Peltzer v Police
[2022] NZHC 1572
•4 July 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000178
[2022] NZHC 1572
BETWEEN REBECCA LOUISE PELTZER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 June 2022 Appearances:
Sue Kim for the Appellant (via VMR)
Matthew Mortimer-Wang and Fiona Wu for the Respondent
Judgment:
4 July 2022
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 4 July 2022 at 3:00 pm.
Registrar / Deputy Registrar Date:
PELTZER v NEW ZEALAND POLICE [2022] NZHC 1572 [4 July 2022]
Introduction
[1] Rebecca Louise Peltzer pleaded guilty to one charge of dangerous driving1 and one charge of driving with blood containing a controlled drug.2 On 5 May 2022, Judge N R Dawson sentenced her to 120 hours’ community work, 12 months’ disqualification from driving, 12 months’ supervision, and payment of an analyst’s fee and medical costs.3
[2] Ms Peltzer now appeals her sentences of community work and disqualification from driving on the grounds that the sentencing Judge:
(a)failed to make any adjustment for the totality principle;
(b)failed to give weight to her medical condition as part of the circumstances of the offending;
(c)failed to give appropriate weight to her previous good character and rehabilitation efforts; and
(d)failed to give appropriate weight to her circumstances and mitigating features when imposing the disqualification.
The facts
[3] The dangerous driving charge arose from an incident at about 8:15 pm on 15 September 2020. Ms Peltzer was driving her car on the Coatesville-Riverhead Highway in Coatesville. She was seen driving erratically, swerving between lanes, crossing the centre line and driving into oncoming traffic. A member of the public reported her car’s details to the Police. Shortly afterwards, her car was found stopped. Although it is not entirely clear from the summary, it seems that a member of the
1 Land Transport Act 1998, s 35(1)(b) and (2). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for at least six months.
2 Land Transport Act 1998, s 58(1)(b) and (2). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for at least six months.
3 Police v Peltzer [2022] NZDC 9155.
public must have stopped and saw Ms Peltzer in the driver’s seat. She was unconscious and unresponsive. An ambulance was called.
[4] However, before the ambulance arrived, Ms Peltzer regained consciousness and drove off. She veered across the centre line onto the wrong side of the road and into the path of an incoming Police car, causing it to brake heavily. The cars narrowly avoided a head-on collision. The Police stopped and spoke to Ms Peltzer. The summary describes her as displaying “abnormal physical behaviour”. She was seen to be unsteady on her feet and talking incoherently. She underwent compulsory impairment testing procedures, which the summary says she did not complete “in a satisfactory manner”. She was directed to undergo a blood test. A medical officer made several unsuccessful attempts to obtain a blood sample. Whether this was due to a lack of co-operation on Ms Peltzer’s part, or technical or other difficulties in the medical procedure or for any other reason is left unexplained.
[5] The other driving charge arose out of events about six months later. This was driving with blood containing a controlled drug. At 4:39 am on 5 May 2021, the Police were called to Bush Road in Albany. It had been reported there was a car in the middle of the road. The attending Police found Ms Peltzer slumped over the wheel. She was unresponsive. She woke up. She was seen to exhibit signs of recent drug intake. A compulsory impairment test was conducted and a blood sample taken. This was successful. The sample was found to contain methamphetamine.
District Court decision
[6] Judge Dawson highlighted the applicable sentencing principles, being the need for Ms Peltzer to be held accountable, denunciation for her conduct and, given her circumstances, rehabilitation.
[7] The Judge observed that there were no aggravating factors relating to Ms Peltzer’s offending. On account of personal factors he applied a 20 per cent guilty plea discount. He noted that she had no previous convictions and allowed a further five per cent discount for her past good character.
[8] On the dangerous driving charge, the Judge adopted a starting point of 80 hours of community work. Discounting this for the identified mitigating factors, that starting point was adjusted to 60 hours of community work. He disqualified Ms Peltzer from driving for six months, which he backdated to 29 September 2021, the date when he was satisfied she could have entered a guilty plea (but for COVID-19 related disruptions). He also sentenced her to 12 months’ supervision.
