Nixon v Police

[2024] NZHC 3308

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-21

[2024] NZHC 3308

IN THE MATTER

of an appeal against sentence

BETWEEN

LACHLAN KENNETH NIXON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 November 2024

Appearances:

M L Bonniface for Appellant

C J Mitchelmore for Respondent

Judgment:

7 November 2024

ORAL JUDGMENT OF OSBORNE J

Introduction

[1]    Lachlan Nixon (now aged 69) pleaded guilty to a charge of driving with excess breath alcohol (EBA),1 and a charge of driving while disqualified (third or subsequent).2 On 29 August 2024 he was sentenced by Judge C D Savage to six months’ home detention.

[2]Mr Nixon now appeals his sentence on the basis it was manifestly excessive.

1      Land Transport Act 1998, s 56(1) and 56(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.

2      Land Transport Act 1998, s 32(1)(a) and 32(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.

NIXON v NEW ZEALAND POLICE [2024] NZHC 3308 [7 November 2024]

Facts—the offending

[3]    In June 2023, Mr Nixon was convicted of driving with EBA and driving while disqualified (third or subsequent). He was subsequently disqualified from driving for a further year. He remained disqualified at the time of the current offending.

[4]    On 8 March 2024, Mr Nixon was driving a car in Waimate when he was stopped by police. He admitted to consuming alcohol. Breath testing procedures were subsequently carried out and Mr Nixon returned a result of 765 micrograms of alcohol per litre of breath.

[5]He was subsequently charged with the offences to which he has pleaded guilty.

Facts

Mr Nixon’s driving record

[6]    Mr Nixon had eleven previous drink driving convictions, of which several related to offending while Mr Nixon was disqualified from driving.

Sentencing decision

[7]    The Judge observed that a community-based sentence would be inappropriate given Mr Nixon has shown in the past he is unable to resist the temptation to drink and drive. The Judge identified his primary concerns in sentencing as being to deter Mr Nixon from reoffending and to send a message to the community that there will be not inconsequential restrictions on a person’s liberty if they repeatedly drink drive.

[8]    The Judge viewed a sentence of community detention as an inadequate response to a twelfth drink driving offence. The Judge acknowledged the difficulties that flow from a sentence of home detention and the impact such would have on Mr Nixon’s ability to generate the income he needs to support himself. The Judge considered this was something Mr Nixon should have thought about before offending. The Judge said there was a very real possibility of Mr Nixon being sentenced to a term of imprisonment, but he was going to step back from that.

[9]    Although not expressly set out in the sentencing decision, the Judge appears to have taken a starting point of 16 months’ imprisonment and reduced this by 25 per cent for Mr Nixon’s guilty pleas. That would equate to a sentence of 12 months’ imprisonment, which the Judge commuted to six months’ home detention.

Principles on appeal

[10]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepting sentencing principles”.4 It is appropriate for this Court to intervene and substitute its own view only if the sentence being applied is “manifestly excessive” and not justified by the relevant sentencing principles.5

Appeal ground

[11]   The appeal is advanced on the basis that the sentence imposed was manifestly excessive when considering Mr Nixon’s personal circumstances and the rehabilitative efforts he has made prior to sentencing. No issue is taken with the starting point. The focus of the appeal is on the end sentence reached.

Appellant’s submissions

[12]   Mr Bonniface in his written submissions, submitted Mr Nixon’s rehabilitative needs and prospects should have been given greater weight at sentencing. The pre- sentence report and the Discharge and Coding Summary Report both outlined Mr Nixon’s previous mental health issues and disclosed his serious alcohol addiction. Mr Bonniface submitted the period of 174 days that Mr Nixon had remained sober before sentencing reflected his motivation for treatment. Mr Bonniface submits a sentence

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5      Ripia v R [2011] NZCA 101 at [15].

of home detention would have a negative effect on Mr Nixon and his rehabilitative efforts, which could increase the risk of reoffending.

[13]   Mr Bonniface noted that, although this is Mr Nixon’s twelfth conviction for driving with EBA, it is only his second such conviction within the last 10 years. He submitted a sentence of community detention was therefore appropriate and the least restrictive sentence available.

[14]   Mr Bonniface noted that Mr Nixon’s pension situation is that it is insufficient to meet his living costs and that he requires some casual work to supplement his income. In additional oral submissions which Mr Bonniface presented this morning in light of information provided by the Police in response to Mr Bonniface’s submissions as to Mr Nixon’s ability to work, Mr Bonniface recognised that the submissions in relation to inability to work had been significantly undermined.

Respondent’s submissions

[15]   Mr Mitchelmore for the Police submitted the end sentence was not manifestly excessive or wrong in principle.

[16]   He identified the significant body of case law relating to defendants with 10 or more drink driving charges where the sentence imposed was a short term of imprisonment. He submitted a sentence of community detention for Mr Nixon’s twelfth conviction for driving with EBA would be inadequate.

