Jenner v Police

[2017] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CRI-2017-476-10 [2017] NZHC 3031

BETWEEN

CRAIG RUSSELL JENNER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 December 2017
Appearances:	S A Saunderson-Warner for the Appellant A R McRae for the Respondent
Judgment:	7 December 2017

ORAL JUDGMENT OF DUNNINGHAM J

[1]      Mr Jenner pleaded guilty to driving a motor vehicle with an excess blood alcohol (EBA) concentration on a third or subsequent occasion. He pleaded guilty and was sentenced in the District Court to 16 months’ imprisonment and was disqualified from driving for two years.

[2]      He now appeals against the length of imprisonment on the basis that the Judge made an error in taking the maximum penalty of two years’ imprisonment as the starting point.

Jurisdiction on appeal

[3]      The appeal is brought under s 250 of the Criminal Procedure Act 2011. Pursuant to that Act, I may allow an appeal against sentence if I find that there was an

error in sentencing and that a different sentence should be imposed.

JENNER v NEW ZEALAND POLICE [2017] NZHC 3031 [7 December 2017]

Facts

[4]      Shortly after midnight on 27 May 2017, Mr Jenner was stopped by police when driving on Kakanui Road in the Waitaki District.   When police spoke to him he admitted he had consumed alcohol before driving and breath and blood alcohol test procedures were carried out. A subsequent analysis of the defendant’s blood showed it contained a proportion of 268 milligrams of alcohol per 100 millilitres of blood.1

[5]      Mr Jenner has 10 previous convictions for EBA.  The most recent conviction was in July 2011, some six years before the present conviction. In the last 10 years he has had two EBA convictions with the remaining EBA convictions being incurred in a period spanning from 1985 to 2007.

[6]      The appellant explains that he had made arrangements for a sober driver to drive him on the night in question and that person drove him from the boat where had been drinking to a residence where he was planning to sleep in a car until morning. However, he woke up around midnight and made the decision to drive himself back to his flat in Kakanui.

District Court sentencing

[7]      The District Court Judge recited Mr Jenner’s previous conviction history and the recommendation in the pre-sentence report for home detention.  However, despite the mitigating factors referred to in the pre-sentence report, she noted he had already had served a sentence of imprisonment when convicted of EBA in 2011 but had offended again.  In light of those factors she concluded:

Given your sheer number of previous convictions and the reading on this occasion, the only possible starting point has to be the maximum two years’ imprisonment.  Nothing else will meet the aims and principles of sentencing. It takes into account your previous history.  It is plain that despite everything, you continue to drink very very heavily knowing it has the impact of lowering your inhibitions about whether to drive or not.

[8]      She then acknowledged that there needed to be a reduction for the guilty plea and for the steps he had taken to engage in counselling. In all, she allowed a reduction

of  one-third,  or  eight  months’ imprisonment.   Although  home  detention  was  a possibility, she concluded that the “sheer recidivism” he exhibited meant that “nothing short of a custodial sentence is called for”.

Analysis

[9]      The ambit of this appeal is confined.  Counsel for the appellant acknowledges that s 8(c) of the Sentencing Act 2002 requires the Court to impose the maximum penalty for the offence if the offending is within the most serious of cases for which the penalty is prescribed, unless the circumstances relating to the offender make that inappropriate.  Her submission is simple.  Notwithstanding his recidivism, the case is not within the bracket of worst cases.   Taking into account leading judgments on multiple EBA convictions, including Clotworthy v Police, a starting point of 12 to

18 months could have been considered, but in any event, should have been no more than 18 to 20 months’ imprisonment.2

[10]     Specifically, in Clotworthy, various aggravating and mitigating factors were identified for the purpose of sentencing EBA charges (third or subsequent offending). Those are:

(a)       the breath or blood alcohol level;

(b)the  length  of  time  that  has  elapsed  since  the  last  drink  driving conviction;

(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;

(e)       whether the offender was disqualified or forbidden from driving at the time;

(f)      the plea and, if guilty, whether that plea was entered at an early stage or only belatedly;

(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; and

(j)any mitigating personal or family circumstances contributing to the offending.

[11]     In Samson v Police, Whata J considered Clotworthy and noted that factors (a)- (e) above, were important for the purpose of assessing the starting point. In that case, he reviewed a number of authorities and identified some general trends in starting points. These were:

(a)       no serious or only moderately aggravating factors 9-12 months;

(b)      one or more seriously aggravating factor 12-18 months;

(c)       multiple offences with seriously aggravating factors 18-20 months;

(d)multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.

[12]     Seriously aggravating factors for setting the starting point included:

(a)       a high level of intoxication;

(b)      dangerous driving;

(c)       very close proximity in previous EBA offending; and

(d)      a prolonged and continuous history of driving related offending.

[13]     In this case, in terms of the Clotworthy factors, the high blood alcohol level is clearly relevant, but the appellant submits that no other factor is applicable.   The appellant’s last EBA conviction was over five years ago, there was no driving fault, nor was he subject to disqualification at the time of driving.  In terms of the Samson factors, the appellant again suggests that the high level of intoxification is the only one which is seriously aggravating.  While he does have a prolonged history of driving related offending, there have been significant gaps in that history:  an eight year gap after 1988, a seven year gap after 1999 and a six year gap after 2011.  The appellant therefore submits that he does not have an unbroken chain of driving related offending and that factor should be considered only moderately aggravating, rather than a seriously aggravating factor.

[14]     There are, also in this case, a number of mitigating factors, including the early entry of the guilty plea, the completion of restorative justice drink-driver intervention, a self-referral to Community Alcohol and Drug Services with commencement of weekly counselling sessions, and expressed remorse.  In comparison, the appellant notes that in Samson, the appellant was almost double the legal limit, he was indefinitely disqualified at the time of the offending and he had an almost unbroken chain of prior driving related offending since 2006.  However, in that case, Whata J felt that whilst the offending was serious, it was not as serious as the offending found in the 20 month starting point cases and the starting point in that case was set between

12 and 18 months.

[15]     Some other comparative cases that counsel have referred me to include:

(a)      Kucenko v New Zealand Police where a starting point of 20 months was adopted for a person with 10 EBA convictions over 40 years, a reading of  252  milligrams  of  alcohol  per  100  millilitres  of  blood,  and

“concerning driving”.3

3      Kucenko v Police [2012] NZHC 3398.

(b)Tutahi v New Zealand Police, where a 12 months starting point was adopted where the appellant had a reading of 1126 micrograms of alcohol per litre of breath and seven previous EBA convictions, with the last a year before, and where she was unlicensed at the time of driving.4

(c)      Dick v New Zealand Police, where a starting point of 18 months’ imprisonment was adopted where the appellant had 662 micrograms of alcohol per litre of breath, and seven previous EBA convictions, albeit they occurred in clusters, with significant gaps in his offending history;5 and

(d)Toetoe v New Zealand Police, where a starting point of 16 months’ imprisonment was adopted where the appellant had seven previous convictions for EBA, a breath alcohol level of 692 micrograms of alcohol per litre of breath and where there were significant gaps in the offending history.6

[16]     Having regard to these comparable cases Ms Sauderson-Warner submits that the appellant’s case is not within the worst of its kind and should not have received the maximum sentence as a starting point, particularly given that most of his previous offending was historic and there was no associated driving fault.  Instead a starting point of 18 to 20 months is appropriate with reference to the authorities. The discount applied for the guilty plea and mitigating factors of one-third is, she says appropriate, and  so  the  end  sentence  should  be  somewhere  between  12  and  13 months’ imprisonment.

[17]   Helpfully, in this case, the respondent generally agrees that the factual circumstances of this case do not place the offending within the most serious category of its type, and cases such as Dick and Toetoe suggest a starting point of 18 to 20

months’ imprisonment was more appropriate in the circumstances.   To that it was

4      Tutahi v Police [2014] NZHC 3354.

5      Dick v New Zealand Police [2014] NZHC 434.

6      Toetoe v New Zealand Police [2013] NZHC 2686.

suggested that a small uplift to the starting point might be warranted, albeit noting the need to avoid double-counting.  From that the discount of one-third applied by the Judge for the guilty plea and other mitigating factors was appropriate.

Outcome

[18]     I am satisfied that, as counsel have pointed out, by reference to comparable cases, a starting point at the maximum cannot be justified.  While Mr Jenner must inevitably be categorised as a recidivist offender, with a high level of blood alcohol on this occasion, there have been significant gaps in his recent offending history and there was no associated driving fault.  I do not accept that it is appropriate to uplift for the number of previous convictions when this is a matter that is factored into the starting point adopted.

[19]     I would adopt a starting point of 19 months imprisonment.  From this I would deduct two and a half months for remorse, personal factors and the efforts taken on this occasion to rehabilitate himself.7   From this, I would deduct a further 25 per cent for the early guilty plea.8    This results in a sentence of 12 months and one week imprisonment if rounded down to the nearest week.

[20]     The appeal is therefore allowed.  The sentence of 16 months’ imprisonment is quashed and a sentence of 12 months, one week imprisonment is substituted.  In all other respects, the District Court Judge’s decision is upheld. Accordingly, the period of disqualification she imposed and the conditions of release, remain intact.

Solicitors:

S A Saunderson-Warner, Barrister, Dunedin

Gresson Dorman & Co., Timaru

7      Noting that in Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 at [73] the Supreme Court endorsed the Court of Appeal’s position that a credit for guilty plea is best applied after all other matters have been evaluated as this promoted transparency in the sentencing process.

8      Being the maximum deduction endorsed in Hessell v R.