Laing v Police
[2012] NZHC 2837
•29 October 2012
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2012-441-34 [2012] NZHC 2837
BETWEEN RAYMOND CHARLES LAING Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 26 October 2012
Counsel: E J Forster for Appellant
J D Lucas for Respondent
Judgment: 29 October 2012
JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)
[1] Mr Laing is a recidivist drink driver. On 6 July 2012 Judge Watson sentenced him on his 26th drink drive conviction, and his 31st driving while disqualified conviction. The sentence he imposed was a total of three years imprisonment (eighteen months on each charge) and 5 years’ disqualification.
[2] From this Mr Laing appeals.
[3] The offences occurred on 21 April 2012. Mr Laing was driving on Kennedy Road in Napier. A member of the public complained about his driving. A member of the police therefore stopped him. A breath test resulted in a reading of 1198 micrograms of alcohol per litre of breath. Almost three times the legal limit.
[4] Some background is relevant. In October 2009 Mr Laing was driving in another Kennedy road, John F Kennedy Drive in Palmerston North. He ran a red light and collided with another car. Both Mr Laing and an occupant of the other car
were injured. Mr Laing refused to give an evidential blood test. He was deemed
LAING v NEW ZEALAND POLICE HC NAP CRI 2012-441-34 [29 October 2012]
therefore to have failed that test. In February 2010 Judge Atkins QC imposed a sentence of two years four months for dangerous driving causing injury, a cumulative additional two months for an associated assault, and concurrent sentences of fifteen months on each charge of driving while disqualified and refusing to give blood. Mr Laing was disqualified from driving indefinitely. So, as a result of that incident, Mr Laing passed a lengthy period in prison.
Decision appealed
[5] Judge Watson considered the aggravating features were that Mr Laing had 6 pages of previous criminal convictions involving drugs, dishonesty, drink-driving, and driving while disqualified. He had 25 previous convictions for drink drive offences, and 30 for driving while disqualified. He had received sentences ranging from imprisonment to suspended sentences, to supervision, to periodic detention. None had deterred him. He had completed a drug and alcohol programme in prison. Yet he continued to offend.
[6] In terms of mitigation, there was the early guilty plea and the fact Mr Laing realised matters need to be addressed (evidenced by a letter he wrote to the Court).
[7] The Judge considered Mr Laing posed a risk to the safety of the community. On the drink driving charge he imposed the maximum sentence of 2 years imprisonment, with a 25% discount for the guilty plea, thus ending at 18 months. In the case of the driving while disqualified charge, Judge Watson also started at the 2 year maximum, again discounted 25% to 18 months for the guilty plea.
[8] These terms were to be served cumulatively, ending at a sentence of 3 years imprisonment. He was also indefinitely disqualified from driving, with a finite term of 5 years.
Leave to appeal out of time
[9] Mr Laing applies for leave to appeal out of time. The Crown does not oppose. Leave is granted.
[10] The appellant contends that the sentence was manifestly excessive and wrong in principle. For the appellant, Mr Forster advanced three grounds for appeal. But really, in argument, it all came down to the first.
[11] The first and real point taken is that the Judge did not take into account the totality of the sentences. The appellant concedes that cumulative sentences are available as a matter of law. But it is said that the Judge failed to consider totality at all. That was an error of approach. A reduction for totality ought to have been applied because there was one incident of driving, one summary of facts and the charges were dealt with in Court at the same time.
[12] Secondly, it was said that the Judge made in error in determining the starting point. This argument was not advanced further before me.
[13] Thirdly it was said that the sentence was manifestly excessive by reason of comparison with other cases. This argument was advanced but faintly.
[14] The appellant does not appear to take issue with the disqualification imposed.
Crown response
[15] For the Crown Mr Lucas submitted that although the Judge did not expressly consider totality, it can be inferred that he gave it some regard by arriving at the maximum sentence he could impose whilst being bound by the legislation and decisions of the Court.
