Matheson v Police HC Christchurch CRI 2007-409-32

[2007] NZHC 1778

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000032

PAUL LINDSAY MATHESON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 May 2007

Appearances: P H B Hall for Appellant

Z Johnston for Crown

Judgment:      1 June 2007 at 3.45 p.m.

JUDGMENT OF VENNING J

This judgment was delivered by me on 1 June 2007 at 3.45 p.m., pursuant to Rule 540(4) of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Christchurch

P H B Hall, Christchurch

MATHESON V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000032  1 June 2007

Introduction

[1]      On 19 January 2007 Mr Matheson was sentenced to imprisonment for two years nine months with a minimum term of one year 10 months.   He was also disqualified from holding or obtaining a driver’s licence for 10 years.  The sentence was imposed on a charge of causing bodily injury while the proportion of alcohol in his blood exceeded 80 milligrams per 100 millilitres of blood.   He appeals against the sentence on the ground it was manifestly excessive.

Background facts

[2]      Just before midnight on Friday 26 May 2006 the appellant was driving a Mitsubishi Lancer on Stourbridge Street, Christchurch.  His partner, Ms Campbell, was in the passenger’s seat.  The weather was very bad.  It was raining heavily.  The appellant drove his car into the right rear corner of the flat deck of a parked truck.  It was dark and the truck was unlit.  The impact was very severe.  The truck split the passenger’s side of the Lancer open.   As a result  of the accident  Ms Campbell sustained  very  serious  injuries.    There  were  major  brain  injuries.    She  was  in intensive care for five weeks.  She was then taken to Burwood Hospital to the brain injury unit there.  The injuries included a tremendous blow to the front of her head with multiple fractures of a facial type and damage to the optic nerves and other cranial injuries.   She is blind in her left eye and has little sight in the other eye. Since October 2006 she has been removed from Burwood Hospital to the St John of God Hospital where she is currently nursed.  It is not known when or if she will be discharged from that hospital.   She is unable to take significant amounts of food herself.  She cannot walk without assistance.  She has lost her sense of smell.  As the Judge noted there are a number of other injuries but these are the major ones.  The summary of injuries set out in the report of Doctors Parker and McLeod recorded that they are “a very severe traumatic brain injury”.   Ms Johnston confirmed with Ms Campbell’s family that since sentence was imposed, there has been some modest improvement in her condition through a form of music treatment.   But the doctors

are not sure if the improvement is permanent or merely transitory.   Ms Campbell remains severely disabled.

The Judge’s decision

[3]      In fixing the sentence of two years nine months the Judge indicated that were it not for the guilty plea a sentence following conviction at trial would have been three and a half years.  He then noted the guilty plea was not prompt.  It was entered immediately prior to fixture.   It can be inferred the Judge gave a discount of nine months for the guilty plea and the appellant’s expressed remorse which the Judge referred to by way of mitigation.

[4]      In  fixing  a  minimum  non  parole  period  of  two  thirds  the  Judge  rather succinctly said:

[21]      … If you were released at the earliest date, you  would serve 11 months  imprisonment  and  I  have  to  consider  whether  or  not  that  is insufficient for the purposes of holding you accountable, denouncing your behaviour, attempting to deter you and others, and for the purpose of protecting the public.

[22]      I also have regard to Mr  Hall’s  submission  that  you  and  others consider that  your  attentions  to Ms  Campbell  may be necessary for  her rehabilitation.  On the other hand, this sort of behaviour is not infrequent and a very stern response is required from the Courts.   I do not think that a release after 11 months would be appropriate for the purposes of the Sentencing Act and there will be a minimum imprisonment period of one year and ten months imposed.

Appellant’s submissions

Mr  Hall  submitted  the total sentence  was  manifestly  excessive  and  that  it  was significantly more severe than it ought to have been in the light of the seriousness of the offence and the culpability of the offender.  Mr Hall noted that in fixing the start point of three and a half years the Judge appears to have based the sentence upon a previous case of Cashman v Police (HC Christchurch, CRI 2006-409-000121, 15

September  2006)  which the  Judge  considered  had  a  number  of similarities.    In Cashman the sentence imposed in the District Court of three years’ imprisonment together with reparation of $47,845 and disqualification for 10 years was upheld on

appeal by the High Court.  Mr Hall said the Cashman case could be distinguished from the present.  He identified the following distinguishing factors:

•   Ms Campbell was a passenger in the appellant’s car whereas in Cashman the victim was in the car into which Mr Cashman drove.

•   In the present case the appellant’s driving was not aggravated by a prolonged period of bad driving prior to the incident.

•   In the present case the appellant did observe the truck and applied his brakes but too late to avoid the accident.  (Ms Johnston however submitted that the police inquiries were inconclusive on that point).

•   Unlike Cashman the appellant  has considerable empathy with the victim Ms Campbell and has sought to remain in contact with her, even after his imprisonment.

•   Unlike Mr Cashman the appellant now acknowledges he has an alcohol problem which must be addressed.

•   Significantly in Cashman the victim was killed.

[5]      In all the circumstances Mr Hall submitted that an appropriate end sentence would have been at the most two years six months and in fact should have been less than that.

[6]      In relation to the minimum non parole period he submitted that even in the Cashman case no minimum non parole period had been imposed and there was no need to impose one in this case, bearing in mind the purposes and principles of sentencing set out in ss 7 and 8 of the Act.   He submitted that the disqualification was very lengthy and probably unnecessary given the legislation requires the Secretary for Transport to approve any issue of a driver’s licence to the appellant in the future.

The Police case

[7]      For the Police Ms Johnston submitted that, although stern, the sentence was within a range that was open to the Judge to impose and that the Judge properly identified the matters he had to consider before imposing a minimum period of imprisonment.  She acknowledged that a disqualification period of 10 years had been referred to as too long in the Court of Appeal case of Hitchens v R (CA 380/03, 25

March 2004) but submitted that nevertheless it was not outside the Court’s discretion in this case.

Decision

[8]      While counsel’s attention has focused on the Cashman decision, as the Court has said on a number of occasions each case must be determined on its own facts and it is more helpful to have regard to the general principles referred to by the Court of Appeal on sentence appeals for similar offending rather than to focus too narrowly on individual differences between particular cases decided at first instance.

[9]      In R v Fallowfield [1996] 3 NZLR 657 the Court of Appeal had occasion to consider the appropriate level of sentencing for causing bodily injury while driving under the influence of alcohol. In that case the Court noted that the maximum sentence of five years’ imprisonment applies to cases of driving while under the influence of alcohol causing death and also to cases where bodily injury is caused, but that a practice had developed of charging manslaughter where death had resulted. The Court observed that that practice had two effects:

The first is  that there are few instances  where it  has  been  necessary to consider sentences at the upper end of the range for Transport Act offences. The second is that there has been a tendency to categorise separately cases where death  results  from  those  where  injury  results.  Such  a  distinction obviously is drawn where manslaughter is charged but, apart from that, it rests on a false assumption that culpability necessarily is greater where death results. Undoubtedly causing death will increase the seriousness of offending other factors being equal, but the consequences of offending are but one aspect to be taken into account in assessing culpability for sentencing purposes.

Whether death ensues might turn on the location of the accident and the availability of rescue and medical services. A course of the most outrageous conduct might result in serious injuries leaving a victim to a lifetime of suffering whereas a minor act  of carelessness  by a  person  just  over  the lawful alcohol limit might result in death.

The preferable approach to sentencing for cases of alcohol-affected driving causing injury or death is to seek to place the offending in its proper position in the scale of seriousness of offending, whatever the charge, and taking into account only as a factor the consequences for the victims. The maximum sentence for alcohol-impaired driving causing injury is not necessarily less than that provided in the Transport Act merely because the same offence encompasses also acts or omissions causing death.