[9] On the charge of driving with blood containing a controlled drug, the Judge applied a starting point of 80 hours of community work, which he similarly discounted to 60 hours. He imposed cumulative community work sentences, leading to a total of 120 hours. He then cumulatively imposed another six month disqualification from driving.
[10] The Judge also imposed a concurrent sentence of supervision and ordered payment of the analyst’s fee and medical costs.
Approach to sentence appeals
[11] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.4 Otherwise, the Court must dismiss the appeal.5
[12] The sentence must be manifestly excessive before the appeal court may substitute its own views as to the appropriate sentence. The Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 Whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.7
4 Criminal Procedure Act 2011, s 250.
5 Section 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
7 Ripia v R [2011] NZCA 101 at [15].
Did the Judge fail to take into account the totality principle?
[13] Ms Kim, for Ms Peltzer, submitted that because both charges are of a similar nature the totality principle should apply. On that basis she submitted that the charge of driving with blood containing evidence of use of controlled drug should have been dealt with either by way of a concurrent sentence or by way of a modest uplift on the driving in a dangerous manner charge.
[14] Mr Mortimer-Wang, for the Police, submitted that the end sentence was not manifestly excessive. He referred to Robarts v Police.8 While Mr Robarts faced significantly more driving charges, some of which were more serious than the present,9 components of his sentence included 90 hours community work on each of two dangerous driving charges and 60 hours community work on an excess breath alcohol charge.10 Those sentences were imposed cumulatively.11
[15] On that analysis, he submitted that the 120 hours of community work imposed for Ms Peltzer’s offending could not be characterised as manifestly excessive.
[16] Ms Kim also submitted that the Judge appears to have drawn the inference that Ms Peltzer’s dangerous driving offending also involved driving whilst under the influence of drugs. Doing so would be an error as the defendant ought to be sentenced based on the accepted summary of facts.
[17] Mr Mortimer-Wang submitted that the Judge did not sentence Ms Peltzer on the basis that her dangerous driving charge was aggravated by the consumption of drugs. Indeed, there is nothing in the sentencing notes on which such an inference could be drawn. But even if the Judge had, Mr Mortimer-Wang submitted the summary of facts and material put before the Court provided a solid evidential basis for such an inference to be drawn.
8 Robarts v Police [2014] NZHC 666.
9 At [12]–[13].
10 At [17].
11 At [17].
[18] There is nothing in what the Judge said which supports the appellant’s submission. On my reading of his comments, I am not persuaded that the Judge sentenced Ms Peltzer on the basis that she was affected by methamphetamine at the time of her offending. Had he done so, the starting point on the dangerous driving charge would likely be different – Ms Peltzer’s driving during this incident was more dangerous than the second incident, so a higher starting point would be called for if the first was equally aggravated by intoxication. Further, he did not refer to drug use in relation to the first charge when sentencing Ms Peltzer.
[19] I also accept Mr Mortimer-Wang’s submission that the offending is serious. On the first occasion, Ms Peltzer’s driving was of sufficient concern for a member/s of the public to report it. She was swerving between lanes, crossing the centre line and driving into oncoming traffic. She was then found unconscious behind the steering wheel. An ambulance was called. Before either it or the Police arrived, Ms Peltzer regained consciousness and took off again. A near head on collision with a Police car was narrowly averted. Viewed on its own this was extremely dangerous, even life-threatening, driving. It justifies the starting point of 80 hours’ community work.
[20] As for the second charge, aspects of the aggravating features are disturbingly similar to the first. Ms Peltzer’s car was found in the middle of the road. She was unresponsive and slumped over the wheel. Methamphetamine was found in her blood. While the manner of driving which necessarily preceded this is unknown, the implications for public safety are obvious. That no one was seriously injured in either incident is remarkable. That fortune does not operate to reduce Ms Peltzer’s culpability. Viewed in that way I am again satisfied the starting point of 80 hours’ community work is justified.
[21] It is against those circumstances that I turn to consider the question of totality. That the Judge did not expressly refer to the totality principle is far from fatal.12 Even where cumulative sentences are imposed the omission to refer to totality is not
12 Kite v R [2018] NZCA 485 at [21].
necessarily an error of principle. Here the sentencing Judge was very experienced. It is hard to accept he was not alive to the requirement to maintain proportionality.
[22] In any event, I am easily satisfied that a sentence of community work totalling 120 hours as adjusted for personal factors cannot be said to be manifestly excessive given the circumstances of the offending. I leave the question of the period of disqualification to later in this judgment.
Did the Judge fail to give adequate weight to Ms Peltzer’s medical condition?
[23] On this appeal the question of Ms Peltzer’s neurological condition at the time of the dangerous driving assumed a good deal more focus than it did in the District Court. For that reason I shall deal with it separately.
[24] In relation to the first episode of offending, Ms Kim submitted that some express allowance should have been given for a medical condition from which Ms Peltzer claimed she was suffering at the time.
[25] Ms Peltzer asserted that about two hours before the first incident she fell from a stool at her home and hit her head. She said she suffered concussion. The sentencing notes make no mention of this despite medical records being submitted in support of this claim.
[26] At the hearing before me counsel traversed the question of whether, if this aspect was relied on as a mitigating factor, there should have been a disputed facts hearing under s 24 of the Sentencing Act 2002 and whether the proper course might be to remit the matter back to the District Court for that purpose. Ms Kim advised she did not have instructions but would obtain them and report back to the Court.
[27] Later that day I received a joint memorandum of counsel in which counsel agreed, pursuant to s 9 of the Evidence Act 2006, that the following could be admitted on the appeal by consent; that Ms Peltzer had reported that she had hit her head when she fell from a stool shortly before she drove on 15 September 2020 and that hitting her head may have contributed to her dangerous driving, to the extent that it is supported by the two medical reports which were also admitted by consent. Counsel
observed that with these admissions the evidential picture before the sentencing Judge was formalised. The Court was invited to assess the weight which could be placed on the evidence and the extent to which it affects Ms Peltzer’s culpability for sentencing purposes. It is to that issue I now turn.
[28]The medical records are comprised of two documents:
(a)an ACC referral/work capacity certificate dated 17 September 2020 issued by general practitioner Dr Nicola Roberts; and
(b)a neurology report issued by Dr Camelia Soo dated 20 August 2021 (recording a consultation on 11 August 2021).
[29] The first reveals that on 17 September 2020, that is two days after the first incident of offending, Ms Peltzer reported to a local medical practitioner that as a consequence of the domestic accident, she suffered concussion. The certificate states that Ms Peltzer was able only to perform sedentary duties for four hours a day for the following 10 days.
[30] Eleven months later, and three months after the second incident of offending, Ms Peltzer was assessed in the neurology unit at Auckland Hospital by Dr Soo. The resulting report referred to Ms Peltzer’s claim of memory loss as a result of the domestic accident, and that this and other symptoms and/or behaviours were observed by a member of the public who saw her erratic driving later that evening before the Police intervened. This report also referred to Ms Peltzer experiencing another “unusual episode” in April 2021. Dr Soo referred to reviewing clinical notes which described a member of the public “finding her out of her car sweating and having repetitive questioning with someone else holding her sitting up”. Whether this was, in fact, the second offending, albeit wrongly dated, or another unrelated but strikingly similar driving event, is unclear.
[31] As noted, the Judge in his sentencing remarks did not refer to Ms Peltzer’s assertion of a contributing head injury. That is not to say that he did not consider it. In any event, it is a matter which counsel agree I may take into account on appeal.
[32] I reject the proposition that the effects of the domestic accident may have contributed to the dangerous driving which followed a few hours later for the reasons which follow.
[33] First, the medical reports do not constitute independent evidence tending to corroborate Ms Peltzer’s account. Dr Roberts’ report is simply evidence that Ms Peltzer attended her clinic two days after the first offending and reported the domestic accident which she said caused her to be concussed. It is evidence of a self- report only. Dr Soo’s report, although more fulsome and detailed, repeats what Ms Peltzer told her. It discusses possible diagnoses based on Ms Peltzer’s account and recommends further tests (the results of which are not known). No neurological pathology or other abnormality was detected. This uncertain state of affairs is reflected in Dr Soo’s conclusion that because “the cause of her turns are unclear at present”, she was not to drive “for 12 months or until the cause of her memory loss is clear”.
