O v Police Cri-2009-409-209 HC Christchurch
[2010] NZHC 431
•11 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI-2009-409-000209
O
Appellant
v
POLICE
Respondent
Hearing: 18 February 2010
11 March 2010
Appearances: A Bailey for Appellant K Basire for Police
Judgment: 11 March 2010
ORAL JUDGMENT OF HON. JUSTICE FRENCH
[ 1 ] This is an appeal against sentence.
Following a plea of guilty, the appellant, Mr O , was convicted in the District Court of driving with an excess breath alcohol level of 815 micrograms. This equates to twice the legal limit. There was no driving fault, and it was his first offence.
He was ordered to pay a fine of $1000, costs of $130, and disqualified from driving for six months.
O V POLICE HC CHCH CRI-2009-409-000209 11 March 2010
As is only to be expected in a busy District Court list, the sentencing notes
are brief. They read as follows:
[ 1 ] Mr O I give you credit for your guilty plea. I note that you
have no prior convictions, which saves you from a longer than minimum disqualification. You are convicted and fined $1000. You exceeded the limit by twice, effectively. The limit is 400 and you had a level of 815. So you are convicted and fined $1000. You are ordered to pay Court costs of $130. You are disqualified for six months commencing today.
On appeal, Mr O , who is an unemployed student, submits that a fine
of $1000 was manifestly excessive.
In support of that contention, his counsel, Mr Bailey, argued:
i)That the going rate in the Christchurch District Court for first offenders who plead guilty at the earliest possible opportunity was a fine at a level equal to their breath alcohol level. That would have meant in this case, with a level of 815, that a fine of $800 should have been imposed.
ii)Primarily, given Mr O ’s limited financial means, the purposes and principles of sentencing would have been met equally well by a fine of only $500. Accordingly, the sentencing Judge, in imposing a fine of $1000, has breached his obligation to impose the least restrictive outcome appropriate.
Under s 56 of the Land Transport Act 1998, the maximum penalty for a first
or second offence of driving with an excess breath alcohol level is a term of imprisonment not exceeding three months, or a fine not exceeding $4500. The maximum of $4500 has not changed since 1988.
In 1995 a Full Court of the High Court had occasion to review sentencing
levels for first time drink drivers. In this case (McEachen v Police [1995] 2 NZLR 251) there were four appellants. The levels of fine imposed in breath and blood alcohol charges were as follows:
| Appellant | Alcohol Reading | Fine | Disqualification |
| Ambrose | 807 mcg | $1100 | 12 months |
| McEachen | 875 mcg | $1100 | 12 months |
| Monk | 185 mg | $1000 | 12 months |
| Scott | 1047 mcg | $1250 | 14 months |
Significantly, two of the appellants were in similar financial circumstances to
Mr O .
[ 10] After reviewing statistics of 527 first offenders, the Court concluded the average fine for an offender:
a) with low breath alcohol $534
b) with medium breath alcohol (2-21/2 times legal limit) $801
c) with high breath alcohol (21/2 times or more legal limit) $1058
[ 11 ] These were said to be averages only, and the lower and upper ranges were considerably less or more than these average amounts.
[ 12] On the facts of McEachen, the Full Court held that the fine levels imposed on the appellants were not out of step with the average or the range indicated by the statistics.
[ 13] Applying McEachen to the facts of this case, the fine of $1000 would appear to be within range.
[14] Mr Bailey essentially accepted this but, undaunted, submitted that McEachen was no longer authoritative. He said there were two reasons for that submission:
i) McEachen pre-dated the Sentencing Act 2002, with its
requirement that the Court must take the financial capacity of the offender into account in determining the amount of the fine.
ii) McEachen also pre-dated R v Hessell CA170/09, 2 October
2009, with its requirement an offender who pleads guilty at the earliest possible opportunity must be given a full one-third discount.