(emphasis added)

[10]     In the present case the particularly relevant factors bearing on the start point for sentence are:

•    The very high level of alcohol in the appellant’s blood.  At 158 milligrams per

100 millilitres it was almost twice the legal limit.

•   The  appellant  knew  that  he  was  over  the  legal  alcohol  limit  and  had  no compelling reason to drive on the night yet chose to drive.  In the words of the Court of Appeal in Fallowfield that:

has the element of wilfulness that is repugnant and reflects disregard for the law and for the safety of others.

•   The  appellant  has  three  previous  convictions  for  driving  with  excess  breath alcohol in 1991, 1995 and 2003.   In 2003 he was ordered to  do  200  hours community work.  The previous offending shows a propensity to offend in this way and a willingness to take risk of danger to himself and others on the road. The appellant has not responded to or apparently learnt from his previous offending.

•   The grievous nature of the injury to Ms Campbell and the effect on her and her family.   While the Court of Appeal in Fallowfield recognised that other things being equal causing death will increase the seriousness of the offending, consequences for a victim who is injured, and in this case grievously injured as Ms Campbell is, could properly be said to be even more ongoing than if death

had been caused.   Certainly Ms Campbell and her family, her parents, sister, brother and children will have to live with her disability and the effect of the accident on her and them.

[11]     In those circumstances and bearing in mind a maximum sentence of five years’ imprisonment, the starting point notionally adopted by the Judge of three and a half years for the offending in this case was within the range available to the Judge.

[12]     In so  far  as  comparisons  are  relevant,  in  Fallowfield  itself  the  Court  of Appeal upheld an end sentence of three years’ imprisonment.  In Hitchens the Court of Appeal upheld an end sentence of three and a half years’ imprisonment.  The case of Hitchens and the earlier case of R v Pretty CA277/00, 26 October 2000) were more serious in that the driving in each case was itself more reckless than the driving of the appellant in the present case and in both cases the driving led to death.  But in Hitchens the Court accepted that an end sentence of three and a half years was well within the discretionary sentence available to the Judge and in Pretty a sentence of four years’ imprisonment on a conviction for manslaughter was upheld.  In Cashman itself, accepting the distinguishing features identified by Mr Hall, it must be borne in mind  that  the  start  point  taken  by  the  Judge  in  that  case  was  four  years’ imprisonment as opposed to the three and a half in the present case.

[13]     During the course of his submissions Mr Hall quite properly conceded that the discount of nine months for the mitigating factors in this case of the late guilty plea and remorse was “about right”.   The guilty plea was very late.   In the circumstances a discount for a very late guilty plea and remorse of just in excess of

20 percent or nine months in total was open to the Judge.  The end sentence of two years nine months was within range.

The minimum non parole period

[14]     As noted the Judge identified the factors he was required to have regard to when considering whether to impose a minimum non parole period.   Mr Hall submitted that those factors and the purposes and principles of the Act did not, in the present case, require imposition of a minimum non parole period.

[15]     As  the  Court  of  Appeal  observed  in  R  v  Taueki  [2005] 3 NZLR 372, following the amendment to the Sentencing Act to s 86(2) in 2004 the sentencing Judge must address two questions when considering the imposition of a minimum period of disqualification:

[54]      … The first is whether a minimum period of imprisonment should be imposed. If that question is answered affirmatively, it is then necessary to address the second question – how long should the minimum period be?

[55]      The primary focus of the first question is the statutory test in s 86(2), as set out at para [52] above. As this Court recently noted in R v Walsh (CA

281/04, 19 May 2005) at para [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s

7(1) (s 7(1)(a), (e), (f) and (g)). The question before the Court is whether serving one-third of the nominal sentence is insufficient for all or any of

those four purposes. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. The principles  in  s  8  and  the aggravating  and  mitigating  factors  in  s  9  are

applicable only to the extent that they are relevant to those four purposes. For example, as the Court noted in Walsh at paras [26] – [28], a guilty plea may be relevant to the deterrence purpose (if the plea demonstrates insight into the offending) but may have little relevance to the community protection purpose.

