Hart v Police
[2019] NZHC 1190
•28 May 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI 2019-441-19
[2019] NZHC 1190
BETWEEN BRIAN MITCHELL HART
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 May 2019 Counsel:
S J Fraser for Appellant
C R Stuart for Respondent
Judgment:
28 May 2019
JUDGMENT OF ELLIS J
[1] On 7 March 2019 Mr Hart was sentenced to 12 months’ imprisonment on one charge of doing an indecent act in public1 and one charge of refusing to give a blood specimen2 by Judge Mackintosh in the Hastings District Court.3 He was also disqualified from driving for 12 months.
[2] Mr Hart sought to appeal his sentence on the grounds it was manifestly excessive because the Judge erred by:
(a)failing to consider an alcohol interlock sentence; and
1 Crimes Act 1961, s 125(1) [maximum penalty of two years’ imprisonment].
2 Land Transport Act 1998, ss 60(1)(a) and 60(3) [maximum penalty of two years’ imprisonment or a fine not exceeding $6,000].
3 Police v Hart [2019] NZDC 4114.
HART v NZ POLICE [2019] NZHC 1190 [28 May 2019]
(b)relying on an erroneous assertion in the pre-sentence report that Mr Hart had previously received, and had failed to engage with, rehabilitative sentences.
[3] At the hearing of the appeal, the former ground was abandoned by Mr Fraser. In my view he was right to do so. Mr Hart does not qualify for such a sentence because he last drink driving conviction was (a little) over five years ago and because he cannot be shown to have the requisite blood alcohol reading (because he refused to give a specimen). Moreover, the making of an alcohol interlock order does not preclude a sentence of imprisonment.4
[4] I also record at the outset that the appeal was filed late. Mr Fraser advises that this was because Mr Hart could not find a lawyer willing to represent him on the appeal. The Crown did not indicate opposition to an extension of time and I grant it accordingly.
Background
The driving charge
[5] At 10:45 pm on 11 October 2018 Mr Hart was driving his car in Napier. He parked on a road near an intersection. He was standing by his car when the police arrived. He admitted to having driven the car. The police report records that Mr Hart smelled of alcohol and the officers could see a cask of wine in his car. The police asked him to “undergo alcohol/blood procedures” but he refused. He agreed to accompany the police to the station to give a breath or blood test. However, at the station he refused all officer requests for a blood or breath sample.
[6] When asked to explain his offending Mr Hart said he had not been driving when the police attended. But at the first case review hearing he pleaded guilty to the charge.
4 Land Transport Act, s 65AH(1).
The indecency charge
[7] At around 11 am on 9 February 2019, Mr Hart and his partner were inside the porch of a church in Hastings. It was a Saturday. They had entirely removed the bottom half of their clothing and were having sexual intercourse.
[8] The porch was visible from the road and from a school across the road from the Church. It seems that the principal of the school saw them and called the police. He confronted the couple and asked them to leave. He became angry and verbally abusive. The pair left.
[9] The police found Mr Hart a short time later. He was having sexual intercourse with his partner in the public toilets at a park. Mr Hart admitted the facts as outlined. His explanation was that he was from Wellington and had nowhere else to have sex with his partner.5
[10]Mr Hart pleaded guilty at the earliest opportunity to this charge.
The sentencing
[11] Mr Hart came up for sentence on 7 March 2019. The drunk driving was treated as the lead charge. Mr Hart has 21 similar previous convictions spanning the last 35 years, although none since 2013. He has a raft of other low level convictions as well.
[12] After referring to Mr Hart’s relevant conviction history, the Judge noted that Mr Hart had what was described as a “tumultuous upbringing” and lived a transient life style.6 She indicated that the pre-sentence report before the Court indicated that Mr Hart had “not really engaged in any rehabilitative programmes that have been offered … in the past” because he simply refused to engage, making them a waste of time.7
5 It seems Mr Hart’s partner was not charged.
6 Police v Hart, above n 3, at [4].
7 At [5].
[13] The Judge referred to the decision of Skudder v Police in setting the starting point for the lead offence of refusing to give a blood specimen.8 In light of the number of Mr Hart’s prior convictions a starting point of 15 months’ imprisonment was adopted. The Judge uplifted the sentence by three months’ imprisonment on account of the indecency charge, giving a combined starting point of 18 months’ imprisonment.
[14] The Judge then said she would discount that by 20 per cent to account for Mr Hart’s guilty plea. This would have taken the sentence to near 14 months’ imprisonment. It appears there may have been a calculation error benefitting Mr Hart, however, as the final sentence was discounted by 33 per cent. The final sentence adopted by the Judge was 12 months’ imprisonment. He was disqualified from driving for one year and one day.
[15] This final sentence was, in fact two months’ shy of the sentence advocated by Mr Hart’s own counsel although he had advised the court that he was “strongly instructed” by Mr Hart that the appropriate sentence was one of community work.
Approach on appeal
[16] Mr Hart has brought his appeal under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed and that a different sentence should be imposed.9 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.10
Discussion
[17] As noted earlier the “alcohol interlock” aspect of the appeal was abandoned by Mr Fraser at the hearing and so I do not consider it further.
8 Skudder v Police [2018] NZHC 1448.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
10 Ripia v R [2011] NZCA 101 at [15].
[18] As far as the pre-sentence report ground of appeal is concerned, the report writer recorded that she had interviewed Mr Hart by telephone but he had been distracted and unable to meaningfully engage.11 She advised:
Mr Hart has received a number of community based sentences and even though he attended sporadically to his reporting, these meetings were not fruitful with Mr Hart either terminating the report in or relaying to his Probation Officer that he did not need help. Mr Hart has not previously engaged in any rehabilitative programmes as a result of this limited engagement. As Mr Hart’s risk is assessed as high, he will meet the criteria to meet with a departmental Psychologist, should he be given release conditions, however given his current history, there is high likelihood that he will refuse to engage.
[19] This passage was plainly the foundation for the passage from the Judge’s sentencing notes to which I have referred at [12] above.
[20] Mr Fraser’s argument was that this statement was inaccurate and unfair. More particularly, he said that Mr Hart:
(a)has received 19 (more than “a number”) of community-based sentences before and there is nothing in his criminal history to suggest non-compliance with those; and
(b)has received only three sentences of supervision and has never received a “community-based sentence” in any rehabilitative sense.
[21] I am not, however, inclined to accept that the report is obviously wrong or misleading. Even Mr Hart’s latest dealings with the authorities suggest compliance problems. For example, he failed to appear several times on the excess breath alcohol (EBA) charge and warrants for his arrest were issued. Moreover, I accept Mr Stuart’s submission that such reports are not solely based on an offender’s conviction history but include a review of Corrections’ files, which may well have formed the basis for the report writer’s views. And regrettably, Mr Hart’s apparent inability to engage with the report writer does not assist him.
11 Mr Hart was in custody at the time and apparently very focussed on getting married to his new partner.
[22] But Mr Fraser also pointed out that Mr Hart was successful in having an indefinite disqualification imposed in 2014 removed in 2016 after satisfactorily completing an Alcohol and Drug assessment. He advised from the bar that such assessments are rigorous and so Mr Hart’s success should be regarded as indicative of a genuine turn around in his earlier propensity to drive after drinking in the five years between his last EBA conviction and the present. Mr Fraser’s submission derives some support from the terms of s 100 of the Land Transport Act 1998 (LTA), which provides that before an order removing an indefinite disqualification can be made the Land Transport Agency must be satisfied that—
(a)the applicant is a fit person to hold a driver licence, having regard to—
(i)a report which is from a health practitioner attached to an assessment centre and which is made available to the Agency by the applicant or the assessment centre; and
(ii)any other evidence submitted by the applicant or otherwise available to the Agency relating to the medical condition of the applicant.
[23] Mr Fraser submitted that this five year period was particularly relevant in terms of the factors identified as relevant to sentencing multiple EBA offenders decisions by Wild J in Clotworthy v Police.12 Those factors are:13
[a]The breath or blood alcohol level.
[b]The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
[c]Conviction for two or more drink driving offences in close succession.
[d]The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
[e]Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
[f]The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
12 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
13 At [20].
[g]The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
[h]The offender's record, if any, of convictions for other types of offending.
[i]Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
[j]Any mitigating personal or family circumstances contributing to the offending.
[24] It will be observed that the length of time since Mr Hart’s last EBA conviction is potentially relevant to factors [b], [c] and [g].
[25] While Clotworthy was not referred to by Judge Mackintosh, the decision in Skudder v R was. And in that decision, after noting that Clotworthy remained the orthodox starting point and listing the 10 factors, Wylie J said:14
[20] Clotworthy was considered by Whata J in Samson v Police. The Judge commented as follows:
[14]I regard items [a] – [e] as aggravating factors for the purpose of assessing the start point for the offending, while [g] and [h] are relevant to uplift for aggravating personal circumstances. Items [f] and [i] – [j] are mitigating factors.
…
[16]Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):
(a)The absence of seriously aggravating factors;
(b)High levels of remorse;
(c)Genuine attempts to address the underlying causes of the offending;
(d)No previous sentence of imprisonment;
14 Skudder v Police, above n 8, at [20] citing Samson v Police [2015] NZHC 748 at [14] – [16].
(e)No previous sentence with a rehabilitative focus; and/or
(f)Lengthy gaps between the current and prior offending.
(Citations omitted)
[21] Whata J also made some general observations about starting points as follows:
[15]Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of [excess breath alcohol] (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:
(a)No seriously or only moderately aggravating factors, 9-12 months;
(b)One or more seriously aggravating factors, 12-18 months;
(c)Multiple offences with seriously aggravating factors, 18-20 months; and
(d)Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.
(Citations omitted)
[26] Applying that analysis to Mr Hart’s case (as I suspect the Judge herself did) it may be observed that:
(a)Mr Hart’s level of intoxication is not known because he refused to give a blood sample;
(b)there was no evidence of dangerous driving;
(c)Mr Hart was not disqualified at the time;
(d)there is a gap of (just) over five years since his previous EBA offending; and
(e)Mr Hart nonetheless has a prolonged (if not wholly continuous) history of driving-related offending.
[27] It is this last factor that puts Mr Hart squarely within the second of Whata J’s categories. Accordingly, the starting point was plainly well within range. As noted earlier, the guilty plea discount was generous. As Mr Hart’s counsel in the District Court recognised, a community-based sentence would not have been in line with other cases of this kind.
[28] Although I am not unsympathetic to Mr Hart and his circumstances, which are clearly difficult, I am unable to discern any error in the Judge’s approach. The end sentence was, if anything, generous given the error in the guilty plea discount and the additional and separate indecency charge. There is no scope for appealing the disqualification or its length, which was mandatory under s 56(4) of the LTA.
Conclusion
[29]The appeal is dismissed.
Rebecca Ellis J
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