Nguyen v Police

[2024] NZHC 541

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000008

[2024] NZHC 541

BETWEEN

HUNG KIEU NGUYEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 February 2024
Appearances:	S J Morgan and M W Büdler for Appellant O J Southern for Respondent
Judgment:	13 March 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 13 March 2024 at 4 pm.

………………………… Registrar/Deputy Registrar

Solicitor:

Public Defence Service, Manukau Crown Solicitor, Manukau

HUNG KIEU NGUYEN v NEW ZEALAND POLICE [2024] NZHC 541 [13 March 2024]

[1]    The appellant, Hung Nguyen, was sentenced on 20 December 2023 on the following charges:

(a)       10 May 2023:

(i)careless driving; and

(ii)driving with excess breath alcohol.

(b)       21 July 2023:

(i)       driving with excess breath alcohol.

(c)       28 July 2023:

(i)       driving with excess breath alcohol.

(d)25 August 2023:

(i)driving with excess breath alcohol;

(ii)driving while suspended; and

(iii)refusing to permit blood specimen.

(e)28 August 2023:

(i)failing to answer District Court bail.

[2]He was sentenced in the District Court as follows:

(a)eight months’ imprisonment for failing to answer District Court bail;

(b)three months’ imprisonment on each of four counts of driving with excess breath alcohol, first or second offence (concurrent);

(c)three months’ imprisonment for refusing an officer’s request to give blood;

(d)conviction and discharge for careless driving and for driving while suspended; and

(e)disqualification from driving for three years.

[3]    The appellant appeals on the basis that the end sentence of eight months’ imprisonment is manifestly excessive.

Background and offending

[4]I adopt the background set out in the respondent’s submissions.

[5]    On 10 May 2023, the appellant was the driver of a silver Honda motor vehicle along Te Irirangi Drive, Clover Park. The appellant failed to maintain a safe travel distance and collided into the rear of the victim's vehicle ahead of him. He completed a breath test and the appellant's breath was found to contain 1,154 micrograms of alcohol per litre of breath. He was subsequently charged with driving with excess breath alcohol (EBA) and careless driving and was granted police bail.

[6]    At about 1.00 am on 21 July 2023, the appellant was driving through the McDonalds drive-through, where police were called due to his driving behaviour. The appellant's breath was found to contain 1,034 micrograms of alcohol per litre of breath. He was charged with driving with EBA.

[7]    At about 11.45 pm on 28 July 2023, the appellant was the driver of a Honda motor vehicle along Fort Street, Auckland. The appellant was signalled to stop by police and underwent a breath test. The appellant's breath was found to contain 1,039 micrograms of alcohol per litre of breath. He was charged with driving with EBA.

[8]    At about 6.50 pm on 25 August 2023, the appellant was involved in a minor traffic collision on Puhinui Road, Papatoetoe. The appellant completed a breath test,

which returned a result of 1,208 micrograms of alcohol per litre of breath. Police suspended his driver's license for 28 days.

[9]    At about 10.00 pm that evening, the appellant was observed on CCTV parking his vehicle at the Manurewa Police station. The appellant displayed recent signs of alcohol consumption. He refused to undergo evidential breath test procedures and refused to provide a sample of veinous blood. He was subsequently charged with driving with EBA, refusing to permit blood specimen and driving while his license had been suspended.

[10]   On 28 August 2023 at the Auckland District Court, the appellant failed to attend court without reasonable excuse. He was charged with failing to appear.

[11]   The appellant is 29 years old and has no prior convictions. He is an overstayer in New Zealand with no options for a community-based sentence. At the end of his sentence, he will be deported to Vietnam.

The sentencing hearing

[12]   There are no sentencing notes available as the hearing was not recorded due to an error with the recording equipment. The appellant’s counsel (who was counsel at the sentencing hearing) advises that the District Court Judge originally sentenced the appellant as follows:

(a)eight months’ imprisonment concurrent on each of the four counts of driving with EBA (first or second offence) and on the charge of refusing to permit blood (first or second offence);

(b)convicted and discharged the appellant for careless driving, driving while suspended and failing to answer District Court bail; and

(c)disqualified the appellant from driving for three years.

[13]   The District Court Judge apparently initially adopted the drink-driving offending as the lead offending which would be the conventional approach.

