Marshall v Police HC Hamilton CRI 2010-419-31

[2010] NZHC 656

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-31

BILLY JACK MARSHALL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 May 2010

Appearances: G A Walsh for the Appellant

P V Cornegé for the Respondent

Judgment:      4 May 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 4 May 2010 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Almao Douch PO Box 19173, Hamilton 3244

Counsel:       G A Walsh, PO Box 1322, Hamilton 3240

MARSHALL V POLICE HC HAM CRI-2010-419-31  4 May 2010

[1]      On 11 March 2010 Mr Marshall was sentenced in the District Court to an effective term of 10 months imprisonment on a charge of excess breath alcohol. Mr Marshall was also disqualified indefinitely from holding or obtaining a drivers licence by virtue of the operation of s 65 of the Land Transport Act 1998 but with a minimum disqualification period of three years.

[2]      Mr Marshall appeals to this court on the grounds that both the sentence of imprisonment and the three year period of disqualification are manifestly excessive.

Facts

[3]      In  the  early hours  of the morning on  8 October 2009  Mr Marshall  was stopped after being seen driving in an erratic manner.  The results of a subsequent breath alcohol test gave a reading of 900 micrograms of alcohol per litre of breath, which is more than twice the legal limit of 400 micrograms of alcohol per litre of breath.  The maximum penalty for this offence is two years imprisonment.

[4]      Mr Marshall subsequently pleaded guilty to the charge that was subsequently laid against him.

[5]      Mr Marshall had two previous breath alcohol convictions.  These were both in 2006 with readings of 620 and 786 micrograms of alcohol per litre of breath.  In the second instance, injury to a third party resulted and he was disqualified and sentenced to a term of eight months imprisonment with leave to apply for home detention.  Mr Marshall subsequently participated in an alcohol and drug course (in

2007) and his risk of reoffending on completion of that course was assessed to be low.

District Court Decision

[6]      At the sentencing hearing, counsel for Mr Marshall argued that the least restrictive sentencing option open to the Court was a combination of community

detention, intensive supervision and judicial monitoring.   However Judge Burnett rejected that such a sentence would be appropriate on the facts of Mr Marshall’s case.  The Judge said:

I have to accept that that is a sentence that a sentencing Judge would be very tempted to impose because it has a very high number of positives to it.  I do have to observe, however, that you have previously had the advantage of the earlier alcohol and drug course that I have referred to, and there is also rehabilitation available through release conditions.  The fact that you were willing to drive drunk with such a high level after having earlier driven drunk and injured somebody and being sentenced to a term of imprisonment albeit with leave to apply for home detention, that was not a sufficient deterrent and was not a sufficient, as it turns out, sentence that rendered you safe for the community.  As I have said to Mr Walsh, what I have to take account also is the fact that your conduct is highly unsafe in the community. You do represent a danger to the community by driving in this manner and that is something that I have to take into account, and I am not satisfied, having all of the information before me, that the community’s safety is best ensured by intensive supervision or community detention or a combination of those.

[7]      Ultimately   Judge   Burnett   adopted   a   starting   point   of   15   months imprisonment, taking into account the matters referred to in the passage above. After  a  one-third  discount  for  Mr Marshall’s  early  guilty plea,  a  final  effective sentence of 10 months imprisonment was arrived at.

[8]      As I have said, s 65 of the Land Transport Act 1998 also required that Mr Marshall be disqualified indefinitely from driving and Judge Burnett imposed a minimum disqualification period of three years.

Was the term of imprisonment imposed manifestly excessive?

[9]      It was accepted by both counsel that in selecting a starting point on a charge such as the present, the Court must take into account a wide variety of factors including in particular (but not exclusively) those factors helpfully identified by Wild J in Clotworthy v Police.[1]   These were:

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

a)       The breath or blood alcohol level;

b)The  length  of  time  that  has  elapsed  since  the  last  drink  driving conviction;

c)       Whether there has been convictions for two or more drink driving offences in close succession;

d)The manner of driving – whether innocuous or dangerous and whether or not any accident or injury results;

e)       Whether the offender was disqualified or forbidden from driving at the time;

f)        Whether or not the offender has pleaded guilty and, if so, at what stage of the proceedings;

g)        The sentences imposed for previous like offending and the response

(or lack of it) to those sentences;

h)The  offender’s  record  (if  any)  of  convictions  for  other  types  of offending;

i)Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems; and

j)Any mitigating or personal family circumstances contributing to the offending.

