Keats v Police

[2014] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-57 [2014] NZHC 2224

BETWEEN

NIGEL ANTHONY KEATS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 September 2014
Appearances:	P N Allan for Appellant A Williams and C Martin for Respondent
Judgment:	12 September 2014

JUDGMENT OF MANDER J

[1]      Nigel Keats appeals his sentence of 6 months community detention, 100 hours  community  work,  9  months  supervision,  and  15  month  disqualification imposed on a charge of driving with excess breath alcohol in its aggravated form, being his third or subsequent offence.

[2]      No issue is taken with the period of supervision, nor with the period of disqualification.  It is submitted however that the sentencing Judge erred in imposing periods of community detention and community work without extending credit to the appellant for his guilty plea or the support provided by his employer.

[3]      Mr Keats was apprehended with a breath alcohol level of 751 micrograms of alcohol per litre of breath.  He had previously been drinking in the Swamp Tavern before setting off to drive home, a very short distance, literally down the road from the establishment he had been drinking at.

[4]      Mr Keats entered an early guilty plea and was supported by a letter from his employer which attested to his work attributes.  The presentence report advised of

KEATS v NEW ZEALAND POLICE [2014] NZHC 2224 [12 September 2014]

Mr Keats acknowledgment of his harmful pattern of alcohol consumption and that he was motivated to engage with a programme to address his level of alcohol consumption.

[5]      It was submitted on behalf of Mr Keats that the sentencing Judge applied s 16 of  the  Sentencing Act  2002,  and  having  concluded  that  imprisonment  was  not appropriate, decided   to impose a community-based sentence.   Having made that decision, it is submitted the Court erred in not going on to make appropriate deductions for relevant mitigating factors.   While these mitigating features were recognised by the Judge, they did not result in deductions from the “starting points” applied in respect of the terms of community detention and community work.  That has resulted, so it was submitted, in a manifestly excessive sentence.

[6]      The Crown made reference to Clotworthy v Police,1 in which Wild J set out a list of relevant factors to be taken into account in cases involving recidivist drink- drivers.   In that regard, the Crown emphasised the appellant’s breath alcohol level which was approaching twice the legal limit, and that Mr Keats most recent drink- driving conviction was in August 2011.  The Court’s attention was also drawn to the recent decision of Matkovich v Police,2  where a 6 month term of imprisonment imposed on a driver for sentence on his sixth conviction for driving with excess breath or blood alcohol was upheld on appeal.  Mr Keats sought to distinguish that case on the basis that the circumstances there were more serious.  The appellant’s driving had resulted in a collision causing damage to another vehicle, a higher breath alcohol level (901 micrograms of alcohol per litre of breath) and that previous types

of sentence had not resulted in a change of behaviour.

[7]      The fact remains however that Mr Keats pattern of previous offending is very similar to the appellant in Matkovich v Police.  Mr Keats was also for sentence for his sixth offence of driving with excess breath or blood alcohol.   His previous conviction was in August 2011.   Prior to that he had been convicted for the same offending in 1992, twice in 1996, and in 2000.  The appellant in Matkovich v Police

who was for sentence in March 2013 had a previous conviction in November 2010

1      Clotworthy v Police (2003) 20 CRNZ 439 (HC), as approved by the Court of Appeal in R v

McQuillian CA129/04 12 August 2004.

2      Matkovich v Police [2013] NZHC 872.

but had not offended for some 12 years; his previous convictions dating back to two in 1998, and one each in 1992 and 1991.

[8]      In  Clotworthy  v  New  Zealand  Police,  Wild  J  exhaustively  reviewed  the sentences upheld or substituted by this Court on appeals of this type, and concluded that a sentence of 6 months imprisonment was to be considered appropriate for offending where there were three to five previous drink-driving convictions.   In Matkovich and Police, Gilbert J  was concerned with whether a sentence of 6 months imprisonment should be commuted to a sentence of home detention.  Having regard to the matters set out in Clotworthy v New Zealand Police, it was not considered appropriate to do so.

[9]      The  submission  made on  behalf  of  Mr  Keats,  that  the  sentencing  Judge having decided to impose a community-based sentence ought to have made deductions for personal mitigating factors is, in my view, unrealistic.  The sentencing Judge expressly remarked on Mr Keats’ guilty plea and the support of his employer. While the reference to “a starting point of community detention” may have been a source of confusion, it is apparent that in electing to impose a community-based sentence, Mr Keats had been afforded the benefit of mitigating factors.

[10]     The Court of Appeal in Hessell v R,3 recognised that a guilty plea should be recognised in setting the amount of a fine, or the length of a community-based sentence, home detention or sentence of imprisonment. The Court however qualified that statement by reference to the fact that recognition of a guilty plea may be achieved by imposing one type of sentence rather than another, noting that in such cases  a percentage  reduction  is  not  possible.4     These observations  were neither

contradicted or modified by the subsequent Supreme Court decision.5

[11]     It therefore follows that I am not satisfied that the sentencing Judge erred in the approach that he took to the sentencing exercise.  While his sentencing remarks

did not strictly comply with the type of structured approach to sentencing approved

3      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

4      At [49]-[54].

5      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

by the Court of Appeal in Taueki6  and Clifford,7  that is hardly surprising given the demands of a busy list Court.  The sentence imposed was within the range available to the sentencing Judge in the exercise of his discretion, and it is apparent that but for the mitigating features that were duly recognised by the sentencing Court, Mr Keats may well have been imprisoned. Accordingly, the appeal is dismissed.

Solicitors:

P N Allan Barrister, Christchurch

Raymond Donnelly, Christchurch

6      R v Taueki [2005] 3 NZCR 372 (CA).

7      R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.