Meredith v Police HC Auckland CRI 2010-404-157

[2010] NZHC 1687

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-000157

ALAN JOSEPH MEREDITH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 July 2010

Appearances: J K Moates for the Appellant

C L Campbell for the Respondent

Judgment:      19 July 2010 at 5:00 pm

JUDGMENT OF WYLIE J [Appeal against sentence]

This judgment was delivered by Justice Wylie on 19 July 2010 at 5:00 pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, P O Box 90 243, Auckland Mail Service Centre, Auckland 1142

Crown Solicitor, P O Box 2213, Auckland 1140

A J MEREDITH V NEW ZEALAND POLICE HC AK CRI 2010-404-000157  19 July 2010

[1]      On 9 March 2010 in the District Court at Auckland, Mr Meredith pleaded guilty to two charges:

a)        driving with excess breath alcohol as a third or subsequent offence, contrary to s 56 of the Land Transport Act 1998; and

b)driving while disqualified as a third or subsequent offence, contrary to s 32 of the Act.

[2]      On 3 May 2010, Judge A M J Bouchier sentenced Mr Meredith to a period of imprisonment of seven months on each charge, to be served concurrently.  A post- release condition was imposed for a period of six months requiring Mr Meredith to undertake alcohol treatment or counselling as directed by his Probation Officer. Mr Meredith was also disqualified from holding or obtaining a driver’s licence for a period of one year and one day.

[3]      Mr Meredith now appeals against this sentence.  The notice of appeal is dated

7 May 2010.   It asserts that Judge Bouchier did not consider home detention as a possible sentence, and that her Honour should have better explored that option given Mr Meredith’s age, his particular circumstances, and the nature of his offending.

Background

[4]      At 2:00 am on 16 January 2010, Mr Meredith was stopped by Police at a compulsory alcohol check point.  He exhibited signs of having consumed alcohol. He provided the Police with a false name, date of birth and address, and he signed the breath testing documents using those false details.   He underwent the breath testing procedures, and his breath was found to contain 475 micrograms of alcohol per litre of breath.  He continued to give a false name, even after being confronted with his correct details.

[5]      Mr Meredith has 11 previous convictions for excess breath or blood alcohol, plus  three  convictions  for  similar  offences  (refusing  to  accompany  or  refusing

requests for blood specimens).   He also has 11 previous convictions for driving while disqualified.

[6]      A pre-sentence report noted that Mr Meredith was co-operative at interview, and that he expressed a willingness to change.  He was assessed as being at a low risk of reoffending generally, but it was noted that he presented a high risk of further traffic related offending.   He was identified as having “an alcohol and an entitled attitude which has led to his driving offences”.  The Probation Officer recorded that the sentences of home detention and community detention were canvassed with Mr Meredith, but that the proposed address offered was unsuitable.  The Probation Officer recorded that if the Court wished to pursue a home detention or community detention sentence, a further remand would be necessary so that Mr Meredith could propose an alternative address, and the suitability of the same could be assessed.

The Judge’s decision

[7]      Judge Bouchier noted that Mr Meredith’s excess breath alcohol level  —

475/400 — was not particularly high.  She also noted that his most recent conviction, apart from the charges in respect of which he appeared for sentence, was in 2005. However, she referred to Mr Meredith’s extensive history of previous offending. She referred to his personal circumstances, and to the possibility of home detention. She noted that the proposed address was unsuitable.   She also referred to a letter from Mr Meredith’s employer attesting that he was a key member of their staff and a good worker.   She recorded that Mr Meredith  had consistently, over  the  years, become drunk, and driven with high alcohol levels, thereby causing danger to other road users.

[8]      Judge Bouchier noted that sentences imposed in the past had varied.   She observed that she was required under the Sentencing Act 2002 to consider denunciation and deterrence, as well as consistency with other sentencing levels, particularly for recidivist drink drivers.   She took the view that a sentence of imprisonment should be imposed, not only for denunciation and deterrence, but also for  the  protection  of  members  of  the  public.    She  expressly took  into  account Mr Meredith’s early guilty plea.   She did not articulate her starting point, but as

noted at [2] went on to impose of sentence of imprisonment of seven months on each charge — to be served concurrently.

Submissions

[9]      Ms Moates on behalf of Mr Meredith submitted that a sentence of home detention should have been given greater consideration by the Judge.  She submitted that Mr Meredith has a supportive family, and that, if given time, he would have been able to find a suitable address for home detention.  Further, she argued that the offending was not particularly serious, given that the blood alcohol reading was relatively low, and because Mr Meredith has not offended since 2005.   She noted that he had been stopped at a check point, and that there had been no erratic driving involved.  She submitted that Mr Meredith’s alcohol issues could have been better addressed had he been sentenced to home detention, and that there would be a long term benefit to Mr Meredith and to the community if his cycle of offending were to be broken.  She submitted that a sentence of imprisonment was not necessary in the circumstances of the case to achieve this goal and observed that Mr Meredith has expressed appropriate remorse and insight into his offending, that he has recognised his alcohol abuse issues, and is willing to address this by attending counselling. Ms Moates also referred me to s 8(g) of the Sentencing Act requiring the Court to impose the least restrictive sentence available, to s 16 which requires that a Court have regard to the desirability of keeping offenders in the community as far as is practicable, and to s 15A, which sets out the circumstances in which a Court may impose a sentence of home detention.

