Mear v Police HC Napier CRI 2010-441-42

[2010] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-42

SHANE DEREK MEAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 October 2010

Counsel:         L P F Lafferty for Appellant

J Rielly for Respondent

Judgment:      27 October 2010

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      On 7 July 2010 Mr Mear for the 12th  time drank and drove and for the 14th time  drove  while  disqualified.    Mr Mear  had  been  indefinitely  disqualified  in August 2002.    He  drove  on  7 July 2010  with  an  excess  breath  alcohol  level  of

856 micrograms.

[2]      The  Judge  in  the  District  Court  sentenced  the  appellant  to  30 months’

imprisonment with a minimum non-parole period of 20 months’ imprisonment after the appellant’s guilty plea.

SHANE DEREK MEAR V NEW ZEALAND POLICE HC NAP CRI 2010-441-42  27 October 2010

[3]      The  appellant  says  in  the  circumstances  this  sentence  was  manifestly excessive.

Background facts

[4]      The summary of facts presented at the hearing revealed that in July this year a member of the public had become concerned at the appellant’s manner of driving and had called the police.  The police stopped the appellant and breath tested him. Mr Mear admitted he was a disqualified driver.  He said he only drove because his partner, whom the police officer observed was extremely intoxicated, had started vomiting and he wanted to take her home.

[5]      The appellant provided an affidavit to the District Court Judge which detailed the circumstances under which he drove on that day. Mr Mear said that he, his father and his wife had been having some drinks with friends.  His wife had agreed to be the sober driver.  However she began drinking.  She had told them she would ring a taxi for them all to go home.  However later she became ill and began vomiting.  The occupants  of  the  house  became  upset,  tempers  flared  and  in  Mr Mear’s  words “threats were made and violence was just about to erupt”.   It was in those circumstances the appellant says he took his wife and father and drove home.  He said his father could not drive because he had only one leg.  He said “I drove a short distance to our home”.

District Court decision

[6]      At sentencing the Judge acknowledged the affidavit but pointed out that the appellant’s father could have driven the car or the family could have walked home. The Judge noted that this was the appellant’s 12th  conviction for drink driving and

14th conviction for driving while disqualified.  Further, the appellant had 73 previous

convictions many of which the Judge said related to drinking.  Further, there were a large number of breaches of other Court orders.  The Judge observed the appellant did not think there was anything wrong with his driving.

[7]      The Judge considered that on the charge of drink driving a starting point of

20 months was appropriate with an early guilty plea reduction of 25% resulting in a sentence of 15 months’ imprisonment.

[8]      Secondly,  he  thought   the  same  starting  point  for  the  driving  while disqualified was appropriate – that is one of 20 months with the same discount for an early guilty plea of 15 months.  He considered that in the circumstances the proper course  was  to  impose  those  sentences  cumulatively  so  the  total  sentence  was

30 months’ imprisonment.

[9]      The Judge then turned to s 86 of the Sentencing Act relating to a non-parole period.  He considered that such a period was required because of the circumstances and imposed one at the maximum of two thirds of his prison sentence at 20 months’ imprisonment.

Appellant’s case

[10]     The appellant’s  case  is  that  the  Judge incorrectly applied  the  sentencing guideline of R v Hessell1  and that the factual circumstances without the correct application of the Hessell guideline meant the sentence was excessive.

[11]     In particular the appellant says:

a)        in the factual circumstances it was unfair to characterise the appellant as wholly as a recidivist offender;

b)the driving was not accompanied by any speed  or need for other evasion action;

c)        the circumstances leading up to the offending was unusual;

d)       this was not a “worst case scenario” of driving.

1           R v Hessell [2009] NZCA 450.

[12]     The appellant says that in terms of Hessell given his immediate guilty plea a reduction of 33% should have applied.  Finally a non-parole period was not justified.

Respondent’s case

[13]     The respondent says the appellant had already been sentenced to prison on nine previous occasions for drink driving including one of 15 months’ imprisonment. Deterrence, the Crown say, should be the primary sentencing principle and a very long sentence was justified.   They submit the Judge’s approach to the sentencing could not be criticised.   He accurately assessed the facts, the aggravating and mitigating features, gave an allowance for the guilty plea and considered whether the sentences should be concurrent or cumulative.

Discussion

[14]     I am satisfied that the sentence imposed overall was not manifestly excessive. However there are two aspects of the sentence which require adjustment.  Before I turn to those I make these comments.

[15]     As has been remarked this was the appellant’s 12th  conviction for driving with  an  excess  breath  alcohol  and  14th   for  driving while disqualified.    On  this occasion he drove when he was over twice the legal limit.  I am not at all impressed by his claim that he had to drive on this occasion.  There were ample alternatives

including walking.   The appellant must have been seriously intoxicated given his breath alcohol level.   He would therefore have been dangerous on the road.   His driving was sufficiently bad for a member of the public to ring the police and complain about it.  There is nothing in my view in the circumstances that he came to drive in which could be seen as mitigating.

[16]     Deterrence was  the  only relevant  sentencing principle  in  this  case.   The appellant clearly poses an extraordinary danger to the community.  Even apart from his collection of convictions for driving with excess breath alcohol and driving while disqualified he has over 70 other convictions, many of which occurred when he was

intoxicated.   Mr Mear takes no notice of the law whatsoever, nor of any judicial prohibition on his actions.  He drinks and drives when he feels like it.  And Mr Mear has made it quite clear he will not obey Court orders or the more general law prohibiting drink driving.

[17]     There is no doubt that a sentence beginning at or near the maximum for this offending was more than justified.   This offending when combined with the appellant’s past offending must place him within those categories of s 8 of the Sentencing Act 2002 which require a penalty at or near the maximum prescribed.

[18]     As  the  Judge  identified  on  the  facts  of  this  case  each  offence  was  an aggravating feature of the other offence.  To drive while intoxicated for the 12th time was bad enough but to do so while disqualified (for the 14th  time) added to the seriousness of the event.  And equally to drive while disqualified for the 14th time is bad enough but to drive while intoxicated on the 12th occasion at twice the maximum level at the same time was seriously aggravating.

[19]     Although there can be legitimate dispute about how such a sentence is best constructed I repeat a sentence beginning at or near the maximum penalty for these offences was more than justified in the circumstances.  I therefore have no difficulty at all with the appropriateness of the starting sentence for the overall offending at three years and four months’ imprisonment, some 40 months.

[20]     The appellant was entitled to a deduction of 33% for his immediate guilty plea.   He pleaded guilty at first call.   I agree with counsel for the appellant that Hessell does apply to summary cases and accordingly the start sentence for the overall   offending  must   be   reduced   to  one   of   27 months’   imprisonment   or

13½ months for each offense cumulative on each other.

Non parole period

[21]     The Judge imposed a non parole period of 20 months’ imprisonment based on  his  final  sentence  of  30 months’  imprisonment.     However  s 86(1)  of  the Sentencing Act 2002 provides as follows:

86       Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve  a  minimum  period  of  imprisonment  in  relation  to  that particular sentence.

[22]     As can be seen a non-parole period can only be imposed where there is a sentence of more than two years for a “particular offence”.   Here, neither the sentences imposed for the particular offence was more than two years.  Indeed they could not be given the maximum penalty for each is two years’ imprisonment.  In those circumstances, therefore, the order under s 86 must be quashed.  It was made without jurisdiction.

[23]     I therefore allow the appeal in the limited way that I have indicated.  I quash the  sentence  of  30 months’  imprisonment  and  I  impose  instead  a  sentence  of

27 months’  imprisonment  being  13  months  and  two  weeks  on  each  charge

cumulative of each other.  The non-parole period is quashed.

Ronald Young J

Solicitors:

L P F Lafferty, Solicitor, PO Box 322, Napier 4140, email:  [email protected]

J Rielly, Elvidge & Partners, PO Box 609, Napier 4140, email: [email protected]