Lange v Police

[2020] NZHC 1531

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-000011

[2020] NZHC 1531

BETWEEN

GARETH BYRON LANGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 July 2020
Appearances:	K P Allan for Appellant R W Donnelly for Crown
Judgment:	1 July 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 July 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date  1 July 2020

Introduction

[1]    The appellant, Mr Lange, pleaded guilty and was sentenced to 14 months’ imprisonment on the following charges:

(a)driving with excess breath alcohol (third or subsequent);

(b)careless driving;

(c)unlawful taking of a motor vehicle;

LANGE v NEW ZEALAND POLICE [2020] NZHC 1531 [1 July 2020]

(d)driving while suspended;

(e)reckless driving;

(f)threatening to kill; and

(g)refusing to provide a blood specimen (third or subsequent).

[2]    Mr Lange does not appeal the length of his sentence; the appeal solely concerns the period of disqualification from holding or obtaining a driver licence.

Facts

[3]    All of the offending occurred on 17 December 2019. At about 3.30 pm that day Mr Lange was the driver of a vehicle that crashed on State Highway 6, near Wanaka. A police breath test recorded a breath alcohol level of 990 micrograms of alcohol per litre of breath. As a result, he was suspended from driving a motor vehicle for 28 days. He was released from police custody around 4.45 pm.

[4]    At about 5 pm Mr Lange, without authority, entered a parked vehicle that had keys in it. The vehicle was valued at around $5,000. Mr Lange took the vehicle and drove approximately 30 kilometres to where he had crashed his own vehicle earlier. He then attempted to tow his vehicle out of a ditch.

[5]    Mr Lange then drove a further 37 kilometres to Camp Hill Road at Lake Hawea where he drove off the road, hit a tree and went through a farm fence. The repairs to the fence amount to $200.

[6]    Mr Lange continued about seven kilometres to Riverbank Road, where he reversed into a letterbox while performing a U-turn. He then continued his travels through  Wanaka township and on  to  the  Albert Town  campground,  some nine kilometres from Wanaka.

[7]    Within the campground Mr Lange did doughnuts, twice losing control and driving through a standard fence. The cost of the repairs were estimated at $500.

[8]    Further within the campground Mr Lange drove the vehicle approximately  60 – 80 centimetres into a tent, damaging it. When the victim came out of the tent, she recognised Mr Lange as the same person she had made a complaint about in October 2019. She heard Mr Lange yelling out “Die bitch, I will fuckin kill you”. He then drove off.

[9]    From the campground Mr Lange drove north  on  State  Highway 6  about five kilometres before he crashed and rolled the stolen vehicle. He was arrested by police at the scene and taken by ambulance to Dunstan Hospital. Police staff requested a blood sample, via the attending doctor. Mr Lange refused and is recorded as stating “I’m not giving those blue and yellow cunts nothing. They can all go and get fucked.”

[10]   This series of incidents resulted in the seven charges for which Mr Lange has been convicted and sentenced.

District Court decision

[11]   Judge Farnan, in a decision of 20 April 2020, considered Mr Lange’s culpability to be high.1 This assessment took into consideration Mr Lange’s high breath alcohol level, poor driving, the damage caused by a three hour period of poor driving, unlawful taking of a motor vehicle and driving while suspended. Her Honour canvassed authority and comparable cases before setting a global starting point for all the driving offending at 20 months’ imprisonment.

[12]   The Judge applied a one month uplift for the unlawful taking, and a further one month uplift for the threatening to kill. A global discount of 35 per cent was applied for mental health challenges, remorse and guilty pleas. This brought the end sentence to 14 months’ imprisonment.

[13]   The Judge imposed special conditions relating to drugs and alcohol for a period of six months beyond the expiry of Mr Lange’s sentence. On the careless driving charge Mr Lange was convicted and discharged. Reparation in the sum of $6,236 was ordered.

1      Police v Lange [2020] NZDC 6594.

[14]   The Judge also disqualified Mr Lange from holding or obtaining a driver licence for a total period of 27 months. The structure of the sentence of disqualification was: 13 months on the excess breath alcohol charge; eight months on the reckless driving charge (cumulative); six months on the refusing to give a blood sample (cumulative) and six months on the driving while suspended (concurrent). In addition, the Judge imposed a zero alcohol licence requirement on the drink driving and refusing to give a blood sample convictions.

Principles on appeal

[15]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 “The focus is on the end sentence, rather than the process by which it is reached.”5

Submissions

Appellant’s submissions

[16]   Miss Allan, on behalf of Mr Lange, submits the period of disqualification was manifestly excessive and the periods of disqualification should have been imposed concurrently and not cumulatively.

[17]   Miss Allan states Mr Lange’s offending took place across a period of approximately three and a half hours. The offending all related to the same period of

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Islam v R [2020] NZCA 140 at [32].

intoxication. The offending was thus a continuing course of conduct and concurrent sentences were appropriate.6

[18]   Miss Allan refers to a number of cases to support her submission that it is preferable to impose concurrent disqualification periods and that by not doing that, the total period of disqualification was excessive.7

(a)In Robarts v Police a disqualification period of 21 months was quashed on appeal and in its place a total disqualification period of 16 months was imposed.8 That offending involved two separate tranches of, inter alia, dangerous driving, excess breath alcohol, and failing to stop/remain stopped. The appellant also deliberately reversed into a police car.

(b)In Tawa v Police a total disqualification period of 18 months was not disturbed on appeal.9 The first incident involved the appellant crashing into a motorcycle. The charges were driving while disqualified (sixth), driving with excess blood alcohol (third or subsequent) and careless driving. Two months later the appellant was apprehended while driving and charged with driving while disqualified.

(c)In Stott v Police the total disqualification period of 18 months was not disturbed on appeal.10 Again, there were two separate incidents, the first involved the appellant driving with excess blood alcohol, crossing the centre line and rolling the vehicle. The second incident was five and half months later, the appellant drove to a farm yard and used the fuel pump before driving away at speed.

[19]   Miss Allan submits that, having regard to these cases, which involve discrete incidents of offending across a timeframe of some months, Mr Lange’s period of

6      Under the Sentencing Act 2002, s 84(2).

7      Robarts v Police [2014] NZHC 666; Dixon v Police HC Christchurch CRI  -2006-406-244,     19 March 2007.

8      Robarts v Police, above n 7, at [26].

9      Tawa v Police [2016] NZHC 696.

10     Stott v Police [2018] NZHC 1591.

disqualification was manifestly excessive. Miss Allan submits a concurrent approach is appropriate and the end period of disqualification ought to have been 18 months.

Respondent’s submissions

[20]   Mr Donnelly, for the respondent, submits the end period of disqualification was appropriate to reflect the overall scale of the offending. He refers to Hughes v Police where the appellant drove a public bus dangerously, in heavy rain, while  three and half times the legal blood alcohol limit.11 The appellant received a total disqualification period of three years, which reflected the greater seriousness of that offending when compared with the present offending.

[21]   Mr Donnelly notes that the court is required to order a person to be disqualified from holding or obtaining a driver licence for more than one year if that person is charged with driving with excess blood alcohol on a third or subsequent occasion.12

[22]   Mr Donnelly highlights the following aggravating factors as they relate  to Mr Lange: he crashed his vehicle; had a breath alcohol level of 990 micrograms; unlawfully took a vehicle immediately after release from police custody; attempted to tow his vehicle; drove 37 kilometres before crashing into a tree and fence; crashed into another fence and performed doughnuts; and continued to drive to camp site where he threatened to kill a female.

[23]   Mr Donnelly contends that although the appellant in Hughes was facing a more severe charge than that of Mr Lange, and potentially created a greater risk to the public, Mr Lange had a higher alcohol level13 and the damage caused was more severe. No damage was caused in Hughes.

[24]   Further, it is submitted that there are two distinct parts to Mr Lange’s driving; that which occurred before he was at the police station and that which occurred afterwards using the stolen vehicle. Mr Donnelly submits that each would have

11     Hughes v Police HC Napier, CRI-2010-441-17, 3 August 2010.

12     Land Transport Act 1998, s 56(4)(b).

13     This appears incorrect. Mr Lange’s breath alcohol level was 990 mcg per litre, approximately two and a half times the legal limit whereas Mr Hughes was three and a half times the legal limit.

warranted disqualification in excess of the minimum and would have readily justified terms of 18 months. Accordingly, the disqualification period imposed was within range.

Analysis

[25]   Where a person is convicted of driving with an excess breath or blood alcohol concentration on a third or subsequent occasion, the court must order the person be disqualified from holding or obtaining a driver  licence  for more than one  year.14  Mr Lange has two previous convictions for driving with excess breath alcohol, one in February 2019 and one in July 2002. Accordingly, the December 2019 charge is his third offence, and he had to be disqualified from driving for at least a year.

[26]   In addition, there were three other charges faced by Mr Lange which triggered mandatory periods of disqualification. Where a person is convicted of refusing to permit a blood specimen to be taken when that person has been convicted at least twice previously of certain other offences under the Land Transport Act, including s 56(1) of driving with excess breath or blood alcohol, the court must impose a disqualification period of 12 months or more.15 It appears in this case the Judge did not realise that Mr Lange qualified for a minimum one year disqualification but rather, understood this offence only required a six month disqualification. Furthermore, the charges of reckless driving and driving while suspended both attracted a mandatory disqualification period of six months.

