McQuillan v The Queen

[2004] NZCA 182

IN THE COURT OF APPEAL OF NEW ZEALAND

CA129/04

THE QUEEN

v

GARY WILLIAM MCQUILLAN

Hearing:20 July 2004

Coram:McGrath  J
Goddard  J
Heath J

Appearances:  C G Fletcher for Appellant

D J Boldt for Crown

Judgment:12 August 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]       The appellant, Mr McQuillan, pleaded guilty in the District Court to two sets of charges of driving while disqualified and driving with an excess breath or blood alcohol level.  The charges arose from separate driving incidents, the first in Cromwell on 14 April 2002 and the second in Christchurch on 19 March 2003.  He was sentenced by Judge Saunders in the District Court at Christchurch on 28 November 2003 to 12 months imprisonment for each set of offending, the two terms to be cumulative.  The appellant was also disqualified from driving for three years and the Judge refused to grant him leave to apply for home detention.  He appeals against his sentence.

Background

[2]       The appellant was apprehended in Cromwell driving while disqualified and having an excess breath alcohol concentration of 750 micrograms of alcohol per litre of breath.  He was charged with both offences.  He pleaded not guilty to these charges. He then, as he later put it to the Judge at his sentencing hearing, “did a runner” from Central Otago and failed to appear in Court to answer the charges. On 19 March 2003 the appellant was apprehended at Christchurch, again driving while disqualified, this time having a level of 186 milligrams of alcohol per 100 millilitres of blood.  At the time he was at large and on 20 March 2003 he was arrested on a warrant. He then elected trial by jury on the Cromwell matters.  An indictment was presented and a trial date fixed, but shortly before it he faced up to his situation.  He asked for the Central Otago matter to be called in the District Court at Christchurch where he was arraigned on that offending and then entered guilty pleas to all charges.

District Court sentencing

[3]       On 28 November 2003 Judge Saunders sentenced the appellant, who appeared on his own behalf, for both sets of offending.  The Judge saw it as an aggravating feature of the Christchurch offending that it had occurred while charges concerning the earlier similar offending were still outstanding.  The guilty plea to the Cromwell matter had come very much at the last minute, and on the Christchurch matter some time after a decision to defend the charges.  The offending involved high breath and blood alcohol levels respectively.

[4]       In relation to the Cromwell offending the Judge pointed out that the appellant’s breath alcohol level was almost double the legal limit at 750 micrograms, albeit that this partly reflected his heavy drinking during the night before he was apprehended.  Judge Saunders said that no credit was available to the appellant for an early guilty plea as he had only pleaded when he was about to face a jury trial in Dunedin.  The appellant had also served terms of imprisonment in the past both for driving offences and offences involving violence.  The Probation Officer had reported that the appellant had no real motivation to address his problems with heavy drinking.  He had been given the benefit of courses but continued to offend.

[5]       The Judge decided that the requirements of deterrence and protection of the community had to be given effect in sentencing the appellant who posed a risk to the public by continuing to drive under the influence of alcohol knowing that he was disqualified indefinitely. He concluded that the appropriate sentence for the offending at Cromwell was 12 months imprisonment.  The subsequent Christchurch incident was separate offending which required an additional sentence to denounce that conduct.  In the Judge’s opinion the totality of the offending required an overall sentence of two years imprisonment. He accordingly sentenced the appellant to a further twelve months imprisonment, cumulative on the other term, in relation to the offending at Christchurch.  As indicated, the appellant was also disqualified from driving a motor vehicle for three years from the date of sentence. 

[6]       Judge Saunders concluded by saying that he saw the offending as too serious for him to grant leave to apply for home detention.  The appellant’s attitude to community based sentencing had been demonstrated by his past breaches of community sentences including driving while disqualified.  He accordingly refused the appellant leave to apply for home detention.

The High Court appeal

[7]       The appellant, still representing himself, appealed against his sentence to the High Court.  Panckhurst J delivered a single judgment in respect of that appeal and another involving a different appellant in similar circumstances.  The two appeals were argued consecutively.  The High Court Judge took the view that the question in issue was whether the imposition of cumulative terms of imprisonment for the separate driving incidents had produced a sentence wholly out of proportion to the gravity of the overall offending.  He concluded that the overall offending did not demonstrate the range of aggravating features that would be required to justify cumulative sentences.  He reached this view having made a comparison between the appellant’s sentence and sentences for similar offending in earlier High Court and District Court decisions.  His ultimate conclusion was that an effective sentence of no more than 20 months could be justified on totality principles, and accordingly he sentenced the appellant to a term of 11 months imprisonment for the offending in Cromwell and nine months imprisonment for that in Christchurch (in respect of which there had been an earlier guilty plea).  The Judge also substituted a period of two years disqualification for the three year term and granted the appellant leave to apply for home detention.

[8]       Subsequently it was brought to the Judge’s attention that the appeal against the Cromwell offending had been wrongly brought in the High Court as the appellant had pleaded guilty on arraignment.  That part of the appeal, as a result, had to be dealt with by this Court.  After hearing the parties Panckhurst J recalled his judgment of 5 March 2004 in respect of both the summary charges resulting from the Christchurch offending and those on indictment.  He considered that course appropriate because the Court which would finally decide the appeal on the indictable charges had to be able to determine an appropriate sentence encompassing the entire offending. 

Jurisdiction

[9]       Under s115(1)(b) and (2) of the Summary Proceedings Act 1957, where a District Court determines any information and convicts the defendant, the person convicted may appeal against the sentence that is passed to the High Court.  This section confers on the appellant his right of appeal against the convictions entered against him for the Christchurch offending.  No other statutory provision does so.  In respect of the Cromwell offending the appellant had elected trial by jury and pleaded guilty on arraignment.  Section 383(1)(b) of the Crimes Act gives any person convicted on indictment, as was the appellant, a right of appeal to the Court of Appeal against the sentence passed on the conviction.  The appellant accordingly had separate rights of appeal to different courts in respect of the two sets of offending.

[10]     As indicated, when the lack of jurisdiction for the High Court to decide the appeal against the sentence for the Christchurch offending was drawn to the Judge’s attention, he recalled his judgment determining both appeals to allow this Court to do so, anticipating that it would convene as a High Court for the purpose of dealing with the summary convictions.

[11]     Section 57(4) of the Judicature Act 1908 provides:

Every Judge of the Court of Appeal shall continue to be a Judge of the High Court, and may from time to time sit as or exercise any of the powers of a Judge of the High Court.

This provision enables a panel of Judges sitting in this Court to sit as a Full Court of the High Court and the parties to the appeal invited us to do that in relation to the appeal against the Christchurch related conviction, while sitting as the Court of Appeal in relation to those arising from Cromwell offending.  We accept that is a course open to us under s57(4), which is appropriate in the circumstances, and have sat concurrently in the two jurisdictions accordingly. 

Submissions

[12]     In this Court Mr Fletcher, who appeared on behalf of the appellant, argued that the sentence should reflect the totality of the offending. He submitted that for the reasons which found favour with the High Court an effective sentence of two years imprisonment was manifestly excessive.

[13]     Mr Fletcher argued that the District Court’s sentence of two years imprisonment was out of line with the sentences generally imposed on other multiple excess breath alcohol offenders.  He referred to a comparative analysis of sentences imposed in the District Court and in the High Court on appeal.  The analysis is included in the judgment of Wild J in the High Court in Clotworthy v Police (2003) 20 CRNZ 439, which also lists factors relevant to the appropriate penalty in such cases.  Mr Fletcher pointed out that only one of the numerous cases listed had resulted in an effective term of imprisonment of two years.  In that case, which involved two incidents a week apart, there had been erratic driving on each occasion, including a failure to stop and nearly hitting a police officer.  Nothing of that kind, he said, was a feature of the appellant’s driving on the occasions that were before the court.

[14]     Counsel also took issue with aspects of the pre-sentence report and the length of the period of disqualification imposed as part of the sentence.  He did not press the challenge to the refusal of home detention for reasons personal to the appellant and we need not consider that aspect of the appeal further.

[15]     Mr Boldt for the Crown submitted that the analysis in Clotworthy showed that once an offender’s convictions for excess blood alcohol and driving while disqualified approached double figures sentences of twelve months imprisonment for a single incident of offending were common.  He said that as most offenders would have received credit for guilty pleas, starting points of 15 months or more had obviously been adopted by the sentencing Judges.  From this basis Mr Boldt argued that there could be no complaint had Judge Saunders adopted as a starting point terms of imprisonment of 12 to 15 months for the Cromwell offending and 15 to 18 months for that in Christchurch.  An effective sentence of two years imprisonment for the two sets of offending would then be entirely consistent with the principles in Clotworthy, having regard to the appellant’s previous criminal history and the failure of short sentences of imprisonment to stop him for driving under the influence of liquor and when disqualified.

Decision

[16]     In R v Binnie CA261/99, 6 September 1999, this Court decided in a similar situation that the appellant should receive the benefit of success in the High Court.  The Court said at [5]:

It would be contrary to principle to deprive the appellant of the benefit of a careful, reasoned judgment, given following argument by the appellant and the Crown.  The error relating [to] jurisdiction could have no practical impact on that process or on the substance of the judgment.  For that reason alone, the appeal is allowed.

We have reservations about that approach.  While it was accepted by the Crown in Binnie Mr Boldt argued on a different basis for the Crown in this appeal.  Ideally further opportunity ought to have been given to the Crown to consider whether it wished to revisit the Binnie approach.  However, the proximity of this decision to the eligibility date for parole, on the basis of the sentence substituted in the High Court, makes it impracticable to take that approach.  Accordingly, we propose to apply the approach in Binnie while expressing our own views as to the appropriate sentence.  It will be seen that our approach differs from that which found favour in the High Court.

[17]     Should a similar case arise in the future the Crown should determine whether it wishes to challenge the Binnie approach.  If there is a challenge to that approach application ought to be made for the case to be argued before a Full Court of this Court.

[18]     It follows that the appeal must be allowed, and sentences substituted for those imposed in the District Court.  We impose a sentence of 11 months for the Cromwell offending and a cumulative sentence of nine months imprisonment for the Christchurch offending as decided on by the High Court.  A period of two years disqualification from driving is substituted for the three-year term.  The appeal against the refusal of leave to apply for home detention has not been pursued and is dismissed.

[19]     As this Court did in Binnie, we go on to give our views on the substantive issues arising in the appeal.

[20]     The appellant’s extensive criminal history included a conviction in 1981 for dangerous driving causing death for which he served a term of six months imprisonment.  Prior to the offending for which he had been sentenced on this occasion by the District Court, he had been convicted eight times for driving while disqualified, and five times for driving with an excess blood or breath alcohol level.  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 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 s58(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 the three months for the first or second offence (ss56(1), 56(2), 58(2) and 60(1)).

[21]     The individual sentences of 12 months imprisonment imposed on the appellant for the two sets of offending are accordingly not out of the ordinary and there is certainly no requirement that instances of offending must reach double figures before such terms of imprisonment are imposed.  The real question in issue in the appeal is rather whether, in the particular circumstances, it was manifestly excessive for the Judge to impose cumulative sentences of 12 months imprisonment on the two charges given that the length of the terms that are imposed for this type of offending itself reflects the repetitive nature of the conduct.

[22]     Clotworthy provides a table of sentences for similar offending in both the District and High Courts and a list of relevant sentencing factors.  Both clearly provide valuable guidance in sentencing.  It must, however, be remembered, as Wild J said, that sentencing is not an exact science and that the circumstances of offenders and offending, including of the present kind, are widely variable.  Comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, accordingly does not dispense with the need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case.  We approach the question of whether the overall sentence imposed on the appellant by the District Court Judge was manifestly excessive on this basis.  In so doing, we are mindful that the choice of a sentence for offending of this type must reflect the circumstances of each individual offender and the nature of his or her present and past offending rather than a mechanical increase in the length of a sentence solely dependent upon the number of times a person has been convicted of a particular type of offence.  It cannot be right, as a matter of principle, for a sentence close to the maximum to be available only when a certain number of offences have been committed.

[23]     The two sets of offending for which the appellant was sentenced took place within a 12 month period between April 2002 and March 2003. That is a serious matter in itself.  The sentencing Judge was however also required to take into account a further aggravating circumstance which graphically demonstrated the appellant’s contemptuous attitude to his responsibilities.  All repetitive drink driving offending by disqualified drivers involves disobedience of court orders as well as disregard for public safety.  In the case of the appellant, at the time he offended in Christchurch he knew that the Cromwell charges remained outstanding and that the Court had not been able to deal with them because he had run away from Central Otago.  A warrant for his arrest had to be issued.  The appellant did not desist from his dangerous conduct and the warrant was executed by the police when the appellant came to their attention as a result of the Christchurch offending.  Only then did he face the inevitable and plead guilty to the Cromwell charges in Christchurch. 

[24]     This context indicates that the Judge was entitled to treat the Christchurch offending as being particularly serious.  Little credit could be given to the appellant for his plea to the Christchurch charges given the inevitably of his conviction for that offending. The Court was required by s85(1) of the Sentencing Act 2002 to impose a sentence that reflected the seriousness of that offence and, given the aggravating circumstances mentioned, it would have been open to the Judge to impose a term of imprisonment that was closer to the maximum.  It was also open for the Judge to deal with the gravity of the matter, as he did, by imposing a cumulative sentence for the Christchurch charges.  The overall sentence reflected the failure of previous shorter terms of imprisonment for drink driving offences to bring home to the appellant his responsibilities, and the need to deter him from further repetition of his offending in the interest of public safety.  In the context in which the Christchurch offending took place in succession to that in Cromwell, we consider that the overall term of imprisonment imposed by the District Court is not disproportionate to the gravity of the overall offending. The requirements of s85(2) of the Sentencing Act are accordingly met. 

[25]     We consider that the three year period of disqualification was open to the Judge as a further means of bringing home to this appellant that the only way in which he can resume driving lawfully is by changing his attitude as well as addressing his problems with liquor consumption.

[26]     It follows that our view is that the sentence was not manifestly excessive.  However, for the reasons indicated, we apply the principle identified in Binnie and allow the appeal and substitute a sentence of 11 months for the Cromwell offending and a cumulative sentence of nine months imprisonment for that in Christchurch.  A period of two years disqualification from driving is substituted for the three-year term.  The appeal against leave to apply for home detention is dismissed.

Solicitors:
Thompson & Morgan, Christchurch for Appellant
Crown Law Office, Wellington