Harvey v Police

[2012] NZHC 1757

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-463-35 [2012] NZHC 1757

BETWEEN  RAYMOND TE REWA HARVEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 July 2012

Counsel:         M McGhie for Appellant

N G Belton for Respondent

Judgment:      18 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Mark McGhie, Whakatane

Crown Solicitor, Tauranga

HARVEY V NEW ZEALAND POLICE HC TAU CRI 2012-463-35 [18 July 2012]

The appeal

[1]      Mr   Harvey   appeals   against   an   effective   sentence   of   eight   months imprisonment imposed on charges of driving with an excess breath alcohol concentration, driving without a licence, breaching Court bail (x2) and breaching a sentence of community work.   The sentence was imposed by Judge Rollo, in the District Court at Whakatane, on 13 June 2012.

Facts

[2]      At about 2.15am on Wednesday 25 January 2012, Mr Harvey an unlicensed driver, had control of a motor vehicle on River Road, Kawerau.  He was observed by police officers driving without his headlights on.  Subsequently, he was stopped and spoken to.

[3]      Mr  Harvey  had  with  him  his  five  year  old  son,  who  was  in  the  front passenger’s seat.   Mr Harvey admitted to having recently consumed alcohol. Following administration of an evidential breath test, Mr Harvey was found to have

1006 micrograms of alcohol per litre of breath in his system.   Mr Harvey’s explanation was that he had been “out looking for his neighbour as he believed his neighbour’s partner was going into labour”.

Previous traffic history

[4]      Mr Harvey has been before the Court for excess breath alcohol charges on two previous occasions.

[5]      Following  an  incident  on  30  August  2008,  he  was  sentenced,  on  25

September 2008, on a charge involving driving with an excess breath alcohol concentration of 922 micrograms of alcohol per litre of breath.

[6]      Following  a  separate  incident  on  12 April  2009,  he  was  convicted  and sentenced, on 19 May 2009, on a charge involving driving with a breath alcohol concentration of 807 micrograms of alcohol per litre of breath.

[7]      So, this was the third occasion on which Mr Harvey had driven since August

2008 with a breath alcohol level in excess of twice the legal limit.

Sentencing in District Court

[8]      In sentencing, Judge Rollo took account of the circumstances in which the offending had taken place.   Perhaps somewhat surprisingly, given the absence of corroborating information, he acted on the basis of the reason given by Mr Harvey for driving; namely his search for the neighbour’s partner.  Nevertheless, the Judge recorded that that did not excuse Mr Harvey’s actions.   The Judge described Mr Harvey’s conduct as “grossly negligent” and putting his “son and others at real risk of death or serious injury”.

[9]      The Judge was also dealing with two breaches of Court bail, relating to the excess breath alcohol charge before him, and a breach of community work.   The breach of community work involved a sentence imposed on a prior occasion.   Mr Harvey had also breached community work once on an earlier occasion.   The recommendation to the Court had been to cancel the remaining period of community work (approximately 118 hours) and to impose imprisonment in substitution for that and to respond to the breach.

Submissions

[10]     Mr McGhie, for Mr Harvey, has submitted that while the sentence of five months imprisonment on the excess breath alcohol charge is at the upper end of the available limit, when one adds to that a further three months to reflect the breaches of bail and breaches of community work, the total sentence of eight months imprisonment  is  manifestly  excessive.    Putting  it  in  terms  of  s 85(2)  of  the Sentencing Act 2002, the end result, Mr McGhie submits, is “wholly out of proportion to the gravity of the overall offending”.

[11]     Mr Belton, for the Police, submits that the sentence on the excess breath alcohol concentration could have been greater.  He refers, as a comparator case, to Ussher v Police[1]  and points out that the aggravating factors in this case are worse than those apparent in Ussher.

[1] Ussher v Police HC Christchurch AP12/02, 27 February 2002 (Chisholm J).

[12]     Mr Belton also submits  that the Court must take care not to  give some advantage to Mr Harvey through cancelling the balance of the community work sentence and substituting a sentence which may only respond to the breach, rather than also compensate for the community work not yet undertaken.

Analysis

[13]     I accept Mr Belton’s submission that Ussher can be regarded as a comparator case.  That was one in which a sentence of five months imprisonment was imposed on an offender who was convicted for a third time of driving with an excess breath alcohol concentration.  On being stopped, the breath alcohol level was found to be

1290 micrograms of alcohol per litre of breath.  There were two prior convictions within the previous 20 months.

[14]     When I compare the facts in Ussher to the present facts, the aggravating factors in this case are worse.   It is disturbing that an unlicensed driver drives at

2.15am; with a five year old child in a car that has no headlights on, while having an excess breath alcohol concentration of over 1000 micrograms of alcohol per litre of breath.  Those are staggering circumstances.  Mr Harvey can think himself lucky that the Judge took account of the explanation he gave without confirmatory evidence. On the face of it, the explanation seems implausible.

[15]     Nevertheless,  I  approach  the  appeal  points  on  the  basis  of  considering whether the overall sentence was within range.  I agree with Mr Belton that the end sentence, on these facts, could easily have been in excess of five months imprisonment on the excess breath alcohol charge.  That could have been achieved either by reducing the credit given for the guilty plea on the basis that conviction was

almost inevitable[2]  or by increasing the sentence by reference to Ussher given the greater number of aggravating circumstances.

[2] Hessell v R [2011] 1 NZSC 607 (SC), at para [60].

[16]     While I have some concerns about the addition of three months imprisonment to reflect the breaches of bail and community work, I am left, when looking at the totality of the sentence, with no doubt that a sentence of eight months imprisonment adequately responds to the relevant sentencing goals, in respect of all of the various offences to which Mr Harvey had pleaded guilty.

Result

[17]     In my view, there is no reason to interfere with Judge Rollo’s sentence.  The

appeal is dismissed.

P R Heath J