[10]     In contending both that Judge Burnett should have imposed a non-custodial sentence and that the starting point of 15 months and end point of 10 months were manifestly excessive, Mr Walsh for Mr Marshall relied in particular on factors (i) and (j).  Factor (f) was of course reflected in the 33% discount.  Mr Walsh pointed to the “relatively” positive pre-sentence and appendix reports, which supported a monitored sentence of home or community detention and Mr Marshall’s support network at home, together with his future employment prospects (which were good).

[11]     Mr Walsh also referred to the table appearing at [17] of the decision in Clotworthy which indicated that other sentences for those who are convicted of three drink driving offences were in the vicinity of three to five months which in itself (he submitted) pointed to a conclusion that the sentence here was manifestly excessive.

[12]     By contrast Mr Cornegé stressed factors (a)–(d) and (g).  He emphasised that Mr Marshall’s behaviour had, if anything, got worse (evidenced by the very high breath alcohol reading) notwithstanding:

a)        the previous sentences imposed upon him for similar offending;

b)the fact that he has previously injured others while driving under the influence;

c)        his  participation  in  a  drug  and  alcohol  course  and  the  positive prognosis given to him at that time.

[13]     While Mr Cornegé accepted that the sentence imposed by Judge Burnett was at the high end of the scale, he said it could not be said to be excessive or manifestly wrong in all the circumstances of Mr Marshall’s case.

[14]     I do not consider, in the circumstances of this case, that the starting point adopted by Judge Burnett can be seen as excessive.   In particular, I consider the starting point of 15 months imprisonment took appropriate account of:

a)        Mr Marshall’s high breath alcohol level;

b)        Mr Marshall’s two previous convictions, only three years before;

c)        the manner of his driving (which was erratic);

d)       the previous sentences imposed; and

e)        the fact that Mr Marshall had previously completed an alcohol and drug course, with no apparent long-term effect.

[15]     In  so  concluding  I do  not  disregard  the positive reports  nor  the support Mr Marshall has from his family, nor his employment position.   I do not consider that Judge Burnett ignored these matters either.  As the passage I have quoted above indicates, she was plainly attracted by the possibility of a non-custodial sentence but ultimately did not consider it would be consistent with her obligations under the Sentencing  Act  and  in  particular  the  need  for  deterrence  and  to  protect  the community.  I can discern no error of principle in her approach.

[16]     While in general terms it is not always helpful to examine the circumstances of other authorities involving like offending, it is nonetheless notable that a brief survey of similar cases of a more recent vintage than those reviewed in Clotworthy suggests that Judge Burnett’s starting and end points are far from being out of sync with current case-law.  In particular I note that:

a)       In Cane v Police[2]C was observed speeding and refused to stop and was eventually apprehended after a police chase during which C reached speeds of 120 km/h.  C’s breath alcohol reading was 595 and although he was charged with various offences, the lead charge was excess breath alcohol.   The District Court Judge adopted a starting point close to the maximum (22 months).  On appeal Lang J said that this was not excessive.   Lang J  noted the Clotworthy factors and identified  C’s  numerous  driving  convictions,  including  four  for driving with excess blood alcohol (the most recent being in 2007) as being particularly relevant.  He upheld the District Court Judge’s final sentence of one year three months imprisonment and 18 months disqualification.

