Marquet v Police HC Christchurch CRI 2010-409-174

[2010] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000174

STEPHEN DAVID MARQUET

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 September 2010

Counsel:         S J Shamy for Appellant

S C Carter for Respondent

Judgment:      23 September 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of 10 months’ imprisonment imposed in relation to an offence of driving with an excess breath alcohol concentration.  There was a concurrent term imposed in relation to driving while disqualified to which I will return in a moment, but that did not affect the end sentence.

[2]      On  9  May of  this  year  the appellant  was  observed  driving in  an  erratic manner.  He was seen to cross the centre line on a number of occasions and to drive into the cycle lane of the roadway.  Hence, he was stopped and breathalysed.  He

returned a reading of 1240 micrograms of alcohol per litre of breath.  He was also,

STEPHEN DAVID MARQUET V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000174  23 September

2010

on that day, a disqualified driver for reasons to which I will come in a moment and was charged with that further offence.

[3]      About six weeks later, on 29 June, the appellant was again picked up while driving, on this occasion for driving while disqualified.   He was in the course of taking his daughter to high school.

[4]      Mr Marquet was sentenced on 23 August by Judge Farish.  She imposed a

10 month term of imprisonment in relation to the excess breath alcohol offence and also  sentences  of  four  months’  imprisonment,  concurrent  in  relation  to  the two offences of driving while disqualified.

[5]      In large measure this sentencing response reflected the appellant’s recent previous record.   In 2002 he incurred his first conviction, also for driving with an excess breath alcohol concentration, being on that occasion 581 micrograms. However,  of  much  more  significance  was  a  further  like  offence  committed  in January of 2010 when the appellant’s reading was 1182 micrograms.   Hence, in August the Judge was confronted with a further case of driving with an excess breath alcohol and two offences of driving while disqualified, which followed close on the heels of the January offence.

[6]      It is to be noted as well that the offending was escalating if anything, in that the reading for the third offence was even higher than that for the second, and in relation to the second driving while disqualified in June of this year the appellant was on bail awaiting disposition of the earlier two charges.

[7]      Mr Marquet is 52 years of age.   He has been successful in business.   His business, according to the pre-sentence report, has been sold, or is in the process of being sold, and he is presently receiving regular payments on account of that sale transaction.

[8]      As Mr Shamy has stressed the background is that in 2006 the appellant lost his wife.  Until that point he had, of course, only the one previous conviction in 2002 for an excess breath alcohol charge.   Since the loss of his wife a serious alcohol

problem has emerged.  Indeed, after his apprehension in May, the appellant finally consulted his general practitioner, was referred to a clinic for assessment of his alcohol problem but, regrettably, he broke appointments and a personal assessment had still not been completed by the time he was sentenced in August.

[9]      The pre-sentence report recommended a sentence of supervision, coupled with special conditions designed to ensure that Mr Marquet was personally assessed and hopefully placed in a residential treatment programme.  There was also a home detention appendix prepared on the basis that the appellant would return to his home address which I assume he occupies with one of his three children who is still at school.  However, that option was not favoured by the report writer because it may impede the appellant’s progress into a residential treatment programme, given that he would be confined to his home address unless that term of the sentence was altered. Hence, the report contained a recommendation in favour of supervision with special conditions.

[10]     The Judge, however, did not consider this was realistic.  She adopted an end starting-point of 14 months’ imprisonment, allowed a reduction of 30 percent for the entry of early guilty pleas and, in the end result, imposed 10 months for the excess breath alcohol charge and four months concurrent for the driving while disqualified matters.

[11]     It is readily apparent from the sentencing remarks what motivated the Judge’s approach,  because  the  10  month  term  is  accompanied  by  a  grant  of  leave  to substitute home detention in the event that that sentence could be served at a full- time residential treatment centre.  Hence, it is obvious that the Judge considered a sentence of home detention would be self-defeating because the appellant would be confined to his home, disqualified from driving and left to his own resources.

[12]     In addition, the appellant was disqualified both indefinitely and for a period of one year and one day.  Standard release conditions were imposed in relation to the prison sentence, together with a special condition that he undertake assessment for treatment  in  a  residential  programme  and,  if  suitable,  that  he  enter  such  a programme.  Further, the Judge directed that the special conditions were to apply six

months past the sentence end date.  Finally, an order was made for the confiscation of the appellant’s vehicle.