[16] As to whether the sentence was manifestly excessive, Mr Lucas submitted that this offending was among the worst of its kind. Aggravating features were that the appellant’s breath alcohol level was almost over three times the limit, it was his
26th conviction for drunk driving and 31st conviction for driving whilst disqualified,
he also had two previous convictions for dangerous driving causing death or injury, and his last offending occurred only two and a half years ago, for which he was
sentenced to two years and four months imprisonment. Therefore the starting points of 2 years imprisonment could not be said to be manifestly excessive.
Jurisdiction
[17] Section 121(3)(b) of the Summary Proceedings Act 1957 provides that on appeal the High Court may quash or vary a sentence that is clearly excessive. It is not necessary that this Court should agree with the exact route taken by the District Court to reach an appropriate sentence. As the Court of Appeal said in Hughes v R:1
On appeal, it is the appropriateness of the final sentence that counts, not how it is made up.
Analysis
Cumulative sentencing
[18] First, it is clear that the Judge was correct to treat the two offences as distinct, and to impose cumulative sentences.
[19] The offences of driving while under the influence of alcohol and driving while disqualified were held to be quite distinct, so that cumulative sentences were appropriate, in Dickman v Ministry of Transport.2 Holland J said it would make a nonsense of the law if a drunk person who drove while disqualified ended up with the same sentence as a sober person. In Allan v Police3 the offences were observed to be really of a different type. Williamson J observed that driving while disqualified is essentially an offence of disobeying a Court order, while drink driving is disobeying a law designed to protect the community. Separate penalties were necessary to reflect that each was a serious offence and did not form part of one
classification of offending.
1 Hughes v R [2012] NZCA 388 at [29].
2 Dickman v Ministry of Transport HC Christchurch AP 351/90, 4 February 1991.
3 Allan v Police HC Christchurch AP 26/93, 18 February 1993.
Both before and after McQuillan, this Court has consistently approved the imposition of cumulative sentences to reflect the totality of criminality when breath/blood alcohol and driving while disqualified offences are charged in tandem. Cumulative sentences have been imposed to reflect the difference in kind between alcohol impaired driving (a public safety concern) and driving while disqualified (an administration of justice offence, involving deliberate disobedience of a Court order).
[21] This has been confirmed more recently by the Court of Appeal in Hughes v
R:5
We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice. In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s 84(1) whether or not they relate to a connected series of offences.
[22] As Heath J made clear in Tawhara, a consideration of totality is still needed to ensure that the cumulative sentences imposed do not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.6 But that exercise is not then to reconflate what in principle are separate charges. I will return to this issue.
Starting points
[23] Secondly, s 8(c) of the Sentencing Act 2002 provides that the Court must impose the maximum penalty if the offending is within the most serious of cases. In R v Fair the Court of Appeal said:7
What impelled the Judge to take as his starting point for the excess breath alcohol offence the maximum penalty was the number of times that Mr Fair
4 Police v Tawhara HC Whangarei CRI-2010-488-44, 8 September 2010 at [18].
5 Hughes v R [2012] NZCA 388 at [22].
6 Police v Tawhara HC Whangarei CRI-2010-488-44, 8 September 2010 at [18]. See also Adams v Police HC Christchurch CRI-2006-409-237, 20 February 2007 and Walsh v Police HC Auckland CRI-2010-404-481, 28 March 2011.
7 R v Fair [2007] NZCA 282 at [12] and [13].
had offended in that way previously. That was a very important factor. It was not the only one. Particularly where, as here, the issue is whether the offence lies “within the most serious of cases”, an exercise in judgment, taking all factors into account, is called for: R v Stoves CA264/06 7
November 2006.
Sometimes, even in the absence of other highly aggravating factors, sheer recidivism can call for a sentence at or close to the maximum: McKinlay v Police HC CHCH CRI2006-409-116 7 August 2006. But the number of convictions needs to be set against the span over which they were incurred and when within the span. Convictions remote in time, of themselves, may amount to little more than a statistic. They may derive such significance as they have from the convictions that follow. Generally speaking, the closer convictions are to the offence for sentence the more aggravating they become. If they are close in time they can be highly aggravating; if there has been a significant gap less so. Once again an exercise in judgment is called for.