[56]      Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent  they  are  relevant  to  the  particular  case)  all  of  the  purposes  of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term: Brown at para [34]. The setting of the minimum period of imprisonment requires similar analysis to that required for setting the nominal sentence. The factors in ss 8 and 9 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake (Brown at para [36]).

[16]     In the present  case the first  question is whether serving one third of the nominal sentence would be insufficient for all or any of the purposes of:

•    holding the appellant accountable for the harm done to the victim and community by the offending;

•   denouncing the conduct in which the appellant was involved;

•   deterring the appellant or others from committing the same or similar offending;

•   to protect the community from the offender.

[17]     I accept Mr Hall’s submission that a period of disqualification from driving will provide protection for the community from the offender’s driving.  However, the other purposes of s 86(2) are particularly relevant.  The Judge could quite properly have taken the view that a minimum period longer than the minimum one third period was required to hold this particular appellant accountable for the harm done to the victim and the community by the offending.   Apart from the grievous injury caused to the victim Ms Campbell, the consequence of the appellant’s actions on the community have been severe.  Emergency services both at the scene of the accident and at the hospital, and the long-term hospital care and rehabilitation for the victim, are all tangible costs to the community of the appellant’s actions.  The fact that this is the appellant’s fourth driving offence weighs heavily with the requirement to ensure the sentence deters him and other recidivist drink drivers from further offending.    While the appellant’s remorse  is relevant  it  cannot  be said  to  be  a complete answer.   The Judge was justified  in the present  case  in finding that  a minimum period of imprisonment was required.

[18]     The second issue then becomes the length of the minimum period.  The Judge imposed the maximum two thirds.   As the Court of Appeal in Taueki noted, the second stage again requires consideration of the purposes of sentencing and the mandatory requirements of ss 8 and 9 to the extent that they are relevant.   In the present case the Judge did not articulate his reasons for imposing the  maximum minimum non parole period other than to say that a release after 11 months would not be appropriate for the purposes of the Act.   In the present case, an important feature of the offending which bears on the issue of the length of the non parole period is the lack of reckless driving by the appellant such as running red lights, or overtaking on the wrong side of the road.  It has to be said that the incident seems to have occurred through carelessness, no doubt influenced by the alcohol consumed rather than as a result of outrageously bad driving by the appellant.  That does impact on the gravity of the offending and the culpability of the appellant.   The District Court Judge has not referred to this factor in fixing the minimum non parole period at the maximum.   In the circumstances, in my judgment whilst a minimum non parole period is justified, the minimum non parole period should not be more than 50

percent as opposed to the two thirds fixed by the Judge.  In the absence of express reasons by the Judge for fixing the maximum period, I allow the appeal to that extent.

Disqualification

[19]     The  period  of  disqualification  of  10  years  seems  on  its  face  manifestly excessive.  As the Court of Appeal observed in Hitchens:

It has been said many times that long periods of disqualification typically leave little hope for offenders. On the other hand, it is incumbent on the Courts to keep dangerous drivers … off the road for as long as reasonably possible.

[20]     In Hitchens the Court quashed the disqualification of 10 years and substituted a sentence of seven years.  Ten years is excessive in this case as well.

Result

[21]     The appeal is allowed in part.  The appeal against the sentence of two years nine months’ imprisonment is dismissed but the appeal is allowed to the extent that the minimum non parole period of one year 10 months is quashed and replaced with a   minimum  non  parole  period  of  one   year   four  months.     The  period  of disqualification of 10 years is also quashed and substituted with a disqualification

period of seven years.

Venning J