Lopin v Police HC Auckland CRI 2006-404-447

[2007] NZHC 1597

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-447

CRI-2006-404-471

VLADIMIR LOPIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2007

Appearances: K K Harding for the Appellant

N F Flanagan for the Respondent

Judgment:      9 February 2007

JUDGMENT OF FRATER J

This judgment was delivered by Justice Frater on 9 February 2007 at 2.30 pm, pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:   K K Harding PO Box 105590 Auckland for the Appellant

Meredith Connell PO Box 2213 Auckland for the Respondent

V LOPIN V NZ POLICE HC AK CRI-2006-404-447  9 February 2007

[1]      This is an appeal against the decisions of their Honours, Judges Lee and

Field, delivered in the District Court at Auckland on 22 November and 19 December

2006 respectively, declining Mr Lopin leave to apply for home detention.  He does not appeal against other aspects of the Judges’ sentencing decisions.

Background

[2]      Mr Lopin is 22 years old.  He was born in Russia where he left school at the age of 16 to enter university.   In 2002 he moved to New Zealand to be with his mother, who had re-married and was living in this country.   He attended seventh form here but, due to his limited knowledge of English, found schooling difficult. Although language problems also impacted on his ability to obtain employment, he eventually found work as a painter.

[3]      In the period between May 2004 and July 2006, the appellant acquired 11 criminal convictions.  Nine of these, including three for driving while disqualified, and one each for driving with excess blood alcohol, careless use of a motor vehicle, dangerous driving, and dangerous driving causing death or injury, arose out of five separate driving incidents.

[4]      For these offences he was either sentenced to community work, which he failed to undertake because of work commitments and was subsequently convicted of breaching, or ordered to pay fines, which he generally paid.

[5]      An alcohol assessment undertaken by the pre-sentence report writer prior to the first sentencing indicated that Mr Lopin had a harmful pattern of alcohol consumption.  However, because he continued to drink in a harmful manner, despite being convicted of another offence in which his alcohol use was a primary factor, the probation officer concluded that he had little insight into his offending and a low motivation to change. Accordingly, a custodial sentence, rather than supervision, was recommended.

Offences and sentencing in issue

[6]      Judge Lee sentenced Mr Lopin on three charges arising out of the events of

26  July 2006:    driving  while  disqualified,  being  a  third  or  subsequent  offence, driving with excess breath alcohol where the level of alcohol in his breath was 922 micrograms of alcohol per litre of breath, and failing to accompany an enforcement officer.   On the first two charges she imposed sentences of eight and two months imprisonment respectively, to be served concurrently, and on all the charges she disqualified him from holding or obtaining a driver’s licence for a period of 18 months.  Leave to apply for home detention was declined.

[7]      The only explanation given by Judge Lee for declining to grant leave to apply for home detention was that  it  was “not  appropriate”.    However,  she  made her reasons for sending the appellant to jail quite clear, saying:

[2]  Normally I probably would not be sending you to gaol but your previous driving record, frankly, scares me.  Not so much because it is very lengthy but because of what you have been convicted of.

[3]  … You have a record of damaging other people with your driving. And you keep drinking and drive whilst disqualified.

[4]  These three charges for which I have to sentence you today all occurred on  26  July  2006,  that  means  whilst  you  have  been  disqualified  you disobeyed those Court orders, you carried on driving with a very high level of alcohol in your blood.  It is sheer luck you did not kill anybody.

[5]   You   have been assessed as having a harmful pattern of alcohol consumption. You have little insight into your offending and low motivation to change your behaviour.

[6]  As I said, your record shows you to be in danger to the public when you are behind the wheel.  I, quite frankly, have no confidence you will not re- offend and eventually kill or injure someone again.

[7]   Since you disobey Court orders of disqualification there is only one thing I can do to protect the public and that is to lock you up.

[8]      The offending for which Judge Field sentenced Mr Lopin occurred on 18

November 2006.  The summary of facts states that, as a result of travelling too fast for the conditions and failing to exercise due care, he failed to negotiate a right hand bend, drove straight through an intersection  and into a stone wall.  The impact was such that the front of the vehicle was crushed against the wall, leaving it undriveable.