[10]     Ms Campbell for the Crown submitted that the sentence was neither clearly excessive,  nor  inappropriate,  but  rather  that  it  was  within  the  range  that  could properly be justified by accepted sentencing principles.   She referred me to the decision of Wild J in Clothworthy v Police,[1]  where his Honour comprehensively reviewed the sentences imposed for excess breath or blood alcohol offending.  She noted that none of the cases noted by his Honour involved a similar number of convictions  to  those  which  Mr  Meredith  has  amassed,  but  that  sentences  of

imprisonment  were  nevertheless  imposed.    She  referred  specifically  to  Jones  v Police[2] where a sentence of 12 months imprisonment was upheld following a guilty plea for an eighth conviction for excess blood alcohol, and for a seventh conviction for driving while disqualified; to Whitlow v Police[3] where a sentence of nine months’ imprisonment was upheld for an eighth conviction for excess blood alcohol, and a seventh conviction for driving while disqualified; and to Te Awhe Morgan v Police4[4]where a sentence of six months’ imprisonment was upheld for a fourth blood alcohol offence and a fourth driving while disqualified offence.  The level of blood alcohol there was 469/400.  She also referred me to the decision of the Court of Appeal in R v McQuillan.[5]   In that case, the District Court had sentenced an appellant to a total of two years’ imprisonment — comprising two terms of 12 months — given respectively for driving while disqualified and for excess blood alcohol.   The appellant had eight previous convictions for driving while disqualified, and five previous convictions for driving with excess blood alcohol.   The Court of Appeal considered that the total term of imprisonment was not manifestly excessive.

[1] (2003) 20 CRNZ 439 (HC).

[2] HC Wellington AP48/00, 11 April 2000.

[3] HC Wanganui AP16/02, 16 September 2002.

[4] HC Wellington AP195/99, 15 July 1999.

[5] CA129/04, 12 August 2004.

[11]     Ms Campbell then noted that in effect, Mr Meredith had been sentenced by Judge Bouchier for his 15th conviction for excess breath or blood alcohol or similar offences, and for his 12th conviction for driving while disqualified.  She observed that Mr Meredith had been sentenced to imprisonment on several occasions for excess breath or blood alcohol offences, and for driving while disqualified.   She accepted that there were mitigating circumstances, but submitted that the sentence was nevertheless within the permissible sentencing range.  She accepted that had a suitable address been available, a sentence of home detention could have been available, but submitted that a sentence of imprisonment had appropriately been imposed for the purposes set out in s 7(e), (f) and (g) of the Sentencing Act, and that such sentence was necessary in the interests of consistency with appropriate sentencing levels for recidivist drink drivers.   It was submitted that a sentence of home detention would not be consistent with appropriate sentencing levels for a

person with Mr Meredith’s previous record, and that a sentence of imprisonment was the only appropriate sentence.

Analysis

[12]     I start  by observing that  the  appeal  is  brought  pursuant  to  s 115  of the Summary Proceedings Act 1957.   It is an appeal against sentence, and relevantly s 121(3) provides as follows:

In the case of an appeal against sentence, the High Court may— (a)         Confirm the sentence; or

(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the [High Court] is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing  sentence,  or  that  those  facts  were  not  substantially  as placed before or found by that Court, either—

(i)Quash  the  sentence  and  either  pass  such  other  sentence warranted   in   law   (whether   more   or   less   severe)   in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

(ii)      Quash any invalid part of the sentence that is severable from the residue; or

(iii)      Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[13]     Where it is alleged that the sentence is manifestly excessive, it is a well established principle that this Court should not substitute its own opinion for that of the sentencing Judge, and that it should only interfere when it can be said that the sentence imposed was clearly excessive.

[14]     In my view, it cannot be said that the sentence imposed by Judge Bouchier in the present case was manifestly excessive.

[15]     Mr Meredith has an appalling history of driving with excess blood/breath alcohol, and of driving while disqualified.  Prior to the offending the subject of the

present  appeal, he had  been convicted on  11  occasions for driving with excess breath/blood alcohol.  He had three convictions for similar offences, namely refusing to accompany or refusing requests for blood specimens.   He had 11 previous occasions for driving while disqualified.

