E v Police HC Wellington CRI-2009-485-99
[2009] NZHC 1016
•30 September 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-99
E
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 29 September 2009
Counsel: F Butland for appellant
J M Webber for respondent
Judgment: 30 September 2009
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] The appellant (Mr E ) was convicted in the Lower Hutt District Court, having pleaded guilty to one count of driving with excess breath alcohol (being a third or subsequent offence) contrary to s 56 of the Land Transport Act 1998. On
25 June 2009, Mr E was sentenced to 100 hours community work, a $1,250 fine and nine months’ supervision. He was also disqualified from holding a driver’s licence for 15 months. Mr E now appeals against this sentence on the grounds
that:
E V NEW ZEALAND POLICE HC WN CRI-2009-485-99 30 September 2009
a) the sentence was manifestly excessive; and
b) the imposition of a period of supervision was inappropriate.
Factual Background
[2] On 4 April 2009, Mr E was stopped on Naenae Road in Lower Hutt at a Police checkpoint. He failed a breath screening test and an evidential breath test recorded 543 micrograms of alcohol per litre of breath, 143 micrograms in excess of the limit.
District Court Decision
[3] Judge Harrop noted that the breach of the limit was not egregious, nor was it accompanied by any driving fault. His Honour noted that this was Mr E ’s fifth conviction for driving with excess breath alcohol. The first three convictions occurred in the 1980s and the fourth was in 2001, so he deserved credit for his lack of recent offending. However, there was a concern that he was not able to control his drinking and driving. The Judge dismissed Mr E ’s opinion that he did not have an alcohol problem and considered that the imposition of a sentence of supervision would assist with Mr E ’s relationship with alcohol.
[4] The sentencing Judge stated that the starting point for a fifth conviction for driving with excess breath alcohol would be a short term of imprisonment, but then stated:
[8] I am prepared to impose a sentence short of imprisonment and in my view a fine plus supervision is not sufficiently punitive to recognise how serious the charge is, but I do accept, given that community work is going to be difficult for you to complete, that I should reduce that well below what I would normally impose and combine that with a fine, so that the purposes and principles of the Sentencing Act are met in that other way.
[5] Accordingly, the Judge imposed a sentence of 100 hours community work, a
$1,250 fine and nine months’ supervision.
Counsel submissions
[6] For Mr E , Ms Butland argued that Judge Harrop placed too much weight upon his previous convictions. Despite noting the historical nature of the previous convictions, the Judge nevertheless treated Mr E as if he was a persistent or recidivist drink-driver, justifying a ‘short term of imprisonment’. Nor were there grounds for the Judge’s remarks about Mr E ’s ‘alcohol problem’. Moreover, despite the non-punitive nature of the sentence of supervision, Mr E complains that it is punitive given his particular circumstances and so, in conjunction with the other aspects of the sentence, it is overall manifestly excessive.
[7] Separately, Ms Butland argues that the sentence of supervision was inappropriate. According to an affidavit affirmed by Mr E , his probation officer, acting upon the standard conditions in s 45 of the Sentencing Act 2002, has required Mr E to leave his current residence, where small children reside, due to his historical sexual abuse convictions. The probation officer had also informed his employer about the details of these sexual abuse convictions, leading to restrictions on the nature of work he can undertake. Accordingly, counsel argues that the sentence of supervision is not having the desired rehabilitative effect and is instead acting punitively.
[8] The respondent argues that the sentence was moderate and appropriate given Mr E ’s previous convictions and that the Judge’s conclusions about his alcohol problem were logical. In terms of the sentence of supervision being inappropriate, the respondent argues that it is not the imposition by the Judge that is the issue, but instead its administration. Counsel, acknowledging that it constituted provision of evidence from the Bar (but without objection from Ms Butland, or challenge to its accuracy) advised that the Probation Service’s standard risk assessment includes looking to previous convictions and this is why Mr E ’s previous sexual offending had been taken into account. As a result, Mr E has been categorised as a high-risk offender notwithstanding that the categorisation had nothing to do with his excess breath alcohol offending. His categorisation caused standard notifications to Police, Child, Youth and Family and Mr E ’s employer. The respondent submits that the requirements of supervision for Mr E are more onerous than
would normally be the case, but these requirements merely reflect standard protocols of the Probation Service, operating in the way they have here because of his previous convictions. The undesirability of his residential address is compounded by its links with a gang. These consequences do not mean the Judge’s sentence was manifestly excessive or inappropriate.
Discussion
Was the sentence manifestly excessive?
[9] Ms Butland cites Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC) as providing assistance for the aggravating and mitigating factors when sentencing for excess breath alcohol offending. There were several mitigating factors in the current proceedings, including innocuous apprehension, a relatively low blood alcohol level, an early guilty plea and the length of time since the last relevant conviction. However, the presence of these mitigating factors does not necessarily mean that the end sentence was manifestly unjust. Accordingly, I look to some recent comparative decisions of this Court to assist in assessing whether the sentence in this case was excessive.
