Lindop v Police HC Palmerston North CRI 2010-454-23

[2010] NZHC 1414

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-23

KELVIN LINDOP

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2010

Counsel:         S de Vorms for appellant

E J McCaughan for respondent

Judgment:      5 August 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This was an appeal from a sentence of eight months’ imprisonment imposed on Mr Lindop in the District Court at Levin on 7 July 2010, on two convictions for causing bodily injury whilst in charge of a motor vehicle with the proportion of alcohol in his blood exceeding 80 milligrams of alcohol per 100 millilitres of blood. The appeal is also against a concurrent sentence of one month’s imprisonment on a conviction for driving whilst disqualified.

[2]      The relevant offending occurred on 27 July 2009.  Mr Lindop and two “good mates”, Messrs Smith and McIvor, had been hunting in a heavy four wheel drive

vehicle with which Mr de Vorms indicated Mr Lindop was not familiar.  All three

LINDOP V NEW ZEALAND POLICE HC PMN CRI-2010-454-23  5 August 2010

had been drinking and Mr Lindop was apparently very keen to be the one driving back to Levin.  The vehicle failed to take a corner, left the road and collided with a concrete pole.  All three occupants were injured.

[3]      Because the impact  had  apparently dislodged some part of an  electricity transformer, or transmission lines, those attending the scene were unable to remove Mr Lindop from the vehicle until a qualified technician could attend at the scene. Both his companions were removed, but he remained pinned in the vehicle and without any medical assistance for some three hours.  His injuries were substantial, characterised by Mr de Vorms as “nearly costing him his life”.   They included a broken pelvis in three places, his right femur in two places, a shattered right kneecap, and two broken bones in his right arm.  He also suffered kidney failure, concussion, head trauma and nerve damage to both legs.   The trauma of the accident and on- going medical challenges are submitted on behalf of Mr Lindop as constituting a salutary lesson to him and a strong form of deterrence.  He is not expected to make a complete recovery from these injuries.

[4]      The injuries to the two passengers in the car were also moderate to serious, although their extent as reflected in statements to the Police and in victim impact statements are now downplayed in affidavits sworn in support of the appeal by both Messrs McIvor and Smith.  It is clear that they are staunchly loyal to him, take the view that the serious injuries he has sustained are punishment enough, and these concerns for his predicament may have clouded the absolute accuracy of the injuries as now recalled by them.

[5]      Testing for the level of alcohol in Mr Lindop’s system was not undertaken until he was in hospital, up to five hours after the accident.   When analysed, his blood revealed 81 milligrams of alcohol per 100 millilitres of blood, just barely over the legal limit.

[6]     A feature treated by the sentencing Judge as seriously aggravating the circumstances of the offending was that Mr Lindop had been sentenced on 1 July

2009 for an excess breath alcohol conviction, to 75 hours’ community work and six months’ disqualification of his driver’s licence.  The six month period was deferred

from the date of sentencing to 6 September 2009 because his licence had been suspended until that date on account of an accumulation of demerit points.   This meant that just 27 days before the conduct giving rise to the present convictions, Mr Lindop had been convicted in the same Court for a first occurrence of driving with excess breath alcohol.  Understandably, the District Court Judge was concerned that the very recent sentencing had not operated as a deterrent sufficient to stop Mr Lindop driving again, after drinking.

[7]      Although Mr Lindop had no other convictions beyond the first excess breath alcohol and the present ones, he has amassed some $18,400 in outstanding fines and enforcement fees, all related to absence of warrants of fitness, using an unlicensed vehicle or breach of terms of licence and parking infringements.   The apparent absence of attempts to reduce the extent of these liabilities was another matter of concern to the sentencing Judge.

[8]      A   good   deal   can   legitimately   be   made   of   Mr Lindop’s   personal circumstances.   He has paid dearly for his misjudgement, in terms of the injuries suffered and the prospect of some permanent impairment to his health.   However much his friends exonerate him, it seems likely that he will also be affected by understandable concerns at the harm his impaired driving has caused both of them. He is the father of two small children, aged about 2 and 3 years old, and had, until this sentencing, been their primary caregiver, assisted by his partner and mother, both of whom work and are therefore constrained in their ability to contribute to the care of the children.

[9]      Mr Lindop   has   the   support   of   a   positive   pre-sentence   report   that recommended he be sentenced to community detention.  The report does not reflect on the prospect of imprisonment, and considered home detention not to be viable because  of  the  full-time  custody Mr Lindop  had  of  his  two  children.    A  home detention sentence was seen by the report writer as too restrictive and, at worst, could put the children at risk, and, at best, deprive them of their needs in terms of outside contact.

