Ireland v Police
[2021] NZHC 3202
•26 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-00380
[2021] NZHC 3202
BETWEEN DANE CONOR IRELAND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 November 2021 Appearances:
C C Watkins for the Appellant H J Bell for the Respondent
Judgment:
26 November 2021
JUDGMENT OF ROBINSON J
This judgment was delivered by me on Friday 26 November 2021 at 4.00 pm
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
CC Watkins, Barrister, Auckland
H J Bell, Meredith Connell, Auckland
IRELAND v NEW ZEALAND POLICE [2021] NZHC 3202 [26 November 2021]
Introduction
[1] Mr Ireland pleaded guilty to: one charge of possession of cannabis for supply,1 one charge of possession of cannabis,2 two charges of driving while suspended,3 and one charge of driving with excess blood alcohol (first or second offence).4. On 20 July 2021, Judge N R Dawson in the Auckland District Court, sentenced Mr Ireland to 10 months’ home detention and disqualified him from holding or obtaining a driver licence for 18 months.5
[2] Mr Ireland appeals the sentence in relation to the driving charges. His two main grounds of appeal are that:
(a)the sentence of 10 months’ home detention was manifestly excessive because the Judge should not have applied a one month uplift for the driving charges; and
(b)the 18 months’ period of disqualification was manifestly excessive because the disqualification periods should have been imposed concurrently.
The offending
[3] Mr Ireland is 25 years’ old. He has previous convictions for cannabis offending and driving while suspended.
[4] On 11 October 2019 at 8.23 pm Mr Ireland was stopped at a breath test check point. While speaking to Mr Ireland, police officers detected the smell of cannabis emanating from his car. They invoked a warrantless search of Mr Ireland’s car pursuant to the Search and Surveillance Act 2012. The subsequent search of his
1 Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty eight years’ imprisonment.
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment or a fine not exceeding $500.
3 Land Transport Act 1998, s 32(1)(c) and (3); maximum penalty three months’ imprisonment or a fine not exceeding $4,500, and mandatory disqualification from holding or obtaining a driver licence for six months or more.
4 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment or a fine not exceeding $4,500, and mandatory disqualification from holding or obtaining a driver licence for six months or more.
5 Police v Ireland [2021] NZDC 14512
vehicle uncovered 802 grams of cannabis and $6,650 in cash. This gave rise to the charge of possession of cannabis for supply. As set out below, Judge Davison treated this as the lead charge for sentencing purposes.
[5] On 17 April 2020 Mr Ireland was stopped by the police and suspended from driving for three months (until 16 July 2020) for having accrued excess demerit points. During this suspension period the Police stopped Mr Ireland twice while he was driving, once on 2 May 2020 and once on 4 July 2020. This gave rise to the two charges of driving while suspended.
[6] On 17 July 2020 (the day after his suspension period ended), Mr Ireland was again stopped in his vehicle and police located 3.36 grams of cannabis.
[7] On 9 January 2021 at approximately 3.10 am Mr Ireland was stopped by police and tested for breath alcohol, producing a result of 551 micrograms of alcohol per litre of breath.
[8] Mr Ireland committed the driving offences while on bail in respect of the lead cannabis charge.
District Court
The sentence indication
[9] On 18 November 2020 Judge Dawson gave Mr Ireland a sentencing indication in respect of the charge of possession of cannabis for supply and possession of cannabis.6 Judge Dawson indicated the aggravating factors of Mr Ireland’s offending were: the amount of cannabis he had in his possession for the lead charge (802 grams); and the high level of premeditation.7 Judge Dawson noted Mr Ireland’s four previous convictions for supplying cannabis.8
6 Ireland v Police DC Auckland CRI-2019-004-9537, 18 November 2020 [Sentence Indication].
7 At [3].
8 At [1].
[10] The Judge indicated that the starting point would be 18 months’ imprisonment, uplifted by four months to reflect Mr Ireland’s conviction history for similar offending.9
[11] Judge Dawson indicated he would award Mr Ireland a 15 per cent discount for guilty plea if he pleaded guilty following the sentence indication, noting that the matter had been before the Court for some time. This would result in an end sentence of 18 and a half months’ imprisonment. However, the Judge said he would consider home detention if Mr Ireland could get into Higher Ground or otherwise show that he would genuinely engage in a proper rehabilitative process.
[12] As noted at paragraph [7] above, Mr Ireland drove with excessive breath alcohol on 9 January 2021, after his sentencing indication on 18 November 2020 but before his sentencing on 20 July 2021.
Sentencing
[13]I set out relevant sentencing notes of Judge Dawson in full:10
[9] At the sentence indication hearing, I indicated a starting point would be a sentence of imprisonment of 18 months. For your history that would be uplifted by four months to 22 months. I indicated also that your guilty pleas would reduce your sentence by 15 per cent and remorse by seven per cent which would be the equivalent of five months. I am also of the view that you have now undertaken some significant rehabilitative efforts through your attendance at the Bridge Programme and for that I deduct a further three months, taking it to 19 months’ imprisonment.