• Merry v New Zealand Police HC NEL CRI 2009-442-07 19 May 2009
Ronald Young J
The appellant had been convicted having pleading guilty to one count of driving with excess breath alcohol. His breath-alcohol reading was 1090 micrograms and had been similarly convicted in 1974, 1979 and 1984. He was sentenced to
140 hours’ community work, together with supervision and 12 months, one day’s disqualification. The case referred to the appellant arguing the historical nature of the convictions meant that the mandatory disqualification should not apply, but this was rejected by the Judge.
• Brough v New Zealand Police HC INV CRI-2008-425-38 10 March 2009
Dobson J
The appellant had been convicted having pleading guilty to one count of driving with excess breath alcohol. His breath-alcohol reading was 574 micrograms and had been similarly convicted in 1991 and 2001. The sentence imposed was
16 months’ disqualification and 200 hours of community work. Given the length of time between convictions and the fact that the breath alcohol reading was moderate, I reduced that sentence to 120 hours community service, although I declined to substitute that sentence with a fine.
• Stanley v New Zealand Police HC AK CRI-2004404-071 24 August 2004
Gendall J
The appellant had been convicted having pleading guilty to one count of driving with excess breath alcohol. His breath-alcohol reading was 440 micrograms and had been similarly convicted three times between 1983 and 1994. The sentence imposed was 100 hours community work, nine months’ supervision and two years’ disqualification. Gendall J held that the disqualification term, although justified, was hard on the appellant who had also made good progress, and accordingly reduced it to 15 months. However, as a quid pro quo, and for the protection of society, an extra 12 months’ supervision was imposed.
[10] These cases tend to confirm that the imposition of the sentence was well within the discretion of Judge Harrop. Despite Mr E ’s previous excess breath alcohol convictions now being relatively old, this was already taken into account by the Judge in not imposing a sentence of imprisonment. Any further leniency was not justified. The supervision aspect of the sentence was, as the respondent terms it, intended to be rehabilitative, not punitive, and simply because Mr E considers it is operating punitively does not mean that it was a punitive sentence when imposed. Nor does it make the overall sentence manifestly excessive. The Judge was well within his bounds to identify the troublesome relationship that Mr E has with alcohol and attempt to rehabilitate him in that respect.
[11] Accordingly, given the sentence was within the Judges’ discretion, I dismiss this ground of appeal.
Was the sentence of supervision inappropriate?
[12] This aspect of the sentence followed a recommendation in the pre-sentence report and Mr E acknowledges that he did not object at the time. A sentence of supervision is necessarily restrictive in some respects, and it does appear to be unusually restrictive for Mr E because his previous convictions for sexual offending dictate his categorisation as a high-risk offender.
[13] However, I am not persuaded that the nature and extent of apparently unintended consequences of the sentence of supervision are sufficient in the present circumstances to warrant intervention by altering the sentence that was imposed. I am entirely comfortable that the sentence of supervision was an appropriate component as reasoned by the sentencing Judge, and as initially accepted by Mr E . It still has the prospects of providing rehabilitative advantages, although Mr E ’s present perspective is that it is entirely punitive and contrary to his rehabilitative interests. In light of the overall sentence not being manifestly excessive, I consider it preferable that this element of it stay in place, subject only to the observations in the next paragraph.
[14] One particular concern raised by Ms Butland was that a consequence of filing the present appeal against sentence is that the Probation Service suspended the operation of the supervision aspect of the sentence. In the two months pending determination of the appeal, Mr E has continued to respect the requirement that he not live where he previously lived, and to only work in one aspect of the situations in which he has been previously been employed, as aspects of his supervision. The concern Ms Butland identified is that if the appeal is unsuccessful and the period of supervision is then re-imposed, then Mr E will suffer the restrictions and constraints imposed as aspects of his supervision for two months longer than the Court intended.
[15] Any such prolonging of the adverse impacts of being under supervision is an unintended consequence of a quite different type and one which I do not consider Mr E should suffer as a result of pursuing his rights of appeal.
[16] Mr Webber was not inclined to accept Ms Butland’s point, submitting that continued adherence to these conditions of his supervision was a matter freely elected by Mr E , and that they were circumstances insufficient to warrant any reduction in the period of supervision ordered in the sentence. I consider that is an unnecessarily narrow view to adopt on the point. Whilst I would not have interfered with the sentence had it continued to run its course, a suspension of its effect initiated by the Probation Service should not result in a practical extension of the period of supervision. On that ground, and that ground alone, I am prepared to alter the sentence of supervision from nine months to seven months. That is done solely to take account of the two months during which the sentence has not applied, but its practical effect has been respected by Mr E . I accept that other elements of supervision, such as directing him to undertake counselling of various types, will be shortened as a result, but do not apprehend that any courses that are likely to be contemplated by the Probation Service would last longer than the presently unexpired portion of the sentence of supervision.
Conclusion
[17] The first ground of appeal is dismissed. In relation to the second ground of appeal, the sentence of supervision is reduced from nine months to seven months.
Dobson J
Solicitors:
John Gwilliam & Co Ltd, Upper Hutt for appellant
Luke Cunningham & Clere, Wellington for respondent
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