Lambert v Police

[2013] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000021 [2013] NZHC 1292

BETWEEN	WILLIAM HENRY LAMBERT Plaintiff
AND	NEW ZEALAND POLICE Defendant

Hearing:	30 May 2013
Counsel:	A Dallison for Appellant S A Law for Respondent
Judgment:	30 May 2013

ORAL JUDGMENT OF MILLER J

Introduction

[1]      This appeal is brought against a sentence of 22 months imprisonment on charges of driving while disqualified and driving and driving with excess alcohol, in each case a third or subsequent offence.  Mr Lambert complains that he was given insufficient discount for his early guilty pleas.

[2]      At about 1.30 am on 6 December 2012 he was seen to drive a car while intoxicated.  The police were called, and they stopped the car.  He was found to be both disqualified and drunk; his breath alcohol level was 1190mg of alcohol per litre of breath.

[3]      Mr Lambert, who is 43 and unemployed, has eight previous convictions for driving with excess alcohol, two for refusing a request for blood, and five for driving while disqualified.  He pleaded guilty at the second appearance in this instance and explained that he drove because his friend, a passenger in the car, had made him do

it.

LAMBERT v N Z POLICE [2013] NZHC 1292 [30 May 2013]

[4]      Sentencing was delayed when Mr Lambert appeared on 4 April because he was drunk.  He was eventually sentenced on 1 May.  The Judge recorded that the probation report confirmed the obvious;  Mr Lambert has serious dependency issues that he is reluctant to address.   He presents a risk to the community, and will continue to do so as long as he remains resistant to help.

[5]      When constructing the sentence the Judge simply recorded that taking all matters into account Mr Lambert would be sentenced to 22 months imprisonment on the excess alcohol charge, that sentence having been fixed on the basis of totality. For   driving   while   disqualified   he   received   a   concurrent   of   nine   months imprisonment.    He  was  also  disqualified,  and  special  release  conditions  were imposed relating to treatment.  The Judge noted earlier in the sentence that a guilty plea had been entered, but no reference was made to a discount for that or indeed for any mitigating factor when constructing a sentence.

[6]      A guilty plea is a mitigating factor, and a mandatory consideration for a sentencing Judge.  It is an error to overlook it.  However, two points must be made. The first is that under the Supreme Court judgment in Hessell it is no longer the case that a guilty plea invariably attracts a full discount when entered early.  And while

there are good reasons for making the discount predictable,1 the quality of the plea

may also be taken into account.   By that I mean that the Judge may adjust the discount according to the strength of the prosecution case.2    I observe that there is authority that in cases such as this, where conviction was certain, little or no discount need be given.3

[7]      The second point is that the question for an appellate Court is of course whether the ultimate sentence was plainly excessive.  It is not enough to show that the methodology used was incorrect.   As I have noted, the Judge in this case did refer earlier to the guilty plea.  That it is possible that when sentencing he did make

an allowance, it is simply impossible to say.

1      Taylor v Police HC Wellington CRI-2005-485-182, 28 February 2006.

2      R v Hessell [2009] NZCA 450.

3      Leathers v Police HC Auckland CRI-2006-463-85, 26 September 2006.

[8]      Turning to this case, I begin by observing that it is customary to impose cumulative sentences for driving with excess alcohol and driving while disqualified, even when the two offences are committed on the same occasion.4  Frequently that is the  only way  in  which  the  seriousness of  the  offending can  be  marked.    The maximum sentence for each offence is two years imprisonment.  When cumulative sentences are imposed, significantly longer effective sentences may result from a single incident.  See for example, Moon v Police.5    Because the two offences are different in kind, the necessary totality assessment need not materially reduce the effective sentence. In this case, as I noted, concurrent sentences were imposed.

[9]      I observe that in some cases starting points of about 20 or 22 months have been adopted for a third or subsequent offence of driving with excess alcohol alone.6

Ms Dallison sought to dissuade me on this point by referring to the cases listed in Clotworthy v Police.7   That decision, though valuable is not a tariff case.  It is now somewhat dated.  Having regard to the number of previous convictions and the appellant's alcohol level, this was a serious offence of its kind.  Were I approaching the matter afresh I would adopt a starting point of 20-22 months for the excess alcohol charge alone.  I accept Ms Law’s submission that there must be an additional allowance for the driving while disqualified for the reasons I have already given.  I would add a cumulative of six months for that, leading to an effective starting point

of 26-28 months.

[10]     I accept, of course, that a discount must be given for the guilty plea, which is the only mitigating factor but it need not be the full 25 per cent which is now permitted for a plea entered at the earliest opportunity.  Even if it were, a starting point of, say, 27 months, would be reduced to 20 months, which is not sufficiently different  from  the  end  sentence  imposed  here  to  be  characterised  as  plainly

excessive.  Most regrettably for Mr Lambert, he is not able to claim, as appellants in

4      Dickman v Ministry of Transport HC Christchurch AP 351/90, 4 February 1991 and Hughes v R

[2012] NZCA 388.

5      Moon v Police HC Whangarei CRI-2010-488-7, 9 July 2010.

6      Moon v Police HC Whangarei CRI-2010-488-7, 9 July 2010;  Russell v Police HC Whangarei

CRI-2009-488-46, 15  December 2009;    Kerr  v  Police  HC  Christchurch CRI-2011-409-58,

3 August 2011 and Giddens v Police HC Hamilton AP15/03, 1 April 2003.

7      Clotworthy v Police HC Wanganui CRI-2003-483-13, 25 September 2003.

some other cases have been able to do, that he has taken steps to bring his alcohol dependency under control.

[11]     For these reasons I am not persuaded that the sentence was plainly excessive. The appeal is dismissed.

Miller J

Solicitors:

C&M Legal, New Plymouth for Respondent