[14]   Shortly after the hearing the appellant’s counsel had the matter recalled because the sentences of imprisonment imposed on the EBA charges exceeded the maximum penalty available to the Court. On a first or second EBA offence, the maximum penalty is three months’ imprisonment. The rehearing proceeded in the absence of the appellant. At the rehearing there was no challenge to the length of the sentence, and it appears to have been suggested to the Judge that the intended sentence of eight months’ imprisonment could be achieved by making the sentences of imprisonment on the EBA charges cumulative.

[15]   The Judge took an alternative approach which involved treating the charge of failing to answer bail as the lead charge.

[16]   If there was a discount for guilty plea it is not apparent from the structure of the sentence. As the sentencing notes are not available the exact structure and any discounts are not able to be ascertained.

[17]   The appellant submits that the sentence of eight months’ imprisonment on a single charge of failing to answer bail is manifestly excessive.

[18]   The respondent concedes that the sentence of eight months’ imprisonment for failing to answer bail is manifestly excessive but says that the end sentence of     eight months’ imprisonment was not manifestly excessive in relation to the totality of the offending.

Approach on appeal

[19]   Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence 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.

[20]   An appeal against sentence is an appeal against discretion. An appellate court will not intervene where the end sentence is within the range that can properly be justified by accepted sentencing principles.1 The Court will not intervene unless the sentence was manifestly excessive or wrong in principle. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

The appellant’s submissions

[21]   The appellant submits that this Court should first determine whether the sentence imposed for failing to answer bail was manifestly excessive and then consider whether the end sentence was wholly out of proportion to the gravity of the overall offending. The appellant submits that it is uncommon for a charge of failing to answer District Court bail to be treated as the lead charge for the purposes of sentencing when accompanied by charges of EBA.

[22]The appellant referred to the following cases:

(a)Blackburn v New Zealand Police where Mr Blackburn was for sentence on a raft of driving charges, including multiple third or subsequent EBA offences and one of failing to answer bail.2 On the charge of failing to answer bail he was convicted and discharged.

(b)In Honana v NZ Police Mr Honana was found guilty on one charge of driving with EBA (third or subsequent) and failing to answer bail.3 At sentencing he was convicted and discharged on the bail matter.

(c)In Pitman v New Zealand Police Mr Pitman was sentenced to seven months’ imprisonment on his fourth conviction for driving with EBA.4 He was currently sentenced to one month imprisonment for breach of

1      Tutakangahau v R [2014] NZCA 279 at [36].

2      Blackburn v New Zealand Police [2023] NZHC 3780.

3      Honana v NZ Police [2020] NZHC 3244.

4      Pitman v New Zealand Police [2015] NZHC 205.

bail by failing to appear. Mr Pitman’s sentence was then reduced on appeal to four months’ imprisonment.5

(d)In Tindall v New Zealand Police Mr Tindall was sentenced on three charges of driving with excess blood alcohol (third or subsequent), one charge of driving with EBA (third or subsequent), two representative charges of breach of a protection order, one charge of driving contrary to his zero-alcohol licence and failing to answer to District Court bail.6 Mr Tindall was sentenced to two years and two months’ imprisonment. In relation to the failing to answer bail the Judge imposed a one-month concurrent sentence.

[23]   The appellant submits that the gravity of the offending is at the lowest end of the scale. The appellant had no previous convictions prior to 20 December 2023. He has never before or since failed to appear at court. The appellant also submits that he did not receive any discount for pleading guilty at a stage earlier than trial. He had pleaded guilty at a trial callover appearance. The appellant submits that the offence of failing to answer District Court bail is less serious than the drink-driving offending which should have been taken as the lead offending.

[24]   Following the High Court hearing the appellant filed supplementary submissions at the request of the Court. The appellant submits that the sentence should have been structured as follows.

[25]   A global starting point of five months’ imprisonment  with  a  discount  of one month’s imprisonment for early guilty plea and totality, leaving an end sentence of four months’ imprisonment. The structure suggested by the appellant is as follows:

Date	Offending	Sentence submission
10 May 2023	Careless driving	Convict and discharge
	Driving with EBA (first or second offence)	One month’s imprisonment (concurrent)

5 At [18].

6      Tindall v New Zealand Police [2019] NZHC 1725.

21 July 2023	Driving with EBA (first or second offence)	One month’s imprisonment (concurrent)
28 July 2023	Driving with EBA (first or second offence)	One month’s imprisonment (cumulative on the 10 May and 21 July EBA charges)
25 August 2023	Driving with EBA (first or second offence)	Two months’ imprisonment (cumulative on the 28 July EBA charge)
	Driving while suspended	Convict and discharge
	Refusing to permit a blood specimen (first or second offence)	One month’s imprisonment (cumulative on the 25 August EBA charge)
28 August 2023	Failing    to   answer    District Court bail	Convict and discharge

The respondent’s submissions

[26]   The respondent concedes that the sentence of eight months’ imprisonment for failing to answer bail is manifestly excessive in relation to that charge but submits the end sentence of eight months’ imprisonment was not manifestly excessive. The respondent submits that, while a concurrent sentence is generally appropriate for offences of a similar kind or connected series of offences, the overriding requirement is that the sentence appropriately meets the totality of the offending.

