Joseph v Police

[2019] NZHC 571

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000007

[2019] NZHC 571

BETWEEN

RAWINIA JOSEPH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 March 2019
Counsel:	RT Nye-Wood for Appellant ASC Alcock for Respondent
Judgment:	26 March 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 26 March 2019 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton.

Public Defence Service, Hamilton.

JOSEPH v POLICE [2019] NZHC 571 [26 March 2019]

The appeal

[1]    Ms  Rawinia   Joseph   appeals   sentence.   On   14   December   2018,   Judge A S Menzies sentenced Ms Joseph to a 13-month term of imprisonment and disqualified her from driving for two years.1 Ms Joseph contends her sentence is manifestly excessive. She argues the Judge ought to have imposed shorter terms of imprisonment and disqualification.

Background

[2]    On 9 May 2018, Ms Joseph drove with excess breath alcohol: 509 micrograms of alcohol per litre of breath. Ms Joseph has two earlier convictions for this offending, both in 2012.

[3]    In August, September and October 2018, Ms Joseph stole groceries from two supermarkets and a bottle of oil from a service station. Ms Joseph twice failed to appear in Court. She also completed only an hour and a half of a sentence of 40 hours’ community work imposed in February 2018 (on a charge of theft).

[4]    Hence the charges of driving with excess breath alcohol, theft (x 3), breaching bail (x 2) and breaching community work.

[5]    Judge Menzies adopted these starting points and discounted the 18-month total by 25 percent for Ms Joseph’s guilty pleas:

Excess breath alcohol	8 months
3 x shoplifting	+ 4 months
2 x failing to answer bail, and history	+ 2 months
The balance of matters, history for breaches and dishonesty	+ 4 months

1      Police v Joseph [2018] NZDC 26424.

Starting point for the excess breath alcohol offence

[6]    Ms Joseph contends the starting point ought not have been more than four months. Police acknowledge an eight-month starting point is “stern”.

[7]    Police rely on Ngatikai v Police.2 An eight-month starting point was upheld in that case. The offence was Ms Ngatikai’s fourth. All her drink-drive offending occurred within five years. The reading was 899 micrograms of alcohol per litre of breath. Ms Ngatikai had been “swerving in her lane”.3

[8]    More similar is Coles v Police.4 Mr Coles successfully challenged an eight- month sentence of imprisonment in relation to one charge of driving with excess breath alcohol. The drink-drive charge was his fourth offence of that kind. His reading was 667 micrograms of alcohol per litre of breath. Panckhurst J described the term as “clearly excessive”. The Judge substituted a five-month prison sentence.

[9]    Coles is now a little old; it contains no obvious discussion about starting points rather than end sentences. Mr Coles pleaded guilty very promptly. He was young too (20). So, Panckhurst J’s starting point must have been about eight or nine months’ imprisonment, for, as observed, a fourth instance of drink-driving absent other aggravating factors.

[10]   Unlike Ms Ngatikai’s, Ms Joseph’s driving was otherwise unremarkable.5 Her reading was lower than Ms Ngatikai’s too. Ms Joseph has two earlier convictions for offending of this type—not three. And as observed, both were in 2012. So, her case is more like Mr Coles’. All this suggests the starting point should not have exceeded six months’ imprisonment.

Starting point for the theft charges

[11]Ms Joseph submits this ought to have been three months, not four.

2      Ngatikai v Police [2014] NZHC 3294.

3 At [2].

4      Coles v Police HC Christchurch CRI-2007-409-000161, 23 August 2007.

5      Clotworthy v Police (2003) 20 CRNZ 439 encourages a multi-factorial assessment of culpability.

[12]   No tariff exists in this area. The starting point will “necessarily be dictated by the value of  the  items  stolen,  and  the  offender’s  previous  criminal  history”.6  Ms Joseph stole less than $1,000 worth of goods, but she did steal three times within as many months. And, she has a record of dishonesty.

[13]   These factors and sentencing discretion imply the availability of a four-month starting point.

Starting points for the other matters—and totality

[14]   Ms Joseph submits the starting point for the balance of her offending, including the substituted sentence for breach of community work, ought not have exceeded four months. She notes the Court of Appeal has emphasised the need for substituted sentences to remain proportionate to the gravity of the original offending.7

[15]   Police submit a six-month  starting  point  was  available.  They  highlight  Ms Joseph’s non-compliance with community work, her breaches of bail—and record. Ms Joseph has nine convictions for breaching bail and three for breaching community work.

[16]   I consider the six-month starting point too high, albeit not for the reasons advanced. The sentence’s components were made cumulative. The Judge was obliged to consider totality. He did not at this stage of the inquiry, at least explicitly.8 The uplift to the starting point (of 10 months’ imprisonment) should have been ameliorated accordingly. An increase of not more than four months was thus apt, producing a global starting point of 14 months’ imprisonment, not 18-months’ imprisonment.

[17]   Ms Joseph pleaded guilty promptly. It is common ground 25 percent discount was appropriate. It follows her term of imprisonment should not have exceeded 10 and a half months’ imprisonment.

6      Torbarina v Police [2014] NZHC 3221 at [10].

7      R v Morgan [2008] NZCA 232.

8      The Judge reduced the sentence by two weeks after the guilty plea discount “in the interests of totality”.

Disqualification

[18]   Ms Joseph contends the two-year disqualification period is manifestly excessive. She notes this is twice the statutory minimum.

[19]   In McNab v Police,9 a two-year disqualification period was quashed—and halved. Mr McNab had two earlier convictions for drink-driving, but both pre-dated the offending by a decade. The length of the disqualification period “impose[d] difficulties for him”.10 Mr McNab was also repaying an “appropriately condign” fine (of $2,000).11

[20]   In Fairbrother v Police,12 the same disqualification period was upheld on a third drink-driving offence. The reading was 558 micrograms of alcohol per litre of breath. Mr Fairbrother’s driving appears to have been unremarkable. Ellen France J considered six cases. Her Honour concluded an 18-month disqualification period may be legitimately imposed for a second drink-drive conviction; a longer period for a subsequent conviction.

[21]   Ellen France J considered “the total sentence ... must be taken into account” when considering length of a disqualification period.13 A longer period is “countenanced where the offender is subject to a monetary penalty rather than a custodial sentence”.14 Mr Fairbrother avoided imprisonment; he was fined $1,500.

[22]   Ms Joseph received a significant prison sentence. Her driving was otherwise unremarkable, her alcohol level poor rather than bad. The same is true of her driving record. This mix implies her disqualification period is too severe.

Result

[23]The appeal is allowed, and sentence quashed. Ms Joseph is:

9      McNab v Police [2014] NZHC 1493.

10 At [19].

11 At [19].

12     Fairbrother v Police HC Masterton MA16/02, 5 December 2002.

13 At [23].

14 At [23].

(a)Sentenced to a term of 10 and a half months’ imprisonment.

(b)Disqualified from driving for 18 months.

……………………………..

Downs J