McLeish v Police
[2015] NZHC 1610
•9 July 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000048 [2015] NZHC 1610
BETWEEN MITCHELL DUDGEON MCLEISH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 July 2015 Appearances:
A C Kelland for Appellant
C E Butchard for RespondentJudgment:
9 July 2015
ORAL JUDGMENT OF GENDALL J
Outline
[1] On 24 August 2013, Mr Mitchell McLeish was pulled over while driving. It is said his breath smelled strongly of alcohol and his speech was slurred. A screening test suggested a reading of over 400 mcg per litre of breath. At the Police station, Mr McLeish refused to undergo either an evidential breath test or a blood test. He was therefore charged with refusing to permit a blood specimen to be taken, in the aggravated form (third or subsequent). This matter proceeded to a defended hearing in the District Court on 21 November 2014 and 4 December 2014, following which Judge Garland released his decision on 23 February 2015 finding Mr McLeish
guilty.1
[2] On 23 February 2015, the same day that Judge Garland released his
Substantive McLeish Decision, Mr McLeish was charged with driving with excess
1 Police v McLeish [2015] NZDC 427 [Substantive McLeish Decision]. I note the date of the decision on the judgment is stated as 20 February 2015. However, on the final page is a handwritten note stating: “Released by … [a District Court Registrar] on the 23 day of February
2015 …”.
MCLEISH v NEW ZEALAND POLICE [2015] NZHC 1610 [9 July 2015]
breath alcohol, with the proportion of alcohol in his breath exceeding 400 mcg/L in that it was 1002 mcg/L. Mr McLeish entered a prompt guilty plea to this charge.
[3] Mr McLeish then came before Judge Garland for sentencing on 17 April
2015, where he was sentenced to 22 months’ imprisonment on both charges.2
Mr McLeish now appeals his sentence on the sole basis that Judge Garland erred in declining to impose home detention instead of a short term of imprisonment.
District Court decision
[4] Turning now to the District Court decision, in sentencing Mr McLeish, Judge Garland adopted a cumulative approach, overlaid with the requirement to have regard to the totality of the offending. As to the purposes and principles of sentencing, Judge Garland observed:
[7] In sentencing you I bear in mind the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. In particular it is my job to hold you accountable for your conduct. It is my job to impose a sentence which will not only deter you from re-offending, but which will also act as a general deterrence. In that way it is thought that the community may be protected.
[8] The principles of sentencing I take into account are the gravity of your offending, the seriousness of the offences that you have committed, the need to impose on you a sentence which is generally consistent with the sentences imposed on other offenders for like offending, and finally I need to bear in mind that I should impose the least restrictive sentence appropriate in all the circumstances. I particularly bear in mind the principles set out in s 16 of the Sentencing Act.
[5] His Honour observed the plea in mitigation made by Mr McLeish’s counsel.
In particular, this submitted:
(a) In relation to the failure to provide a blood specimen charge, the Court should not infer that the level was high, but simply accept that failure to provide a sample is a serious offence. A starting point of between
six and nine months was sought;
2 Police v McLeish [2015] NZDC 6710 [Sentencing McLeish Decision].
(b)As to the second offence, it was suggested that Mr McLeish had only had a modest amount to drink, even though his alcohol reading was high. The submission was made that this can be attributed to some alcohol being consumed after driving;
(c) In relation to the second offence, it was said Mr McLeish drove only a short distance. It was accepted, however, that with the high alcohol reading, Mr McLeish presented a danger to other road users.
(d)Mr McLeish, it was argued, should get credit for his guilty plea for the second offence, with the result that a starting point of no more than six months’ imprisonment was appropriate;
(e) Counsel said the Court should have regard to the fact that Mr McLeish voluntarily submitted himself to counselling with CareNZ;
(f) Mr McLeish was noted as being 63 years of age, and he had done substantial damage to his marriage through the consumption of alcohol. Counsel maintained he is motivated to change and repair his marriage;
(g)If Mr McLeish was to be imprisoned, his business, and by association the jobs of his employees, was said to be at risk;
(h)Finally, because Mr McLeish had never had an electronically monitored sentence or, indeed, an intervention-based sentence it was contended therefore that home detention would be the most appropriate sentence.
[6] Judge Garland then considered the probation officer’s report. This report considered Mr McLeish to be at a medium risk of reoffending. Judge Garland however disagreed, considering Mr McLeish to be at medium-high risk of reoffending. The probation officer further noted that Mr McLeish sought to
minimise his offending, and although Mr McLeish was aware that he had a drinking problem he said he only drinks in the evening, never during the day. As to previous offending, the probation officer noted that Mr McLeish had been sentenced to community work, driving disqualifications and fines, which appear to have had no impact on his later offending.
[7] After considering the report of the probation officer, Judge Garland went on to determine the appropriate sentence. It is useful to replicate here aspects of His Honour’s notes:
[25] As there are two quite separate and distinct offences committed on different occasions, the appropriate approach for me when sentencing is to adopt a cumulative sentencing approach overlaid by the totality principle.
[26] I have considered the leading authorities on drink-driving, namely the decisions of Clotworthy v Police (2003) 20 CRNZ 439 (HC); the decisions of the Court of Appeal in R v McQuillan CA 129/04, 12 August
2004 and R v Stoves CA 264/06, 7 November 2006. In Clotworthy the Court set out a number of factors that should be considered when considering the
level of culpability. I will consider those factors now.
[27] In relation to the first offence there is no breath or blood alcohol level, but you acknowledge that you had drunk a whole bottle of wine. In relation to the second offence the level, as Mr Persson acknowledged, is very high; it is over two and a half times the legal limit.
[28] Your last offence was committed on 2 May 2004 so there is a gap of approximately eight years between your fifth and sixth offences, but there is a gap of only six months between your sixth and seventh offences.
[29] These are now your sixth and seventh convictions. Your previous convictions were entered in 1984, two in 1994, one in 2003 and one in 2006. I note that four of your convictions for drink-driving are now for refusing to provide a blood specimen.
[30] In either case there was nothing reported which would suggest that there are other aggravating features of your driving. In neither case were you a forbidden or disqualified driver.
[31] You took the first matter to trial and were found guilty, and therefore you are not entitled to any credit. In relation to the second offence you pleaded guilty at an early opportunity and therefore you are entitled to credit.
[32] Previously you have received community-based sentences and disqualification, but you have not been deterred from re-offending. You do have some other convictions but those are for driving offences.
[33] I do not detect any true remorse for your offending. I do note that you are regretful as to the circumstances in which you now find yourself in.
You have now made, at long last, some effort to address your alcohol problem but you did not make any effort at all until after the second offence.
[34] There are no mitigating personal or family circumstances which have contributed to this offending.
[8] From this, Judge Garland took a starting point of ten months’ imprisonment on the first charge of refusing to supply a blood specimen. This was uplifted by two months to account for previous criminal history, but this also accounted for the eight year gap since his last offence. On the second charge, Judge Garland reminded himself of the need to bear in mind the totality principle. He stated that a starting point of 12 months, with a six month uplift for previous offending, would normally be justified. However, because of totality issues, a starting point of 12 months was taken. An uplift of two months was added because the offending occurred while Mr McLeish was before the Court on the earlier offending. A discount of four months was then allowed for Mr McLeish’s guilty plea. This led to an indicative sentence on both charges of 22 months’ imprisonment.
[9] Finally, His Honour considered whether home detention would be appropriate. For the following reasons, he did not consider this to be the case:
[39] As Mr Persson has submitted, that gives me jurisdiction to consider whether or not I should impose a sentence of home detention. You are
63 years of age. In my view you are medium to high risk of re-offending. You have not previously been sentenced to a term of imprisonment.
[40] I do not, however, detect any proved contrition or real remorse for your offending. You have made some effort now, rather belatedly, to address your alcohol issue, but I am not satisfied of your sincerity, and in my view it is far too little too late.
[41] I acknowledge that you have a business with employees who are dependent upon you and that they may be adversely affected if you were to be sentenced to imprisonment. If so, that is regrettable.
[42] However, in my view the prospects of rehabilitation at this stage appear slim, and as I have said, your efforts are unconvincing. Denunciation and deterrence and protection of the community, in my view, are now the dominant purposes of sentencing. I am not satisfied that those purposes can adequately be met with a sentence of home detention. I agree with the probation officer that imprisonment is the least restrictive outcome appropriate in this case.
[10] This appeal, as I have said, relates to this latter part of Judge Garland’s
decision declining to sentence Mr McLeish to home detention.
Approach to this appeal
[11] Turning now to the approach to be taken to this appeal, Mr McLeish is able to appeal the sentence imposed as of right.3 This Court, as first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.4 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act
2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3, and the Summary Proceedings Act 1957, s 121(3).5
[12] In determining whether home detention should be imposed, a sentencing Judge follows a two step process.6 The first step requires the Court to determine that the appropriate sentence of imprisonment would be two years or less. The second step involves the exercise of judicial discretion as to whether the case is appropriate to commute the sentence of imprisonment to one of home detention.
[13] In this case, Judge Garland proceeded to the second stage, but declined to exercise his discretion to grant home detention. To succeed on appeal Mr McLeish must therefore establish the decision was contrary to principle, the Judge took account of irrelevant matters, failed to take account of relevant matters or was plainly wrong.7 I note that the attack to Judge Garland’s discretion is the sole ground of appeal here.
Disposition
[14] Ms Kelland, counsel for Mr McLeish, mounts the challenge to Judge Garland’s discretionary decision largely on the basis that His Honour failed to take account of relevant factors. In her submissions before me, Ms Kelland
identifies those relevant considerations as:
3 Criminal Procedure Act 2011, s 244.
4 Sections 247 and 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 R v Vhavha [2009] NZCA 588 at [31].
7 B v Police (No 2) [2000] 1 NZLR 31 (CA) at [6]; Dodd v R [2011] NZCA 490 at [27]; Kacem v
Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; Wong v R [2009] NZSC 64; R v Fatu (2005)
22 CRNZ 524 (CA) at [5]; May v May (1982) 1 NZFLR 165 (CA).
(a) Mr McLeish’s motivation to address his longstanding alcohol addiction issues in the wake of his most recent offending, and the breakdown of his marriage. Ms Kelland says that Mr McLeish has referred himself to the CareNZ alcohol and drug treatment programme and she notes that to date he has not been the subject of an electronically monitored sentence, nor a sentence with a rehabilitative focus. Finally, the long gaps between Mr McLeish’s offending, she says, provides evidence that he does not have “contumelious disregard for drink driving laws”.
(b)As to his further personal circumstances, Ms Kelland refers to Mr McLeish’s health and his being under considerable stress at the time of the second offending. He was awaiting then the outcome of the Judge alone trial, his wife had left him, and a very close friend had killed himself three days before the second offending. And on the issue of Mr McLeish’s health, Ms Kelland states that he suffers from advanced osteoarthritis, hypertension, and type two diabetes.
[15] Ms Kelland then refers to a number of authorities in support of the proposition that home detention was the most suitable sentencing option for Judge Garland to consider.8 I remind myself, however, that the focus of this appeal is not whether I would have sentenced Mr McLeish differently to Judge Garland, or even whether there are authorities supporting a sentence of home detention in circumstances similar to this, but, rather, whether the sentence imposed on Mr McLeish was within the range of available sentences.
[16] Because there is no challenge to the term of imprisonment imposed here per se, but only the refusal to commute to home detention, that substantially delimits the scope of my focus. In this respect, Ms Kelland referred me R v Vhavha where
William Young P observed:9
8 Fonoti v Police [2015] NZHC 200; Dawson v Police [2014] NZHC 2991; Hansch v Police [2014] NZHC 2438; Shaw v Police HC Greymouth CRI-2005-418-5, 27 July 2006; Tinei v Police [2012] NZHC 2003; Carran v Police [2013] NZHC 1450.
9 R v Vhavha [2009] NZCA 588 at [29].
There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.
[17] However, it is also clear from the authorities that the availability of home detention has not rendered otiose the short term of imprisonment.10 What is relevant is an assessment of the purposes and principles of sentencing (including the requirement to impose the least restrictive outcome appropriate in the circumstances), informed by a consideration of the mitigating and aggravating features applicable to both the offending and the offender.11 The relative weight to be afforded to the purposes and principles of sentencing are for the sentencing judge, though it will be an error of law if one factor is focused upon to the exclusion of all others.12
[18] In the present case, Judge Garland was fully apprised of Mr McLeish’s problems with alcohol abuse and his efforts to treat himself. Nonetheless, His Honour considered that the efforts of Mr McLeish were too little too late, and also he questioned the sincerity of Mr McLeish’s efforts. As to the other matters identified by Ms Kelland, I acknowledge that the sentencing notes make no reference to the suicide of the close friend, nor to Mr McLeish’s health problems (other than dental surgery). Judge Garland however, does make reference to Mr McLeish’s marital difficulties.
[19] In the circumstances of this case, where Judge Garland placed considerable weight on the principles of deterrence and denunciation, as His Honour was entitled to do, these further matters would have made little difference. These submissions therefore carry little weight on appeal. The final factors referred to by Ms Kelland are that Mr McLeish has health issues with circulation and walking difficulties, and that he has never before been subject to a rehabilitative sentence or a sentence of home detention. I accept that Mr McLeish has never before been sentenced to home
detention, but do not consider it can be said he has not been subject to rehabilitative
10 R v Stainton [2008] NZCA 370; Kincaid v R [2010] NZCA 384 at [29]; Polyanszky v R [2011] NZCA 4 at [13]; Heta v R [2012] NZCA 267 at [21].
11 James v R [2010] NZCA 206.
12 Doolan v R [2011] NZCA 542 at [38]; Fairbrother v R [2013] NZCA 340 at [30].
sentences. Indeed, all of his previous sentences were rehabilitative in nature. The fact that Mr McLeish has not availed himself of rehabilitative opportunities while serving community-based sentences must rest with him. And any health and walking difficulties he may have, in my view, can be properly taken into account and provided for by the prison authorities.
[20] Thus, while Mr McLeish has not previously been sentenced to home detention, I have not been taken to a point here where I consider, in the context of this offending, that the sentence imposed was outside the range available to Judge Garland. Ms Kelland’s submissions were helpful in establishing that home detention is a viable option in cases such as this, but they do not surmount the threshold necessary for an appeal relating to the exercise of the discretion here.
Outcome
[21] For all the reasons I have outlined above, this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
April Kelland, Christchurch
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