[27]   The present offending involves four different instances of the appellant driving with EBA with a reading of over 1,000 micrograms of alcohol per litre of breath (almost three times the legal limit). On two occasions he crashed into another vehicle. On two occasions there were related charges, namely careless driving on 10 May 2023 and driving while suspended on 25 August 2023. The appellant was further charged with refusing to permit a blood specimen in relation to the 25 August 2023 driving with EBA offending.

[28]   The respondent says that this is serious persistent driving offending. The respondent submits that on a standalone basis an end sentence of two months’ imprisonment, cumulative on each EBA charge (factoring in guilty plea discount)

would not have been excessive. The respondent refers to Davies v New Zealand Police where an overall starting point of eight to nine months’ imprisonment was regarded as appropriate for three successive instances of driving while disqualified (the latter of which was accompanied by a charge of dangerous driving) in respect of three charges.7 Each driving while disqualified charge had a maximum penalty of three months’ imprisonment. Mr Davies was found driving a motor vehicle after he had been disqualified. In a second incident he was found driving a motor vehicle again. A third driving while disqualified and dangerous driving charge resulted from Mr Davies driving at excessive speed within a motor inn complex before ramming into the front of another person’s motor vehicle.

[29]   The respondent identifies the following aggravating factors of the driving with EBA offending:

(a)Repeated driving offending: the offending all occurred within a three‑month period.

(b)Other driving charges or bad driving behaviour: two of the four instances of driving involved associated charges of careless driving or driving while suspended. Two of the four instances of driving also involved the appellant having a collision.

(c)Level of intoxication: the appellant had a reading of over 1,000 micrograms of alcohol per litre of breath on all four occasions which is almost three times the legal limit.

[30]   The  respondent  referred  in  supplementary  submissions  to  Samuels   v New Zealand Police.8 In that case a breath test yielded a result of 1,151 micrograms of alcohol per litre of breath. A starting point of three months’ imprisonment was upheld on appeal with Hammond J noting that the reading was very high.9 This was Mr Samuels’ fifth conviction for driving with EBA. At the time the maximum was three months’ imprisonment.

7      Davies v New Zealand Police [2021] NZHC 3077.

8      Samuels v New Zealand Police HC Hamilton AP107/00, 31 October 2000.

9 At [11].

[31]   In supplementary submissions, the respondent argued for the following structure:

Date	Offending	Sentence submission
10 May 2023	Careless driving	Convict and discharge
	Driving with EBA (first or second offence)	Two months’ imprisonment (cumulative)
21 July 2023	Driving with EBA (first or second offence)	One month’s imprisonment (cumulative)
28 July 2023	Driving with EBA (first or second offence)	Two months’ imprisonment (cumulative)
25 August 2023	Driving with EBA (first or second offence)	Two months’ imprisonment (cumulative)
	Driving while suspended	Convict and discharge
	Refusing to permit a blood specimen	One month’s imprisonment (concurrent)
28 August 2023	Failing    to   answer    District Court bail	One month’s imprisonment (cumulative)

Discussion

[32]   In the absence of the sentencing notes, this Court cannot make any real analysis of the approach taken in the District Court. It appears from the appellant’s submissions, however, that the approach taken was in the end a pragmatic one aimed at achieving an end result which the District Court Judge felt was appropriate for the overall totality of the offending.

[33]   Had any of the EBA charges being third or subsequent it would be difficult to argue with the end sentence. The issue, however, is that although the offending involved repeated drink-driving, none of the EBA charges could be charged as third or subsequent and none attracted the higher starting point. This was a spree of driving offences committed within a three-month period with the respondent showing extremely quick recidivism. The respondent concedes, and I agree, that the approach taken in sentencing with the failure to answer District Court bail treated as the lead offence was an error. I note that the District Court Judge was effectively invited by

both parties at sentencing to maintain the end point of eight months but to simply restructure the sentence once it became apparent that the maximum penalty available for the EBA charges was three months’ imprisonment. The sentence of eight months’ imprisonment for a first offence of failing to answer bail cannot be maintained.

[34]   I turn now to look at whether the end sentence of eight months’ imprisonment was manifestly excessive for the overall offending.

[35]   The leading case in respect of sentencing for EBA remains Clotworthy v New Zealand Police.10 In Clotworthy the Court reviewed multiple cases involving EBA (third or subsequent). The following ten factors were identified as relevant:11

(a)the breath or blood alcohol level;

(b)    the length of time that had elapsed since the last drink driving conviction;

(c)    whether there were convictions for two or more drink driving offences in close succession.

(d)    the manner of driving: innocuous or dangerous; accident and injury resulting;

(e)    whether the offender was disqualified or forbidden from driving at the time;

(f)    the plea/s and, if guilty, whether that plea was entered at any early stage or belatedly;

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

10     Clotworthy v New Zealand Police HC Whanganui CRI-2003-483-13, 25 September 2003.

11 At [20].

(h)    the offender’s record, if any, of convictions for other types of offending;

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

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

[36]   While the present case does not involve any third or subsequent offending the factors set out in Clotworthy are nevertheless relevant to identify the level of culpability with reference to the reduced starting point for first or second EBA.

[37]   There are very few cases that contemplated or imposed sentences of imprisonment for offenders convicted of their first or second offence of driving with EBA. In Vickery v New Zealand Police the appellant was convicted of dishonestly taking a motor vehicle, intimidation and driving with EBA.12 He was sentenced in the District Court to nine months’ imprisonment comprising of a six-month starting point for the lead offence of dishonestly taking a motor vehicle with a three month uplift for the intimidation and EBA. The sentence for the EBA offence is discussed at

[11] to [12] where the Judge held:13

I agree the three months’ concurrent imprisonment sentence for a first-time excess breath alcohol offence is excessive. I uphold that aspect of the appeal and reduce it to one month, concurrently with the other sentences.

[38]A term of imprisonment of three months for a first EBA offence is excessive.

[39]             In Acton v New Zealand Police the appellant was convicted of driving with EBA, driving while disqualified and careless use of a motor vehicle causing injury.14 He was sentenced in the District Court to six weeks’ imprisonment. This was his second conviction for driving with EBA. There was a short timeframe between both

12     Vickery v New Zealand Police [2019] NZHC 1315.

13 At [12].

14     Acton v New Zealand Police HC Auckland A100/02, 16 July 2002.

incidences of driving with EBA and on both occasions the breath alcohol level was almost twice the adult legal limit. The Judge discussed the purpose of imprisonment noting:

[31]      The purpose of a sentence of imprisonment in this particular case is to provide a short, sharp shock. It is to give Mr Acton a taste of what is to come if he continues this sort of behaviour. It will not be a long sentence but it will demonstrate quite clearly what is to be in store if behaviour of this type continues.

[32]      It will be quite inappropriate to grant leave to apply for home detention when the object of imprisonment is to provide a short, sharp shock. Keeping someone detained within their home environment where they have access to home entertainment and friends is quite different from the environment which pertains in  prison.  It  is  necessary to  demonstrate to Mr Acton what will occur in the future if he continues to behave in this way.

[40]             In Police v Valli Mr Valli was sentenced in the District Court for a variety of charges including driving with EBA and careless driving.15 The overall sentence was nine months’ imprisonment. He was convicted and sentenced to one month’s imprisonment for both drink-driving charges.16 I note that these charges are far more commonly dealt with in the District Court and there are very few appeals involving sentences of imprisonment for first or second EBA charges.

[41]             Because each of the EBA charges in the present case attracts the three-month maximum rather than the two-year maximum, limited guidance can be taken from cases where the charges were subject to the higher maximum penalty. Nevertheless, spree offending commonly attracts a sentence of imprisonment even where individually the offences would not. In Swenson v New Zealand Police it was said that “Imprisonment for recidivist offending is now the usual, if not necessarily, the inevitable consequence”17

[42]             This reflects the fact that recidivist offending shows a disinclination on the part of the offender to change or address their offending behaviour despite there having been some intervention from the criminal justice system, whether that be arrest or conviction. In that context the appellant’s failure to answer District Court bail is

15     Police v Valli [2017] NZDC 17182, [2018] DCR 542.

16     At [40]–[41].

17     Swenson v New Zealand Police [2016] NZHC 1625 at [5] citing R v McQuillan CA129/04, 12 August 2004.

another example of his complete disregard for the consequences and disinclination to alter his behaviour as a result of having been caught.

