commendably, his focus is not himself.

[15] While alcohol counselling three years prior to the offending does not indicate taking responsibility for this offending, voluntarily attending alcohol counselling shortly afterwards does. The letter to the property owner also has the hallmark of sincerity about it.

[16] To warrant a discrete discount, the defendant must have demonstrated on a robust evaluation of the circumstances that he or she is genuinely remorseful, as opposed merely to wallowing in self pity or presenting a self-serving and formulaic attempt at mitigation of sentence.8

8       Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[17] In my view the Judge may have erred in not giving any weight to remorse. The last excess breath alcohol offence was almost three years earlier. The remorse expressed appears genuine, and Mr Drummond’s response and offer of amends tangible and genuine.

[18] A discount of 10 per cent might have been given for remorse and rehabilitation, taken together.

Standing back

[19] From a starting point of six months on the lead charge, with an uplift of three months to take into account the totality of the four offences the appellant pleaded to, the Judge added a further uplift of two months for 13 previous driving convictions. That totals 11 months’ imprisonment, and is unexceptionable. From that point, I would have deducted a total of 10 per cent for remorse and prospective rehabilitation, producing 43 weeks’ imprisonment. Then a further 25 per cent for a guilty plea at the earliest reasonable opportunity. That amounts to an end sentence of 32 weeks, or seven and a half months, imprisonment.

[20] Against that assessment, the slightly higher eight month sentence imposed by the Judge cannot be said to be manifestly excessive.

Home Detention

[21]    The Judge said:

[12] I have formed the clear view that in this case the only sentencing option that is open to the Court is what is called a short term of imprisonment, under two years, and that is because of the aggravating features of the offending and this question, that if home detention or less, community detention which in my view is out of the range altogether, if that was imposed then people would ask themselves “What does a drinking driver have to do to go to prison, and how bad does it have to be?”

[13] Imprisonment is the strongest  denunciation  and  the  greatest deterrence that can be imposed by the Court. In your case the risk that you pose travelling at high speeds in what is usually a busy area and failing to stop and ending in an accident promotes the risk so far as other innocent road users are concerned. As I say, a high risk case coming as it does at the end of a career of bad driving, clearly influenced by the consumption of

alcohol prior. So I could not deal with this matter appropriately in any way less than a sentence of imprisonment in respect of those charges.

[14]  The approach to sentencing which I take is this, that any sentence that is going to be meaningful for you is likely to involve residential treatment for your addictive alcohol problems...

[22] Mr Drummond submits that the Judge erred in law by considering the aggravating features of the offending (very high speed, no lights, late at night, busy main street, erratic) when determining whether sentencing purposes could be achieved and principles upheld by a sentence other than imprisonment. His submission is that in cases of drink driving, the focus should only be on factors personal to the offender.  That is clearly wrong.  One of the statutory factors that the

court must consider is the gravity of the offending itself.9

[23]    In R v Iosefa the Court of Appeal said:10

[35] Home detention provides  a  sentencing  Court  with  a  further sentencing option, which is particularly relevant in light of s 16(1) of the Sentencing Act which requires the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community; and of s 16(2) which provides that the Court must not impose a sentence of imprisonment unless it is being imposed for the purposes in s 7 and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles of sentencing in s 8.

[24] The Judge made clear that he was imposing a sentence of imprisonment, without home detention, for the purposes of denouncing the conduct of the offender,11 deterring the offender and others from committing similar offences,12 and to assist in the offender’s rehabilitation by forcing him to abstain from alcohol and undertake treatment in prison.13    At [13] the Judge acknowledged the principles in s 8, but he found no lesser sentence appropriate in the circumstances. Imprisonment was the least restrictive outcome appropriate.14

