Henry v Police HC Rotorua CRI 2010-463-58

[2010] NZHC 1787

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2010-463-58

SHANE HENRY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 August 2010

Appearances: W Te Are for the Appellant

A Hill for the Respondent

Judgment:      31 August 2010

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr WHA Te Are, Harry Edward, Solicitors, Rotorua

Mr A Hill, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

HENRY V NEW ZEALAND POLICE HC ROT CRI 2010-463-58  31 August 2010

[1]      Mr Henry pleaded guilty to a charge of driving on 4 June 2010 with excess breath alcohol.  The reading was 1,304 micrograms.  That is considerably more than three times the limit.  He was sentenced to 16 months imprisonment arrived at from a starting point of the maximum of two years imprisonment with a full reduction of one-third for an early guilty plea.  Mr Henry was also disqualified from holding or obtaining a driver licence for 18 months.  Conditions were imposed on release from prison relating to counselling and treatment for an alcohol problem Mr Henry plainly has.

[2]      Mr Henry has appealed against the sentence on the specific grounds that the starting point of two years was too high and that the Judge had placed undue weight on the appellant’s previous convictions “given their historic nature”.

[3]      Mr Henry came to the attention of the Police because of a phone call from another  driver  concerned  about  the  manner  of  Mr  Henry’s  driving.    He  was following another car very close and there was concern that he would cause a crash.

[4]      The previous convictions the Judge took account of were, in particular, six excess breath alcohol convictions between April 1990 and November 1999.   The breath alcohol levels in these previous offences ranged from 700 micrograms to

1,007 micrograms.   A range of penalties was imposed including one year’s imprisonment for the last offence, in November 1999.

[5]      Judge McGuire, on sentencing Mr Henry, having noted the very high breath alcohol  level,  the  manner  of  driving,  and  the  previous  convictions,  made  the following comments:

[4]       It is plain to me that as you are now aged 38 and as the sergeant has said, you have been consuming alcohol before you have come to Court today.  You have got a massive out of control problem with alcohol. …

…

[6]       Your counsel emphasises that it has been a long time now since your last conviction and that I should take account of that and I have thought about that, and ordinarily that would be so, that you would get a discount for the fact that it is 10 years since your last conviction.

[7]       In your case though, against that were the last time you did not take part properly in rehabilitation and you had to [be] re-sentenced.  Secondly, you have consumed alcohol before coming to Court today and thirdly, there is the inescapable horror of the level of intoxication that you had when you were caught.

[6]      In support of the appeal Mr Te Are, in careful submissions, emphasised the historic nature of the previous offences.  The seriously bad pattern of offending came to an end with the offence in 1999.  That was then to be contrasted with what appears to have been a reasonably constructive lifestyle through to 2010 when – to use Mr Te Are’s words – the “wheels fell off” for Mr Henry.   He became unemployed approximately six months before this offending.  This was not advanced to excuse the offending – it is accepted that there must be a reasonably lengthy period of imprisonment – but to put the offending into perspective.

[7]      For the respondent, Mr Hill noted that a number of the factors mentioned in the decision of Clotworthy[1] are present in this case: in particular a very high breath alcohol level; the reasonably large number of previous convictions, whilst acknowledging that the most recent was over 10 years ago; the manner of driving on this occasion; and an absence of remorse said to be demonstrated by the fact that Mr Henry  appeared  at  Court  for  sentencing  having  consumed  some  alcohol  that

morning.

[1] Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[8]      In considering this appeal I have had regard to other cases referred to by counsel: R v Stoves[2], R v McQuillan[3], Wilson v Police[4] and Marshall v Police[5].

[2] R v Stoves CA264/06, 7 November 2006.

[3] R v McQuillan CA129/04, 12 August 2004.

[4] Wilson v Police HC Rotorua, CRI 2005-463-81, 2 December 2005, Heath J.

[5] Marshall v Police HC Hamilton, CRI 2010-419-31, 4 May 2010, Ellis J.

[9]      In my respectful opinion the starting point adopted by the Judge is manifestly excessive.  The reasons given by the Judge for adopting the maximum sentence as the starting point certainly point to a reasonably high starting point,  but in my judgment do not justify that maximum.  As Mr Hill noted, s 8(c) of the Sentencing Act 2002 has importance.   Section 8(d) is also relevant.   Those provisions are as follows:

8        Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

…

(c)       must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

(d)       must  impose  a  penalty  near  to  the  maximum prescribed  for  the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and

…

[10]     This offence, if assessed in relation to the offending itself, is not amongst the most serious offending of this type.  The factors that certainly make it near the most serious are the very high level of breath alcohol and the poor driving, but those factors do not make it amongst the most serious.  Nor, with respect, am I persuaded that the other factors taken into account by the Judge put it amongst the most serious.

[11]     The previous offending is undoubtedly a serious aggravating circumstance. But in my judgment insufficient weight was given to the fact that there was the offending over a 10 year period which then abruptly stopped with a 10 year gap.  It does seem apparent from what the Judge said that, but for the matters noted in para [7] of his sentencing notes, that 10 year gap would have been given greater weight resulting in a lower starting point.

[12]     It was understandable that the Judge had regard to the fact that Mr Henry had come to Court having consumed alcohol, but I do not consider that that is a circumstance sufficient to lend weight to the decision that the maximum penalty should be the starting point.   There is no question that Mr Henry has a serious alcohol problem, and the fact that he had consumed alcohol before coming to Court essentially confirmed that, but that did not add anything to the gravity to the offending.

[13]     I am bound to have regard to the fact that immediately before dealing with this appeal I dealt with the appeal of a Mr Spooner who had been sentenced in the

same Court by Judge McGuire nine days before.   I refer to my judgment on that appeal for an outline of the facts and other relevant considerations in that case.[6]

There are some striking similarities and some striking differences.   The most significant similarity is the pattern of offending in the 1990s in both cases, although more offending in Mr Henry’s case.  In both cases there was a cessation of offending from about 2000.  But a significant difference is that Mr Spooner was convicted of a further breath alcohol offence in 2007.  The other significant difference, against Mr Spooner, is Mr Spooner’s complete indifference to his offending.   That is to be contrasted in a material  way with Mr Henry’s  attitude, and notwithstanding his failure to attend rehabilitation following his sentence in 2000.  The starting point in Mr Spooner’s case was 18 months imprisonment.  Weighing the two cases in a broad way, and reminding myself of the care that is always needed in not trying to draw too close a comparison between different cases, I do not consider that Mr Henry’s case justified a starting point one-third higher than that of Mr Spooner and, in Mr Henry’s case, of course, being the maximum.

[6] Spooner v New Zealand Police HC Rotorua, CRI 2010-463-55, 31 August 2010.

[14]     The ultimate issue is whether the sentence imposed is manifestly excessive, which means in the circumstances of this case whether the starting point was manifestly excessive.  In my respectful opinion a starting point of the maximum of two years was manifestly excessive.  In my judgment the maximum starting point for Mr Henry should not be more than 18 months imprisonment.  With a full credit for the guilty plea that results in an end sentence of 12 months imprisonment.

[15]     Accordingly, the appeal is allowed.  A sentence of 12 months imprisonment is substituted for the sentence imposed in the District Court.  The sentence imposed in the District Court remains in all other respects, including the conditions for six months from the sentence end date as noted in para [9] of the Judge’s sentencing

notes.

Peter Woodhouse J