Matkovich v Police

[2013] NZHC 872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000103 [2013] NZHC 872

GLEN MATKOVICH

Appellant

v

NEW ZEALAND POLICE

Respondent

Appearances: S Tait for the Appellant

K C Francis for the Respondent

Judgment:      23 April 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 23 April 2013 a 4.45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

Solicitors: S Tait, Auckland:  [email protected]

K C Francis, Auckland:  [email protected]

MATKOVICH V POLICE HC AK CRI 2013-404-000103 [23 April 2013]

[1]      On 27 March 2013, Judge R G Marshall sentenced Mr Matkovich to a term of six months’ imprisonment for driving with excess breath alcohol and disqualified him from driving for a period of two years.   Mr Matkovich was sentenced at the same time on a charge of careless use of a motor vehicle.  This charge arose out of the same incident.  The Judge imposed a concurrent period of disqualification of six months  for  this.    The  Judge  also  ordered  Mr  Matkovich  to  pay  reparation  of

$7,764.11.

[2]      This was Mr Matkovich’s sixth conviction for driving with excess breath or blood alcohol.  His five previous convictions for this type of offending were for offences committed in 1991, 1992, May 1998, September 1998 and November 2010. He has previously been sentenced to two terms of non-residential periodic detention and one term of community work for such offending.

[3]      The maximum penalty for a third or subsequent offence of driving with excess breath alcohol is two years’ imprisonment or a fine not exceeding $6,000. The  minimum  period  of  disqualification  for  such  an  offence  is  12  months. Mr Matkovich appeals against the sentence imposed on the excess breath alcohol charge.  He argues that the Judge ought to have sentenced him to periodic detention rather than imprisonment.

[4]      On 6 November 2012, after drinking for some seven hours, Mr Matkovich elected to drive.  The weather was wet and the traffic was heavy as Mr Matkovich approached   a   controlled   intersection   on   a   busy   road   at   about   5.30   pm. Mr Matkovich  drove  over  a  roundabout,  which  was  a  raised  traffic  island,  and collided with the left-hand side of the victim’s car, causing damage to both vehicles. Mr   Matkovich   was   tested   and   found   to   have   a   breath   alcohol   level   of

901 micrograms of alcohol per litre of breath, more than twice the legal limit.

[5]      The Judge adopted a starting point of nine months’ imprisonment.  He gave a discount  of  two  months  for  the  guilty  plea  and  a  further  one  month  for Mr Matkovich’s efforts to pay reparation.  This gave an end sentence of six months’ imprisonment.

[6]      The grounds of appeal in the notice of appeal are that the sentence was manifestly excessive and wrong in law.  Mr Tait clarified that no issue is taken with the starting point adopted by the Judge or the discounts he allowed.  The sole issue on appeal is whether the indicated sentence of six months’ imprisonment should have been commuted to a sentence of home detention.

[7]      Mr  Tait  argues  that  the  Judge  erred  by  referring  only  to  the  need  for deterrence and ignoring the other principles and purposes of sentencing and the requirement in s 16 of the Act to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.  Mr Tait argues that the Judge erred in failing to give consideration to whether a community-based sentence was the appropriate sentence in all of the circumstances.

[8]      There is nothing in the Judge’s sentencing notes to indicate that he did give consideration  to  whether  a  sentence  of  home  detention  would  be  appropriate, although  it  is  likely  that  he  did  so,  particularly  given  that  a  community-based sentence was recommended by the Probation Service.   The Judge should have considered whether a community-based sentence was appropriate and explained why it was not, if that was his conclusion.

[9]      The Judge referred only to the need for deterrence in his sentencing notes. He did not refer to any other consideration.  The Court of Appeal recently confirmed that it is an error of law to focus solely on deterrence when considering whether to impose a sentence of home detention instead of imprisonment.1  I therefore accept Mr Tait’s submission that this was an error.  If the Judge did take other matters into account, he should have referred to these as part of his reasons before concluding

that a term of imprisonment was required.