[24] It is appropriate to consider comparable authority. In doing so I bear in mind two points. The first is that society’s attitude to drink driving has quite rightly hardened over the last decade. Sentencing decisions from the early part of that decade may no longer reflect current sentencing norms. Secondly, the appellant now has 26 drink drive convictions, and 31 for driving while disqualified. All these compiled over 28 years. That is one of the worst records of recidivism this Court has dealt with.
[25] In Moon v Police8 the offender was being sentenced for a charge of driving with excess breath alcohol and for a charge of driving while disqualified. His breath alcohol level was 918 micrograms. He had 10 convictions for driving with excess breath or blood alcohol (all between 1988 and 2004) and 15 for driving while disqualified (between 1993 and 2006). On appeal, Heath J considered the offending was in the worst possible category. A starting point of 3 years 9 months to 4 years would have been appropriate. With a discount then of 33 per cent for an early guilty plea, the end sentence imposed by the District Court Judge of 2 years 6 months was squarely within sentencing bounds. Cumulative sentences were appropriate because there were two different types of offending, and only by imposing cumulative sentences could a penalty that truly marked the seriousness of the offending be imposed.
[26] Police v Tawhara was an informant’s appeal.9 There the offender had committed his 19th drink driving offence (breath alcohol level was 613 micrograms), and his 35th conviction for driving while disqualified. The District Court Judge adopted a starting point of 2 years on each charge. He then gave a 33 per cent
discount for the guilty pleas, resulting in a sentence of 1 year and 4 months on each charge. The Judge wrongly considered he could not sentence cumulatively and so uplifted the sentence on one for the offending on the other – producing a sentence of
2 years (consecutive) on each charge. Heath J held the Judge had erred in this respect. He adopted a starting point of 2 years on each charge. He then discounted those sentences by a third for the guilty pleas, bringing the end sentence to 1 year and 4 months on each charge and a cumulative total of 2 years and 8 months. He found that sentence was appropriate, but reduced it to 2 years and 6 months to account for the nature of an informant’s appeal. The Judge pointed out that this offending was near the worst of its kind because of its recidivist nature.
[27] In Hughes v R10 the Court of Appeal was dealing with a recidivist offender with 18 convictions for drink driving and 24 for driving while disqualified, compiled over 38 years. He was convicted and sentenced in the District Court to cumulative terms of 18 months imprisonment on each charge (in each case a starting point of the maximum two years was applied, discounted 25% for early guilty pleas.) Appeals to the High Court and Court of Appeal failed.
[28] There can be no question in light of these authorities that the Judge in this case was entitled to start at the maximum sentence imposable on each charge. Mr Laing was apprehended little more than a year after his release from prison as a consequence of very similar offending.
Adjustment of starting points
[29] The adjustment of 25% in this case for early guilty pleas on each charge was appropriate. It was also orthodox, in following Hughes and Tawhara.
9 Police v Tawhara HC Whangarei CRI-2010-488-44, 8 September 2010.
10 Hughes v R [2012] NZCA 388.
[30] Any separate consideration of remorse in a case like this would be hollow. Mr Forster makes nothing of the point here. I have read Mr Laing’s letter to the sentencing Judge. It expresses his own fear of losing a loved one to a drink driver. One can only wonder.
Totality
[31] As Heath J noted in Police v Tawhara:11
The totality principle has then been applied to ensure that the cumulative sentences imposed do not “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.
However, as I noted earlier in this judgment, that exercise is not then to reconflate what in principle are separate charges. As the outcomes in the cases cited earlier suggest, a single occasion of motoring giving rise to a single drink driving charge and a single driving while disqualified charge will ordinarily result in cumulative sentencing. Where the driver is a recidivist offender in both categories, s 85 of the Sentencing Act 2002 does not require further discounting to allow for totality of offending unless, perhaps, the sentencing Judge standing back considers the starting point has not already made sufficient allowance for a marginal infraction on the drink driving charge. Given the degree of intoxication in the present case, that circumstance does not arise.
Conclusion
[32] The sentence in this case was not manifestly excessive. [33] Appeal dismissed.
Stephen Kós J
Solicitors:
Crown Solicitor, Napier for Respondent
0