Morgan v Police HC Hamilton CRI 2007-419-17

[2007] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-17

MICHAEL VICTOR MORGAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 February 2007

Appearances: R Ord for the Appellant

S Litt for the Respondent

Judgment:      22 February 2007

ORAL JUDGMENT OF PRIESTLEY J (Appeal Against Sentence)

Solicitors:

R Ord, P O Box 9175, Hamilton

S Litt, Crown Solicitor, P O Box 19-173, Hamilton

MORGAN V NZ POLICE HC HAM CRI 2007-419-17  22 February 2007

Introduction

[1]      This appeal raises difficult issues arising out of the diverse sentences which are imposed on offenders who drive with excess blood alcohol.

[2]      Although s 8(e) of the Sentencing Act 2002 enunciates as a principle the desirability for consistency in sentencing, so many diverse and individual factors are thrown up by repeat excess blood alcohol offending that consistency, in any pure sense, is well nigh impossible.

[3]      In Clotworthy v Police (2003) 20 CRNZ 439, Wild J carried out the valuable undertaking of listing in the body of his judgment a large number of District Court and High Court sentences which provide some guidance.  Appended to his judgment is a helpful graph setting out sentencing trends for multiple excess blood alcohol offenders.

[4]      As is apparent in Clothworthy, Wild J’s analysis did not focus on excess blood alcohol offending simpliciter but rather the dilemma posed by repeat offenders and/or repeat offenders who drive whilst disqualified.

[5]      Whether,  given  the  persistence  of  repeat  offending  in  New  Zealand, sentencing levels are adequate to reflect denunciation and deterrence principles, is a problematic issue best left for another day.

The Appellant

[6]      The appellant appeared for sentence in the Hamilton District Court before Saunders DCJ on 19 January 2007.  He faced two charges.  The first charge in itself was relatively innocuous.  Just before 9 o’clock on 19 May 2006 the appellant was stopped at a compulsory check point in Hamilton.   His breath contained 689 micrograms of alcohol per litre of breath.

[7]      The appellant unfortunately had a prior history.   In both 1977 and 1984 he was  convicted  of  driving  with  excess  blood  or  breath  alcohol  offences,  both

convictions being entered in the Wellington District Court.   Those offences can properly be regarded as historic.  Nonetheless, and properly so in my judgment, the prosecution proceeded against him under s 56(1) of the Land Transport Act 1998 specifying those two prior offences in the charge.

[8]      The appellant initially entered a plea of not guilty.  He was released on bail. One of the conditions of bail was that he was to refrain from the consumption of alcohol.  The appellant, however, offended again, this time more spectacularly.  On

23 September 2006 (an interval barely of three months), at 6.20 pm, he stopped short of a police check point.   This time the breath test procedures revealed a breath alcohol level of 1157 micrograms of alcohol per litre of breath.  Comments in the pre-sentence report suggest the defendant’s explanation was that he was driving to a bus stop to collect his partner’s 12 year old daughter.  Whether or not the child was in  the  car  at  the  time  is  obscure.    Nonetheless  his  willingness  to  transport  a dependent member of his family, the clear breach of a bail condition, and his offending  again  within  three  months  of  his  first  offence,  are  all  significant aggravating factors.

[9]      The appellant ultimately pleaded guilty.   The Judge correctly set out the history of the offending.  He imposed an indefinite disqualification period under s 65 to which there is no challenge.  He correctly identified aggravating features.

[10]     The difficulties presented by the sentencing notes lie in discerning a reason for the final result.  On the first and less serious charge the Judge imposed a term of six months imprisonment.  On the second and more serious September 2006 charge, with specific mention of the higher level as an aggravating factor, the Judge imposed a term of eight months imprisonment.  He then stated:

…and it must be cumulative on the six months that was imposed.  That is an overall sentence of 14 months imprisonment.

[11]     The Judge then referred to the appellant’s age (he is now 61) and to various domestic responsibilities, including the ill health of his de facto wife, and granted leave to apply for home detention.

[12]     Mr Ord’s submissions can succinctly be summarised thus:  that the 14 month resulting sentence is manifestly excessive; that with regard to the May 2006 charge, despite the appellant’s historical offending in 1977 and 1984, no court in the country would impose a term of six  months  imprisonment;  and  that  acknowledging the aggravating features of the September 2006 sentence, although an eight month sentence might have been justified as a lead sentence, to make that sentence cumulative,  resulting  in  an  overall  sentence  of  14  months  imprisonment,  is manifestly excessive.   Mr Ord further submitted that  a 14  month  sentence was excessive having regard to the totality of the appellant’s offending.

[13]     Ms Litt’s submission was that, although severe, the two sentences of six months and eight months respectively were open to the Judge.  Reference was made to various cases set out in the tables which appear in Clotworthy.  Although Ms Litt could see force in the submission that 14 months might, in the round, be excessive, nonetheless she submitted that having regard to the high breath alcohol level and the aggravating features of the September 2006 offending, the 14 month end result is defensible.

