Martin v Police

[2019] NZHC 353

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-76

[2019] NZHC 353

BETWEEN

DAVID KEITH MARTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

26 February 2019

Counsel:

P H Surridge for Appellant

E M Light and F A M Manning for Respondent

Judgment:

6 March 2019

JUDGMENT OF THOMAS J

[1]    At 68 years old, and with five prior convictions for driving with excess breath/blood alcohol incurred between 1981 and 1996, in October 2018 David Martin appeared for sentence on charges of driving with excess breath alcohol (third or subsequent)1 (the EBA charge) and careless driving.2 He was sentenced in the Wellington District Court to four months’ community detention, six months’ supervision and an alcohol interlock sentence on the EBA charge, and convicted and discharged on the careless driving charge.3 Mr Martin appeals the sentence on the EBA charge on the ground it was manifestly excessive in the circumstances.

1      Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty of two years’ imprisonment, a fine of $6000 and a mandatory disqualification from holding a driver licence for more than one year.

2      Section 37(1); maximum penalty of a $3000 fine and a period of disqualification from holding a driver licence.

3      Police v Martin [2018] NZDC 23771.

MARTIN v NEW ZEALAND POLICE [2019] NZHC 353 [6 March 2019]

Factual background

Summary of facts

[2]    On 16 May 2018, Mr Martin had been drinking at a bar in Brooklyn, Wellington.

[3]    At about 10.41 pm, Mr Martin drove his car along Mills Road where roadworks were being undertaken. One lane only was operating on a section of the road and the flow of traffic was being controlled by stop/go traffic staff. The road was wet from earlier rain but well lit.

[4]    The summary of facts, to which Mr Martin pleaded guilty but now disputes, says he was “travelling at speed and swerving all over the road”. Mr Martin neared the stop/go operator, who was holding a sign signalling that Mr Martin was required to stop. Mr Martin failed to stop, forcing the stop/go operator to “[jump] out of the way to avoid being struck by [Mr Martin’s] vehicle”. Mr Martin then ran over some road cones, drove into the road works site, clipped one vehicle and crashed into the side of another. The stop/go operator called police.

[5]    The two cars were “moderately” damaged but no-one was injured. Mr Martin’s evidential breath test gave a result of 846 micrograms of alcohol per litre of breath.

[6]    Mr Martin told the police that a car coming towards him on the opposite side of the road meant he was forced to move over to the left, where he hit the parked car.

Mr Martin’s contention

[7]    In his submissions, Mr Martin characterised the events differently. He said it was “a wet raining night”. He did not consider he was unfit to drive and, had he done so, he would have taken a less obvious route than the main street back through Brooklyn.

[8]    Mr Martin said that, because of the weather, the lack of signs and “occulting lights”, it was hard to see any workers or their signs. When he did see the stop/go operator, it was with little warning and he “effectively ran out of road room”. He hit

a parked car at low speed and damaged the wheel assembly of his own car. He said, after getting out to inspect the damage, a “road worker acted aggressively” to him and he was “detained against his will”. Mr Martin maintained he weaved over the road only when he saw the roadworkers in the rain and gloom and he was surprised they were working. He did not “flip” his car, as the Judge maintained. It was not a serious event but a combination of matters, not completely his fault.

District Court decision

[9]    In sentencing Mr Martin, the Judge traversed the facts as outlined in the summary of facts, describing them as “pretty shocking”. The Judge’s signed sentencing notes say Mr Martin “flipped the vehicle”.4 This was not so. The summary of facts says he “clipped a vehicle”.

[10]   The Judge noted Mr Martin’s high breath alcohol level, 846 micrograms per litre of breath. He characterised Mr Martin as being drunk. He referred to Mr Martin’s five prior EBA convictions, noting they were from a long time ago, between 1980 and 1995. Were it not for that fact, the Judge said, Mr Martin would be facing a prison sentence.

[11]   The pre-sentence report recommended community detention and supervision. The Judge agreed. He rejected Mr Martin’s submission that community work should be imposed instead, saying the seriousness of the offending required a greater punishment and community detention would keep Mr Martin away from the pub or other drinking environment at night. Supervision was imposed as a rehabilitative sentence to support Mr Martin in ensuring the offending did not happen again.

[12]   As Mr Martin was over twice the alcohol level for a criminal offence (as opposed to the infringement level), the Judge was required to impose an alcohol interlock sentence. Mr Martin does not appeal this aspect of his sentence.

4      Police v Martin, above n 3, at [2].

[13]   Mr Martin was convicted and discharged on the careless driving charge, the Judge noting he had taken the driving into account in sentencing Mr Martin on the EBA charge.

Standard of appeal

[14]   Mr Martin has appealed under s 250 of the Criminal Procedure Act 2011. An appeal must be allowed only if the Court is satisfied there has been an intrinsic error in the sentence and a different sentence should be imposed.5 The focus is on the final sentence and whether it is within the available range, rather than the exact process by which it was reached.6

Grounds of appeal

[15]   Mr Martin appeals his sentence on the ground it was manifestly excessive, as the Judge erred by failing to:

(a)appreciate the facts of the offending; and

(b)appropriately recognise the age of Mr Martin’s prior EBA convictions.

[16]   Mr Martin’s position altered somewhat at the appeal hearing, for reasons which are explained below. The focus of his appeal then shifted to a complaint that the term of community detention was manifestly excessive, it should have been shorter, with a longer supervision sentence.

Factual discrepancies

[17]   Section 24 of the Sentencing Act 2002 provides for a procedure before sentencing when there is a dispute about the alleged facts of offending. Where there is a guilty plea, the judge must accept as proved facts which are essential to the guilty plea.7 Any disputed fact should be raised at or before the time a defendant enters a guilty plea. If a fact is disputed, the court must indicate the weight it would likely

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

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

7      Sentencing Act 2002, s 24(1)(b).

attach to the disputed fact if it were found to exist, and its significance to the sentence.8 Facts which are irrelevant to the sentence will not require a disputed fact hearing.

[18]   No disputed facts hearing was requested in this case. Mr Martin pleaded guilty to both charges and was represented by counsel when he did so. On this basis, the Judge was entitled to proceed on the summary of facts before him.

[19]   At first blush it might appear that Mr Martin has a valid complaint, given the Judge’s sentencing notes record the Judge as saying that Mr Martin’s vehicle “flipped”. This Court, having obtained access to the audio recording of the sentencing hearing, played it at the start of the appeal hearing. It is plain, as counsel agreed, that the Judge said Mr Martin “clipped a vehicle”. It is unfortunate that the formal sentencing notes contain an error. In the District Court, sentencing notes are generally not transcribed until some time after sentencing has taken place. Given the heavy workload of a District Court Judge, it would hardly be a surprise if the Judge did not remember the exact details of this particular case and therefore identify the transcription error.

[20]   The Judge viewed the summary of facts as “pretty shocking”, no doubt because of the danger in which Mr Martin placed a road worker, causing the worker to jump out of the way to avoid being struck by his car. Notably, Mr Martin does not dispute this allegation. Even with Mr Martin’s gloss on the facts, the Judge’s conclusion that this was a serious event of drink driving was warranted.

[21]   Mr Martin also pleaded guilty to careless driving. He cannot now dispute the facts which form the foundation of that charge.

Age of Mr Martin’s prior convictions

[22]   The sentencing framework for EBA charges is flexible. There is no tariff case.9 Case law has established a non-exhaustive list of aggravating and mitigating factors which can assist in determining an appropriate starting point.10 These factors include

8      Section 24(2)(a).

9      Samson v Police [2015] NZHC 748 at [15].

10     Clotworthy v Police (2003) 29 CRBZ 439 (HC) at [20] and Samson v Police, above n 9, at [16].

breath alcohol level, the length of time since the defendant was last convicted of an EBA offence, the manner of driving (including charges resulting from such behaviour), guilty pleas, the defendants’ record, remorse and personal circumstances.11 In cases involving one or more seriously aggravating factors a sentence of 12 to 18 months’ imprisonment is appropriate.12 Mitigating factors which may suggest a lesser sentence, such as home detention, include where there has been a lengthy gap between the current and prior offending.13

[23]   Here, Mr Martin was twice the legal limit at 845 micrograms per litre of breath, drove carelessly and has five prior EBA convictions. The only mitigating factor, apart from the guilty plea, was the age of his prior convictions. This was expressly recognised by the Judge. On the basis of the guidance in Samson v Police, the final sentence of four months’ community detention, six months supervision and an alcohol interlock licence is within range.14

Terms of community detention and supervision

[24]   Mr Surridge appeared for Mr Martin. In his submission, the Judge erred in the way he assessed the final sentence by failing to focus sufficiently on rehabilitation. Essentially, Mr Surridge submitted that the term of the community detention should have been a maximum of two months and the term of the supervision should have been somewhere between nine and twelve months.

