Edie v Police

[2012] NZHC 3518

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-053 [2012] NZHC 3518

BETWEEN  PAUL THOMAS DONOVAN EDIE Appellant

ANDTHE POLICE Respondent

Hearing:         17 December 2012

Appearances: A Dallison for appellant

J I Mooney for respondent

Judgment:      18 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.45 pm on 18 December 2012

Solicitors:

Paul Keegan, New Plymouth

Crown Solicitor New Plymouth

EDIE V THE POLICE HC NWP CRI 2012-443-053 [18 December 2012]

Introduction

[1]      On 6 December 2012, the appellant was sentenced in the New Plymouth District Court to three months imprisonment after pleading guilty to one charge of driving with excess breath alcohol, this being his third such offence.[1]

[1] Police v Edie DC New Plymouth CRI-2012-043-2014, 6 December 2012

[2]      The appeal is brought upon the ground that the sentence was manifestly excessive, and that a sentence of home detention ought to have been imposed.  No issue is taken with the starting point or the level of deductions made for mitigating factors. The sole focus is upon the refusal to grant home detention.

Background

[3]      At about 9.15 pm on Friday 13 July 2012, the appellant was driving on King Street, New Plymouth.   He was with two associates.  He was stopped by a police patrol.   It became apparent that the appellant had recently consumed alcohol.   A breath test procedure was carried out.  The appellant subsequently elected to have a blood sample taken.   Upon analysis, that blood sample was found to contain a proportion of 90 mg of alcohol per 100 mll of blood.   By way of explanation the appellant said he had been drinking at home about an hour earlier, and had driven into the city with friends in order to buy more alcohol.

The District Court decision

[4]      The appellant was liable to a sentence of imprisonment because he had been convicted on 25 May 2010 and 22 June 2010 respectively, of breaches of the blood/breath alcohol provisions.  On the first occasion he was fined and disqualified from driving for six months.   On the second occasion he was also charged with driving while disqualified.  Remarkably, that offence, along with the second breath alcohol offence, was committed just two days after he was sentenced for the first offence.  He was sentenced for the second pair of offences to 100 hours community

work, together with supervision, and was disqualified from driving for a further six months.

[5]      Judge Roberts noted the relatively low reading, which was barely above the legal limit, but observed the pattern of recent offending, and indicated at the outset of his sentencing remarks, that he did not propose to follow the recommendation in the pre-sentence report which was for home detention and a final warning.  The Judge said that the recommendation was:

… unrealistic and I will not be following it.

[6]      He went on to record the appellant’s effort to change his lifestyle since his earlier convictions, observing that he had secured a job in the oil industry which he was anxious to retain, and then commenting upon a point which had been made by the appellant to the pre-sentence report writer to the effect that he did not believe he had a drinking problem.  The Judge looked upon that indication from the appellant with disfavour.  He thought it meant that the appellant regarded his apprehension as “nothing short of bad luck”;   the Judge considered the appellant was “deluded”.

[7]      Judge Roberts thought that the appellant’s desire to take up counselling opportunities for repeat drunk drivers was likely to be of little value, because his mindset was negative.  In other words, the Judge considered that if the appellant did not accept that he had a drinking problem, then it was hardly likely he would take on board any message about the combination of drinking and driving.

[8]      The Judge considered that in order to protect the public, no sentencing option other than imprisonment properly addressed the principles of holding the appellant accountable, denouncing his conduct, deterring him, and providing for public security.[2]

[2] Sentencing notes at [14].

[9]      The Judge adopted a starting point of four months imprisonment, gave the appellant credit for his guilty plea and imposed an end sentence of three months imprisonment.  He also imposed an indefinite disqualification from driving, which is not the subject of challenge on this appeal.

[10]     He set out four reasons for not imposing a sentence of home detention.

(a)      The offending was serious and although the sentence of imprisonment was relatively short, it did not “readily transpose” into a sentence of home detention;

(b)      The appellant had been undeterred by previous sentences;

(c)       His previous attention to his sentence obligations had been “woeful”;

(d)The appellant continued to maintain without justification that he did not have a drinking problem.

[11]     The reference to the appellant’s poor record of complying with previous sentences arises from difficulties that arose during the course of his serving his sentence of community work imposed for the second offence.  The court is told that there were two breaches of the sentence of supervision and one of the sentence of community work.   Neither Judge Roberts nor this Court have been provided with any detail of the breaches but they must have been more than trivial because they resulted in a week in prison.

[12]     In addition to the sentence of three months imprisonment, Judge Roberts directed that as a special release condition, to apply for six months after sentence expiry date, the appellant must engage in and complete any programme directed at addressing alcohol and drug dependency issues to the satisfaction of the service provider and probation officer.

Discussion

[13]     Ms Dallison accepts that the appellant is liable to a sentence of imprisonment, but argues that the proper course was to impose a sentence of home detention which, as the Court of Appeal in Isosefa,[3]  explained, must be seen as a real alternative to imprisonment  since it  carries  with  it  a  significant  measure of denunciation  and

deterrence.  In Manikpersadh v R,[4] the Court of Appeal observed that the closer the appropriate prison sentence is to the two year maximum, the more likely that home detention will be inappropriate.  Conversely, the lower the appropriate sentence, the more likely home detention will be appropriate.  In that case, the court substituted a sentence of five months home detention for a sentence of four months imprisonment originally imposed for driving with excess breath alcohol causing injury.  There, the Court of Appeal pointed out that it is wrong for sentencing Judges to focus solely on deterrence  when  determining  whether  or  not  to  impose  a  sentence  of  home

detention.[5]

[3] R v Iosefa [2008] NZCA 453 at [41]

[4] Manikpersadh v R [2011] NZCA 452 at [22].

[5] Manikpersadh at [8].

[14]     I turn to the reasons given by the Judge for rejecting a sentence of home detention.  He correctly referred to the fact that this was serious offending, but of itself that does not exclude the possibility of home detention.  As Ms Dallison notes, the very first case in which the Court of Appeal gave significant attention to the

sentence of home detention, R v Hill,[6]  emphasised that even in serious cases home

detention might be considered where appropriate discounts for personal factors reduced the end sentence to two years imprisonment or less.

[6] R v Hill [2008] NZCA 41; [2008] 2 NZLR 381.

[15]     Further, a sentence of imprisonment as short as this will ordinarily justify giving close attention to the alternative of home detention.  I am not certain what is meant by the Judge’s reference to the fact that the sentence he imposed does not “readily transpose” to a sentence of home detention.   The short sentence of imprisonment reflected the fact that although this was a very disappointing third conviction within just two years, the reading was just above the legal limit and no ancillary driving concerns arose.   In other words, the appellant’s vehicle was not stopped in the first place because his driving had attracted attention.

[16]     The Judge referred to the fact that the appellant had been undeterred by previous sentences.   That was a matter to which he was certainly entitled to have regard.    But  he  had  not  previously  been  sentenced  to  imprisonment  or  home

detention, and so that was a consideration of moderate weight only.

[17]     The  advantage  of  a  sentence  of  home  detention  against  the  present background is that it would keep the appellant at home under electronic monitoring, at high risk periods (night-time), so that there would be an instant notification to the authorities if he should choose to over-ride the monitoring arrangements and drive while drunk (even while disqualified).    In contradistinction, a sentence of imprisonment, which will involve the appellant’s automatic release in just four more weeks, will carry none of those restrictions and safeguards.

[18]     It is to the appellant’s credit that he has chosen to cut his ties with former associates  in  Wanganui  and  move  to  New  Plymouth  where  he  has  gained employment in the oil industry.  That employment will remain open to him if he is sentenced to home detention, but is not of course something he could not continue if imprisoned.   The Court is told that the employer is keeping his job open until Christmas.

[19]     It is necessary to bear in mind the appellant’s poor compliance record when serving his sentence of community work. That was no doubt a matter which troubled the District Court Judge.   He was well entitled to be concerned.   If the present reading had been higher, then the appellant’s poor compliance record would have told to a degree that might have been determinative, but given the relatively low reading, I do not regard his past record as counting against him sufficiently to rule home detention out.   All three of the appellant’s previous offences have similarly involved readings not far above the legal limit.

[20]     A further advantage of a sentence of home detention is that the appellant would be able to undertake a 10 hour group programme for repeat drink drivers scheduled to commence in January, although I accept there is no reason why he could not undertake a similar course upon his release from prison.

[21]     I need to deal with the Judge’s concern about the appellant’s reported remarks as to his drinking problem.  The Judge plainly interpreted the appellant’s remarks as indicating that he felt under no pressure to change his ways.   There is nothing to suggest that the appellant engages in binge drinking, or that he is unable to manage his drinking as such.   Each of his offences has involved blood or breath alcohol

levels not much higher than the legal limit.   In that context, it seems to me, it is correct to say he does not have a drinking problem.  He plainly does have a problem in that he drinks more than he should when driving, and in that respect the Judge was correct to allude to it.  But it seems possible that the Judge regarded the appellant’s comment as indicating a lack of concern for his record and the danger he posed to the public.  I think it may be wrong to interpret the comment in that way.

[22]     Ultimately, having regard to the recent assistance provided by the Court of Appeal in Manikpersadh v R, I have reached the conclusion that the appellant ought to have been sentenced to home detention and not to imprisonment.   Of course, should there be any further offending, then imprisonment would be inevitable and it may be for a longer term than that imposed by Judge Roberts.

[23]     The term of home detention must be such as to correspond with the sentence of imprisonment imposed in the first instance, and to take into account the fact that the appellant will have served almost two weeks imprisonment by the time this present judgment takes effect.

Result

[24]     The appeal is allowed.  The sentence of three months imprisonment imposed on the appellant is quashed.  I substitute a sentence of three months home detention, along with a final warning that imprisonment will be inevitable if the appellant commits any further offence under the blood/breath alcohol legislation.

[25]     The sentence of home detention is subject to the following conditions:

(a)      Upon release from prison he is to travel directly to 7A Tasman Street, New Plymouth, there to await the arrival of a probation officer and a representative of the monitoring company;

(b)He is to reside at 7A Tasman Street, New Plymouth for the duration of the sentence;

(c)      He is not to purchase or have in his possession or consume alcohol/or illicit drugs for the duration of the sentence of home detention

(d)He is to attend an assessment for alcohol and drug counselling and complete any programmes as recommended by the assessment to the satisfaction of the probation officer and programme provider;

(e)      He is to attend and complete any available programme specifically designed  for  repeat  drink/drivers and  for  which  he is  assessed  as suitable, such as the One for the Road Programme;

[26]     The  Judge’s  orders  with  respect  to  disqualification  from  driving  remain

undisturbed.

C J Allan J