Kata v Police HC Wanganui CRI-2010-483-68
[2011] NZHC 34
•26 January 2011
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2010-483-68
JOSHUA KATA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 25 January 2011 (Heard at Wellington)
Counsel: J Younger for appellant
V Brewer for respondent
Judgment: 26 January 2011
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] Mr Kata appealed against a sentence of six months’ imprisonment imposed by Judge Inglis in the District Court at Marton on 16 December 2010 following Mr Kata’s guilty plea to one count of driving with excess breath alcohol (third or subsequent offence) and one count of driving whilst disqualified (third or subsequent offence).
[2] Mr Kata was stopped in the early hours of 21 August 2010 by Police and an evidential breath test produced a reading of 611 micrograms of alcohol per litre of
breath.
KATA v NEW ZEALAND POLICE HC WANG CRI-2010-483-68 26 January 2011
[3] Mr Kata’s previous convictions for similar offending, and the sentences imposed, are as follows:
Excess breath alcohol
30 June 2001 - (under 20 year old excess breath alcohol) – three months’
disqualification and $250 fine;
14 December 2001 – one year’s disqualification, three months’ supervision and
three months’ periodic detention;
12 August 2006 – one year three months’ disqualification and 250 hours
community work;
18 October 2008 – two years’ disqualification and four months’ imprisonment .
Driving whilst disqualified
14 December 2001 - one year’s disqualification, three months’ supervision and
three months’ periodic detention;
18 May 2007 - 100 hours community work;
29 October 2009 – one year one month’s disqualification, 200 hours community work.
Judge Inglis’ decision
[4] The recommendation contained in the pre-sentence report was a sentence of supervision on the basis that a sentence of home detention or community detention would place added pressure on Mr Kata. However, her Honour considered that such a sentence would not adequately address the principles and purposes of sentencing in this case.
[5] The sentencing Judge considered an aggravating feature was that this offence was committed whilst subject to a sentence, particularly in light of Mr Kata’s previous convictions. In mitigation, the Judge considered a number of letters of support which were before the Court and accepted that Mr Kata has issues with
alcohol. Mr Kata was remorseful and had entered a guilty plea at the earliest opportunity. The Judge also noted the steps that he has undertaken to try and address the situation.
[6] The Judge dismissed home detention as an option due to Mr Kata’s history of previous breaches of orders of the Court. Further, the Judge considered that deterrence had to be a strong consideration in such a sentencing.
[7] In those circumstances, her Honour adopted imprisonment for six to eight months as a starting point. In light of the aggravating factors mentioned, a four month uplift was given. In light of the mitigating factors, an end sentence of six months’ imprisonment was imposed. Fourteen months’ disqualification was ordered, along with six months’ special release conditions.
[8] In relation to the driving whilst disqualified conviction, six months’ imprisonment and 14 months’ disqualification was imposed, to be served concurrently on the excess breath alcohol conviction.
Appellant’s submissions
[9] For Mr Kata, Ms Younger submitted that the Judge placed too much emphasis on Mr Kata’s past breach of community work and driving whilst disqualified charges, and not enough on his recent rehabilitative efforts and remorse. Ms Younger submitted that because of those initiatives the Judge ought to have granted the adjournment sought by her to enable Mr Kata to complete a residential treatment programme which was due to re-start in January 2011. She argued that after completion of such a programme a sentence of home detention, community detention, community work or supervision would have been more appropriate.
[10] Ms Younger indicated that she has appeared in numerous cases in the District Court where sentencing has been deferred to allow defendants to complete such residential treatment programmes.
[11] In the alternative, Ms Younger argued that a starting point in the range of four
months’ imprisonment would have been more appropriate, with a discount of up to
50 per cent for Mr Kata’s early guilty plea and efforts at rehabilitation.
Respondent’s submissions
[12] It was submitted for the Police that a sentence of six months’ imprisonment was within the appropriate range, when considering that the issue of whether a sentence is manifestly excessive is to be determined with regard to the sentence actually passed.[1] Ms Brewer emphasised that I am constrained from interfering with the District Court Judge’s sentence unless I am satisfied that it was manifestly excessive.
[1] R v MacCulloch [2005] 2 NZLR 665 at [50].
Discussion
[13] Useful guidance in respect of excess breath alcohol senencings is provided by the High Court decision in Clotworthy v Police.[2] The Court of Appeal commented in R v McQuillan[3] that the survey undertaken by Wild J in Clotworthy shows that “imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending”.[4] Clotworthy contains an overview of some 17 comparable appellate decisions up until 1 April 2003, and 20 District Court sentencings. From that survey, Wild J provided 10 factors relevant to excess breath alcohol offending:[5]
[2] Clotworthy v Police (2003) 20 CRNZ 439; cited with approval by the Court of Appeal in R v McQuillan CA129/04, 12 August 2004 at [22].
[3] R v McQuillan CA129/04, 12 August 2004.
[4] At [20]. In McQuillan, the offender had been convicted on five previous occasions for driving with excess breath alcohol.
[5] At [20].
[a] The breath or blood alcohol level.
[b] The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
[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? Sometimes this manifests itself in an additional charge(s).
[e] Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
[f] The plea(s) and, if guilty, whether that plea was entered at any 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.
[j] Any mitigating personal or family circumstances contributing to the offending.