[25]   Mr Surridge observed that there is a wider range of sentencing for EBA convictions in the District Court than those which this Court sees on appeal. He referred to a recent decision in the Porirua  District  Court,  Police  v Patel,  where Mr Patel, at 56 years old, was sentenced on his seventh EBA conviction to four months’ home detention, with standard and special conditions to expire six months after detention end date.15 The point made by Mr Surridge was that Mr Patel would be subject to ten months’ oversight by the Community Probation Service. In his submission, this approach was appropriate for repeat EBA offenders.

11 At [20].

12 At [15].

13 At [17].

14     Samson v Police, above n 9.

15     Police v Patel [2018] NZDC 17687.

[26]   That was particularly so in the case of Mr Martin, in Mr Surridge’s submission. Mr Martin referred himself for an alcohol and drug assessment in November 2018. He has been attending the Make a Plan programme for repeat drink-drivers with Roger Brooking’s Alcohol Drug Assessment and Counselling Service in Wellington. This is a 20-hour programme run over three Saturdays. Mr Martin has attended two of the three sessions and, according to  Mr  Surridge,  is  finding  them  very  beneficial.  Mr Surridge said, however, that six months’ supervision was inadequate and, if the focus is on rehabilitation, which in Mr Surridge’s submission it should be, then a nine months’ supervision sentence would be appropriate for Mr Martin. There should be a consequential reduction in the length of his community detention sentence to two months, he suggested.

[27]   Ms Light, appearing for the respondent, submitted there was no error in the Judge’s approach and the sentence was clearly not manifestly excessive. As Ms Light said, it is not a matter of what was most convenient to Mr Martin, noting his submission that community detention caused him problems as he had intended to carry out some building work during the longer daylight hours of the summer months.16 Nor is Mr Martin’s sentence a matter of negotiation.

[28]   I can see no fault with the way in which the Judge dealt with Mr Martin’s sentencing. The pre-sentence report described him as continually minimising his actions. It assessed his offending-related factors to be alcohol related issues and attitudes, his sense of entitlement, poor problem solving and minimisation of offending. The pre-sentence report recommended community detention, seven days a week from 7.00 pm to 6.00 am, together with supervision with a condition to attend an alcohol and drug assessment and thereafter any counselling or programme as recommended.

[29]   The Judge was required to give effect to the purposes and principles of sentencing.17 Sentencing for repeat drink drivers involves holding the offender accountable, promoting in him or her a sense of responsibility, denunciation and

16     Mr Martin served some four to five weeks of his community detention until, as a result of his appeal, the sentence was suspended.

17     Sentencing Act 2002, ss 7 and 8.

deterrence, as well as rehabilitation. The Judge, as he was required to, clearly took account of the gravity of the offending, and the need for consistency and to impose the least restrictive outcome.

[30]   The Judge’s sentencing notes make it clear that he was mindful of the relevant considerations and he came to a conclusion which appropriately balanced the principles and purposes of sentencing. A comparison with the Patel decision demonstrates that.18 Mr Patel had one more EBA conviction than Mr Martin and his past convictions were more recent. His breath alcohol reading was similar to that of Mr Martin but his manner of driving was of less concern. The Judge who sentenced Mr Patel made it clear that he had seriously considered a sentence of imprisonment but decided to give Mr Patel one last chance. He therefore sentenced him to home detention for four months, equivalent to an eight month sentence of imprisonment. That Mr Martin was sentenced to four months’ community detention, appropriately, and arguably generously, reflected the differences between the circumstances of    Mr Martin and Mr Patel.

[31]   Mr Martin continues to minimise his responsibility, saying in his submissions on appeal it was “not completely his fault”. Furthermore, he said he assumed he was “fit (and lawfully) able to drive”. At over twice the legal limit, that was clearly not the case. It was therefore appropriate for the Judge to impose a sentence which included rehabilitative needs. Mr Martin’s attitude also supports the community detention sentence, focused, as it was, on keeping Mr Martin in his home during periods of risk. In this way, the community detention is integral to the rehabilitative supervision sentence.

[32]   It is indeed commendable that Mr Martin referred himself for an alcohol and drug assessment and appears to be taking some benefit from the counselling. There is, of course, nothing to preclude him from continuing with counselling at his own behest.

18     Police v Patel, above n 15.

Result

[33]   For  the  reasons  given,  the  appeal   is  dismissed.    The sentence was not manifestly excessive.

Thomas J

Solicitors:

Crown Solicitor’s Office, Wellington