[27]   Disqualification from driving is not only a punishment, but also a means of protecting the public from further risk.16 There is clearly a need to protect the public from Mr Lange given the following aggravating factors of his driving offending:

(a)Mr Lange had a very high level of breath alcohol, nearly two and a half times the legal limit.

14     Land Transport Act, s 56(4)(b).

15     Sections 60(1)(c) and 60(3). This was noted in both the summary of facts and in the defendant’s submissions in the District Court.

16     McEachen v Police [1995] 2 NZLR 251, (1994) 12 CRNZ 440 (HC).

(b)Mr Lange was disqualified from driving at the time of his release from the police station. In my view this is a serious aggravating factor.

(c)The manner of Mr Lange’s driving can be characterised as extremely poor and continued over a three hour period. I consider this to be another serious aggravating factor.

(d)Mr Lange had two previous drink  driving  convictions,  including  one earlier in 2019.

It was fortunate that no one was seriously injured, or killed, through Mr Lange’s sustained reckless driving.

[28]   The Judge imposed the minimum disqualification period prescribed by statute on the charges of drink driving, refusing to permit a blood specimen to be taken, driving while suspended and reckless driving, although, as I noted above, she understood the disqualification period for refusing to permit a blood specimen to be taken was six months, rather than 12 months. The only charge which was not prescribed by statute was the charge of reckless driving where, in my view, the disqualification period imposed of eight months was clearly justified.

[29]   The sum of the disqualification periods imposed by the judge was 33 months. However, by imposing the driving while suspended sentence concurrently, the period of disqualification was only 27 months. In my view, that is proportionate to the combined statutory minimum periods of disqualification of 36 months on the charges Mr Lange faced.

[30]   Miss Allan submits that the sentences ought to have been imposed concurrently. A concurrent sentence may be appropriate where the offences are of a “similar kind and are a connected series of offences.”17 However, where offences arise from the same poor driving incident, the court is not precluded from imposing cumulative sentences.18

17     Sentencing Act, s 84(2).

18     Hughes v R [2012] NZCA 388 at [22].

[31]   In my view, while the offences occurred within the same time period, they are distinct in nature, and the combination of concurrent and cumulative sentences which the Judge adopted was clearly open to her. The driving with excess breath alcohol charge was laid after Mr Lange crashed his vehicle and was taken into police custody. The reckless driving charge was laid as a result of a sustained period of very poor driving after he had been suspended from driving, involving numerous incidents of damaging property. The refusal of a blood specimen occurred once Mr Lange had, again, crashed a vehicle and was taken to hospital. On each occasion Mr Lange made a deliberate choice to embark on further offending despite an intervening event which should have stopped him. The Judge then sentenced concurrently on the driving while suspended charge which was connected to and resulted directly from the charge of driving with excess breath alcohol and, again, that was clearly appropriate.

[32]   However, the real issue is whether the total period of disqualification was disproportionate to the offending regardless of how the sentence was structured. In my view, even if the periods of disqualification were to be imposed concurrently, the sentence would need to have been significantly uplifted to reflect the totality of the offending. I do not consider uplifts to reach a total of 27 months disqualification are disproportionate to the culpability of the offending in this case, particularly given the statutory mandatory minimum periods of disqualification specified.

[33]   In reaching this conclusion, I have had regard to the cases Ms Allan referred me to. In the case of Robarts, the offences were Mr Robart’s first driving related convictions and his breath alcohol limit was “over the legal limit for someone who is under 20 but under the limit for an adult”.19 The period of disqualification was adjusted to take into account Mr Robart’s “age and circumstances and the other sentences imposed upon him”.20 I consider Mr Lange is in a different category, being a repeat drink drive offender. I note in the cases of Stott21 and Tawa,22 the period of disqualification was not challenged on appeal and, therefore, is not the subject of discussion. However, I note that neither of those cases involved as many charges as

19     Robarts v Police, above n 7, at [11].

20 At [26].

21     Stott v Police, above n 10.

22     Tawa v Police, above n 9.

Mr Lange faces with mandatory minimum periods of disqualification. Thus, in my view, none of these cases demonstrate the period of disqualification is out of range.

[34]   Finally, while I accept that lengthy periods of disqualification can be counterproductive, such cases usually involve repeated periods of disqualification over several years.23 This is not such a case.

Conclusion

[35]   In my view the only error made in sentencing was to Mr Lange’s advantage24 and the total disqualification period imposed was justified, whether the sentence was imposed largely consecutively, as the Judge did, or entirely concurrently as proposed by the appellant.

[36]The appeal is dismissed.

Solicitors:

Todd & Walker, Queenstown Preston Russell, Invercargill

23     As discussed in cases such as Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, in addressing the purpose of s 94, Land Transport Act 1998.

24     Being the assumption that a six month, rather than a 12 month disqualification period applied to the charge of refusing to give a blood sample.