Halford v Police

[2020] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-207

[2020] NZHC 2016

BETWEEN

ANDREW STEVEN HALFORD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 August 2020

Appearances:

D-M Cross for the appellant

D B Dow and J Y Ha for the respondent

Judgment:

10 August 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

D-M Cross, Barrister, Auckland

Meredith Connell, Crown Solicitor, Auckland

HALFORD v NEW ZEALAND POLICE [2020] NZHC 2016 [10 August 2020]

[1]    Andrew Steven Halford appeals against his sentencing by Judge N R Dawson in the District Court at Auckland on 18 May 2020 to three months’ community detention, twelve months’ supervision, and indefinite disqualification from driving, on his third charge of driving with excess breath alcohol.1

Background

[2]    Driving on Auckland’s Green Lane West in the early hours of 4 February 2020, Mr Halford was stopped by police, he showing “signs of recent alcohol intake”. An evidential breath test returned 720 micrograms of alcohol per litre of his breath, nearly twice the maximum permissible 400 micrograms). Mr Halford admitted drinking at home, but thought he was “ok to drive”. He pleaded guilty at an early stage, to what would be his third offence of driving with excess breath alcohol (previously, on     19 April 2013 and 4 July 2016).

Judgment under appeal

[3]    Taking community protection to be the principal sentencing factor here, the Judge denounced Mr Halford’s recidivism, which rendered his expressions of remorse “a little bit shallow”, but noted his steps in rehabilitation in the intervening three months since offending, as independently evidenced in documents before the Judge. He reduced an initial starting point of 10 months’ imprisonment to six months on account of Mr Halford’s personal mitigating factors and early guilty plea, which he converted to three months’ community detention. Although it is not mentioned in the Judge’s sentencing notes, it appears Mr Halford also was sentenced to the maximum 12 months’ intensive supervision.2

[4]    Mr Halford’s counsel, Maree Cross, argues the minimum six months’ supervision was justified as “the least restrictive outcome … appropriate in the circumstances”,3 Mr Halford’s prior offending on three- and four-year intervals not being persistent, and his self-help illustrating his rehabilitation was not reliant on

1      Land Transport Act 1998, ss 56(1) and 56(4). Maximum penalty: two years’ imprisonment or a fine of $6,000. The defendant must also be disqualified from holding or obtaining a driver’s licence for more than one year. (But see s 65AC.)

2      Sentencing Act 2002, s 45(2).

3      Section 8(g).

supervision. His demonstrated engagement with Alcoholics Anonymous and counselling, and voluntary community work, shows he accepts responsibility for his offending. The maximum term of supervision overemphasises the Judge’s concerns for community protection, she submitted, and thus impermissibly is punitive.4

Approach to appeals against sentence

[5]    I must allow Mr Halford’s appeal only if satisfied there is an error in his sentence, and a different sentence should be imposed.5 In any other case, I must dismiss the appeal.6 The approach previously taken by courts on sentencing appeals continues to apply,7 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.8 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.9

Discussion

[6]    Section 46 of the Sentencing Act 2002 enables supervisory sentences only if the court is satisfied “a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender”. Inferentially, the Judge must have been so satisfied, and there is no dispute a sentence of supervision here would reduce the likelihood of Mr Halford’s further offending through his rehabilitation and reintegration.

[7]    What then was available to lead the Judge to the maximum, rather than the minimum, supervisory sentence?

[8]    Conversely to the case on which Ms Cross relies, of a first-time drink driver assessed without alcohol dependency issues, Mr Halford is assessed by Corrections as having issues with alcohol use and impulsivity. By his own admission, he is an

4      Creegan v Police [2015] NZHC 1513 at [34]–[35].

5      Criminal Procedure Act 2011, s 250(2).

6      Section 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

8      At [33] and [35].

9      Ripia v R [2011] NZCA 101 at [15].

alcoholic who depends on alcohol as a coping mechanism. Recidivist drink drivers whose offending is attributable to underlying alcoholism require a supervisory sentence’s support to promote their rehabilitation and protect the community. Hard- to-address addictive illness may increase the weight to be given to concerns of public protection, even where also informing the culpability disclosed by the offending itself.10

[9]    There is a measure of persistence in Mr Halford’s offending, over an extended period of time. The Court of Appeal recently characterised drink driving as “a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society”.11 Mr Halford’s resort to alcohol here in response to adverse life events, and his consequent poor judgement in driving, suggests his self-directed rehabilitation remains fragile. The imposition of the maximum term of supervision in such a case is warranted to help ensure necessary support remains in place to help Mr Halford respond to near-term adversity and to embed his newly-addressed rehabilitation.

[10]   In its totality, the Judge’s sentence is closely comparable to like offending.12 Given Mr Halford’s term of supervision must be at the upper end of the available term, any adjustment would be tinkering, without any objective foundation for doing so.

[11]   I am not satisfied the Judge erred in imposing the maximum supervisory sentence, or a different sentence should be imposed.

[12]   Ms Cross also argues, without “special reasons relating to the qualifying offence”, the Judge erred in not replacing Mr Halford’s mandatory disqualification with an alcohol interlock licence.13 Counsel for the police, Dennis Dow, agrees this error may be corrected on appeal.

1. E (CA689/10) v R  [2011] NZCA 13, (2011) 25 CRNZ 411 at [69], citing R  v  Wright  [2001] 3

NZLR 22, (2001) 18 CRNZ 527 (CA) at [22]; and R v Taueki [2005] 3 NZLR 372, (2005) 21

CRNZ 769 (CA) at [45].

11     Basnyat v Police, [2018] NZCA 486, [2019] 2 NZLR 344 at [19].

12     Hansch v Police [2014] NZHC 2438.

13     Land Transport Act 1998, ss 65(2) and (3A) and 65AC(1) and (3).

[13]   In this respect, I am satisfied the Judge erred in not specifying any ‘special reasons’, and a different sentence should be imposed because I cannot identify any ‘special reasons’, for Mr Halford’s mandatory disqualification to be replaced by an alcohol interlock order. The practical result is Mr Halford’s actual period of disqualification will be for 28 days, after which he may hold or obtain an alcohol interlock licence (or thereafter a zero alcohol licence) as may be granted.14

Result

[14]   I therefore allow the appeal in part, to quash the Judge’s indefinite disqualification of Mr Halford from driving pursuant to s 65 of the Land Transport Act 1998, and substitute an alcohol interlock sentence pursuant to s 65AC.

[15]Otherwise, the appeal is dismissed.

—Jagose J

14     Section 65AE(a).