Kapa v Police
[2017] NZHC 1748
•26 July 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-412-000023 [2017] NZHC 1748
BETWEEN MICHAEL JASON KAPA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 July 2017 Appearances:
A Dawson and S Thorburn for Appellant
M J Grills for RespondentJudgment:
26 July 2017
JUDGMENT OF GENDALL J
Introduction
[1] On 31 March 2017 the appellant was sentenced by Judge Phillips in the District Court at Dunedin after pleading guilty to one charge of driving with excess breath alcohol (EBA) causing injury (third or subsequent), and one charge of possession of an offensive weapon. The appellant was sentenced as follows:
(a) Excess breath alcohol (EBA) causing injury – 1 year 10 months’
imprisonment;
(b) Possession of an offensive weapon – two months’ imprisonment
(concurrent);
(c) Disqualification from driving for two years; and
(d) Ordered to pay $258 reparation.
KAPA v NEW ZEALAND POLICE [2017] NZHC 1748 [26 July 2017]
[2] By way of general factual background, as to the first charge, the appellant, who was on bail and had a breath reading at the time of 618mcg/L, had lost control of his vehicle whilst speeding and attempting to navigate a corner. After skidding for a considerable distance, the appellant’s vehicle struck a female pedestrian from behind. She had been walking on the sidewalk and was thrown into the air, and hit the windscreen landing on the ground in front of the appellant’s vehicle which had fortunately come to a stop as it had hit a power pole. She sustained moderately severe injuries. The second charge, possession of an offensive weapon, arose out of a separate circumstance, where the appellant started up a chainsaw indoors in his home, in the presence of his children, whilst intoxicated during an argument with his partner.
[3] The appellant appeals solely against the imprisonment part of his sentence, on the grounds that it was manifestly excessive. He contends that the starting point Judge Phillips adopted of two years four months on the EBA causing injury charge was too high and insufficient credit was given by him for mitigating factors. No challenge is made to the disqualification or reparation orders.
Principles on appeal
[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.1
[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of
Development:3
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Ripia v R [2011] NZCA 101 at [15].
3 Larkin v Ministry of Development [2015] NZHC 680.
[26] The High Court will not intervene where the 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.
[6] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,4
the Court of Appeal held that:5
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
District Court decision
[7] In his decision in the District Court, Judge Phillips discussed the appellant’s offending and identified the following factors which he said tended to aggravate its seriousness: the fact that the appellant had been driving at the time some 20-30km/h over the posted 50km/h speed limit; his vehicle was unregistered and without a warrant of fitness (and the fact that both front tyres were completely bald meant that it was unwarrantable), and the moderately serious injuries suffered by the victim from his driving which could well have proved lethal but for the fact the appellant’s vehicle came to rest only when it hit a power pole. Whilst not expressly referred to by the Judge in terms of an uplift, the EBA offending was committed while the appellant was on bail for the otherwise unrelated offensive weapon charge, and he was subject to a no-alcohol condition. Similarly, the Judge noted in taking this global approach the appellant’s previous history, which showed that this was his fourth instance of driving with excess breath alcohol, the most recent being in 2009, which had resulted in sentences of periodic detention and imprisonment.
[8] Taking all these factors into account, Judge Phillips in his decision reached a starting point of two years four months’ imprisonment. This was then uplifted by two months to reflect the separate and earlier charge involving the offensive weapon incident with the chainsaw. From that end starting point of two years six months, a full 25 per cent (in fact it amounted to almost 27 per cent) discount of eight months
was given for the appellant’s early guilty pleas, resulting in the end sentence imposed for the EBA causing injury charge of 22 months’ imprisonment.
[9] Whilst that was a “short sentence of imprisonment” for the purposes of the Sentencing Act 2002, Judge Phillips concluded that for various reasons home detention was not appropriate in the appellant’s case, and indeed, the appellant does not contend on appeal that any outcome other than imprisonment should or could have resulted.
Analysis
[10] As I have noted above, the appellant advances three related grounds on this appeal. These are first, that the starting point reached on the lead offending was too high, secondly, that insufficient credit was given for applicable mitigating factors here and, thirdly, that overall, the end imprisonment sentence imposed was too high. On this appeal, I note again that from the established authorities my overall concern must be with the end sentence, and whether that can be said to be outside the available range.
Assessment of the appropriate starting point
[11] As to this aspect, before me counsel for the appellant referred to the cases of Clotworthy6 and Samson7 which, whilst not purporting to be tariff cases, give guidance to courts assessing gravity and seriousness in EBA offending. These were both mentioned by Judge Phillips in his decision in determining the seriousness of the particular offending here. At the outset I need to note however that caution must be taken with applying Clotworthy and Samson to the present case, and the
suggested ranges of starting points set out there. They discuss offending under s 56 of the Land Transport Act 1998, which is concerned with EBA offending simpliciter and which carries a maximum penalty of two years’ imprisonment. By contrast, the more serious charge of driving with EBA causing injury, under s 61 of the Land Transport Act 1998 which applies here, carries a maximum penalty of five years’ imprisonment.
[12] The appellant then argues here that the Judge did not “explain in any meaningful detail” how he had reached his starting point of two years four months. Parts of the sentencing process appear to have been dealt with in short and comparatively brief order, but this general objection is not really borne out. The appellant says that the appropriate indices should be comparable cases and reference to the injury suffered by the victim. On this basis, the appellant contends that the appropriate starting point should have been only in the range of 18 to 20 months.
