Eves v Police HC New Plymouth CRI 2010-443-25

[2010] NZHC 2245

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000025

BETWEEN  MICHAEL DAVID JOHN EVES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 December 2010

Appearances: The Appellant in person

AWM Britton for the Respondent

Judgment:      14 December 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

AWM Britton, A Britton, Crown Solicitors, P O Box 738, Taranaki Mail Centre, New Plymouth 4340. Email: [email protected]

Copy to:

MDJ Eves, C/- New Plymouth Prison, Robe Street, New Plymouth

MICHAEL DAVID JOHN EVES V NEW ZEALAND POLICE HC NWP CRI-2010-443-000025 14 December

2010

[1]      The appellant was charged with refusing to permit a blood specimen to be taken after being required to do so.  This charge was laid under s 60(3) of the Land Transport Act 1998.  Because of the appellant’s previous convictions in this area the charge was laid in such a way as to make it clear that the alleged offending involved a relevant offence of a third of subsequent type.  Nothing hangs on that.

[2]      The case was in due course tried in the Hawera District Court before Judge Clapham. At the hearing the appellant was represented by counsel, in this case Ms N Christopher.  At the end of a defended hearing in September 2010 the Judge found that the charge had been proved.  He duly convicted the appellant and remanded him in custody for sentence.  He directed a pre-sentence report.

[3]      In due course (2 November 2010) the appellant appeared for sentence before Judge Roberts, again at the Hawera District Court.  The Judge had the benefit of a pre-sentence report.  The report recommended imprisonment.  The report stated inter alia that relevant background to the offending was the appellant’s severe alcohol abuse and to some extent mental health issues.  The report writer expressed serious concerns about the appellant’s ability and willingness to undertake any rehabilitative options.

[4]      Both the pre-sentence report and also a helpful medical report from Dr Peter Dean (dated 29 October 2010), which Judge Roberts had before him, referred to a possible psychiatric background.  The appellant has had previous assistance from the Taranaki Base Hospital, in March 2004.   He was then recorded as presenting as disorganised, with some delusional aspects.   There was a reference to the Puawai Psychiatric service for assessment and follow up.

[5]      Dr Dean opined that the appellant had a history of significant alcohol use and a six year history of persecutory beliefs, based in the main on the justice system, that being a reference to his previous court appearances and also Family Court disputes involving him and his children.   Dr Dean opined it was likely that Mr Eves had “delusional disorder which was secondary to alcohol dependency”.   The appellant tells me that since his incarceration he has been prescribed some mild form of sedative or sleeping tablet.

[6]      In sentencing the appellant, Judge Roberts fairly sketched the background of the case.  He pointed out that other sentencing options had been “exhausted”.  He recorded that the appellant was unrepresented and had advised the Judge he did not wish to seek legal advice.

[7]      The Judge had indicated to the appellant he was considering a 12 month prison sentence.  That indication did not change the appellant’s stance.  The Judge then shortly stated, that there being no other “concessions” available (a reference no doubt to mitigating factors) it would be the 12 month sentence which he was going to impose.  No release conditions were imposed.  Additionally there was a two year disqualification period commencing 2 November 2010.

[8]      Before recording the appellant’s submissions to me today I note that the last offending of this type was again in the Hawera District Court in 2003.  The appellant then faced a charge of driving a motor vehicle (a camper van in this case), whilst having an excess blood alcohol.  There was a defended hearing before Judge Bidois in August 2003.   In a lengthy oral decision the Judge dealt with the competing evidence he had heard and found the charge had been proved.   The appellant’s defence, as I understand it, was he was not driving the motor vehicle at that time. To his alleged disadvantage security camera footage had been erased by the time of the court hearing.  The appellant called witnesses to support his case.  It is very clear to me that the appellant has an ongoing sense of grievance about the outcome of that

2003 hearing.  I note there was an appeal lodged in 2003 but I am not certain what the outcome was.   The appellant’s criminal history suggests the final result was achieved in August 2004.  From that I infer an appeal was eventually dismissed in this Court.

[9]      I record that ongoing sense of grievance because it is very clear to me that, coupled with the personal issues to which I have referred, the appellant’s perception has coloured somewhat the events that occurred in the Stratford police station in December 2009.  The sense of grievance against the prosecution system which the appellant entertains still shines through.

[10]     The appellant and I have had a full and detailed discussion about the merits of his appeal.  In essence, so far as the appeal against conviction is concerned, the appellant makes three major points which are:

(a)      That the police evidence against him was false.  In short the appellant says he refused neither a breath test nor the provision of a blood sample.