[17]   In relation to Mr Nixon’s rehabilitation, it was noted Mr Nixon’s sentence of home detention includes a special condition to attend an assessment for alcohol and drug counselling, and to attend any counselling or treatment recommended by the assessor, as well as a condition not to possess or consume alcohol.

[18]   Perhaps, more significantly, in relation to Mr Nixon’s work needs, counsel observes these are currently being met. Mr Nixon has sought and been granted approval from Corrections to leave the home detention address for work purposes.

[19]   Mr Mitchelmore therefore submitted the difficulties Mr Nixon faces are minimal in the circumstances, as shown by the continued ability to obtain casual work. Any minor hindrance experienced is a normal consequence of the offending.

[20]   Mr Mitchelmore submitted the end sentence imposed cannot be said to be manifestly excessive.

Analysis

Ability to work

[21]   By reason of the additional information presented by the respondent which identifies Mr Nixon has already received approval for several absences from his address for the purposes of work, his home detention has not materially impeded his ability to earn additional income. This ground of appeal therefore has no merit.

Least restrictive sentence available

[22]   Wild J in Clotworthy v New Zealand Police identified a number of aggravating factors identified for the purpose of sentencing EBA (third or subsequent).6 I consider the following to be relevant in Mr Nixon’s case:

(a)the breath alcohol level: in this case 765 micrograms of alcohol per litre of breath, as compared to the legal limit of 250 micrograms;

(b)the length of time that has elapsed since the last drink driving conviction: in this case, Mr Nixon was last convicted in June 2023;

(c)whether the offender was disqualified or forbidden from driving at the time: Mr Nixon was at the relevant time disqualified from holding or obtaining a driver licence; and

(d)the sentences imposed for previous EBA convictions and the response (or lack of it) to those sentences: Mr Nixon has 11 previous convictions

6      Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC) at [20].

for EBA, has received a range of sentences including disqualification from driving, community detention, fines, community service, supervision, and imprisonment; and has convictions for driving while disqualified.

[23]   In Jenner v Police,7 Dunningham J on appeal referred to the factors in Clotworthy and indicated to Mr Jenner who had 10 previous convictions for EBA, a starting point range of 12–18 months’ imprisonment was appropriate, with a small uplift. This led the Judge to find a starting point of 19 months’ imprisonment to be appropriate.

[24]   A shorter end sentence of imprisonment was then imposed having regard to the personal mitigating factors.

[25]Other relevant cases include:

(a)Kucenko v New Zealand Police where a starting point of 20 months’ imprisonment was adopted for a defendant with 10 EBA convictions over 40 years, a reading of 252 milligrams of alcohol per 100 millilitres of blood, and “concerning driving”.8

(b)Tutahi v New Zealand Police, where a starting point of 12 months’ imprisonment was adopted for an appellant who had a reading of 1126 micrograms of alcohol per litre of breath and seven previous EBA convictions, with the last a year earlier, and where she was unlicensed at the time of driving.9

(c)Dick v New Zealand Police, where a starting point of 18 months' imprisonment was adopted for an appellant who had 662 micrograms of alcohol per litre of breath, and seven previous EBA convictions,

7      Jenner v Police [2017] NZHC 3031.

8      Kucenko v Police [2012] NZHC 3398.

9      Tutahi v Police [2014] NZHC 3354.

albeit they occurred in clusters, with significant gaps in his offending history.10

(d)Toetoe v New Zealand Police, where a starting point of 16 months' imprisonment was adopted for an appellant who had seven previous convictions for EBA, a breath alcohol level of 692 micrograms of alcohol per litre of breath and where there were significant gaps in the offending history.11

[26]   Having regard to the context of Mr Nixon’s offending (above at [22]), and having regard to the maximum penalty for EBA (two years’ imprisonment), the cases indicate a sentence of imprisonment would have been available to the sentencing Judge. There is a strong case for saying imprisonment was, for Mr Nixon, the least restrictive (appropriate) sentence. Irrespective of Mr Nixon’s remorse, I regard the recidivist offending, and his repeated driving with EBA when disqualified, had to be the prime considerations as to whether home detention was the least restrictive sentence available. The Judge did not err in placing significant weight on the purposes of denunciation and deterrence. Mr Nixon was fortunate not to be sentenced to imprisonment.

[27]   I do not consider Mr Nixon’s rehabilitative prospects are significantly impeded by home detention. There are conditions in place requiring him to attend counselling for his alcohol addiction and to attend other recommended counselling. Mr Bonniface raised concerns in relation to Mr Nixon’s alcoholism, but I note Mr Nixon has a condition not to consume alcohol and I do not consider the likelihood of relapse is greater for a sentence of home detention compared to community detention.

[28]   I therefore find home detention was the least restrictive sentence available in the circumstances. The sentence of home detention (set at six months’) is not manifestly excessive.

10     Dick v New Zealand Police [2014] NZHC 434.

11     Toetoe v New Zealand Police [2013] NZHC 2686.

Result

[29]The appeal is dismissed.

Osborne J

Solicitors:

JMJ Lawyers Ltd, Timaru for Applicant Crown Solicitor, Timaru for Respondent