Marx v Police

[2013] NZHC 2401

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0040 [2013] NZHC 2401

BETWEEN

TIMOTHY JOHN MARX

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 September 2013

Appearances:

C D Bean for Appellant

J M O'Sullivan for Respondent

Judgment:

18 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 September 2013 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:             Almao Douch, Crown Solicitor, Hamilton Counsel:       C D Bean, Hamilton

MARX v POLICE [2013] NZHC 2401 [18 September 2013]

[1] The Appellant appeals against sentence imposed on him on 4 June 2013 by Judge M L S F Burnett in the District Court in Hamilton.1

[2] The Appellant was for sentence on one charge of driving with excess blood alcohol (third or subsequent offence).2 The Judge sentenced the Appellant to a term of imprisonment of 13 and a ½ months. The Judge refused to order a sentence of home detention, alternatively to allow the Appellant leave to apply for home detention.   The Judge also imposed standard and special release  conditions for 6 months following release, disqualified the Appellant from driving for 3 and a ½

years from the date of sentence and made an order for confiscation of the Appellant’s motor vehicle.3

[3] The maximum term of imprisonment for an offence pursuant to s 56(2) Land Transport Act 1998 (“Act”) is 2 years. The Court is also required to order that the offender be disqualified from holding or obtaining a driver licence for more than 1 year.4 Other provisions of the Act may also be relevant depending on the circumstances in which the offence was committed, including in this case I believe s 65B of the Act.

[4] The appeal is brought on the ground that the sentence  was  manifestly excessive. In particular, the Appellant submits that the Judge took too high a starting point and that the term of disqualification was excessive. The Appellant also submits that the Judge erred in refusing to impose a sentence of home detention in lieu of imprisonment. The Crown opposes the appeal.

Background

[5] The offending occurred on Sunday, 20 January 2013 at about 1 pm. The Appellant was stopped at a checkpoint on State Highway 2. He recorded a reading of 155 milligrams of alcohol per 100 millilitres of blood. The maximum permissible

1 Police v Marx DC Hamilton CRI-2013-075-149, 4 June 2013.

2 Land Transport Act 1998, s 56(2).
3 In error, the Appellant’s criminal and traffic history records the period of disqualification as 3 years.

4 Ibid, s 56(4).

is 80 milligrams. Accordingly, the Appellant’s reading was almost twice the permitted maximum. The Appellant pleaded guilty at the first opportunity.

[6] At the time of the offending the Appellant was 46 years old. His criminal and traffic history runs to seven pages, beginning in 1985. The list of convictions includes another four for driving with excess blood or breath alcohol (“EBA”), committed in 1986, 1989, 2002 and 2011, and one for refusing a request for a blood specimen committed in 2005. The history records that the Appellant’s breath alcohol level in respect of the conviction in 2011was 981 micrograms of alcohol per litre of breath, so more than twice the maximum allowed of 400. On conviction for that offending the Appellant was sentenced to 4 months’ home detention and disqualified from driving for 1 year and 1 month. Having regard to the authorities to which I refer below, the Appellant was treated leniently on that occasion.

[7] On my view of his history, the Appellant has 34 other driving related convictions, including driving whilst disqualified (x 14); careless or inconsiderate driving causing death or injury (x 1); failing to stop or ascertain injury (x 1); driving a vehicle in a dangerous manner (x 4); failing to stop when followed by red/blue flashing lights (x 6); operating a vehicle recklessly (x 2); operating a vehicle carelessly (x 2); failing to give information (x 2); and failing to comply with a prohibition as an unlicensed driver (x 2). The Appellant also has several convictions for other offending which are irrelevant for present purposes.

[8] The Judge adopted a starting point of 12 months’ imprisonment, uplifted the starting point by 6 months for the Appellant’s previous convictions for driving offences, including his EBA offending, allowed a 25 per cent discount for his prompt guilty plea and arrived at the term of imprisonment to which I have referred.

[9] For reasons set out below, I have concluded that the Judge did not err in declining to impose a term of home detention. I consider that the end sentence was manifestly excessive because there is an element of double counting in the uplift. I also consider that the term of disqualification must go back to the Judge so that s 65B of the Act may be considered with the benefit of submissions of counsel.

Home detention

[10] The pre-sentence report recommended a period of home detention. The Judge declined home detention on the basis that previous sentences of home detention had not deterred the Appellant from offending and the critical issue had become one of public safety.

[11] I do not consider the Judge erred in refusing home detention.  As I have said, the Appellant was sentenced to home detention on his 2011 EBA conviction. In 2007, he sentenced to a term of imprisonment, but given leave to apply for home detention, in respect of a raft of charges committed between 2003 and 2006. These charges included dangerous driving, operating a motor vehicle recklessly, refusing a blood specimen, operating a vehicle carelessly and driving whilst disqualified.

[12] On the matter of public safety, I take counsel’s point that the Appellant was stopped at a checkpoint on 20 January 2013, and so it was not driver error that brought the Appellant to the attention of the Police. That said, the  offending occurred in the holiday period, in the early afternoon, and the Appellant was driving on a public highway.

Sentence

[13] Counsel for the Appellant submitted that the manifestly excessive nature of the sentence is apparent when one compares it to the sentences imposed in two similar cases.5

[14] The two cases to which counsel referred me are both called Noble v Police, one decided by Brewer J and one by Dobson J. I consider these below. There are, however, many authorities that address sentencing for repeat EBA offending and I do not consider that any conclusions can be drawn from considering two authorities only.

[15] In Noble v Police,6 the offender appealed against sentence on his fifth EBA conviction.  His previous offences were committed between 1998 and 2001, so his

5 Sentencing Act 2002, s 8(e).

most recent EBA conviction was more than a decade earlier, whereas the Appellant in the present case offended as recently as 2011. Stopped at a checkpoint, the offender recorded a breath alcohol reading of 851 micrograms of alcohol per litre of breath, so more than twice the maximum allowed of 400. Brewer J confirmed the District Court Judge’s starting point of 8 months’ imprisonment, this reflecting the offender’s previous EBA offending. Brewer J then set aside an uplift of 2 months for the offender’s unrelated prior convictions.

[16] In the case before Dobson J,7 the offender had 12 previous EBA convictions, the most recent of which had been committed 5 years earlier. The offender was stopped at a checkpoint and recorded a breath alcohol level of 481 micrograms of alcohol per litre of breath. Dobson J adopted a starting point of 12 months.

[17] I have also considered authorities such as Clotworthy v Police, Tinei v Police, Edmonds v Police, Eraio v Police, Spooner v Police, Matkovich v Police, Kata v Police and Vitali v R.8 The latter has been particularly useful as it was decided very recently and includes Katz J’s summary of many authorities, including the number of prior EBA convictions, breath or blood alcohol level and the like in each case.  The

starting points in the above mentioned cases, where given, range from 9 to 20 months’ imprisonment, with most being upwards of 15 months.

[18] In the present case, the Appellant’s blood alcohol level was almost twice the permitted limit and he had offended as recently as 2011. Previous sentences have not deterred the Appellant. An issue did arise as to public safety, regardless of how he came to the attention of the Police. In those circumstances, and having regard to the authorities listed above, I consider the starting point the Judge selected to be within the available range.

[19] A concern arises, however, with the uplift of 6 months’ imprisonment. The Judge expressed this uplift to be for both the prior EBA offending and the other

6 Noble v Police [2012] NZHC 800.

7 Noble v Police [2012] NZHC 1984.

8 Clotworthy v Police (2003) 20 CRNZ 439; Tinei v Police [2012] NZHC 2003; Edmonds v Police HC Whangarei CRI-2011-488-20, 24 March 2011; Eraio v Police HC Auckland CRI-2007-404-52, 5 June 2007; Spooner v Police HC Rotorua CRI-2010-463-55, 31 August 2010; Matkovich v Police [2013] NZHC 872; Kata v Police HC Wanganui CRI-2010-483-63, 26 January 2011; and Vitali v R [2013] NZHC 1994.

driving offences to which I have referred. I consider the starting point of 12 months’ imprisonment to be within available range only on the basis that it reflects the Appellant’s earlier EBA offending. To uplift again for that offending would be to “double count”.

[20] Accordingly, I have concluded that only a 3 month or 25 per cent uplift could properly be imposed. That would reduce the sentence to 15 months’ imprisonment prior to the deduction that the Judge allowed for the Appellant’s early guilty plea, being 25 per cent. The effect of that discount is to reduce the final sentence to 11 months’ imprisonment. That is the term of imprisonment I propose to impose.

Disqualification

[21]    As noted above, there is a mandatory minimum disqualification period of 1 year and 1 day for a third or subsequent EBA offence.9

[22] The Appellant has avoided indefinite disqualification by a narrow margin, falling just short of the threshold set in s 65 of the Act.

[23] The reasons why the Judge settled on the period of disqualification that she imposed are no doubt those that she took into account on sentencing. Counsel for the Appellant, who did not appear at first instance, submitted that a period of disqualification must not be so long that the person concerned is “set up to fail” and that the period imposed by the Judge was simply too long.

[24] Whatever the position may be, it appears to me that the Appellant may have been subject to s 65B of the Act. Section 65B provides as follows:

65BMandatory   zero   alcohol   requirements   for   repeat   offences involving use of alcohol

(1)This section applies if—

(a)a court convicts a person of an offence against any of sections  56(1),  56(2),  57(1),  57(2),   57AA,   58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and

9 Land Transport Act 1998, s 56(4).

(b)the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court.

(2)If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.

(3)A person authorised under subsection (2) may apply for a zero alcohol licence,—

(a)in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after the end of the last period of disqualification to which the person is subject; or

(b)in the case of a person who is subject to an order made under section 65A(2)(b), when the Agency makes an order under section 100A(1).

(4)A person who is subject to an order under subsection (2) and does not apply for a zero alcohol licence is to be treated as a person with a licence of no effect under section 29(1).

[25] I realised that s 65B might apply in this case only after the appeal was heard and so did not discuss the matter with counsel. Given that, I propose to set aside the period of disqualification imposed by the Judge and remit the matter back to her for reconsideration. Hopefully when the Judge does so, she will have the benefit of considered submissions from counsel on what they contend the period should be and why. The authorities to which I have referred might provide a useful starting point and, if s 65B does apply, the Judge will require submissions on how an order under that provision might affect the period of disqualification, if at all.

Result

[26] I reduce the term of imprisonment to 11 months.  I set aside the period of disqualification imposed by the Judge and remit that matter back to her. All other orders that the Judge made continue.

..................................................................

M Peters J