[2] Cane (aka Webster) v Police HC Auckland CRI 2008-404-329, 16 February 2009.

b)In Wallace v Police[3]W pleaded guilty to one charge of driving with excess breath alcohol and one charge of driving while disqualified. He had been stopped at a police check point.  His reading was 695. He had two excess breath/blood alcohol convictions in 2004 and six more in 1994 or before.   The District Court Judge adopted the maximum starting point of two years imprisonment with an effective sentence of 18 months imprisonment on the breath alcohol charge and

12 months imprisonment for driving while disqualified (to be served concurrently).  On appeal, Mackenzie J noted the Clotworthy factors and  held  that  the  starting  point  of  two  years  was  excessive  and reduced it to 18 months, with a final effective sentence of 12 months

adopted.  Disqualification was also ordered but the judgment does not make it clear for how long.

[3] Wallace v Police HC Palmerston North CRI 2006-454-55, 19 February 2007.

[17]     In conclusion there is simply no basis upon which I could properly conclude that, in reaching this conclusion, Judge Burnett has erred in principle, taken into account irrelevant matters, failed  to take account of relevant ones or  reached  a conclusion that was plainly wrong.  Accordingly in my view this aspect of the appeal must fail.

Disqualification

[18]     In  terms  of  the  three  year  disqualification  period,  Mr  Walsh  relied  in particular on Panckhurst J’s decision in Dixon v NZ Police[4]where at [42] –[45] he said:

[4] Dixon v NZ Police HC Christchurch, CRI-2006-409-000244, 14 March 2007.

[42]   With reference to the six year period of disqualification I am likewise satisfied that this term is clearly excessive. It has long been recognised that lengthy  periods   of   disqualification   frequently  prove   so   daunting  for offenders that further offending results. A six year period of disqualification does not recognise this reality.

[43]  But   there   is   a   further   consideration   which   needs   recognition. According to the summary of facts the appellant incurred an indefinite disqualification in January 2003 (although I am in some doubt as to this because Mr Dixon’s traffic history does not record an indefinite disqualification). If not previously, the appellant’s drink driving conviction referable to 1 October 2003 satisfies the requirements of s65 of the Land Transport Act 1998, so that he became indefinitely disqualified on that conviction. For the avoidance of doubt I make an order disqualifying the appellant  from  holding  a  licence  until  the  Director  of  Land  Transport removes the disqualification under s100 of the Act.

[44]     It follows that in terms of s100 the appellant will only be eligible to obtain a licence when it is shown on the basis of an assessment report that he is fit to do so.  Indefinite disqualification provides for the protection of the driving public. Hence, the imposition of a six year disqualification serves most to delay the time during which the appellant may even apply for an order of removal.

[45]   In these circumstances I am satisfied that disqualification for two and a half years is a sufficient penalty.

[19]     Another case that was not referred to me (or to Judge Burnett) but appears to be helpful to Mr Marshall’s position is the Court of Appeal’s recent decision in R v Stone[5].  In that case, Mr Stone had pleaded guilty to driving with excess breath alcohol.   He was sentenced to eight months home detention and three years disqualification.  Mr Stone had been stopped by the Police when they noticed that his car was overloaded with passengers.  His breath alcohol reading was 723.  Mr Stone had seven previous excess breath alcohol convictions, with the most recent being three years prior to the conviction that was the subject of the appeal.   The appeal

related only to the three year disqualification period.

[5] R v Stone [2009] NZCA 539.

[20]     Although in Mr Stone’s case the Court of Appeal found that the three year disqualification period was not manifestly excessive given the comparatively short term of home detention a graph included at [15] of the judgment shows that (as at November 2009) the only offenders who have received three years disqualification are those having seven or more previous convictions.  The graph shows that the 12–

18 month range is the average for those with three previous convictions.  This in fact coincides with what both Mr Walsh and Mr Cornegé submitted to me would be reasonable in the present instance.

[21]     In the present case, and in light of:

a)        Mr Marshall’s sentence of imprisonment (which I have upheld);

b)        His mandatory indefinite disqualification from driving under s 65;

c)        The survey of similar cases in Stone –

I am of the view that the three years minimum disqualification period is excessive and allow Mr Marshall’s appeal in that respect.

[22]     I reduce the disqualification period to 18 months accordingly.

Rebecca Ellis J