His  girlfriend,  who  was  sitting  in  the  front  passenger  seat,  received  significant bruising to her chest and lacerations to her wrist, for which she required hospital treatment.  On analysis, Mr Lopin’s breath was found to contain 537 micrograms of alcohol per litre of breath.

[9]      This time he was charged with driving with excess breath alcohol, careless driving causing injury, and driving while disqualified, being a third or subsequent offence.

[10]     When he appeared before Judge Field on 19 December, after an indication of the likely prison term to be imposed, Mr Lopin changed his not guilty plea to guilty and was sentenced that day.

[11]     At the outset, Judge Field acknowledged the support of Mr Lopin’s family and partner, who were present in Court.  He also noted that in the three to four weeks since he was last sentenced, the appellant’s attitude had changed. In a letter to the Court he acknowledged that he had an alcohol problem for which he needed help.  In the circumstances, Judge Field accepted that Mr Lopin was genuinely remorseful and contrite, had a degree of insight, and was motivated to change – all of which he said he would take into account.

[12]     On the other hand, the Judge noted that a particularly aggravating feature of the appellant’s offending was that it occurred while he was on bail and just four days before he was due to be sentenced for the earlier offending.   He endorsed Judge Lee’s assessment of the appellant’s driving record, saying that in terms of the nature of the offending, it was one of the worst he had seen.

[13]     In all the circumstances, on the charge of driving while disqualified which, having regard to the aggravating features and the totality of the offending, he considered warranted a sentence approaching the maximum two years, Judge Field adopted a starting point of 18  months,  from which he  deducted  six  months  for mitigating factors, to impose a sentence of 12 months imprisonment, to be served cumulatively upon the expiry of the earlier term.  On each of the other charges, Mr Lopin  was  sentenced  to  two  months  imprisonment  and  on  all  charges  he  was

disqualified from holding or obtaining a driver’s licence for 12 months and one day from 6 January 2009.  He was also indefinitely disqualified pursuant to s 65 of the Land Transport Act on the drink/driving charge.

[14]     Finally, like Judge Lee, Judge Field imposed a special condition with regard to  alcohol  and  drug  treatment,  and  declined  to  grant  leave  to  apply  for  home detention.

[15]     In relation to the home detention the Judge said:

I have given consideration to the issue of home detention.  That was declined by Judge Lee in the first instance, and in view of your propensity to drive while disqualified and under the influence, I regret to say that like Judge Lee I can find no grounds to grant you leave to apply for home detention and leave is accordingly declined.

Section 97(3) Sentencing Act 2002

[16]     Following amendment in 2004, s 97(3) of the Sentencing Act 2002 places the onus on the appellant to satisfy the sentencing Court that it would be appropriate to grant leave, taking into account:

(a)       the nature and seriousness of the offence;

(b)       the circumstances and background of the offender;  and

(c)       any relevant matters in the victim impact statement in the case.

Submissions for the appellant

[17]     Ms Harding’s submissions on behalf of Mr Lopin were comprehensive and helpful.  She said everything that could be said on his behalf.  Her submissions were directed at two issues:

(i)        the alleged failure by Judge  Lee to  give adequate reasons for her decision in relation to home detention;  and

(ii)       the alleged failure by both Judges to address all the criteria specified in s 97(3), not just the nature and seriousness of the offence.

Failure to give adequate reasons

[18]     Ms  Harding  readily  acknowledged  that  judges  are  not  required  to  give extensive reasons for the grant or refusal of leave to apply for home detention and that appellate Courts will not readily interfere with sentencing judges’ discretionary assessments:  R v Barton [2000] 2 NZLR 459 at [13].

[19]     However, in this case, she said, Judge Lee erred in that she failed to give sufficient explanation or the basic reasoning process she followed in reaching her decision:  R v Husband and Heath (2000) 18 CRNZ 229 at [33].

[20]     I do not agree.  I accept Mr Flanagan’s submission that a sentencing judge is not required to give a formulaic recital of each of the s 97(3) factors.   In circumstances such as this, where the Judge’s rationale is obvious, an holistic assessment is sufficient.  It is clear from the Judge’s sentencing notes as a whole that the same considerations that led her to take the unusual steps of imposing a custodial sentence for the driving offending caused her to decline leave to apply for home detention.

