McIntyre v Police

[2013] NZHC 268

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-24 [2013] NZHC 268

BETWEEN  RICHARD ANDREW MCINTYRE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 February 2013

Counsel:         R Gould for Appellant

S O'Donoghue for Respondent

Judgment:      20 February 2013

JUDGMENT OF MILLER J

[1]    This is an appeal against sentence on Mr McIntyre’s fifth charge of driving with excess alcohol.[1]    He was sentenced to 250 hours community work, 14 months disqualification, and six months supervision with an alcohol and drug condition, and ordered to pay an analyst’s fee and medical expenses.

[1] Land Transport Act 1998, s 56(1) and (4).

[2]    The facts are that he was tested when found driving in Blenheim and was later found to have a blood alcohol level of 115 milligrams of alcohol per 100 millilitres of blood.  His explanation was that he was asked to go to the dairy to get some milk, and did not consider that he might be over the limit.  There was no driving fault, and he very promptly pleaded guilty.

[3]    Mr McIntyre has the following relevant convictions.   I will list them in my notes:

MCINTYRE v NEW ZEALAND POLICE HC BLE CRI-2012-406-24 [20 February 2013]

Driving with excess breath alcohol (3rd  or subsequent), breath = 751 on 18

August 2005 – sentenced to 6 months’ imprisonment, 1 year 6 months’

disqualification;

Refuse blood specimen (3rd  or more) on 16 June 2005 – sentenced to 200

hours community work, 2 years’/indefinite disqualification;

Driving with excess breath alcohol (3rd or subsequent), breath = 1026 on 23

July 2000 – fined $1,000, 12 months’ disqualification;

Driving with excess breath alcohol on11 December 1982 – sentenced to 4

months’ periodic detention, 12 months’ disqualification;

Driving with  excess  breath alcohol  on  4 January 1979  –  fined  $320,  6

months’ disqualification.

[4]    I observe that his last such conviction was in 2005 and that earned him a sentence of imprisonment.  I understand that he is now aged 52.

[5]    The Judge refused Mr McIntyre’s plea to treat the case as an aberration and impose only a monetary penalty and the mandatory minimum 12 months disqualification.   He considered that community work was necessary although it would be difficult given Mr McIntyre’s work situation.   By way of explanation Mr McIntyre works six days per week as a builder so he must serve the community work on Sundays.

[6]    On appeal, Mr McIntyre’s case is that the sentence was unduly harsh having regard to the long period since the last offence, the low blood-alcohol level, and he guilty plea.  He no longer takes issue with the disqualification, although he does say it ought to have been 12 months, but he contests the amount of community work, which he says is substantially too long.   He has written me a letter this morning setting out his reasons for that.

[7]    The leading case in this area remains Clotworthy v Police (2003) 20 CRNZ

439, which established that imprisonment is an appropriate, even orthodox, response to a sixth offence.  That was not a guideline judgment of course, and it is now dated. Wild J also emphasised that the sentence may vary with, among other things, the breath or blood alcohol level and the length of time since the last offence.

[8]    I am prepared to accept that Mr McIntyre has straightened himself out, so that this offence can be treated as a lapse.  But I think the District Court Judge saw it in the same way and gave him full credit for that in the sentence of community work, the Judge warning that if he offends again he will go to prison.  The Judge did not explicitly give credit for a guilty plea, nor did he explain why he chose 250 hours community work rather than any other number.   The maximum sentence is 400 hours.  However, he did consider the difficulty that Mr McIntyre would face when serving  that  sentence.    The difficulty on  appeal,  of course,  is  that  the  form  of sentence, let alone the number of hours, is a concession to Mr McIntyre who might otherwise have faced imprisonment or some more serious form of community-based sentence.

[9]    Ms O’Donoghue has also drawn my attention to R v Stone,[2] in which the Court of Appeal reviewed disqualification levels for recidivists.  That judgment establishes that the sentence imposed here was well within the range available.

[2] [2009] NZCA 539.

[10]  In these circumstances I am unable to accept that the sentence was manifestly excessive, which is the appellate test.  The appeal must be dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent