Ngatikai v Police

[2014] NZHC 3294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-004-000413 [2014] NZHC 3294

BETWEEN

CHANTELL PENE NGATIKAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Appearances:	J W Mackey for the Appellant L M Mills for the Respondent
Judgment:	17 December 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 December 2014 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

NGATIKAI v POLICE [2014] NZHC 3294 [17 December 2014]

Introduction

[1]      Ms Ngatikai appeals against a sentence of six months’ imprisonment imposed on her by Judge R Collins in the District Court at Waitakere on 3 December 2014. Ms Ngatikai had been convicted following a guilty plea, of driving with excess breath alcohol.

Relevant Facts

[2]      On 6 June 2014, Ms Ngatikai was the driver of a vehicle on Great North Road in Kelston.  The police observed her swerving in her lane, and, as a result, she was stopped.   An evidential breath test was administered.   It revealed a breath alcohol level of 899 micrograms of alcohol per litre of breath.

[3]      Ms Ngatikai had three previous convictions for driving with excess breath alcohol.   She was charged under s 56(4) of the Land Transport Act 1998.   The maximum penalty available for such offending is a term of imprisonment not exceeding two years or a fine not exceeding $6,000.  The court must order that the offender is disqualified from driving for more than one year.

[4]      Ms Ngatikai first appeared on 19 June 2014.   She was granted bail.   She appeared again on 21 July 2014, when she entered a guilty plea.  She was sentenced on 3 December 2014.

Judge Collins’ Sentencing Notes

[5]      Judge Collins referred briefly to each of Ms Ngatikai’s previous offences for driving with excess breath alcohol.  He noted that they had occurred over the period August 2010–May 2011.  He considered that she falls into the category of persons who are consistently at great risk of causing serious injury or death on the roads.  He observed that she has not learnt at all from her previous three convictions.  Indeed, he went on to note that Ms Ngatikai does not seem to have learnt a great deal from any court-imposed sanctions, and he set out briefly various sentences which have been imposed on her in recent times.

[6]      Judge  Collins  referred  to  Clotworthy  v  Police,1   and  observed  that  the appropriate starting point was a sentence in the vicinity of eight–nine months’ imprisonment.     He  did   not   uplift   that   figure,   notwithstanding   that   it   was Ms Ngatikai’s fourth conviction for driving with excess breath alcohol, because he accepted  that  prior  offending  was  inherent  in  the  charge  she  faced.    He  gave Ms Ngatikai a one-month discount for her relatively young age (she is 22 years’ old) and her “clear immaturity”.  He gave her a further two-month discount for her guilty plea.  He declined to impose an electronically monitored sentence.  He considered that  the  offending  was  repeat  and  serious  offending,  and  that  Ms Ngatikai  had offended  on  a  fourth  occasion  within  four  years.    He  also  noted  that  she  had responded very poorly in the past to rehabilitative sentences.

[7]      Accordingly, Judge Collins sentenced Ms Ngatikai to a term of imprisonment of six months, and imposed both standard and special post-release conditions. Relevantly, he required her to attend and complete an appropriate assessment and/or programme for alcohol abuse as directed by her probation officer, and to attend and complete any other assessment or programme directed by her probation officer.

Submissions

[8]      Mr Mackey, appearing on Ms Ngatikai’s behalf, submitted that Judge Collins’ decision to impose a sentence of imprisonment rather than home detention or community detention was wrong in principle, and that the sentence that was ultimately   imposed   is   manifestly   and   clearly   excessive.      He   argued   that Judge Collins did not mention matters that were submitted in Ms Ngatikai’s favour, including the following:

(a)       that she had self referred to the Tupu Pacific Alcohol, Other Drug & Gambling Service, offered by the Waitamata District Health Board;

(b)      that she had attended several alcoholics anonymous meetings;

1      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

(c)       that the probation report was positive, and indicated remorse and a change in attitude;

(d)that she had not driven a motor vehicle since she was arrested and charged with this offence;

(e)       that she had been complying with her community work obligations.

He argued that Judge Collins had focussed only on the negative, and ignored the positive efforts Ms Ngatikai had taken to address her issues with alcohol.  He argued that a sentence of community detention (perhaps coupled with a sentence of community work and supervision) should have been imposed.