[16]     Repeated drink driving offending is unfortunately common in the community and it raises very real concerns for public safety.  The Courts have responded.  As noted by Wild J in Clotworthy, and by the Court of Appeal in McQuillan, the Courts have consistently upheld sentences of imprisonment in the order of 12 months where an offender is a recidivist drink driver with a large number of previous convictions. Indeed, the Court of Appeal noted at [20]–[22] in McQuillan that in such cases:

[20]... 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 s 58(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 (ss

56(1), 56(2), 58(2) and 61).

[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. ...

[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.

[17]     Here, Mr Meredith’s blood alcohol level was 475 micrograms of alcohol per litre of breath.   The limit is 400.   While the reading was  relatively low  given Mr Meredith’s previous readings which resulted in his earlier convictions, it was still well in excess of the allowable limit.  Mr Meredith’s last conviction for excess blood alcohol was in late 2005 — almost five years ago.  Nevertheless, I am mindful that he started offending in this regard in 1981.   He offended further in 1990 (two occasions), 1993, 1996 (two occasions), 1997, 1998 (two occasions), 2000 (three occasions),  2004,  and  then  2005.     He  is  clearly  a  recidivist  drink  driver. Mr Meredith was not driving dangerously at the time of the present offence.  Nor did accident or injury result.   He was, however, disqualified for an indefinite period when he was sentenced in November 2005.  He should not have been driving at all.

[18]     On the last seven occasions when he has been convicted of driving with excess breath or blood alcohol, and/or driving whilst disqualified, Mr Meredith has been imprisoned.  I note that on one occasion, in June 2002, when Mr Meredith was sentenced for driving whilst disqualified, he was sentenced to 10 months’ imprisonment and had been denied leave to apply for home detention.  On his last conviction  for  driving  with  excess  blood  alcohol  in  November  2005,  he  was sentenced to 15 months’ imprisonment.  These sentences seem to have had little or no effect.

[19]     Mr Meredith does not have any other relevant convictions.

[20]     I note Ms Moates’ submission that Mr Meredith has expressed remorse, and a willingness to confront his offending.   I have some difficulty accepting this submission.  First, I note that Mr Meredith initially lied about his personal details. Secondly, I query his willingness to confront his alcohol-related offending given his number of previous convictions and his apparent readiness to flout the road transport laws in this area.   Put bluntly, any expression of remorse and of willingness to address his offending, seems to me to come too late.

[21]     Mr Meredith is 63 years old.  He works for Auckland Steel Blasters Limited. He lives in a caravan at his employer’s premises.  He works as a blaster and painter during  the  day,  and  doubles  as  a  security  guard  after  hours.    By  all  accounts,

Mr Meredith is a good employee, and Ms Moates advised me from the bar that he makes a regular contribution to his family from his wages.  While it is unfortunate the Mr Meredith has lost his job as a result of his offending, I note that his employer has confirmed his willingness to re-employ him when he is released from prison.

[22]     Mr Meredith did enter a guilty plea, and at the first available opportunity.  He was entitled to credit for that plea.  The Judge did note his plea.  This suggests that the initial period of imprisonment contemplated by Judge Bouchier must have been in the vicinity of 10½ months.  A starting point sentence in this vicinity was well within accepted boundaries for this type of repeat offending.

[23]     In my view, the sentence of seven months’ imprisonment imposed by Judge Bouchier cannot be viewed as manifestly excessive.   Indeed, I suspect some other Judges may have taken a rather sterner approach.  In my view, the sentence under appeal was clearly comfortably within the permissible range.

[24]     The  Judge  did  consider  whether  or  not  home  detention  would  be  an appropriate  sentence.    She  made  express  reference  to  the  address  offered  by Mr Meredith — the caravan at his employer’s premises.   That address  was not suitable.  That remains the case and I note that no further address has been offered at the hearing of this appeal.

[25]     Further, in my judgment, a sentence of home detention would not, in the circumstances of this case, have been appropriate.   I agree with the Judge that denunciation  and  deterrence  were  important  in  Mr  Meredith’s  case.    He  is  a recidivist offender, who has paid little or no heed to previous sentences imposed on him.  There was a clear need to hold Mr Meredith accountable for his offending, to endeavour yet again to promote in him a sense of responsibility for that offending, to denounce drink driving offending generally, to deter Mr Meredith specifically from committing the same or a similar offence again, and to protect the community from Mr Meredith’s flagrant and repeated disregard of the drink driving laws.   I also considered the principles of sentencing set out in s 8, and in my judgment, no other sentence would have been consistent with the principles detailed in s 8(a), (b) and (e)

of the Sentencing Act.  The principle detailed in s 8(g) does not persuade me that a sentence of imprisonment is inappropriate in the present case.

[26]     The community would have been justly affronted if recidivist offending of the type committed by Mr Meredith were not to receive a sentence of imprisonment.

[27]     The appeal is dismissed.

Wylie J