(b)The process which was followed, through his arrest and subsequent prosecution, was flawed.    This was a reference to various discrepancies which appeared on documents provided by the police, including his bail bond, the information sworn in the Hawera District Court, and Land Transport records relating to the registered address of the vehicle which he owned.

(c)      In a general way, that the police “modified” the evidence as to what happened on the night and may to some extent have left out relevant information (such as the use of his cellphone on the evening in question to find out where he was living).

[11]     I have explained to the appellant, and he clearly understands, that for the appeal against conviction to succeed he must be able to point to some discernible error in the trial before Judge Clapham and with the Judge’s eventual conclusion that the charge against him had been proved beyond reasonable doubt.

[12]     The appellant, as part and parcel of the points which I have outlined, disputed the police evidence that he refused to provide the critical blood sample.  He disputed the accuracy of the police evidence, which was to the effect that he was wandering around the police station at various periods being abusive.  The appellant’s version is that he was handcuffed to the police station counter for most relevant times.

[13]     The appellant fully understands that a Judge on appeal is not in a position to rehear the case.  Judge Clapham was faced with a conflict of evidence (the appellant

gave evidence at his trial).  He clearly preferred the evidence of the police officers in question.  He was entitled to take that view which was clearly open to him.

[14]     Given the large number of standard documentary police forms attached to Mr Britton’s submissions I consider the weight of the evidence leans heavily in favour of the evidence given at the appellant’s trial by the police officers.

[15]     Having considered carefully the process points raised by the appellant I am not satisfied that there has been any flaw in the process which would invalidate in any way the trial of the appellant which followed.

[16]     For these reasons therefore, and despite the appellant’s generally held views to the contrary, I see no reason for this Court to interfere with the conviction entered by Judge Clapham.

[17]     The appeal against the conviction is therefore dismissed.

[18]     I now turn to the 12 month term of imprisonment imposed.  The hesitancy I have in this area is mainly because I cannot discern how it was that Judge Roberts reached  the 12  month start  point.   Twelve months  is  one half  of the two  year maximum period prescribed by the Act.  Of course in busy list courts it would be unrealistic for appellate courts to expect sentencing judges to follow the elegant

methodology set out in R v Taueki,[1]  particularly with sentences involving relatively

[1] R v Taueki [2005] 3 NZLR 372.

routine matters.

[19]     Taking a step back and testing the 12 month sentence imposed I am conscious of the fact that the appellant had 15 previous driving offences of which nine were of an alcohol related nature.  To the appellant’s credit, perhaps, was the fact that he had had no convictions of this type since the 2003 incident to which I have referred. That said, however, the presentence report and the medical report did give rise to

legitimate concerns.

[20]     I echo Judge Roberts’ comment to the effect that the appellant remained a liability to the community every time he drank and got behind the wheel of a motor vehicle.  Mr Britton submits from the bar that given this type of offending and in this region, a sentence in the eight to 12 month range would be the norm.

[21]     Given the personal circumstances of the appellant to which I have referred, I consider the 12 month period of imprisonment was severe.   I reiterate my unease about how the 12 month start point and end point were reached.  However, given the appellant’s past record and the contents of the reports before the Judge, although I regard the sentence as a severe one, I do not consider it quite crosses the threshold of being manifestly excessive.

[22]     For that reason, therefore, I am not minded to interfere with the 12 month term of imprisonment.

[23]     However, where I part company with the Judge is his decision (justified on the materials before him), not to impose any post-release conditions.   I am of the firm view that the appellant is a man whose life and emotional state are chaotic.  In this he needs help.  He is undoubtedly grieving the break-up of his family and the removal of contact with his children which that would entail.   In addition he has legitimate worries and concerns over the fragility of the health of his 78 year old mother.   One cannot seriously question that the appellant has an ongoing problem with alcohol.  Nor can it seriously be questioned that he has mental health issues (at the lower end of the scale I suspect), which colour his perceptions and in respect of which he will need assistance when he re-enters the community.

[24]     My strong  recommendation  therefore,  to  the  Parole  Board,  is  that  when considering the timing of the appellant’s release from custody, and in particular when considering a post-release regime, close and careful consideration should be given to the imposition of conditions, including appropriate programmes and a regime designed to assist the appellant with the various devils which he faces, so that his full potential can be achieved and so that he re-enters the community with assistance rather than being left alone and set up to fail yet again.

[25]     I thus direct my judgment on this appeal is to be forwarded by the Registry to the prison authorities.   I further direct Mr Britton to ensure this is done by an independent route.  It might also be helpful if, following the trial which the appellant tells  me  he  faces  in  the  middle  of  January  2011,  these  comments  were  made available to the Judge who might, at the conclusion of the trial, have to impose a sentence.

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Priestley J