[9]      Mr Mills, for the Crown, accepted that Judge Collins did not refer to the mitigating factors personal to Ms Ngatikai.  Nevertheless, he noted that her record clearly demonstrates that she has had difficulty in complying with community-based sentences.  He referred to s 250 of the Criminal Procedure Act 2011, and argued that the court has to proceed on “an error” principle.   He referred to the particulars of Ms Ngatikai’s offending, and to her previous record.  He accepted that another Judge may have imposed a community-based sentence, given Ms Ngatikai’s attempts at rehabilitation, but submitted that, nevertheless, Judge Collins was not in error to imprison  Ms Ngatikai  on  this  charge.    He  argued  that  persistent  drink  driving requires a deterrent response, and that the end sentence was within the appropriate range for offending of this type.

Analysis

[10]     Section 250 of the Criminal Procedure Act 2011 provides as follows:

250     First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[11]     The Court of Appeal has confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed provisions contained in the Crimes Act 1961, and the Summary Proceedings Act 1957.2   Accordingly, an appeal can only succeed if the court on appeal can identify an error in the approach taken by the sentencing judge.3     An appeal is not generally a “second shot” at sentencing.4

[12]     In my view, Ms Ngatikai’s offending was serious.  I agree with Judge Collins in this regard.  Her breath alcohol reading was 899 micrograms per litre of breath. That is more than double the legal limit.  Further, she has three previous convictions for driving with high breath alcohol readings.  On 16 August 2010, she drove with excess breath alcohol.   The reading was 1008 micrograms of alcohol per litre of breach.    On  13 November  2010,  she  offended  again.    The  reading  was  820 micrograms of alcohol per litre of breath.   On 12 May 2011, there was further offending.     The  reading  was  910  micrograms  per  litre  of  breath.     Clearly, Ms Ngatikai is a recidivist drink driver.  Drinking and driving is dangerous, illegal

and socially irresponsible.5

[13]     Further, for each of her previous offences, Ms Ngatikai was sentenced to periods of intensive supervision.   It is clear that those sentences have not had the desired effect.

[14]     Ms Ngatikai’s driving on the night in question is also a matter of concern. The  summary  of  facts,  to  which  Ms Ngatikai  pleaded  guilty,  recorded  that  her vehicle was observed by police swerving within its lane.   While I accept that the observed driving could have been much worse, the fact remains that such erratic

driving presents a danger to the public generally.   In my view, the starting point

2      Tutakangahau v R [2014] NZCA 279 at [26].

3      R v Shipton [2007] 2 NZLR 218 (CA) at 238.

4      Polyanszky v R [2011] NZCA 4 at [17]–[18].

5      Hutchinson v Police HC Rotorua CRI 2010-463-109, 3 September 2010 at [45]; Hibbert v Police

[2014] NZHC 2094 at [13].

Clotworthy.  I now turn to consider matters personal to Ms Ngatikai.

[15]      I accept that Ms Ngatikai was not disqualified at the time, and that she entered  a  guilty  plea  at  a  relatively  early  stage.    I  observe  that  Judge Collins appropriately  gave  her  a  full  25  percent  discount  in  that  regard.    That  is  in accordance with relevant appellate authority.6

[16]     I accept Judge Collins did not expressly take into account the mitigating factors personal to Ms Ngatikai, and I accept that she has expressed appropriate remorse, and belatedly sought to address the problems which stem from her abuse of alcohol.  Had the Judge taken these matters into consideration, these factors would have justified a relatively minor reduction in Ms Ngatikai’s sentence – perhaps one month.   However, as noted against this, I note that the Judge did not take into account as an aggravating feature personal to Ms Ngatikai, her appalling criminal record.  It would have been open to him to do so.

[17]     It  is  noteworthy  that  Ms Ngatikai  has  a  lengthy  criminal  record,  and notwithstanding her relatively young age.  She started offending in 2007 and she has continued to offend on a regular basis ever since.   To date, community-based sentences  have  been  imposed.     Such  sentences  have  not  worked.     Indeed, Ms Ngatikai  has  various  convictions  for  breach  of  community-based  sentences, including breaching conditions of intensive supervision orders, failing to answer District Court bail, and the like.

[18]     In my judgment, the sentence imposed by Judge Collins is within the range that can properly be imposed for offending of this type, on accepted sentencing principles. This Court should not intervene.

[19]     While it was open to Judge Collins to consider a community-based sentence, his decision not to do so involved the exercise of the discretion, and in my view,

Judge Collins did not err in the end sentence he imposed.

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Wylie J