[34] Secondly, and significantly in my view, was Ms Peltzer’s assertion to Dr Soo that no drugs or alcohol were involved and that she did not use drugs recreationally. That assertion is plainly at odds with the charge and summary to which she pleaded guilty. That this was not disclosed to Dr Soo when it ought to have been not only means that little or no weight can be given to any aspect of the medical report, but also calls into question any assertion by Ms Peltzer that the domestic accident and its sequelae had any influence on what happened a few hours later. In fact, the pre- sentence report prepared for the dangerous driving charge records that Ms Peltzer admitted she had consumed about half a gram of methamphetamine or more over the previous weekend but at the time of the offending was not under the influence of the drug. It also records that she started smoking a “joint” at 15 and also “dabbled” with methamphetamine but more “speed” when she was that age. Her drug use increased in her early twenties. She said she currently used methamphetamine and ecstasy on an irregular basis when in a party setting. None of this, it seems, was shared with Dr Soo despite the plain purpose of the consultation.
[35] Thirdly, even Ms Peltzer does not seem to strongly press this circumstance in mitigation. In counsel’s written submissions in the District Court the submission was expressed in the following way:
“Ms Peltzer believes that her manner of driving and poor judgment call to drive that day was somewhat influenced by the head injury she suffered earlier on the day”
(emphasis added)
[36] I therefore do not consider that these circumstances mitigate Ms Peltzer’s offending.
Did the Judge fail to give an appropriate discount for Ms Peltzer’s personal mitigating factors?
[37] Ms Kim submitted that the Judge erred in failing to give sufficient discount for Ms Peltzer’s previous good character. Ms Peltzer, at the age of 35 at the time of these convictions, had not been previously convicted and has been a contributing member of society as a self-employed insurance broker. Her convictions alone would have a significant impact on her. Referring to Davidson v R and R v Findlay, Ms Kim submitted a 25 per cent discount would have been appropriate.13
[38] Mr Mortimer-Wang submitted that the five per cent discount the Judge allowed in recognition of Ms Peltzer’s previous good behaviour was appropriate, especially where it was afforded to both charges. That approach allowed her to obtain the benefit of a reduction for previous good character for quite separate and unrelated offending which took place months after her dangerous driving charge.
[39] Ms Kim also submitted that the Judge erred in failing to give any consideration to Ms Peltzer’s rehabilitative efforts. She pointed to Ms Peltzer’s voluntary engagement with Community Alcohol and Drug Services (“CADS”) before sentencing. Although the amount of treatment completed prior to sentencing was not significant, she submitted that Ms Peltzer’s efforts should be recognised by a discount.
13 Davidson v R [2011] NZCA 356; and R v Findlay [2007] NZCA 553.
[40] On this point Mr Mortimer-Wang pointed out that Ms Peltzer had not engaged with CADS to any degree which might meaningfully translate to a sentence reduction. He also noted that no further evidence of subsequent CADS engagement had been proffered on appeal.
[41] I agree with the Judge that a discount of five per cent to account for Ms Peltzer’s good character was warranted. Having reviewed counsel’s written submissions in the District Court it appears no discount for rehabilitative efforts was sought. I can see no principled basis on the material before me to criticise the Judge on this account. There was no error. Although some allowance might have been made for this factor it would necessarily have been modest and would, most certainly, not have affected the end sentence to any material extent.
Did the Judge err by imposing cumulative disqualifications from driving?
[42] Ms Kim submitted that imposing the two six month disqualifications on a cumulative basis resulted in a sentence which was manifestly excessive.
[43] She referred me to Ireland v Police.14 Mr Ireland was originally sentenced to 18 months’ disqualification on two charges of driving whilst suspended and one charge of driving with excess blood alcohol.15 Each attracted a six-month disqualification but was ordered to be served cumulatively.16 On appeal a concurrent disqualification of
10 months was imposed on all three charges.17 The disqualification was also backdated in consideration of Mr Ireland’s employment, which was considered to be an important part of his rehabilitation.18
[44] Ms Kim submitted Ms Peltzer’s case is analogous. She submitted that a total disqualification of less than 10 months would be appropriate. While accepting that cumulative disqualification is appropriate for particularly aggravated offending, she submitted this is not such a case; there was no accident, no injury and no fleeing.