[10] For the balance of your charges, you need to be sentenced by way of an uplift taking into account the totality principle. The possession of cannabis, one month would be appropriate but concurrent. On both driving while suspended matters concurrent sentences are entered but for the drink-driving an uplift is required. For the first charge of driving while suspended, you are suspended for the necessary six months and I am backdating that to 24 May 2021 which is the date you entered your rehabilitation programme. You clearly will not have been driving in that time. The next six months will commence on 24 November 2021 and the drink-driving a further six months from 24 May 2022. So it is 18 months’ disqualification from 24 May this year. I have tried to keep that to a minimum because I suspect with the job you are training to do, you are going to need a licence and I am giving you the opportunity to try and get that back sooner rather than later.
9 At [4].
10 Ireland v Police, above n 5.
[11] For the lead offence, possession of cannabis for supply, 19 months’ imprisonment would be appropriate. I then need to consider whether home detention should apply and I am of the view that it should. For the drink- driving matter an increase of one month on your home detention would be appropriate to recognise all the driving charges. I am therefore sentencing you to a total of 10 months’ home detention.
Approach on Appeal
[14] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[15] In any other case, the Court must dismiss the appeal.11 Section 250 makes no express reference to allowing appeals where the end sentence is “manifestly excessive”, but this principle is “well-engrained” in the Court’s approach to sentence appeals.12
[16] An appeal against sentence is an appeal against discretion. An appellate Court will not intervene where the end sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.13
Discussion
[17] As outlined above, counsel for Mr Ireland, Ms Watkins submits there are two errors in the sentence which make it manifestly excessive; first that an uplift of one month home detention for the excess breath alcohol charge was manifestly excessive, and second that the 18 month disqualification period is manifestly excessive. I will deal with each of these points in turn.
11 Criminal Procedure Act 20111, s 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [33] and [35].
13 Ripia v R [2011] NZCA 101, at [15].
Whether one month home detention was manifestly excessive
[18] It is clear that for the lead charge of possession of cannabis for supply, the Judge imposed a sentence of 19 months’ imprisonment. In respect of the remaining charges, the Judge states he took into account the totality principle.14 The other cannabis charge was dealt with concurrently.
[19] In respect of the driving charges set out at para [13] above, Judge Dawson stated, “On both driving while suspended matters concurrent sentences are entered but for the drink-driving an uplift is required.”15 However, in the following paragraph the Judge states “[f]or the drink-driving matter an increase of one month on your home detention would be appropriate to recognise all the driving charges.”16 (Emphasis added)
[20] There may be some ambiguity as to whether the Judge intended the one month uplift in home detention to reflect just the excess breath alcohol charge or the two driving while suspended charges as well. The appeal proceeded on the basis the uplift was only for the excess breath alcohol charge.
[21] Ms Watkins submits that it was manifestly excessive for the Judge to add a months’ home detention to Mr Ireland’s sentence for his first driving with excess breath alcohol charge. Ms Watkins submits that if Mr Ireland were being sentenced on that charge alone, he would have been sentenced by a community magistrate and he would have received a sentence of community work.
[22] Mr Bell for the Crown agreed that a sentence of one month home detention, effectively two months’ imprisonment, for a stand-alone charge of driving with excess breath alcohol (first offence) would be manifestly excessive. However, he submitted it would not be manifestly excessive if the one month home detention was in respect of all driving charges.
14 Ireland v Police, above n 5, at [10].
15 At [10].
16 At [11].
[23] I agree with counsel that one month of home detention would be manifestly excessive for a stand-alone first offence of driving with excessive breath alcohol. In my view that sentence would also be manifestly excessive in respect of the excess breath alcohol charge together with the two driving while suspended charges.
[24] However, for present purposes that is beside the point. Mr Ireland was not being sentenced only in respect of these driving charges. He was also being sentenced in respect of the cannabis charges. For sentencing purposes the lead charge was possession of cannabis for supply. Judge Dawson clearly intended to impose sentences that, in totality, reflect the gravity of the overall offending.17
[25] Standing back and considering the sentence overall, I am satisfied that an end sentence of 10 months’ home detention is easily justified. An appeal against sentence is focused on the end sentence rather than the process by which it was reached, even if the lower court judge’s methodology may be open to criticism.18 While I accept there was some ambiguity in the Judge’s methodology, the end sentence was well within the range available to the Judge when Mr Ireland’s offending is assessed in totality. If anything, given this was Mr Ireland’s fifth conviction for supplying cannabis, the end sentence was at the lower end of the available range; although, like Judge Dawson, I acknowledge and encourage Mr Ireland’s rehabilitative efforts.
[26] For completeness, I note that in written submissions the respondent submitted in relation to drink-driving offence that Mr Ireland’s breath alcohol test result of 551 micrograms of alcohol per litre of breath was “over twice over the legal limit”. For present purposes that is not right. Although a driver commits an infringement offence when driving with more than 250 micrograms of alcohol per litre of breath, it is only an offence that may give rise to prosecution, conviction and a court imposed sentence if the driver’s breath alcohol exceeds 400 micrograms of alcohol per litre of breath.
[27] In this regard Ms Watkins referred me to Chief District Court Judge Taumaunu’s recent decision in Police v Cornwall.19 In that case Judge Taumaunu
17 Sentencing Act 2002, s 85(2).
18 Davies v Police [2021] NZHC 3077, at [13].
19 Police v Cornwall [2021] NZDC 13556, at [5].
allowed an appeal against a sentence of nine months’ disqualification imposed for driving with a breath alcohol level of 472 micrograms per litre of breath. The Community Magistrate who imposed that sentence had observed the legal limit was 250 micrograms. However, Judge Taumaunu reduced the disqualification period to 6 months and held that:
[5] When reaching the decision on this occasion the community magistrate noted that the breath test was 472 which was a reference to the micrograms involved and then there was a reference to the legal limit being 250 micrograms. That may be the legal limit for an infringement offence but it is certainly not the legal limit for an offence that carries with it a prosecution in this court including a conviction that this type of charge actually does carry. That seems to me to be something of a material error in terms of assessing the gravity of the offending because the offending before the court was not actually even close to double the legal limit, it was in fact only slightly over the legal limit that applies for this type of charge.
[28] At the hearing counsel for the respondent agreed with Judge Taumaunu’s approach. So do I.
Whether the 18 month disqualification period is manifestly excessive
[29] Ms Watkins submits that the cumulative sentence of 18 months’ disqualification was disproportionate and manifestly excessive. Ms Watkins submits: the offending itself was at the lower end of the scale; the disqualification periods should have been imposed concurrently; the Judge did not give reasons for the length of disqualification period he imposed; and Mr Ireland should not have been disqualified for over 12 months as this requires him to apply for the return of his licence.20
[30] Ms Watkins submits that the disqualification periods should have been imposed concurrently, with Mr Ireland receiving a disqualification period of six months on the charge of driving with excess breath alcohol. She says Mr Ireland should receive eight month disqualification periods for the driving while suspended charges as these are Mr Ireland’s third and fourth convictions for this offending. This would result in a total disqualification period of eight months which would allow Mr Ireland to have his licence reinstated without needing to reapply and re-sit the test.
20 Land Transport Act 1998, s 83.
[31] Mr Bell acknowledges that “the total 18 month disqualification was stern in the circumstances” and says the Court may wish to substitute it for a period “in the region of 12 months”.
[32] I agree with Ms Watkins that the disqualification periods should have been imposed concurrently. I echo the comments of French J in Schruba v Police:21
… while there is jurisdiction to impose cumulative periods of disqualification, the better and more principled approach is to make them concurrent, with the period of disqualification for the second offence being longer to reflect the aggravating features…
[33] I am mindful of Mr Bell’s submissions, and Heath J’s statements in Nichol v Police that cumulative periods may be appropriate in some cases where there is a lack of connection between the offending or aggravating features that justify a longer period of disqualification.22
[34] However, I do not consider that the driving offending was sufficiently serious to require cumulative sentences. There is no evidence Mr Ireland was driving in a particularly dangerous manner on any of the occasions. The summary indicates he was speeding when the second charge of driving while suspended occurred, but there is no evidence of his exact speed.
[35] Like Judge Dawson I also take into account that Mr Ireland will likely need a driver’s licence for the job he has been training to do. That will be an important part of his rehabilitation. In that regard I also take into account that by imposing a disqualification period no longer than 12 months Mr Ireland will avoid the requirements of s 83 of the Land Transport Act 1998, which would require him to complete approved course, tests and examinations in order to obtain a licence again.23
[36] Therefore, for the driving charges, I would impose a six month disqualification for the excess breath alcohol charge. It is Mr Ireland’s first conviction of this type and I consider the gravity of his offending to be relatively low. The disqualification periods for the two driving while suspended charges should be imposed concurrently.
21 Schruba v Police HC Dunedin CRI-2008-412-30, 25 September 2008, at [13].
22 Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005, at [31]-[32] and [36].
23 McNab v Police [2014] NZHC 1493, at [18].
As they are the third and fourth convictions for this offence, and one was committed while Mr Ireland was on bail and he was stopped by police for speeding, I would impose 10 month disqualifications for these charges. This would result in a total disqualification period of 10 months. Like Judge Dawson, I back date the start of this period to 24 May 2021.
Conclusion
[37] While one month’s home detention for a first and stand-alone charge of driving with excess breath alcohol would be manifestly excessive, the end sentence of 10 months home detention was well within the available range taking into account the totality of Mr Ireland’s offending and his personal circumstances.
[38] The disqualification period of 18 months was manifestly excessive in the circumstances. A period of 10 months’ disqualification from driving would be more appropriate.
Result
[39] The appeal is allowed in respect of the length of disqualification only. The period of disqualification of 18 months’ is quashed and a period of 10 months’ disqualification imposed in lieu.
Robinson J
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