[10]     In support of the appeal, Mr de Vorms submitted that the Judge erred in the relative seriousness he attributed to the injuries to the two others in the car and that the approach to sentencing inappropriately penalised Mr Lindop for what the Judge treated as “misguided views” expressed by the other two in the car in urging that Mr Lindop not be punished further (beyond the substantial injuries he has suffered). Mr de Vorms also submitted that the Judge was wrong in holding against Mr Lindop what the Judge perceived to be a wrong attitude to the criminal justice system overall, arising mostly out of the substantial fines outstanding for infringement matters.  Mr de Vorms urged that the Court ought to give more credit, as a mitigating factor, to the very serious extent of Mr Lindop’s injuries, and the trauma suffered as a result of the accident.

[11]     Mr de Vorms  sought  to  distinguish  the  two  cases  cited  on  behalf  of  the Police, namely Marie v Police, which was the only decision acknowledged in the sentencing Judge’s comments.[1]   In that case, the offender “clipped” a cyclist whilst driving with a breath alcohol level almost three times the legal limit.   No serious injury was caused, and the offender was a disqualified driver with a previous conviction  for  drink  driving and  driving whilst  disqualified.    $700  was  paid  in

[1] Marie v Police HC Christchurch CRI-2010-409-25, 25 February 2010. 

reparation to the cyclist and the offender pleaded guilty.   On appeal, Chisholm J identified 21 months’ imprisonment as the appropriate starting point and, taking account of remorse and guilty pleas, meant that the original sentence of 12 months’ imprisonment was not manifestly excessive.

[12]     Mr de Vorms contrasted the level of alcohol in Marie, being three times over the legal limit, against Mr Lindop’s mere one milligram over the limit.  In addition, the offender in Marie had an historical problem with alcoholism and there appear not to have been compelling circumstances to keep the offender out of prison, which Mr de Vorms claims are present here because of Mr Lindop’s primary caregiver role for his two young children.

[13]     The Police also cited McCormick v Police.[2]   There, the offender had crashed into a power pole, causing facial injuries to his girlfriend requiring three stitches.

[2] McCormick v Police HC Dunedin CRI-2008-412-13, 7 May 2008.

Mr McCormick’s breath alcohol level was approximately one and a half times the legal limit.  He had a previous conviction for drink driving some seven years before this matter and three convictions for breach of community based sentences.  He had pleaded guilty at an early stage.   On that appeal, French J agreed that community based sentences were inappropriate:[3]

[3] At [13].

...because of the appellant’s past breaches and because of the nature of the offence.  There is a strong public interest at play here, and there is a need for the Court to send a strong message.

[14]     The sentence of seven months’ imprisonment was found not to be manifestly excessive, although it was characterised as stern.

[15]     Again, Mr de Vorms distinguishes the relative breath alcohol levels, makes the point that Mr McCormick avoided any suffering himself and appeared not to have expressed remorse.

[16]     I am satisfied that these analogies, and the critical importance of deterrence in relation to driving offences causing injury where the driver is affected by alcohol, means that in cases such as the present community based sentences will often be inadequate  to  mark  the  deterrence  required.    Like  Judge  Ross,  I  consider  it significant that this offending was less than a month after Mr Lindop was sentenced for driving with excess breath alcohol.  Remorse after the second lot of offending is encouraging, and hopefully remains genuine.   However, it is not a substitute for reflecting on the consequences of the first offending in a way that ought to have prevented Mr Lindop getting behind the wheel on the night of the accident.  His lack of restraint and preparedness to break the law by driving after drinking caused a serious accident.   Both for him, and for others minded to persist in driving when affected by alcohol when they are already prevented from doing so by Court order, such subsequent convictions are appropriately marked by a short sentence of imprisonment.   Accordingly, I am not minded to accede to the submission that a sentence of community detention was adequate in all of these circumstances.

[17]     I am, however, minded to reconsider the length of prison sentence necessary to mark the seriousness of the offending, and to deter both Mr Lindop and others. This was not specifically addressed by Mr de Vorms, given his focus on getting Mr Lindop back into the community immediately.   However, in making the point that Mr Lindop has already spent a month in prison, he implicitly drew attention to the length of imprisonment needed to discharge the purposes and principles of sentencing that apply.

[18]     Mr Lindop has no criminality apart from his repeated bad driving conduct. This is a classic case for a “short sharp” sentence, and I am satisfied that six months is sufficient for that purpose.

[19]     Accordingly,  I  consider  the  means  of  relating  the  outcome  here  to  the somewhat more serious circumstances in Marie and McCormick is to reduce the period of imprisonment rather than substitute a less restrictive form of punishment. The appeal is allowed to the extent of substituting a period of imprisonment of six months, instead of the eight months originally imposed.   All other aspects of the sentence are to remain unchanged.

Dobson J

Solicitors:

S de Vorms, Palmerston North for appellant

Crown Solicitor, Palmerston North for respondent