Letham v Police

[2022] NZHC 1514

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-09

[2022] NZHC 1514

BETWEEN

BRODIE JAMES LETHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 June 2022
Appearances:	J R Te Puke-Cowperthwaite for the Appellamt B L McKenzie for the Respondent
Judgment:	28 June 2022

ORAL JUDGMENT OF PALMER J

Solicitors

Public Defence Service, Napier Elvidge & Partners, Napier

LETHAM v NEW ZEALAND POLICE [2022] NZHC 1514 [28 June 2022]

What happened?

[1]                 Around 6.50 pm on 14 January 2022, Mr Brodie Letham, aged 36, was found asleep in the driver’s seat of his car on a road in Flaxmere, with the engine running. When Police managed to wake him, he admitted to having had a few drinks. His evidential breath test (EBT) gave a reading of 1,146 micrograms of alcohol per litre of breath, almost three times the legal limit of 400 micrograms. Around 2.45 pm on 19 February 2022, following up on complaints of erratic driving at excessive speeds, the Police administered another EBT to Mr Letham which gave a reading of 1,313 micrograms of alcohol per litre of breath. Mr Letham has three previous convictions for drink-driving, in 2004, 2008 and 2017. The 2017 offending involved a reading of 1,314 micrograms.

[2]                 On 29 March 2022, Judge P W Cooper in the District Court at Hastings sentenced Mr Letham for two charges of driving with excess breath alcohol for a third or subsequent offence.1 That is punishable by up to two years’ imprisonment or a

$6,000 fine. The Judge took 20 months’ imprisonment as the starting point, gave a 25 per cent discount for Mr Letham’s guilty plea and a further five per cent discount for a head injury Mr Letham had previously suffered that inhibits impulse control.2 On the basis of Mr Letham’s high alcohol readings, lack of insight, offending while on remand, and his previous history, the Judge did not think home detention was appropriate.3 So he sentenced Mr Letham to 14 months’ imprisonment, required him to undertake treatment for his alcohol issues, to undertake any counselling or programmes required by the probation officer and disqualified him from driving indefinitely. Mr Letham appeals.

Submissions

[3]Counsel for Mr Letham and the Crown both rely on Whata J’s judgment in

Samson v Police, which set out a schedule of starting points for such cases.4

1      Police v Leatham [2022] NZDC 5394.

2      At [7]–[8].

3 At [9].

4      Samson v Police [2015] NZHC 748.

[4]                 Ms Te Puke-Cowperthwaite, for Mr Letham, submits the Judge erred by setting the starting point too high, not providing sufficient discounts for rehabilitation, remorse and personal circumstances, not commuting the sentence to home detention and disqualifying Mr Letham indefinitely rather than imposing an alcohol interlock order. She submits a starting point of 12 months would have been appropriate, a discount of 10 per cent for voluntary engagement in rehabilitation programmes and a further 10 per cent for remorse was justified. She submits that the pre-sentence report before the District Court did not properly capture Mr Letham’s rehabilitation willingness or remorse. She provides medical notes that were not before the District Court, from 2002, which demonstrates, she says, he has a lack of insight which goes to home detention being an appropriate sentence. He is struggling in prison. She suggests a discount, for the brain injury materially contributing to the offending, of 20 to 30 per cent. Ms Te Puke-Cowperthwaite submits the sentence of 14 months’ imprisonment was manifestly excessive.

[5]                 The pre-sentence report noted Mr Letham had not engaged in drug and alcohol counselling and did not seem to understand the impact of his offending on others. It recommended a sentence of intensive supervision, whether combined with community detention or not, or of home detention, before imprisonment.

[6]                 Ms McKenzie, for the Crown, submits the starting point was appropriate. She submits there was an absence of evidence to support a discount for rehabilitation or remorse or connecting Mr Letham’s injury with his offending, and that his history shows he has been unresponsive to previous opportunities for rehabilitation. She says the medical information takes the matter no further. She submits the end sentence was not manifestly excessive and the Judge was not wrong to decline home detention in terms of the purposes and principles of sentencing, to bring home the seriousness of the offending to Mr Letham. Ms McKenzie accepts the Judge erred by disqualifying Mr Letham from driving indefinitely, rather than imposing an alcohol interlock sentence.

Should the appeal be upheld?

[7]                 Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.5 The Court will only intervene if the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.6

[8]                 I consider the starting point of 20 months was within the range available to the Judge for offending with the seriously aggravating factors present here, of multiple offences, with two in close succession, high levels of intoxication, the public risk in his erratic driving, and offending while on remand. I consider that that is consistent with the pattern of cases surveyed by Whata J in Samson. As to discounts, the medical evidence now made available dates from 2002 and is not particularly informative about ongoing effects. Without more recent information that speaks to Mr Letham’s current medical condition, I do not consider it provides a justification for a further discount. Based on the information before him, particularly from the pre-sentence report, the five per cent discount applied by the Judge was within the range available to him. I am not persuaded there was an error in that regard.

[9]                 However, I do consider it was wrong not to convert the sentence of imprisonment to a sentence of home detention. Imprisonment is likely to hinder rather than help Mr Letham’s rehabilitation. He has not been sentenced to home detention before. He has an available address for home detention. He took steps to self-refer and enrol in Te Poutama Tautoko alcohol and drug counselling services. Home detention can satisfy the principles and purposes of sentencing under the Sentencing Act 2002 and, in particular, s 8(g) which requires imposition of the least restrictive outcome that is appropriate in the circumstances. The length of home detention will need to be adjusted to reflect the lack of possibility of parole.

[10]              I also accept the Judge erred in not ordering an alcohol interlock sentence as an alternative to indefinite disqualification. As both counsel accept, s 65AC of the

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

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

Land Transport Act 1998 (LTA) requires the Court to impose an alcohol interlock. This is an alternative to disqualification under s 56. It may not have been drawn to the Judge’s attention. The period of Mr Letham’s disqualification for this purpose is the period he has served already in prison.

Result

[11]              I quash the sentence imposed by the District Court and substitute a sentence of:

(a)seven months’ home detention at [redacted], with three months’ credit for his imprisonment to date, so four months’ home detention from today, with all the detention conditions imposed by s 80C of the Sentencing Act and a requirement to travel directly to that address on release from prison;

(b)a requirement on Mr Letham to undertake treatment for his alcohol issues and to undertake any counselling or programmes required by the Probation Officer;

(c)a requirement under s 80D to:

(i)attend an assessment for alcohol and drug counselling as directed by a Probation Officer; and

(ii)attend and complete any counselling, treatment or programme as recommended by that assessment, as directed by and to the satisfaction of a Probation Officer;

(d)a period of disqualification from driving that began when he was imprisoned and ends on his release; and

(e)an alcohol interlock sentence under s 65AC of the LTA which, provided he complies with the requirements of s 65AG (which Ms Te Puke- Cowperthwaite will need to explain to him), he is authorised eventually to apply to substitute with a zero-alcohol licence under s 100A.

Palmer J