Eiffert v Police HC Christchurch CRI 2010-409-94

[2010] NZHC 1126

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000094

CHRISTOPHER JOHN DAVID EIFFERT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 July 2010

Counsel:         B J Meyer for Appellant

L C Preston for Respondent

Judgment:      1 July 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of two months’ imprisonment imposed in relation to a driving offence of refusing to supply a specimen of blood following a motor accident.

[2]      On 15 January last at about 8.15 pm the appellant was riding a 50cc motor scooter.  He endeavoured to negotiate a right-hand corner, failed to do so and hit a lamp post.   He sustained some injuries which occasioned the need for him to be

taken to hospital.  It was there that a specimen of blood was requested but refused.

[3]      The appellant pleaded guilty at an early stage and appeared before Judge Crosbie on 9 June for sentence.  The Judge noted that this was the appellant’s sixth conviction for a blood/breath alcohol offence.   The maximum penalty (given the manner in which the particular charge had been laid) was three months.  The Judge adopted this as his starting-point, allowed a one-third reduction for the guilty plea and hence arrived at a two month sentence.   This was imposed, together with a special release condition, namely that the appellant undertake treatment as directed up to six months from his sentence end date.  There was also a period of indefinite, and a defined, disqualification imposed.

[4]      The appellant is aged 60.  At the relevant time he was a sickness beneficiary. It is apparent that he has an alcohol problem and, indeed, that he is an alcoholic.  He has previous convictions in 1992, 1996, 2001 and 2003 for breath alcohol offences when he had readings ranging from 637 to 1125 (on the last occasion).  In addition, in 2006 he had a blood alcohol conviction with a reading of 249.

[5]      The sole argument raised by Mr Meyer in support of the appeal is that the appellant was entitled to not only a one-third reduction for a plea, but to recognition for steps that he had taken to address his alcohol problem, both immediately prior and subsequent to this offence.  The pre-sentence report revealed that Mr Eiffert had approached the Community Alcohol and Drug Service in the period prior to the offence but had not managed to abstain from drinking.  Subsequent to the offence, however, he had completed a 4 week Salvation Army programme and thereafter had attended a support group up to three days a week.   These steps towards his rehabilitation,  it  was  argued,  were  deserving  of  recognition  and  should  have produced a reduction in the end sentence.

[6]      Mrs Preston stressed that the Judge was not oblivious to these steps.   He made express reference to them at paragraph [5] of his sentencing remarks.   She submitted that it was within the Judge’s discretion to nonetheless conclude that the appellant’s history of offending was such as to cancel out the steps taken towards his rehabilitation.

[7]      In essence I accept this submission.  In my view it is one thing for a younger offender to take positive steps towards rehabilitation and for the Court to foster and recognise this by factoring in a discount at the time of the sentence.  But it is another thing, when dealing with a 60 year old who has a history of offending as long as that of  this  offender,  to  say  that  he  has  finally  taking  some  steps  towards  his rehabilitation and this demanded recognition.  Some Judges may consider that it did, but I do not think it can be said that Judge Crosbie’s view of the matter was one which was not available to him.

[8]      Moreover, I note that in the pre-sentence report the appellant told the report writer  that  he  did  not  consider  riding  a  scooter  (as  opposed  to  a  car)  while intoxicated was against the law.  The report writer said that this attitude appeared to have underpinned and justified the offending in Mr Eiffert’s mind.  This too, in my view, was a countervailing factor which could well have justified the approach taken by the Judge.

[9]      For  these  reasons  I  am  not  brought  to  the  view  that  the  sentence  was excessive or wrong in principle for the reason advanced by counsel.  Accordingly the

appeal is dismissed.

Solicitors:

Corcoran French, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent