F v Police HC Whangarei Cri-2010-488-16
[2010] NZHC 1336
•5 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2010-488-000016
BETWEEN F
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 August 2010
Appearances: N Leader for Appellant
M B Smith for Crown
Judgment: 5 August 2010
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Whangarei
Copy to: N Leader, Whangarei
F V NEW ZEALAND POLICE HC WHA CRI-2010-488-000016 5 August 2010
[1] On 7 April this year the appellant was convicted on his second charge of driving with an excess breath alcohol level. Judge Gittos sentenced him to 100 hours of community work and disqualified him from holding a driver’s licence for a period of 15 months.
[2] The appellant does not challenge the sentence of community work but appeals against the period of disqualification of 15 months as being clearly excessive.
[3] The present offending occurred on 16 January 2010. The appellant was stopped at a routine vehicle check by the police. He was noticed to show signs of recent alcohol intake and admitted to having consumed a quantity of alcohol prior to driving, was tested and was found to have 899 micrograms of alcohol per litre of breath.
[4] The appellant’s explanation for driving was on that occasion he had finished work, gone home, left his car at home and gone into town with a friend. He had left his car at home because he did not intend to drive that night. However, his partner was also in town and she had her car. When it was time to go home they called Pro Drive to get a sober driver to drive them and the car home. But as Pro Drive did not show up he decided to drive his partner’s car home. The appellant is employed as an apprentice carpenter and is in the last few months of an apprenticeship. He is 26 years old and lives in a stable de facto relationship
[5] The appellant has one previous conviction for driving with an excess breath alcohol level. That was for an offence committed on 18 December 2008, just over a year before the present offence. On the first occasion he was fined $600 and disqualified from driving for six months.
[6] In sentencing the appellant Judge Gittos noted the aggravating features were the high level of alcohol and the fact the appellant was convicted only last year of a similar offence. The Judge then imposed the sentence of 100 hours community work and 15 months disqualification.
[7] For the Crown Mr Smith conceded that the disqualification of 15 months was perhaps stern but nevertheless submitted that for a second conviction in these circumstances it was within range.
[8] The sentencing of repeat drink driving offenders has been the subject of consideration by this Court and the Court of Appeal on a number of occasions. In the case of R v Stone[1] the Court of Appeal reviewed various High Court decisions on the matter and concluded that there was no real correlation between the number of excess breath or blood alcohol convictions and the period of disqualification imposed. There were a number of reasons for that:
[1] R v Stone [2009] NZCA 539.
•first, the mandatory disqualification regime, which provided indefinite disqualification;
•second, the ability of the District Court Judge to disqualify a third or subsequent excess breath alcohol offender indefinitely; and
•third, the impact on disqualification periods of District Court Judges applying the criteria from the High Court decision of Clotworthy v Police.[2] Not all previous convictions are given the same weight.
[2] Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[9] Importantly in Stone the Court emphasised that the period of disqualification must be considered against the background that the sentencing Judge was imposing a sentence in the round and the disqualification was just one component of the sentence.
[10] In Clotworthy Wild J analysed a number of previous decisions for sentencing of recidivist drink driving offenders and identified a number of factors the Court would take into account in imposing sentence. While not an exclusive list the factors are helpful in assessing appropriate sentence. They are:
• the breath or blood alcohol level;
•the length of time that had elapsed since the last drink driving conviction;
•whether there was a conviction for two or more drink driving offences in close succession;
• the manner of driving;
• whether the offender was disqualified at the time;
• the pleas, and if guilty, when the plea was entered;
• the sentences imposed for previous convictions and response;
• the offender’s record for other offending;
• remorse and willingness to confront issues;
• mitigating personal or family circumstances.
[11] In relation to the issue of pleas of guilty the Court of Appeal have also recently confirmed in R v Hessell[3] that in relation to drink driving offences an early guilty plea may also affect the length of an order disqualifying the offender from driving. The Court accepted the plea can be recognised in the length of the disqualification, the amount of any other part of the sentence, or both[4].
