Pinker v Police
[2015] NZHC 3020
•2 December 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000094 [2015] NZHC 3020
BETWEEN ALLEN PINKER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 December 2015 Appearances:
R R Ward for Appellant
S E Burdes for RespondentJudgment:
2 December 2015
JUDGMENT OF GENDALL J
[1] On 8 September 2015, Mr Allen Pinker was sentenced in the District Court to two years, two months’ imprisonment (amongst certain other sentencing orders) in relation to two charges of driving with excess breath alcohol in the aggravated form.1
[2] The first charge arose from events occurring on 26 April 2015. Mr Pinker was driving a motor vehicle in the carpark of a backpackers at around 7.27 pm. He stepped on the accelerator heavily, reversing his vehicle through a garden island and into a six foot high wooden fence, causing extensive damage. Mr Pinker subsequently underwent an evidential breath test, which returned a result of 1,273 micrograms of alcohol per litre of breath. Mr Pinker was unable to comment at the time due to his level of intoxication.
[3] The second charge arose from events occurring on 9 August 2015. At around
3.37 am Mr Pinker was driving a motor vehicle on Oliviers Road. He was observed by a witness to be swerving all over the road, completing multiple U-turns, and
1 New Zealand Police v Pinker [2015] NZDC 17894.
PINKER v NEW ZEALAND POLICE [2015] NZHC 3020 [2 December 2015]
hitting the curb three times. When Police apprehended Mr Pinker, the vehicle was stopped, but with the keys in the ignition and the vehicle still running. When spoken to, Police noticed he was affected by alcohol. An evidential breath test yielded a result of 1,035 micrograms of alcohol per litre of breath. This offending occurred whilst Mr Pinker was on bail for the earlier charge.
[4] Mr Pinker now appeals but only against the imprisonment sentence imposed on the singular basis it was manifestly excessive. In submissions, Mr Ward, counsel for Mr Pinker, clarified the factors that led to the manifest excess as:
(a) excessive starting points on each charge;
(b) the end sentence was not discounted to sufficiently account for Mr
Pinker’s personal mitigating features; and
(c) failure to adequately apply the totality principle.
District Court
[5] In sentencing Mr Pinker, Judge O’Driscoll considered the relevant purposes to deter Mr Pinker and others from drinking and driving and to hold Mr Pinker accountable.2 The dominant principle, however, was the need to protect the community.3 As to the principles of sentencing, his Honour noted that he was
required to impose the least restrictive sentence on Mr Pinker.4 Judge O’Driscoll
further stated:5
I am required to take into account the seriousness of the offending. I regard this offending as being extremely serious. The gravity of the offending is high and your culpability is high and that is evidenced by the fact that you have six previous convictions for drinking and driving and the fact that there are two charges before me, with the second occurring while you were on bail for the first.
My assessment of you, Mr Pinker, is that you do pose a significant risk to the community, particularly with the extremely high levels of alcohol in your system. It is clear that you cannot control your drinking, with this, as I have
2 At [7].
3 At [7].
4 At [8].
5 At [8]–[9].
said, being your seventh and eighth conviction for drinking and driving. You are clearly a recidivist offender and have not learnt from your six previous appearances in Court.
[6] Judge O’Driscoll noted the pre-sentence report remarked that Mr Pinker does “not have any great insight into [his] offending and [has] blamed [his] situation on external factors”.6 The recommendation was for imprisonment.
[7] In setting a starting point for Mr Pinker’s offending, Judge O’Driscoll noted the alcohol levels on each occasion were extremely high and that there was evidence of bad driving on both occasions.7 There were no mitigating features of the offending itself. This led his Honour to take a starting point of 15 months’ imprisonment for the April offending and a starting point of 18 months’ imprisonment for the August offending. The starting points appear to encapsulate the personal aggravating features set out below.
[8] In terms of personal aggravating features, it was noted that the second offence occurred whilst Mr Pinker was on bail for the first.8 A further personal aggravating feature was that Mr Pinker has six previous convictions for driving with excess alcohol, the current two offences being his seventh and eight respectively.9 In terms of mitigating person features, Judge O’Driscoll noted the eight year gap between this offending and the previous, and Mr Pinker’s guilty plea.10 After reduction for guilty plea, the end sentence for the April charge was 12 months’ imprisonment and 14 months’ imprisonment for the August charge.11
[9] Judge O’Driscoll considered that the two sentences ought to be served cumulatively, leading to a total end sentence of 26 months’ imprisonment (two years, two months).12 This triggered the obligation to consider totality. His Honour stated:
[12] I have considered whether or not that breaches the totality principle. I do not think that it does. It is a stern sentence, but it is one which is
6 At [6].
7 At [3].
8 At [3].
9 At [3].
10 At [4].
11 At [11].
12 At [11].
designed, as I have said, primarily to protect the community from the danger that you pose when drinking and driving.
Right to appeal
[10] Mr Pinker is able to appeal his sentence as of right. In order to succeed, dual requirements must be satisfied. First, that there was an error in the sentence imposed. Second, that a different sentence should be imposed. Thus, this Court is not concerned only with process, but rather with whether the end sentence imposed was one on the spectrum of available sentences.
Relevant material
Criminal history
[11] Relevantly, Mr Pinker has convictions for driving with excess alcohol on six occasions prior to the current offending. These occurred in 1980, 1989 (600 micrograms of alcohol per litre of breath), 2000 (846 micrograms of alcohol per litre of breath), 2002 (912 micrograms of alcohol per litre of breath), 2004, and 2007 (1,113 micrograms of alcohol per litre of breath).
Pre-sentence report
[12] The pre-sentence report writer noted that Mr Pinker has a history of drink driving, though it has been eight years since his last conviction. This length of time notwithstanding, it was noted that Mr Pinker appears to have limited insight into his offending. He blames the situation on external factors, though acknowledged what he did was wrong. He was assessed as a low-medium risk offender, with a medium risk of harm.
[13] Mr Pinker lost his job as a fork-lift driver as a result of the current charges and his incarceration. Further work in this field is unlikely because of his offending. The report writer also noted that Mr Pinker has limited support in the community and that the friends and associates he has are offending related factors. A sentence of imprisonment was recommended.
Disposition
[14] I turn now to consider whether the end sentence imposed was manifestly excessive, having regard to the indicia identified by Mr Ward.
Excessive starting points
[15] The frame for considering the propriety of the starting points adopted by
Judge O’Driscoll is Clotworthy v Police and Samson v Police.13
[16] For the April offending there were two seriously aggravating features. Namely the extremely high level (1,273 micrograms of alcohol per litre of breath) and the dangerous driving, causing damage to property. Further, the previous convictions for the same offending are aggravating, though substantially ameliorated by the eight year gap between the last offence.14
[17] For this offending, Mr Ward submits that Judge O’Driscoll erred in setting the starting point at 15 months, rather than 12 months. For my part, I consider a starting point of 15 months was too high for this offending having regard to the eight year lapse of time between the last offending and this.15 Despite the other two seriously aggravating features of this offending, I consider a starting point of 13 months’ imprisonment to be at the upper end of the available range having regard to this substantial hiatus between offending.
[18] For the August offending, the seriously aggravating features are the extremely high level (1,035 micrograms of alcohol per litre of breath), the dangerous driving witnessed by members of the public, and the fact that this offence occurred within close proximity to the earlier serious charge. Further, the charging document for the April offending states that a condition of bail was that Mr Pinker not drive
any motor vehicle.16
13 Clotworthy v Police (2003) 20 CRNZ 439 (HC); Samson v New Zealand Police [2015] NZHC
748.
14 For clarity, I note the fact that Mr Pinker was not disqualified at the time of the offending is not a mitigating feature of the offending. It is simply not an aggravating feature.
15 See for example Tangipo v Police [2015] NZHC 1810.
16 Mr Ward submits that “the appellant was not disqualified or forbidden from driving as a result of these bail conditions”. I disagree. On the face of the charging document, there is no other interpretation open. The condition of bail states unequivocally “not to drive any motor vehicle”.
[19] Judge O’Driscoll adopted the highest starting point within the range that has been identified for offending of this genus. The combination of the high level, the dangerous driving, and the fact that Mr Pinker was at the time on bail, with a condition that he not drive, together lead to the conclusion that this was very serious offending. But it was not so serious, in my view, to warrant a starting point at the upper end of the identified band. I consider the highest starting point reasonably open was one of 16 months’ imprisonment.
Failure to sufficiently account for personal mitigating factors
[20] It is submitted that Jude O’Driscoll failed to adequately bring to bear the
personal mitigating features for each offence.
[21] In relation to the April offending, Mr Ward submits the following personal mitigating features are present:
(a) that Mr Pinker has not before received a custodial sentence;
(b)that Mr Pinker has undertaken alcohol and drug counselling and that he has agreed to be involved in further programmes;
(c) the fact that, apart from the most recent spate of offending, Mr Pinker has taken steps to address his alcohol related problems; and
(d)that Judge O’Driscoll gave insufficient weight to the insight Mr Pinker has for his offending, his acceptance of wrongdoing, and willingness to address these issues.
[22] For this incident, I accept that Judge O’Driscoll almost wholly failed to have regard to the efforts made by Mr Pinker to address the causes of his drink-driving and any underlying problems with alcohol. His Honour stated:17
… You have been in employment but have no lost that employment. You have completed drug and alcohol counselling in the past, but it is clear that has not had a great deal of impact on you. …
17 New Zealand Police v Pinker [2015] NZDC 17894 at [6] and [8]–[9] (emphasis added).
…
… I regard this offending as being extremely serious. The gravity of the offending is high and your culpability is high and that is evidenced by the fact that you have six previous convictions for drinking and driving and the fact that there are two charges before me, with the second occurring while you were on bail for the first.
My assessment of you, Mr Pinker, is that you do pose a significant risk to the community, particularly with the extremely high levels of alcohol in your system. it is clear that you cannot control your drinking, with this, as I have said, being your seventh and eighth conviction for drinking and driving. You are clearly a recidivist offender and have not learnt from your six previous appearances in Court.
[23] It seems to me that Mr Pinker has made earnest efforts to address his drink- driving. In this endeavour he had some success for many years. This first offending can clearly be categorised as a slip up in that regard. I would afford Mr Pinker a discount of two months for the length of time since the earlier offence, his rehabilitative efforts and willingness to engage further with treatment options. This leads to an adjusted starting point of 11 months’ imprisonment for the April offending.
[24] In relation to the August offending, Mr Ward submits the following personal mitigating features are present:
(a) that Mr Pinker has not before received a custodial sentence;
(b)that Mr Pinker has undertaken alcohol and drug counselling and that he has agreed to be involved in further programmes;
(c) the fact that, apart from the most recent spate of offending, Mr Pinker has taken steps to address his alcohol related problems.
[25] I do not consider a further discount is needed for personal mitigating features in relation to this offending. The credit that might be afforded for lack of temporal connection with earlier offending and previous rehabilitative efforts has by this time dissipated. I decline to extend a further discount for willingness to engage in relation to this offending. I have afforded Mr Pinker the greatest discount he can expect in relation to this. I therefore decline to discount this starting point for personal
mitigating features. I note that I have addressed above the fact that this offending occurred whilst Mr Pinker was on bail for the earlier offence. I do not take further account of it here.
[26] Credit needs to be given for the guilty pleas on the basis of the adjusted starting points. Taking a proportionate approach, the discount for the April offending will be two months, and the discount for the August offending will be four months, which equates to the fullest available discount. This leads to an end sentence of nine months’ imprisonment for the April offending and 12 months for the August offending. This is a total end sentence of 21 months’ imprisonment.
[27] The sternest sentence, in my view, that could have been justified was one of
21 months’ imprisonment. I allow the appeal to this extent.
Totality
[28] I have already concluded that the sentence imposed at first instance was outside the available range. I must nonetheless step back and consider whether a sentence of 21 months’ imprisonment is in breach of the totality principle. I do not consider it to be so. The manifest excess has been removed from the sentence. The end sentence is not wholly out of proportion to the gravity of the overall offending.
Outcome
[29] The appeal is allowed. The District Court sentence of 26 months’ imprisonment at para [11] of Judge O’Driscoll’s sentencing notes is quashed. Mr Pinker is sentenced to nine months’ imprisonment on the first charge (CRN
15009004861) and 12 months’ imprisonment on the second charge (CRN
15009009369). The sentences are to be served cumulatively, which is a total of 21 months’ imprisonment. The sentencing orders at paras [13], [14], [15] and [16] of Judge O’Driscoll’s sentencing notes remain.
Home detention
[30] The sentence has now been brought to the point where home detention is available to consider. I have received little submission on the point.
Judge O’Driscoll in the District Court was of the view that imprisonment was “inevitable”. He was entitled to place emphasis on the need to protect the community and the need for deterrence, particularly in light of Mr Pinker’s recidivism and inability to comply with court orders (see discussion of bail above). I therefore do not consider home detention to be appropriate.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Rupert Ward, Rangiora