Matthias v Police
[2012] NZHC 2854
•30 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000284 [2012] NZHC 2854
BETWEEN PAUL ALEXANDER MATTHIAS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 29 October 2012
Appearances: A J Beach for Appellant
S McMullan for Respondent
Judgment: 30 October 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 30 October 2012 at 4:40 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………
Solicitors: Meredith Connell, P O Box 2213, Auckland 1143
Fax: (09) 336-7629 – S McMullan
Counsel: A J Beach, P O Box 121161, Henderson, Auckland 0650
Fax: (09) 368-5512 – Email: [email protected]
MATTHIAS V NZ POLICE HC AK CRI-2012-404-000284 [30 October 2012]
Introduction
[1] On 29 January 2011 Police observed the appellant, Paul Alexander Matthias, swerving from side to side on Moire Road, West Harbour. His blood alcohol level was 225 milligrams per 100 millilitres of blood (the legal limit being 80). Mr Matthias entered a not guilty plea and was bailed on conditions that included not consuming alcohol. On 15 September 2011 a member of the public observed Mr Matthias driving and was concerned enough to call the Police. On that occasion Mr Matthias had a breath alcohol reading of 524 (the legal limit being 400).
[2] On 10 August 2012 Judge G A Fraser sentenced Mr Matthias to a total of 12- and-a-half months’ imprisonment on the excess blood alcohol (third and subsequent) and excess breath alcohol (third and subsequent) charges, as well as on charges of failing to answer District Court bail, possession of cannabis and possession of a pipe for smoking cannabis dating back to November 2010. The sentence was made up as follows:
(a) Driving with excess blood alcohol (third or subsequent) on 29 January
2011 – nine months;
(b) Driving with excess breath alcohol (third or subsequent) on 15
September 2011 – three-and-a-half months cumulative with the excess blood alcohol sentence;
(c) Failing to answer District Court bail – one month concurrent with the excess blood alcohol sentence;
(d)Possession of cannabis – one month concurrent with the excess blood alcohol sentence;
(e) Possession of a pipe for the purpose of consuming cannabis – one month concurrent with the excess blood alcohol sentence.
[3] Mr Beach, for Mr Matthias, submitted that the sentence was manifestly excessive as a result of too high a starting point being taken on the excess blood alcohol charge, inadequate credit given for efforts at rehabilitation and too low a discount for the guilty pleas (which were entered at the status hearing for the excess blood alcohol offence and at an appearance for breach of bail for the excess breath alcohol offence).
[4] Mr Beach also submitted that the sentences of one month were manifestly excessive but since they could make no difference to the end result I do not consider them further.
[5] Mr Beach submitted, further, that the Judge erred in not considering home detention. However, the most recent pre-sentence report before the Judge at sentencing recommended imprisonment, the possibility of home detention was not raised with the Judge (mainly it seems because Mr Matthias had no suitable address) and even before me Mr Beach acknowledged that Mr Matthias still had no suitable address. In these circumstances the Judge made no error in not considering home detention and I do not consider this point further.
Was the sentence manifestly excessive?
[6] The Judge took the excess blood alcohol charge as the lead offence with an indicative starting point of 14 months and an indicative starting point of six months for the excess breath alcohol charge, to be served cumulatively, and a month’s imprisonment for the remaining charges. The Judge then considered the totality issue and concluded that the appropriate starting point overall was 15 months. The Judge gave a discount of 15 per cent for the guilty pleas to reach an end sentence of
12-and-a-half months. The final sentence was constructed by imposing nine months on the excess blood alcohol charge, three-and-a-half months on the excess breath alcohol charge, to be served cumulatively, and one month on each of the other
charges, to be served concurrently:[1]
[1] Police v Matthias DC Waitakere CRII-2010-090-009435, 10 August 2012 at [15] – [18] and [20] –
[21].
[15] Accordingly, on the first excess breath alcohol charge I would have adopted a starting point of 14 months, which reflects the high level of your alcohol concentration. On the second EBA I would have imposed a cumulative sentence of six months.
[16] For the breach of bail, cannabis and possession of pipe I would have imposed a one month concurrent sentence.
[17] Whilst an uplift is clearly available, I recognise in the starting points for the alcohol offending that that is not appropriate, particularly in regard to totality. Recognising issues of totality, I have adopted a starting point of 15 months’ imprisonment. That is discounted by a 15 per cent recognition for your guilty pleas. That results in an end point sentence of 12-and-a-half months. That will be made up as follows.
[18] On the first excess blood alcohol you are convicted and sentenced to imprisonment for nine month.
…
[20] On the second excess breath alcohol charge you are convicted and sentenced to three-and-a-half months’ imprisonment. That is cumulative. …
[21] On the other three matters you are convicted and sentenced to imprisonment for one month. That is concurrent.
[7] Mr Beach submitted that the starting point of 14 months taken for the excess blood alcohol charge was too high having regard to similar cases determined in this Court. Mr McMullan, for the Crown, agreed with this submission. Both counsel noted the relevance of Wild J’s decision in Clotworthy v Police.[2] In that case Wild J upheld a sentence of 12 months’ imprisonment in respect of a charge of excess breath alcohol with a level of 764 micrograms per litre of breath, being the eighth
conviction. The Judge also identified a number of factors that might be regarded as relevant in sentencing for multiple excess breath alcohol offending. These include the breath alcohol level, proximity of prior convictions, time elapsed since last conviction and manner of driving.[3]
[2] Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[3] At [20].
[8] Both counsel referred me to a number of decisions of this Court involving third or subsequent breath alcohol convictions.[4] These cases involved a wide range
of breath alcohol levels (196-1350) and variation in the number of prior convictions. However, with one exception, the general range of sentences imposed was between 3 and 6 months. Of course, these end sentences reflect the particular circumstances of the offenders in those cases and are therefore not an accurate reflection of the starting point in each case. Nevertheless I am satisfied that 14 months was outside the range indicated by these other decisions. Mr Beach suggested that a starting point in the range of six to nine months would have been appropriate and Mr McMullan submitted that a starting point of seven months would have been appropriate. For the purposes of this appeal I consider that seven months would have been appropriate.
[4] Priestly v Police HC Auckland A14/00, 4 February 2000; Bidois v Police HC Hamilton CRI-2006-
419-123, 1 November 2006; Tinei v Police [2012] NZHC 2003; McCrae v Police [2012] NZHC 2008; Police v Akarana HC Auckland CRI-2004-404-00505, 8 June 2005; Coles v Police HC Christchurch CRI-2007-409-000161, 23 August 2007; Easterbrook v Police HC Christchurch CRI-2007-409-
000150, 23 August 2007; Putara v Police HC Auckland A191/02, 29 November 2002.
[9] The only mitigating factor that was advanced on Mr Matthias’ behalf was his efforts at rehabilitation. Mr Beach submitted that the Judge did not put adequate weight on this aspect:
[5] … The probation report recommends imprisonment with release conditions. The report says that you lack motivation to address your offending. It refers to various programmes that you have started and, in some instances, failed to complete, including a Salvation Army Bridge programme. The report also says that prior to sentencing you had shown little motivation and that you are not willing to complete a programme with the Salvation Army Bridge, which demonstrates, as the report sets out, little motivation to voluntarily rehabilitate …
[10] Mr Beach pointed to the fact that Mr Matthias had completed a CADS course and had attended some AA meetings. However, Mr Matthias appeared four times between December 2011 and May 2012, at which times his progress towards rehabilitation was considered. These appearances were noted on the information. Despite initial indications that he would engage with the Bridge rehabilitative programmes, by May 2012 he was reported as not having done the Bridge programme because “he does not see the need”. Although Mr Matthias has made some efforts, in the circumstances they were clearly insufficient to address his obvious problems and I do not think that the Judge made an error in not giving a specific discount for this aspect.
[11] This leaves the only discount given for Mr Matthias’ guilty plea. Mr Beach
submitted that the 15 per cent was insufficient. However, the guilty plea for the
excess blood alcohol charge was not entered until the status hearing, which Mr Beach accepted was not the earliest opportunity. The discount given by the Judge in respect of the excess blood alcohol was open to him. A higher discount of
20 per cent could have been given for the breath alcohol charge because the plea was entered at an earlier stage. However, the discount of 15 per cent given was still within the range available and, in any event, I am satisfied that a higher discount would not have materially affected the end result.
[12] Although the Judge did err in taking too high a starting point on the lead charge, interfering with the sentence would only be justified if the end result would be affected. For the reasons that follow I am satisfied that the end result would not have been significantly different. Had a lower starting point of seven months been taken, an uplift would inevitably have been imposed because the cumulative sentence of three-and-a-half months imposed for the excess breath alcohol charge would not have been adequate to reflect the overall offending, particularly the fact that the September offending was committed while Mr Matthias was on bail for the January offending, that both involved bad driving and to also give some recognition to the drug offences (even though they were minor offences). An uplift to the lead charge of at least three months would have been needed to reflect totality in this case (resulting in ten months’ imprisonment). The guilty plea discount would bring that to eight months.
[13] As a result, even if a higher discount (20 per cent) were given for the guilty plea on the excess breath alcohol charge, the end result would have been cumulative sentences of eight and five months respectively. Imposed cumulatively the total length of imprisonment would be 13 months, which is higher than the sentence actually imposed.
[14] Although Mr Beach did attempt an argument that the Judge could have imposed concurrent sentences in respect of the January and September offending, there is no basis for suggesting that the cumulative approach taken was an error, given the significant time difference between the two offences.
[15] It is evident that, although the starting point taken by the Judge on the January blood alcohol offending was too high, the end result was well within the range available, having regard to the excess breath alcohol offending which would have had to be recognised through an uplift for totality. There is, therefore, no basis on which to interfere with the ultimate sentence imposed.
[16] The appeal is dismissed.
P Courtney J
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