[10]     I am therefore satisfied that the Judge made an error of principle and that it is appropriate for me to re-exercise the sentencing discretion.  Both counsel agreed that

this was the correct approach in this case.

1 Manikpersadh v R [2011] NZCA 452 at [8].

[11]     Mr Tait submits that the principles and purposes of sentencing detailed in the Act can be met by a sentence of home detention.   Mr Tait points out that four of Mr Matkovich’s prior convictions for driving with excess breath or blood alcohol are now  somewhat  historical.    Mr  Matkovich  has  only  two  convictions  for  such offending in the past 14 years, including the conviction giving rise to this appeal. Mr Tait submits that a sentence of home detention would be particularly appropriate in this case because a sentence of imprisonment will impose a significant burden on Mr Matkovich’s wife.  This is because her employment requires her to be on-call on a 24-hour basis and she has to travel overseas frequently.  With Mr Matkovich now in prison, she has been required to take over from him as the primary caregiver for their two children in addition to having to manage her work commitments.

[12]     In  relation  to  drink-driving  offences,  there  is  no  presumption  for  home detention or imprisonment.2   The Court of Appeal set out the approach to be taken in R v D:3

The sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.

[13]     In Clotworthy v Police4  Wild J reviewed sentences upheld or substituted by the High Court on appeals of this type.   This review showed that a sentence of six months’ imprisonment was considered appropriate for similar offending where there were three to five previous drink-driving convictions.

[14]    The need for penalties of imprisonment in cases of recidivist drink-driving offences was recognised by the Court of Appeal in R v McQuillan.5     McGrath J, giving the judgment of the Court, stated at [20]:

The survey by Wild J in Clotworthy demonstrates that such a pattern of repeat drink-driving offending is unfortunately not rare in New Zealand, and

2 R v Vhavha [2009] NZCA 588.

3 R v D [2008] NZCA 2544 at [66].
4 Clotworthy v Police (2003) 20 CRNZ 439 (HC).

5 R v McQuillan CA 129/4 12 August 2004.

that Judges of the High Court have consistently upheld sentences of imprisonment in the order of the twelve month terms which were imposed for the separate instances of offending in this case.  Imprisonment is clearly now  the  usual,  if  not  necessarily  the  inevitable,  consequence  of  such recidivist offending. This reflects the policy of the Land Transport Act 1998. Under s 58(3), if a person commits a third or subsequent driving offence involving drinking, the maximum term of imprisonment becomes one of two years rather than three months for the first or second offence (ss 56(1), 56(2),

58(2) and 60(1)).

[15]     I consider that a short term of imprisonment was the appropriate outcome in this case and that a sentence of home detention would not be an adequate response to the seriousness of Mr Matkovich’s offending.  In reaching this conclusion I have regard to the fact that this was Mr Matkovich’s sixth conviction for drink-driving; his breath alcohol level was more than double the legal limit; he was driving on a busy road in wet conditions, ran over a traffic island and smashed into another car; he clearly posed significant danger to other road users and it was fortunate that no one was injured or killed; community-based sentences imposed in the past have not deterred  Mr  Matkovich  from  further  offending  of  this  type;  and  the  Probation Service assesses him as having a high likelihood of re-offending.

[16]     I also do not consider that Mr Matkovich is a good candidate for a sentence of home detention because he has a history of non-compliance with Court orders. He has numerous convictions for contravening protection orders, failing to answer bail, breaching conditions of supervision and breaching periodic detention.

[17]     In my view, the principles and purposes of sentencing set out in ss 7 and 8 of the Act cannot be met by a sentence of home detention in Mr Matkovich’s case.  I consider that the sentence of six months’ imprisonment is the appropriate sentence in this case.

[18]     For the reasons I have given, the appeal must be dismissed.

Result

[19]     The appeal against sentence is dismissed.

M A Gilbert J