14 Ireland v Police [2021] NZHC 3202.
15 At [13].
16 At [13].
17 At [36].
18 At [13] and [36].
[45] Furthermore, Ms Kim submitted that because Ms Peltzer works as a self- employed insurance broker, having reliable transportation is essential to her job. The use of her car is also needed to fully participate in supervision. Barriers to employment and rehabilitation do not meet the principles and purposes of sentencing, especially in light of Ms Peltzer’s good character. A concurrent disqualification period of eight months on both charges is appropriate, she submitted.
[46] Mr Mortimer-Wang submitted that, on the authority of Leaupepe v Police, the discretion available to the sentencing Judge when assessing the length of the disqualification is broad and that comparisons between cases is a less reliable guide than is the case for a conventional sentencing.19 While he accepted disqualification will adversely impact on Ms Peltzer’s employment and rehabilitation, the punitive and protective purposes of disqualification are of equal importance. Further, in regard to the need to work, he pointed out that Ms Peltzer may apply for a limited licence to let her drive for work purposes.
[47] I do not consider Ireland v Police to be analogous. A first or second charge of driving while suspended is not as serious as dangerous driving. In my assessment, the cumulative effect of the two six month disqualifications is not manifestly excessive having regard to all the circumstances.
Did the Judge backdate the disqualifications to the correct dates?
[48] Finally, Ms Kim turned to address the Judge’s backdating of the disqualifications. On account of her medical presentation Waka Kotahi stood Ms Peltzer down from driving in April 2021. Based on a report from Dr Soo dated 21 December 2021, she was given a clearance to drive on 3 March 2022. By the time of sentencing, which had been delayed for reasons relating to COVID-19, she had been legally off the road for 11 months.
[49] Ms Kim submitted that Ms Peltzer’s first case management hearing, being her first opportunity to have pleaded guilty, was on 7 September 2021, rather than the 29 September 2021 date to which the Judge backdated the disqualification. Ms Kim
19 Leaupepe v Police [2015] NZHC 1766 at [8]–[9].
also notes that Ms Peltzer pleaded guilty to the charges on 2 March 2022. This is earlier than the date to which the second disqualification was backdated.
[50] Ms Kim suggests that a “clerical oversight” may have been made by the Judge in terms of the dates of the disqualification. She first submitted that the 12 month disqualification should be backdated to April 2021, when Ms Peltzer was legally stood down from driving on medical grounds by Waka Kotahi. Alternatively, it should be backdated to 7 September 2021 because that was the date Ms Peltzer could have entered a guilty plea had it not been for the COVID-19 restrictions.
[51] Mr Mortimer-Wang opposed backdating the disqualification to April 2021. He pointed out that the 12 month stand down period was imposed for health and safety reasons to protect Ms Peltzer and other road users, based on Ms Peltzer’s self-report. Mr Mortimer-Wang submitted that the stand down period was unrelated to the offending. Further, he said that the deterrence and punishment purposes of disqualification would be undermined if they were considered to be interchangeable with a medically justified stand down period.
[52] Despite this, he responsibly did not oppose backdating the first period of disqualification to 7 September 2021 if Ms Peltzer or her counsel could establish that was the date she could have appeared for a case review hearing and entered a guilty plea. Likewise, he did not oppose backdating the second disqualification to 2 March 2022 on a similar basis. Mr Mortimer-Wang acknowledged that these changes would accord with Judge Dawson’s apparent intent in imposing the sentence.
[53] I agree that the periods of disqualification should not be reduced on account of the stand down period for the reasons given by Mr Mortimer-Wang. However, I am satisfied that backdating the commencement of the disqualification periods is the proper approach and should be adopted. Ms Kim’s assurances, as an officer of this Court, as to the earliest opportunity for her client to have pleaded guilty must be accepted on their face.
Result
[54]I thus allow the appeal in part.
[55] The first period of disqualification from holding or obtaining a driver license is backdated to 7 September 2021.
[56] The second period of disqualification from holding or obtaining a driver license is backdated to 2 March 2022.
[57]The balance of the sentence imposed by the Judge remains.
Moore J
Solicitors:
Public Defence Service, North Shore Crown Solicitor, Auckland
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