9       Sentencing Act 2002, s 8(a).

10      R v Iosefa [2008] NZCA 453.

11      Sentencing Act 2002, s 7(1)(e)

12      Sentencing Act 2002, s 7(1)(f).

13      Sentencing Act 2002, s 7(1)(h).

14      Sentencing Act 2002, s 8(g).

[25] In Manikpersadh v R, when considering an appeal against a decision not to impose home detention for an excess breath alcohol conviction, the Court of Appeal said:15

The proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

[26] This is not a case like Manikpersadh, where the District Court Judge failed to take into account the full range of relevant purposes and principles (only deterrence had been mentioned) when sentencing the offender.16 The Judge here considered that Mr Drummond’s rehabilitative needs could best be met by a sentence of imprisonment, and by special release conditions that he attend and complete any

drug and alcohol treatment recommended to the satisfaction of the probation officer, be assessed for a Departmental Rehabilitative programme, and undertake any further counselling, treatment and programmes directed by the probation officer.

[27] Mr Drummond relies on Whata J’s finding in Carran v Police for the proposition that there is a trend of not imposing sentences of imprisonment for recidivist driving offences involving intoxication:17

[19] It soon became clear in oral argument that the sentence of imprisonment for the offending was against the tide of sentences for similar offending since 2007, including two sentences by the sentencing Judge. Mr Dawkins' comprehensive review of applicable authorities strongly suggests that recidivist offending marked by lengthy gaps between offending might be expected to attract a sentence of home or community detention. Mr Young for the Crown was unable to contend otherwise. Indeed no sentence since 2007 involves imprisonment for comparable offending, except Noble where the offender had been previously imprisoned.

[28]    I do not think that case is particularly relevant in the present circumstances. It concerned recidivist offending with lengthy gaps between offences (in Carran ten years had elapsed). Here less than three years had elapsed since Mr Drummond’s last such offence. Some of that intervening time was spent either in prison or disqualified from driving.

15      Manikpersadh v R [2011] NZCA 452.

16      Manikpersadh v R [2011] NZCA 452 at [17]-[19].

17      Carran v Police [2013] NZHC 1450.

[29] Mr Drummond has previously been imprisoned for driving offences, including two months’ imprisonment for his third drink driving offence. His fourth did not attract imprisonment. Rather a sentence of supervision and community detention was given.

[30] It will be apparent that the time for such leniency has come to an end, in the interests of both the community and Mr Drummond himself. This was his fifth drink driving offence, he was nearly three times the legal limit, his driving was a danger to other motorists, he attempted to avoid capture, and in the course of doing that he crashed. Fortunately into a residential property rather than another car.

[31] The approach taken by the District Court Judge was consistent with that taken in this Court in Matkovich v Police.18 In that case Mr Matkovich had driven after drinking for seven hours, in a busy area on wet roads, and had collided with another vehicle. His breath alcohol level was  901 mg. He had five previous convictions for excess breath or blood alcohol offending. Only one had occurred in the preceding three years. Before that one had to go back 15 years. The statutory maximum penalty there (as here) was two years’ imprisonment.  The Judge adopted

a starting point of nine months’ imprisonment, gave a discount of two months for guilty plea and a further one month for reparation. That resulted in an end sentence of six months’ imprisonment. The Judge had not considered a sentence of home detention. The High Court considered that possibility afresh. However it was rejected as an inadequate response given the seriousness of the offending and the risk to other road users.

[32] A significant consideration in Matkovich was also the fact that the appellant had a history of non-compliance with Court orders. That made him a poor candidate for  a  sentence  of  home  detention.  The  same  may  be  said  in  this  case. Mr Drummond has committed nine offences while on bail together with a breach of bail condition and a failure to answer District Court bail.

[33]  In these circumstances, and despite Mr Dye’s able submissions, I am unable to identify error in the Judge’s approach.

18      Matkovich v Police [2013] NZHC 872.

Result

[34]     Appeal dismissed.

Stephen Kós J

Solicitors:

Michael Scott Law Office, Waikanae for Appellant Crown Solicitor, Wellington for Respondent