Moon v Police HC Whangarei CRI 2010-485-7

[2010] NZHC 1129

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2010-488-0007

BETWEEN  GLENN FREDERICK MOON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 July 2010

Counsel:         T Shepherd for Appellant

D A Coleman for Respondent

Judgment:      9 July 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

T Shepherd, PO Box 147, Kaikohe

MOON V NEW ZEALAND POLICE HC WHA CRI 2010-488-0007 [9 July 2010]

Introduction

[1]      Mr  Moon  appeals  against  a  sentence  imposed  in  the  District  Court  at

Kaikohe, for offences under the Land Transport Act 1998.

[2]      Mr Moon  appeared  for  sentence  on  28  October 2009,  on  one charge  of driving with an excess breath alcohol level and one of driving while disqualified.  In each case it was a third or subsequent offence attracting higher penalties.

[3]      The appeal is brought against the sentence of imprisonment imposed, one of two years and six months.  Mr Shepherd, on behalf of Mr Moon, submits that the sentence of imprisonment was clearly excessive or inappropriate.  No challenge is brought to the disqualification or confiscation orders made by the Judge.

Facts

[4]      Having been previously disqualified from driving, Mr Moon, on 21 May

2009, had been drinking alcohol at the Opononi Hotel.  At about 9.50pm that day, he left the hotel, went to a Mitsubishi motor vehicle, got into that vehicle and began to drive towards his home in Opononi.  Police officers in a passing Police patrol car saw Mr Moon leave the hotel.  The vehicle being driven by Mr Moon was pulled over to the side of the road, a short distance later.

[5]      When breath test procedures were carried out, Mr Moon returned a positive result of 918 micrograms of alcohol per litre of breath.   The legal limit is 400 micrograms of alcohol per litre of breath.

Sentencing in the District Court

[6]      In sentencing Mr Moon, Judge Duncan Harvey took the view that cumulative sentences were appropriate to reflect the driving and disobedience of Court orders offences.   The sentence of two years six months imprisonment was imposed as a

Moon’s previous history in that regard.

[7]      Between 1988 and 2004, Mr Moon had amassed 10 convictions for driving with an excess breath or blood alcohol ratio.   Between 1993 and 2006, he had 15 convictions for driving while disqualified.  Even though he has had no convictions for driving with excessive alcohol levels since 2004, there is little by way of mitigation that can be gained from that, having regard to the appalling history that Mr Moon presents.

[8]      Judge Harvey took the view that “after giving you full credit for your pleas of guilty” a sentence of two years six months imprisonment would be imposed.  That sentence was constructed by ordering imprisonment for 18 months on the charge of driving with an excess breath alcohol concentration and adding to that a term of 12 months on the driving while disqualified charge.

[9]      Save in respect of the observation as to how the end sentence was reached, there is no breakdown in the sentencing notes of the actual starting point taken and the credit given for the early guilty plea.  However, it is clear that the Judge had in mind a credit of about one-third, in accordance with the Court of Appeal’s decision in R v Hessell.[1]     I agree with Mr Shepherd that a credit of that magnitude was justified, having regard to the very early guilty pleas entered.

Analysis

[1] R v Hessell [2009] NZCA 450 at [15].

[10]     In my view, the Judge was right to impose cumulative sentences.  There were two different types of offending.

[11]     The first involved road safety.  For the eleventh time, Mr Moon was prepared to get into a vehicle and drive with a significant excess breath alcohol concentration, apparently without any regard for members of the public who may be on the road at

the same time.

administration of justice offence.   For the sixteenth time, Mr Moon flouted Court orders, exhibiting a complete contempt for the Court’s attempts to keep him off the road to protect the public.

[13]     I have no doubt that in cases such as this, cumulative sentences are required to mark the offending adequately.  That is more so when one looks at the maximum penalties involved for offences of this type, namely two years imprisonment on each of the two offences.  Only by imposing cumulative sentences can a penalty that truly marks the seriousness of the offending be imposed.

[14]     This was a case where the Judge was entitled to treat the offending as near to the worst of its type.  In fact, I would regard it as falling within the category of the worst of its type.  While one can always posit cases in which a greater number of convictions for prior offending may have taken place or worse driving results, at some point the Court must say enough is enough and treat the sentencing exercise as one that can be begun from close to or the maximum sentence capable of being imposed.

[15]     On that basis, the District Court Judge would have been entitled to take a starting point for sentence of anywhere between three years nine months and four years imprisonment.  Reducing that sentence by one third to reflect the early guilty pleas, brings a sentence of two years and six months imprisonment squarely within sentencing bounds.

[16]     I see no reason why any further credit should be given.   The claims of remorse ring hollow, having regard to the appellant’s background.   The time has come for his actions to speak much louder than his words.

Result

[17]     In those circumstances, the appeal is dismissed.  The sentences imposed in the District Court are confirmed.

P R Heath J