It is instructive that in commenting on Clotworthy, McGrath J for the Court of
Appeal in McQuillan observed:[6]
[6] At [22].
It must, however, be remembered, as Wild J said, that sentencing is not an exact science and that the circumstances of offenders and offending, including of the present kind, are widely variable. Comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, accordingly does not dispense with the need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case.
[14] In light of Wild J’s survey, the decision in Te Awhe Morgan v Police appears to be the closest comparable to the present.[7] In Morgan, the appellant appealed against a sentence of six months’ imprisonment in respect of a fourth excess breath alcohol conviction and third for driving whilst disqualified, having entered guilty pleas to both. The offending in that case concerned the appellant driving whilst disqualified and was found to have a level of 469 micrograms of alcohol per litre of breath. The appellant’s previous offences had been between 1992 and 1997 and he
[7] Te Awhe Morgan v Police HC Wellington AP195/99, 15 July 1999.
had other minor convictions for “nuisance type offending”. The appellant had good
references and expressed remorse. That appeal was dismissed. Gendall J observed:[8]
[8] At 5..
…it is hard to come to the conclusion that the learned District Court Judge’s sentence was manifestly excessive. The danger to the public is the offender’s driving whilst drinking and the fact that he has not responded to three orders for disqualification over the past two years and continued to drive after taking alcohol, placing him into a category of being at some risk to the public.
[15] Counsel for Mr Kata relied most heavily on the decision in Palmer v Police.[9]
[9] Palmer v Police HC Wellington CRI-2008-485-112, 6 October 2008
There, Simon France J allowed an appeal against a sentence of 10 months’ imprisonment for driving whilst disqualified, providing false details and driving with excess breath alcohol. In Palmer, the appellant had been convicted of driving with excess breath alcohol in 1984, 1996 and 2006, and convicted of driving whilst disqualified on three previous occasions. Simon France J was concerned at the lack of the sentencing Judge’s focus on the specific circumstances of the appellant, and Ms Younger made the same criticism of the sentencing in the present case. In Palmer, the sentencing Judge had also failed to consider that the appellant’s previous convictions were relatively old.
[16] In the present case, the Judge did give full consideration to Mr Kata’s willingness to change, as borne out by his attendance at rehabilitative centres and the letters provided in support of him. However, the Judge cannot be said to have erred in her approach to the sentence when her Honour considered that Mr Kata requires deterrence. He has committed five excess breath alcohol offences within nine years. For a man of only 27, that is a serious aggravating feature. The last of them, which attracted a term of four months’ imprisonment, was a little less than two years before the present offending.
[17] Ms Younger claimed that the paramount influence on the appropriate sentence ought to have been Mr Kata’s initiatives at rehabilitation. She submitted that his difficulties with alcohol are the crux of the problem, and that the public interest was best served by facilitating the rehabilitative steps that would occur if the sentence took account of a residential alcohol treatment programme, either in
Whanganui or in Wellington. I do not accept that the steps Mr Kata has taken justify treating his case in that light. If he has now recognised that the combination of alcohol and driving is his problem, and is committed to staying the distance in such a treatment programme, then a means can be found for that to occur after the completion of his sentence. Ms Younger was inclined to characterise his initiatives as “outstanding”, but that is somewhat difficult to reconcile with the comment in the pre-sentence report to the effect that Mr Kata had been “…discharged from the Bridge Programme for misbehaviour”. I agree with Gendall J that the conduct constituting a danger to the public in cases such as the present is the continued preparedness to drive after taking alcohol.
[18] In addition, I do not accept that the Judge erred in her approach in focusing on Mr Kata’s previous failure to adhere to Court orders. As well as his previous convictions for driving whilst disqualified, Mr Kata has two convictions for breach of community work (in 2008 and 2009) and one previous conviction for being an unlicensed driver failing to comply with a prohibition.
[19] Counsel for Mr Kata also relies on Police v De Weyer.[10] However, that decision can be distinguished from the present case for three reasons. First, that decision was an appeal by the informant against a sentence of 250 hours community work and 12 months’ supervision on the ground that the sentence was manifestly inadequate. Second, the respondent had been convicted on only two previous occasions for driving with excess breath alcohol. Third, the respondent was not disqualified from driving at the time of commission of the offence. The circumstances are therefore not helpfully similar.
[10] Police v De Weyer HC Whangarei CRI-2005-488-20, 22 April 2005.
[20] I am not persuaded that the sentence of six months’ imprisonment was outside the range reasonably available to the sentencing Judge, after taking into account all relevant circumstances. Whilst Mr Kata appears to have expressed genuine remorse and has shown a willingness to confront his alcohol related problems, he was found to have 611 micrograms of alcohol per litre of breath. His last drink driving conviction was on 14 January 2009. Mr Kata was disqualified
from driving at the time. His prior record includes some offending for violent and
dishonesty offending, so he cannot call in aid an otherwise blameless record. Mr Kata has breached community-based sentences before and such sentences do not appear to have had the required deterrent effect. Therefore, the sentence of six months’ imprisonment for the excess breath alcohol charge cannot be considered manifestly excessive.
Conclusion
[21] Accordingly, the appeal is dismissed.
Dobson J
Solicitors:
David Rimmer, Wanganui for appellant
Crown Solicitor, Wanganui for respondent
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