[15] As the hearing developed, it became apparent that Mr Bailey was seeking to argue that not only was this particular sentence out of range, the current practices of the District Court generally in relation to sentencing of offenders convicted for the first time of a drink driving offence should be reviewed. In his submission there were aspects of those practices that could be seen as contrary to the Sentencing Act.
[16] I then adjourned the hearing to enable Mr Bailey to clarify exactly what it was that he was seeking to be reviewed. In a memorandum dated 25 February 2010, Mr Bailey submitted:
a)In the absence of aggravating driving factors, a fine that exceeds the breath alcohol level of a motorist who pleads guilty at the first opportunity is excessive.
b)The District Court does not (but should) take into account a convicted person’s financial circumstances when setting the appropriate level of the fine.
c)The District Court does not (but should) take into account a convicted person’s previous good record when setting the appropriate level of fine.
[17] I have carefully considered all of Mr Bailey’s submissions.
[18] The first point I would make is that the Court in McEachen did expressly identify guilty pleas and financial means as factors which District Court Judges were taking into account, and which accordingly must have informed the range.
[19] The second point is that the District Court Judge in this case did expressly
refer to the guilty plea and state he had given Mr O credit for it. I accept the
Judge did not identify the amount of the credit, as required by the Court of Appeal in Hessell. However on the basis that the full one-third discount was required to have been given, the issue then becomes whether a starting point of $1500 fine was manifestly excessive.
[20] In my view, it could not be said to be so. As Ms Basire has pointed out, given that the maximum sentence for a first or second offender is $4500, and Mr O was convicted for a medium offence (being two times the legal limit), a starting point of one-third of the maximum cannot properly be characterised as manifestly excessive. It is obviously highly significant that the maximum penalty is specifically tailored to first or second offenders.
[21 ] Thirdly, as regards previous convictions, or the lack thereof, this actually was a mitigating factor which the Judge also expressly identified and took into account in relation to the period of disqualification. In those circumstances, I can see no error of reasoning or faulty principle in relation to that issue.
The fourth point I would make relates to the question of this appellant’s financial means. I accept financial means was not expressly mentioned by the Judge. In those circumstances, Mr Bailey invited me to draw the inference that it had not been taken into account, in which case there had been a breach of s 40 of the Sentencing Act.
I am not prepared to draw that inference, however. It is unrealistic to expect a busy District Court Judge to expressly articulate every factor that is being taken into account. That is particularly so in the circumstances here. The circumstances were that the summary of facts which was before the Judge, and which was accepted, told the Judge that Mr O was in employment. Further, although Mr O was represented by Mr Bailey, Mr Bailey does not recall telling the Judge that the appellant was in fact an unemployed student who at that time was without either a student allowance or an unemployment benefit. Mr Bailey’s recollection is that he was unlikely to have told the Judge this, because of previous experience that it makes no difference.
What Mr Bailey’s submission amounts to is that although the statement of facts was accepted, and although the appellant was represented, s 40 meant that the District Court Judge was somehow bound to actively initiate enquiries into financial capacity. In my view, s 40 did not require the Judge to take those steps. Mr Bailey also told me that in the District Court the standard practice is for counsel to say that their client has the means to pay a fine. Again, in those circumstances I do not see how it can be said that the current District Court practice is somehow unlawful or contrary to the requirements of the Sentencing Act.
In short, I am not satisfied that the District Court Judge has breached s 40. I am also not satisfied that the sentence can properly be characterised as manifestly excessive or out of range. I also do not accept that the District Court practice is erroneous or contrary to law.
For the reasons I have traversed, it follows I do not consider this case was appropriate for consideration by a Full Court. I am also not satisfied that the grounds for appeal have been made out. Mr Bailey himself accepted that this appellant did have “financial capacity”. Further, as Ms Basire also pointed out, the appellant’s financial means, while limited, are not out of the ordinary. He has no dependents and no debts.
In conclusion, I am satisfied the appeal is without merit and should be dismissed.
Solicitors:
A Bailey, Christchurch
Crown Solicitor’s Office, Christchurch
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