Discussion

[14]     In Brown v Police (HC Ham CRI 419-87-94, 22 October 2004) Winklemann J and I referred to the useful analysis carried out by Wild J in Clotworthy and also observed that the various factors (ten in number) identified by Wild J as being relevant in multiple excess blood alcohol offending should not be used in a mechanical way.   Final sentences, we said, must still reflect the aggravating and mitigating factors in each individual case and the need to fix appropriate sentences in the circumstances of each case.  This approach is mandated by the Court of Appeal in R v McQuillan (CA 129/04, 12 August 2004).

[15]     When assessing the ten Clotworthy factors it would be facile to suggest that any sentencing court, by listing those factors is somehow going to arrive at a precise or even just answer.  The factors are a useful check list for matters that have to be considered.    However,  the  sheer  diversity which  multiple  excess  breath  alcohol offenders throw up precludes the factors leading to any “right” answer.  Courts must

strive  for  consistency  across  the  board.    Like  cases  (particularly  similar  prior numbers of convictions and relevant breath levels and also the type of driving involved) should ideally lead to similar results.  But outside those core factors, other variations  and  considerations,  including  the  need  to  impose  a  sentence  which correctly reflects the circumstances of a case, will obviously come into play.

[16]     That said a brief summary of the ten Clotworthy factors is helpful here.  They are set out in para [20] of Clotworthy and I have summarised them with application to the instant case.

a)        The breath or blood alcohol level.

The first level was 689 micrograms of alcohol per litre of breath.  The second is certainly high at 1157 micrograms of alcohol per litre of breath.

b)The  length  of  time  that  had  elapsed  since  the  last  drink  driving conviction.

Three months in respect of the second offence but 22 years or over in respect of the historic offending.

c)        Conviction for two or more drink driving offences in close succession.

Not applicable historically, but certainly applicable in respect of the three month interval.

d)The manner of driving: innocuous or dangerous; accident and injury resulting or neither?  Sometimes this manifests itself in an additional charge(s).

No suggestion here that the driving was anything but innocuous. Certainly not as potentially dangerous as in Brown.

e)       Whether the offender was disqualified or forbidden from driving at the time.

No.

f)        The plea and, if guilty, whether that plea was entered at an early

stage or only belatedly.

The second plea was entered speedily.  A plea to the first charge only followed his apprehension for the second charge.

g)      The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.

Non custodial were imposed in 1977 and 1984.  No similar offending since.

h)The  offender’s  record,  if  any,  of  convictions  for  other  types  of offending.

No need here to repeat the historic breath alcohol offending although as Ms Litt observes there was a recent careless use conviction.

i)Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.

Some remorse is evident from the pre-sentence report.

j)Any mitigating personal or family circumstances contributing to the offending.

These were weighed by the Judge.

[17]     Clearly in addition to these ten Clotworthy factors are the serious aggravating features of the second offence.

[18]     When I balance these matters, and in particular when I look at the cases helpfully assembled in Clotworthy and also look at the annexed graph, treating the appellant as a fourth offender, a 14 month sentence having regard to the ten factors listed above seems considerably out of line.   I appreciate the Judge refers to Clotworthy, but there is no comparison by him on core matters with the various levels contained therein.

[19]     I am firmly of the view that a 14 month end sentence is manifestly excessive. I agree with Ms Litt that the eight month sentence arrived at for the second offence would, by itself, be unassailable.  The difficulties arise with the Judge making that eight month sentence cumulative with the prior six month sentence.  That six month sentence too, having regard to the ten Clotworthy factors and the historic offending, would undoubtedly be too high.  I agree with Ms Litt, however, that a sentence of around three months for the first offence would arguably be defensible.

[20]     I consider the judge would have been entitled to impose a term of eight months imprisonment for the more serious offence.  I also consider he would have been entitled to look at a start point between six and eight months for that second offence and to have added to it in a small way to reflect aggravating factors.  But where the sentence is flawed is making the two sentences imposed cumulative. Again, looking at the Clotworthy factors and the cases assembled in that judgment, a

14 month end sentence for a fourth offender, having regard to all the factors and the circumstances of  the offending, it is clearly well out of range.

Result

[21]     Being satisfied that the 14 month end sentence is manifestly excessive I

quash it.

[22]     I  consider  the  appropriate  sentence  to  impose  on  the  offending  which occurred on 23 September 2006, using that as a lead sentence and reflecting its

aggravating factors, the prior to May 2006 offending, and the various mitigating factors available to the appellant, would have been a sentence of nine months imprisonment.   Accordingly a sentence of nine months imprisonment on that charge is substituted.

[23]     On the lesser charge relating to the May 2006 offending the term of six months imprisonment is quashed and a term of three months imprisonment is substituted.  Those two terms are to be served concurrently.

[24]     There is no interference to the other aspects of the sentence including the granting of leave to apply for home detention.  Those other portions of the District Court’s sentence remain operative.

......................................… Priestley J