[13] Before me, counsel for the appellant cited a number of cases said to be relevant to that question. In Kahukura v Police,8 a starting point of 15 months was reached for offending which included a driving with EBA causing injury charge, and other minor driving charges related to the same incident. The appellant in that case had a breath alcohol reading of 558mcg, comparable although slightly lower than that of the appellant here. The injuries to the victims in that case were also of a rather less serious order. The end starting point in Kahukura was 21 months, which included an uplift for previous driving-related convictions. As the respondent notes,
however, there are some key points of difference. In Kahukura, there was no offending whilst on bail, and although the appellant in that case had a poor driving history, it was his first conviction for drink driving offending. Also he had not previously been sentenced to a custodial sentence.
[14] The appellant also referred me to another case, Bregmen v Police,9 which involved four charges of driving with EBA causing injury. In that case, the appellant’s collision with another vehicle resulted in injuries to a number of passengers, including serious injuries suffered by children who required hospitalisation. The overall injuries to the victims in terms of their multitude and severity, was greater than in the present case. However, the appellant there had only one previous drink driving conviction a number of years prior, which had not resulted in a custodial sentence. Equally, there was no aggravating factor of offending whilst on bail. Counsel for the appellant suggested before me that on appeal, a “starting point” of 20 months was adopted. As I see the position, however, that is not a proper characterisation of the sentencing process in that case. The initial
starting point taken by the District Court Judge, of 30 months, was not disputed on appeal. The end figure of 20 months (which was ultimately commuted to home detention), reflected an additional mitigating discount given by the appellate court in light of the then-recent decision in Hessell v R.10 It was to that extent that the appeal was allowed. Viewed this way, the starting point of 30 months in my view broadly accords with that taken in the present case, when all the relevant factors are
examined.
[15] Finally, counsel for the appellant referred me to R v Tonga,11 where the appellant faced charges of driving with EBA causing death and injury. I consider this case however to be only of limited assistance. The breath alcohol level was much higher than in the present case, and the ultimate starting point reached reflected not just the fact that serious injury and death had ensued, but also the fact that the appellant was only 17 years old at the time of the offending, and did not have relevant previous convictions.
[16] The appellant here argues that the courts in these cases have placed significant emphasis on the level of harm caused to victims of the offending. However, in my view the approaches taken do not depart from orthodox sentencing principles, where there are numerous factors at play, some of which are personal to the offender, and which inform the final starting points reached and the ultimate sentences imposed.
[17] Overall, reference to comparable cases here is informative, but the analysis can only be taken so far. Each case involves various and differing factors, and the weight to be attributed to each of these is at the principled discretion of the sentencing Judge in accordance with established authority. I consider that the starting point reached by Judge Phillips in this case of two and a half years’ imprisonment, although perhaps tending to be stern, was properly available for the offending evidenced here.
[18] Even if it might be considered that the starting point on the lead offending was at the upper limit of the appropriate range, or beyond that limit, that would not necessarily require the appeal here to be allowed. It is the sentence as a whole which is the critical focal point, and in that respect, the cumulative uplift for the offensive weapon charge is relevant. As to this, the Judge saw fit to uplift the starting point on the lead offending by two months to reflect the offensive weapon charge. The respondent submits, and I accept, that a greater uplift may well have been justified whilst still respecting the need to adhere to principles of totality. The offensive weapon charge arose out of earlier and separate offending, and carried with it a maximum penalty of three years’ imprisonment. As the Judge noted, the circumstances in which it occurred rendered it a frightening ordeal for those present, including the appellant’s children. Whilst no physical harm resulted, that in itself is not the basis of the charge. Overall, this was comparatively minor offending, but it was not trivial, and its emotional consequences cannot be overlooked. In addition, as the respondent submits, it might well have been appropriately met with an uplift in the order of up to six months.
Insufficient credit for mitigating factors
[19] The appellant pleaded guilty to the charges he faced at an early opportunity. He was therefore entitled to a full 25 per cent discount to the end starting point in accordance with the principles established by the Supreme Court in Hessell v R.12
As counsel for the respondent noted before me, the actual discount given of eight months amounted to almost a 27 per cent reduction. However, the appellant contends that Judge Phillips should have given further credit for what he says amounts to remorse on the part of the appellant and steps taken to address his offending.
[20] The general principle is that credit for remorse is a highly discretionary aspect of sentencing. The remorse demonstrated must usually be “extraordinary” in the sense that it goes beyond steps and attitudes inherent in an early guilty plea. In cases such as the present, where continuing alcohol or substance abuse is a key factor in the offending, any rehabilitative steps taken to address that factor are
encouraging. However, they do not of themselves warrant especial credit, and, absent something extraordinary, are not likely to weigh heavily in the decision to give further credit.13
[21] Counsel for the appellant has not pointed to any specific steps, nor expanded in any particular detail on the circumstances which are said to demonstrate this extraordinary remorse.
[22] In the circumstances, I do not consider that the Judge was obliged to give the appellant a discount on this account. Nor do I consider that the sentence was manifestly excessive as a whole by his failure to do so, or that Judge Phillips otherwise erred.
Conclusion
[23] The appellant has failed to show that his sentence was manifestly excessive by reference to the pleaded grounds. The final sentence imposed, although perhaps stern, was within range. I do not consider that the sentence is impeachable on these or any other grounds here.
[24] The appeal, therefore, is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service, Dunedin
RPB Law, Dunedin
9
2
0