[21]     In my view, there is no error here.

Failure to consider all relevant factors

[22]     Ms Harding’s criticism of Judge Lee’s sentencing on the second point was that she did not address, or adequately address, the appellant’s personal circumstances.  She made no mention of his work prospects, family support or lack of it, living arrangements, age or whether there was any prospect of rehabilitation if he were granted home detention.

[23]     In  reliance  upon  Ramsden  v  Police  (2000)  17  CRNZ  444,  Ms  Harding submitted that the fact that Mr Lopin was assessed as having a low motivation to

change did not necessarily preclude the grant of leave.  Mr Ramsden was sentenced by the District Court to concurrent terms of nine months imprisonment on charges of driving while disqualified and driving with a breath alcohol concentration of 686 micrograms of alcohol per  litre  of breath,  and  disqualified  from driving  for  12 months.   Leave to apply for home detention was declined.   Like the present, the appeal was only against the refusal to grant leave.

[24]     The appellant had four previous convictions for driving with excess breath alcohol and three for driving while disqualified.  The pre-sentence report indicated that he did not accept that he had a problem with alcohol.

[25]     In allowing the appeal, Panckhurst J said:

[11]   Here a range of factors suggest to me that leave should have been granted.   The offending, although serious, did not involve the aggravating features of injury of property damage arising from driving with excess breath alcohol.  There had been a gap of 3 years during which the appellant had not offended.      Importantly, he was in a stable relationship and had the responsibility of a young child.   Further there was the circumstance of the solid  work  record  and  self-employment  as  a  building  contractor  with  a partner.  Despite the problem of motivation, the appellant obviously would benefit  from a  rehabilitative programme relative to  his  drinking.    These circumstances satisfy me that the case was one where leave to apply should have been granted so that the prison board may more fully consider the home detention option.

[26]     While some guidance can be gained by comparing similar cases, ultimately each case must be determined on its own facts.  It also needs to be remembered that in 2000 the general presumption was that leave would be granted.

[27]     Few, if any, of the positive factors identified by Panckhurst J in Ramsden applied in this case – at least when Mr Lopin came before Judge Lee.  At that stage, all that could be said in his favour was that he was 22, he came from a difficult background, he had a good relationship with his mother, he had work,  and that he had not previously been sentenced to imprisonment.   But those factors were more than outweighed  by  his  repeat  and  escalating  pattern  of offending,  and  evident disinclination to change.

[28]     In  the  circumstances,  Judge  Lee  rightly  concluded  that  the  need  for deterrence outweighed any other factors.

[29]     I accept, as did Judge Field, that the relatively short time he spent in prison before the December sentencing had a marked impact on Mr Lopin.  It brought him to his senses as nothing had done before, making him realise the potential consequences if he carried on drinking and driving as he had been.  It also brought him closer to his family.   Judge Field took these changes and, in particular, the appellant’s concern to address the causes of his offending, into account.  However, in the Judge’s view, while significant, these changes were not enough, when balanced against the aggravating facts of Mr Lopin’s offending on bail and the nature and timing of that offending, to make it appropriate to grant leave to apply for home detention.  I have no reason to believe that his decision in that regard was wrong.

Result

[30]     For the foregoing reasons the appeal is dismissed.

Postscript

[31]     I do not wish to end this judgment, however, without commenting on the appellant’s rehabilitative needs.

[32]     It would appear from everything that I have heard and read that Mr Lopin has indeed learnt his lesson and wants to change.  He needs assistance to do so.  While I appreciate that access to drug treatment programmes in custody is limited, I would hope that, provided he has maintained his resolve and meets the necessary prerequisites as to security rating and such like, he will be favourably considered for admission to such a programme, even if it means transferring him to a prison outside Auckland. It would seem to me to be in everyone’s interests, not least that of the general public, that he be given assistance to address these issues sooner rather than later.  If he completes the programme in custody, the special release condition can be

used to require his attendance on a programme to reinforce the lessons already learnt, and to assist his compliance within the community.

M A Frater J