[13]     In advancing the appeal this morning Mr Shamy challenged both the length of the prison sentence and the decision to impose a sentence of imprisonment rather than home detention.  He argued that 10 months’ imprisonment was simply out of line for a third offence of driving with an excess breath alcohol concentration.   In that regard he referred to Clotworthy v Police [1] and also to a case which was drawn

to attention by Crown counsel, Marshall v NZ Police,[2]  to which I will return in a

moment.

[1] Clotworthy v Police (2003) 20 CRNZ 439.

[2] Marshall v NZ Police HC Hamilton CRI-2010-419-000031, 4 May 2010, Ellis J.

[14]     The point was also made that given the appellant’s personal circumstances, and background, imprisonment was a significant leap, given that he had never previously received a penalty other than a fine and disqualification.   In short, said Mr Shamy, it was too much of a jump for him to progress from penalties of that order to a sentence of imprisonment when there were intermediate alternatives.

[15]     In relation to the four month concurrent sentences, counsel rightly pointed out that they were beyond jurisdiction.  The maximum penalty available, given the appellant’s past record for driving while disqualified, is three months’ imprisonment and it is accepted that those sentences must be reviewed for this reason.

[16]     Turning to home detention, Mr Shamy submitted that this was an available and realistic alternative.   He referred to The Queen v Iosefa,[3]  where the Court of Appeal stressed the utility of home detention as a stand alone sentence and turning to the particular problems which afflict this offender, Mr Shamy submitted that the appropriate course was home detention, coupled with the same recommendation as was made by the report writer in the context of supervision, namely that it be a

special condition that the appellant be assessed and take treatment in a residential programme for his alcoholism.

[3] The Queen v Iosefa [2008] NZCA 453.

[17]     Mrs Carter, however, while acknowledging that 10 months was a very stern sentence, contended that imprisonment was appropriate, given the escalation in the offending and the proximity between the cluster of three further offences close on the heels of a very serious breath alcohol offence committed in January this year. She also drew particular attention to the special conditions which accompanied the sentence and which run on past the sentence end date.

[18]     I have given quite anxious consideration to whether this is a case where home detention should have been imposed.  In the final analysis I consider that it was not the appropriate response because it would leave the appellant to his own devices, at home  and  in  a  very  difficult  position  pending,  if  he  was  found  suitable,  his placement in a residential treatment programme.  In any event, sitting on appeal, I am satisfied that the Judge was able to reach the view which she did that a short sentence of imprisonment was required.  However, the term imposed, in my view, was clearly excessive.

[19]     When regard is had to the run of cases involving sentences of imprisonment for successive offences of driving with excess breath alcohol, 10 months is out of line.  Attention was drawn to the decision in Marshall, but in considering that case, I agree with Mr Shamy that it has features which mark it apart from the present offender’s situation.   Mr Marshall had previously been sentenced to imprisonment with leave to apply for home detention in relation to a second breath alcohol offence which had also involved injury.  He received 10 months’ imprisonment which was clearly a stern response, but one which the Judge, sitting in this Court, found was unimpeachable on appeal, given the particular background.

[20]     The appellant has not previously been sentenced to imprisonment.  Nor has his driving involved injury to others, although that may be more a matter of good luck than anything else.  In my view the most that was appropriate in terms of a term of imprisonment was six months and I substitute that term in relation to the offence of driving with excess breath alcohol.   The terms for the related charges are also quashed and I substitute one month imprisonment in relation to each offence.  In my view this produces an appropriate sentence for this offender.   The reduced term

reflects  his  culpability  and  the  escalating  nature  of  his  offending  and  the circumstance that one offence was committed while on bail.

[21]     Equally, importantly, the special conditions imposed by the Judge remain appropriate in the context of a six month sentence and it is those which I judge to be of significant importance.   The appellant will be released from prison after presumably three months.  He will then have six months within which to complete an assessment under the supervision of his probation officer and, hopefully, to be admitted  to  a  residential  treatment  programme.    That  represents  an  appropriate

sentencing response in this case.

Solicitors:

Simon Shamy Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent