Meares v Police
[2015] NZHC 2373
•30 September 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000089
CRI-2015-409-000090 [2015] NZHC 2373
BETWEEN DANIEL MATTHEW OLLIVER
MEARES Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 September 2015 Appearances:
J Lucas for Appellant
K J Basire for CrownJudgment:
30 September 2015
JUDGMENT OF DUNNINGHAM J
[1] Mr Meares appeals his sentence of 15 months’ imprisonment on the
following offences:
(a) drove with excess blood alcohol (third or subsequent); (b) careless driving;
(c) threatening to kill.
[2] On 26 June 2015, Mr Meares was sentenced on the first two offences to nine months’ imprisonment, three months’ disqualification and an alcohol interlock licence disqualification order.1 On 20 July 2015 a further sentence of six months’
imprisonment was imposed on the third charge.2
1 Police v Meares [2015] NZDC 11882.
2 Police v Meares [2015] NZDC 13759.
Grounds of appeal
[3] The grounds for appeal are that the sentencing Judge erred by failing to adjust the sentence to account for the totality principle. As a result, the end sentence was manifestly excessive. The appellant considers that in undertaking the sentencing exercise afresh, a reduced sentence in the vicinity of 12 months or less should be imposed.
Principles applying on appeal
[4] This is an appeal under s 244 and 250 of the Criminal Procedure Act 2011. The appeal must be allowed if I am satisfied that there was an error in the sentence imposed on conviction and that a different sentence should be imposed.
[5] It is accepted that where the sentence is “manifestly excessive”, that is an error supporting an appeal. In deciding whether the end sentence is manifestly excessive, I do not need to be concerned with how the end sentence was reached, but rather whether it is “in a range that can properly be justified by accepted sentencing principles”.3
Background facts
[6] The appellant is a recidivist offender. The excess breath alcohol charge was his ninth conviction for alcohol-related driving offences (six excess blood alcohol convictions, one conviction for being a person under 20 exceeding breath alcohol limit and two convictions for refusing an officer’s request for blood specimen). He has also been convicted on 10 charges of driving while disqualified.
[7] The offending committed on 31 August 2014 involved the appellant approaching a vehicle at speed on the Christchurch side of the Lyttelton tunnel. This vehicle was positioned to warn drivers of approaching road works. There were
workers at the main site. The speed limit was reduced to 30 kilometres per hour.
3 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15].
[8] The appellant overtook this vehicle at speed, estimated at 80-90 kilometres per hour, causing the workmen to get out of their truck and seek refuge on the road verge as the appellant approached them. When the appellant slowed at the last minute, the workers attempted to speak to him. They could smell alcohol on his breath and he took off accelerating into the opposing lane.
[9] He continued the wrong way along a portion of coned off lanes, heading directly into an oncoming truck. The truck driver had to brake and pull over to avoid a collision. The appellant veered left, knocking over road cones in order to get into the correct lane.
[10] Fifteen minutes later he drove back along the same road towards the Lyttelton tunnel. He again drove through the reduced speed area at a speed of approximately
90 kilometres per hour, knocking over another 15 traffic cones.
[11] He was located by police parked outside his home address in Cass Bay and had a reading of 972 micrograms of alcohol per litre of breath. These events gave rise to the charge of driving with excess blood alcohol and careless driving.
[12] The threatening to kill charge arose out of an incident on 13 May 2015 in Lyttelton. He was arrested after police believed he was stealing a backpack that was left on a fence by a passerby. He was grossly intoxicated when he was arrested and, while being transported to the police station, he said to the arresting officer “when I see you in Lyttelton I am going to kill you”. When he was questioned later by police about this threat he said that it should not be taken seriously.
[13] Although he was initially also charged with theft of the backpack, he explained to the police when he was arrested that he thought “the bag was just in the rubbish” and a rubbish bin was next to where the backpack had been left. As a result the theft charge was withdrawn.
Sentencing
[14] When Judge Callaghan sentenced Mr Meares on the first two charges, he referred to the aggravating features of the offending. These were that it was the eighth drink driving charge since 1993 including some for which he had received imprisonment. Not only did he have an alcohol level of 972 micrograms, but it seemed he was under the influence of drugs as well at the time of driving. Furthermore, the way he drove put “workmen and other people’s lives at risk”.
[15] While acknowledging the gap between 2009 and 2014, taking into account the aggravating factors, Judge Callaghan held a starting point of at least 12 months was appropriate, to which he then applied a three month discount for Mr Meares’ guilty plea.
[16] On 20 July, Judge O’Driscoll sentenced Mr Meares on the threatening to kill charge. He recorded that an aggravating factor was that Mr Meares was on bail when the threat was made. When invited to consider a concurrent sentence for the threatening to kill charge with the sentence already imposed for the driving matters, the Judge rejected that, saying “the driving matters and the threatening to kill charge are completely different and separate matters” and he had “no doubt that had these two matters been before the Judge at the same time the Judge would have imposed a
cumulative sentence of imprisonment on you”.4
[17] In terms of the offence itself, he noted that threats to kill police officers are taken seriously even if someone may be in custody or may have been under the influence or have been drinking at the time, and for this reason “something needs to be added onto the sentence for the driving matters to hold you accountable for the offending and to attempt to deter you and others from making threats against police
officers”.5
[18] He held that an appropriate starting point (which presumably reflected the aggravating features of the charge) was eight months, and he then reduced it by two months to take into account the plea of guilty, resulting in a sentence of six months’ imprisonment.
[19] He then reflected that the sentence would be cumulative on the sentence that was imposed on the driving matters saying “I do not believe that breaches to the totality principle, taking into account the seriousness of the driving charges and the seriousness of this charge”.6
Submissions
[20] The appellant acknowledged that the starting point of 12 months for a ninth excess breath alcohol charge could not be described as excessive.
[21] The respondent, on the other hand, referring me to both Clotworthy v Police, and Samson v Police, and said that the Court could have adopted a starting point in the 12 to 18 months range for the actual offending, with an uplift for his prior offending, bringing the start point to around 18 months.7 This meant that the start point of 12 months adopted on the driving charges was lenient.
[22] Given Mr Meares was nearly two and a half times the legal alcohol limit, that his driving on the day put workers at risk, and the frequency of his previous alcohol related offending, I accept the respondent’s view that a starting point of around
18 months was open, and the sentence actually imposed was at the lower end of the scale.
[23] In dealing with the threat to kill charge, I accept, as counsel submitted, that there is no tariff case.
[24] I was referred to a range of cases by Mr Lucas for the respondent. I accept that the case Burchell v R, where the Court of Appeal dealt with the charge of threatening to kill a police officer by the appellant during the course of a visit to
community probation for the purposes of a pre-sentence report, has some analogy.8
The Court of Appeal there imposed a four month sentence. Other cases he cited, demonstrated that sentences for threatening to kill in somewhat comparable circumstances, ranged from four to nine months’ imprisonment.9 However, unsurprisingly, none of the cases was on all fours with the present case. Nevertheless, I am satisfied the present case was more analogous to those where a four to six month starting point would be imposed.
[25] In concluding that, I take into account that the threat was not premeditated, but was an impulsive outburst in circumstances where Mr Meares considered he was wrongly accused. However, it was made directly to the officer and while Mr Meares was on bail for the first charges.
[26] Here the Judge (presumably taking into account any uplift for aggravating features as there was no additional uplift imposed), started with a sentence of eight months. However, he gave Mr Meares the benefit of a full 25 per cent guilty plea discount to get an end sentence of six months. While perhaps at the higher end of the spectrum, I cannot say that sentence is outside the available range, and Mr Lucas accepted that it withstood scrutiny “when considered in isolation”.
Totality
[27] The nub of the appellant’s appeal is that despite the individual sentences being within range, when considered in totality, the sentence was out of all proportion to the gravity of the overall offending.
[28] Section 85 of the Sentencing Act 2002 provides the totality principle, which applies to sentencing for multiple offences:
…
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
8 Burchell v R [2010] NZCA 314.
9 Annas v R [2011] NZCA 49; Faaleaga v R [2011] NZCA 495; Dawson v Police [2012] NZHC
3298; McCleary v Police [2014] NZHC 1581; Peterson v Police [2012] NZHC 3190.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
…
[29] It is well established that when considering an end sentence for multiple offending, an appellate Court should focus on whether the overall end sentence is an appropriate reflection of the totality of the offending. Where the end sentence is not “wholly out of proportion for the gravity of the overall offending”, no reduction is required.10
[30] Mr Lucas put considerable store on the case in Peterson v Police, where on a number of charges, including a charge of driving with excess blood alcohol and threatening to kill a police officer, Mr Peterson received an end sentence on appeal of nine months, reduced from 14 months.11
[31] However, that case did not involve recidivist excess blood alcohol driving offending as in the present case, and which is the primary driver of the current sentence length for Mr Meares. It does not assist in determining the totality of sentence length that should be imposed on Mr Meares.
[32] Looking at the sentence length, I accept that the sentence for the 31 May offending may have been at the higher end of what was available but, equally, the sentencing for the 31 August offending was clearly at the lower end of the spectrum. More importantly though, overall, even taking into account the totality principle, I cannot say that the end sentence is manifestly excessive. The 15 month sentence reflected a fair sentence for the driving offending plus a modest uplift for the separate offending of threatening to kill. The Judge who imposed the sentence on the second offence directed himself to the totality principle and was satisfied it was
not offended. I have reached the same conclusion.
10 Ashcroft v R [2014] NZCA 551 at [32].
11 Peterson v Police [2012] NZHC 3190.
[33] Accordingly, the appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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