[3] R v Hessell [2009] NZCA 450.
[4] At [51].
[12] In this case the appellant indicated when first before the Court he intended to plead. As there was no Judge available he was remanded to a Judge’s list date and pleaded on that occasion. He is entitled to a full credit for that.
[13] In the case of McEachen v Police[5] a full Court of this Court also had occasion to consider the period of disqualification, in that case, for first time offenders. The
Court noted the importance of consistency and even handedness in sentencing, both as between different Courts and as between different defendants in the same Court.
[5] McEachen v Police [1995] 2 NZLR 251.
[14] The Court in McEachen confirmed that the Court should look for guidance first to decided cases, particularly cases determined on appeal, and then to evidence before it which indicated what other District Court Judge may have considered to be appropriate periods of disqualification.[6]
[6] At 255.
[15] In the present case Mr Leader has helpfully compiled, from his own experience, a schedule of sentences imposed for repeat drink driving offenders by various Judges sitting in Whangarei from time to time. It is sufficient for present purposes to note that in relation to the number of excess breath alcohol offences where there are three offences involved the periods of disqualification range from one year and one day through to 13 months. That sample involves five separate sentences for five separate offenders. In relation to sentences involving two excess breath alcohol offences, the disqualification periods have been from six to nine months. That sample relates to three such offenders. Counsel accepts it is a limited sample but it is of some assistance.
[16] It is also relevant that for a third offender when considering the level of disqualification for a third offence there is a minimum period of 12 months prescribed.
[17] Before leaving the matter I refer to the decision of Rogers v NZ Police[7] and cases referred to within that decision particularly Lake v Police.[8] In Lake a second drink driving offender had his appeal allowed and his period of disqualification of 15 months reduced to nine months.
[7] Rogers v NZ Police HC Hamilton CRI2009-419-000024, 24 July 2009.
[8] Lake v Police HC Palmerston North AP14/03, 4 June 2003.
[18] The objective of consistency is of course also itself consistent with the requirements of the Sentencing Act. It is proper for the District Court and this Court on appeal to bear in mind that objective of consistency, while recognising the
variables in such cases and such offending and the point made by the Court of
Appeal in Stone that the disqualification is just one part of the sentencing package.
[19] In this case the particularly aggravating features from the appellant’s point of view were the relatively high level of breath alcohol and the fact that the offending occurred just over a year after his previous disqualification.
[20] Apart from those factors, however, I note that in this case there was nothing about the appellant’s driving that brought him to the attention of the police. It was a routine check at which he was discovered. He co-operated with the police. There was no aggravating feature of driving whilst disqualified. The appellant entered a guilty plea at the earliest stage. Credit should be given for that as acceptance of his responsibility and a tangible recognition of his remorse. He has no other convictions for any other type of offending. In addition to the period of disqualification the appellant was ordered to serve 100 hours community work.
[21] When I assess those factors in the round and bear in mind the snapshot of other disqualifications imposed by a number of different Judges in the Whangarei District Court for repeat EBA offending, I am left with the clear impression that the imposition of a sentence of 15 months’ disqualification in addition to the sentence of community work was clearly excessive.
[22] Mr Leader accepted that a sentence of anything up to 12 months’ disqualification could not have been described as clearly excessive. Bearing in mind the aggravating features of this case and particularly the short period of time between the first offence and the second offence, it seems to me the appropriate period of disqualification is one of 12 months.
[23] Mr Smith suggested that the difference between 12 and 15 might not be clearly excessive but the additional three months is a significant period of disqualification.
[24] I conclude therefore that the disqualification of 15 months was clearly excessive in the particular circumstances of this case. The appeal will be allowed.
The disqualification of 15 months is set aside. It is replaced with disqualification for
a period of 12 months.
Venning J
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