[43]             The 10 May 2023 offending which involved EBA of 1,154 micrograms of alcohol per litre of breath and a minor collision would ordinarily have attracted a fine and disqualification. The offending on 21 July 2023, which is a further EBA offence with a reading of 1,034 micrograms of alcohol per litre of breath would likewise have ordinarily attracted a community-based sentence, probably a larger fine perhaps coupled with community detention as a result of the quick recidivism. The further EBA offending only one week later on 28 July 2023 where the appellant blew 1,039 micrograms of alcohol per litre of breath might well have attracted a starting point of imprisonment given that it was the third drink-driving incident with a high excess within a very short period of time.

[44]             The offending on 25 August 2023 is the most serious offending because it was the fourth instance of driving with EBA within a three-month period. It had the aggravating factors of also involving a minor traffic collision (which is how the appellant came to police attention). The appellant’s driver’s licence was suspended for 28 days. Less than four hours later the appellant was observed on CCTV again driving. He displayed recent signs of alcohol consumption. He refused to undergo an evidential breath test procedure and refused to provide a sample of blood. He was charged with driving with EBA, refusing to permit a blood specimen, and driving while his licence was suspended.

[45]             Both incidents on 25 August 2023 could properly attract a sentence at or near the maximum of three months’ imprisonment.

[46]             In terms of Clotworthy, aggravating factors present in this offending include that the appellant’s breath alcohol level was very high, the offending was highly recidivist with two instances of driving on the same day, there was a minor collision, and the appellant was suspended from driving at the time of the second incident. The appellant’s lack of previous convictions and guilty plea apply to mitigate the sentence.

[47]             If there was a discount for guilty plea, then the District Court Judge must have taken a starting point of close to the maximum for the single charge of failing to answer bail. That is manifestly excessive. It seems more likely that no discount was applied to any  charge.  The  sentence  imposed  on  each  EBA  was  the  maximum  of  three months’ imprisonment so clearly no guilty plea discount was applied in respect of any of those charges.

[48]              Under s 8(2)(b) of the Sentencing Act 2002 the Court must take into account whether an offender pleaded guilty. In Hessell v R the Supreme Court said that, when exercising the discretion not to follow the guideline regarding the reduction for guilty plea, judges should give reasons for the deviation.18

[49]             The focus on appeal is upon the sentence imposed rather than the process by which the sentence is reached and the Court will not intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.19

[50]             The question is whether errors including the failure to give a guilty plea discount resulted in a sentence that is manifestly excessive. With short sentences of imprisonment, the guilty plea discount is likely to have an effect on the end sentence that is more than “mere tinkering”.20 In this case I find that the errors did result in a sentence that is manifestly excessive.

Conclusion

[51]             The District Court Judge erred in imposing a sentence of eight months’ imprisonment on the charge of failing to answer bail. Further, the failure to apparently allow any discount for guilty plea was also an error. The sentence imposed was manifestly excessive.

[52]I allow the appeal and substitute the following sentence:

18     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [18] citing R v Taueki [2005] 3 NZLR 372 at [19]. This reiterates the general requirement to give reasons in s 31 of the Sentencing Act 2002.

19     Tutakangahau v r, above n 1.

20     Mahi v R [2013] NZCA 69 at [21]; and Deslaurier v Police [2022] NZHC 1078.

(a)One months’ imprisonment of for driving with EBA on 10 May 2023 to be served concurrently with one months’ imprisonment for driving with EBA on 1 July 2023.

(b)Conviction and discharge for careless driving on 10 May 2023.

(c)One month’s imprisonment for driving with EBA on 28 July 2023 (cumulative).

(d)Two months’ imprisonment for driving with EBA on 25 August 2023 (cumulative).

(e)Three months’ imprisonment for refusing an officer’s request to provide blood on 25 August 2023 (cumulative).

(f)Conviction   and   discharge   for   driving    while    suspended    on 25 August 2023.

(g)Conviction and discharge for failing to answer District Court bail on 28 August 2023.

[53]             Structuring the sentence in this way the sentence is seven months’ imprisonment, one month less than the sentence imposed in the District Court. However, a discount must be applied for the guilty pleas. The pleas were not entered at the earliest opportunity and the prosecution case was undoubtedly strong. Applying a one month discount for the guilty pleas, the end sentence is six months’ imprisonment.

Result

[54]             The appeal is allowed. The sentence imposed in the District Court is quashed and replaced with a sentence of six months’ imprisonment structured as set out above.

[55]The disqualification period was not challenged and remains.

Wilkinson-Smith J