Pitman v Police
[2015] NZHC 205
•18 February 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-54 [2015] NZHC 205
BETWEEN KRISTOPHER DAVID PITMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2015 Counsel:
B J Meyer for Appellant
M B Smith for RespondentJudgment:
18 February 2015
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 18 February 2015 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Marsden Woods Inskip & Smith, Whangarei
PITMAN v POLICE [2015] NZHC 205 [18 February 2015]
Introduction
[1] On 9 December 2014, in the District Court at Whangarei, Judge D J McDonald sentenced the appellant, on his fourth conviction for driving with excess breath alcohol, to seven months imprisonment. He was disqualified from holding or obtaining a driving licence for a period of 12 months. He was concurrently sentenced to one month imprisonment for breach of bail. He had failed to answer the summons in relation to the excess breath alcohol charge, until making a voluntary appearance nearly one year later, on 8 October 2014.
[2] He appeals against the prison sentence. The fourth conviction to which he was sentenced occurred on 8 August 2011 with a limit of 625.
[3] His previous drink/driving convictions are as follows:
● September 2007, limit:631, fine $500 DQ 6 months.
● October 2008, limit:651, CW 60 hours DQ 7 months.
● January 2009, limit:722 CD 6 months DQ 15 months.
[4] The reasoning of the learned District Court Judge is short and can conveniently be set out in full:
[4] I need to take into account the purposes and principles of sentencing. The need to deter and denounce repeat drink-drivers. To protect the public. To be consistent, so it does not matter what Judge you get or what day you appear in Court, at least in Northland, on an excess breath alcohol you will get roughly the same sentence. Of course, it must be the least restrictive.
[5] In setting the starting point I have regard to your level, 625 which is high. Your previous in 2007 of 631, 2001 of 651 and 2009 of 722. You were fined, given community work and community detention. No driving fault. You were not disqualified or forbidden but it is your fourth in reasonably short order.
[6] In my view a starting point of imprisonment is appropriate. The need to deter and denounce and to be consistent. The least restrictive is nine months.
[7] Personal matters. There is no other offending which calls for an uplift. In mitigation. This is being extremely generous to you of around 20
percent for your plea. You went walkabout from September 2013. Well finally it caught up with you. You had to come and face what you had done, that is driving drunk. I would have been justified, because you have no defence to this charge, setting the allowance for a guilty plea as low as 10 percent but I give you 20 percent. That takes it down from nine months to seven months.
[8] The question I need to decide is whether you should serve a full term custodial sentence or be sentenced to home detention. In my view the need to deter and denounce, protect the public and to be consistent requires a full- time custodial sentence.
[9] In relation to this charge you will be convicted of excess breath alcohol and sentenced to seven months’ imprisonment. You will be released on the standard and special conditions as contained in the pre-sentence report and to do any other courses and programmes as directed. You are disqualified from holding or obtaining a driver’s licence for a period of 12 months from today.
[5] The point taken on appeal by the appellant was that the prison sentence was manifestly excessive. It was submitted that there are no cases, at least in the High Court of the appellate courts, justifying a length of sentence of seven months imprisonment on these facts. Furthermore, by declining to impose home detention, the Judge erred by not imposing the least restrictive outcome that was appropriate in the circumstances pursuant to s 8(g) of the Sentencing Act 2002. The appellant also argued in support that the Judge should have taken account of relevant personal circumstances, particularly his fulltime job and his parental duties, he living in the home of the maternal grandparents of his child, aged 7.
[6] The Crown, in response, argued that the sentence imposed is one that is within range and appropriate and cannot be said to be manifestly excessive. There can be no presumption that a short term of imprisonment will automatically be converted into one of home detention.
[7] In the course of oral argument, counsel agreed that the principles relied on by the sentencing Judge were taken from s 7 of the Sentencing Act, particularly ss
7(1)(a), (e), (f) and (g). It is useful, however, to set out the whole section:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the offence; or
(d) to provide reparation for harm done by the offending; or
(e) to denounce the conduct in which the offender was involved;
or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender's rehabilitation and reintegration; or
(i) a combination of 2 or more of the purposes in paragraphs (a)
to (h).
(2) To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
[8] By contrast, the defence argument essentially drew from s 8 of the
Sentencing Act and particularly s 8(g). Again, it is useful to set out the whole of s 8:
8 Principles of sentencing or otherwise dealing with offenders
1 In sentencing or otherwise dealing with an offender the court—
(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g) must impose the least restrictive outcome that is appropriate in the circumstances[, in accordance with the hierarchy of sentences and orders set out in section 10A]; and
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i) must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[9] The Sentencing Act can be put into a class of legislation where Parliament has empowered the judges to select from a variety of criteria which, depending on the selection, are capable of producing inconsistent outcomes. Another statute of a similar character is the Resource Management Act, particularly the desirable outcomes arrayed in ss 5, 6 and 7, none of which can be pursued without risking comprise to others.
[10] The s 7 criteria relied upon by the sentencing Judge, if pursued can conflict with s 8(g). Section 10A of the Sentencing Act provides:
10A Hierarchy of sentences and orders
(1) The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender under each sentence or order.
(2) The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows:
(a) discharge or order to come up for sentence if called on:
(b) sentences of a fine and reparation:
(c) community-based sentences of community work and supervision:
(d) community-based sentences of intensive supervision and community detention:
(e) sentence of home detention: (f) sentence of imprisonment.
[11] Pursuit of the s 7 goals of denouncing the conduct and deterring other persons from committing the same or similar offence or to protect the community can justify imprisonment.
[12] It is a judicial policy in New Zealand that a third or more blood alcohol offending conviction exposes the convicted person to the likelihood of a short prison sentence.
[13] Accordingly, there are two aspects of the sentence under appeal that require analysis:
(a) Was the prison sentence excessive, and
(b)If the prison sentence is a short one, should the Court have considered expressly the option of community or home detention? This man had not been to prison before.
Term of imprisonment
[14] The appellant argued that the decision of Wild J in Clotworthy v Police1 is still the guide of the appropriate range of sentencing for offending of this type. The Crown did not dispute this.
[15] Both counsel engaged in examining the schedule to that decision and the sentences that were imposed upon a fourth EBA conviction. The decisions were
examined by taking into account within that category the level of alcohol and,
1 Clothworthy v Police [2003] 20 CRNZ 439.
secondly, the length of time between the instant offence and the previous conviction. Attached to this judgment is the schedule of the comparables that were examined. I am satisfied that none of the comparables justify a seven month sentence of imprisonment in this case when the variables are taken into account. In the attached schedule I have underlined the differentiating circumstances. In Mr Pitman’s favour, a period of four years, seven months elapsed from his third conviction.
[16] I am satisfied on that analysis that the length of the sentence could not be justified by reference to previously decided cases in the High Court or above. I then examined with counsel as to whether there was a local tariff which ought to be respected. The discussion was inconclusive. On reflection, I do not think that it is appropriate to try to justify the decision by way of reference to any local tariff. That would be inconsistent with the legislative scheme which provides for appeals from the District Court to circuit judges of the High Court.
[17] The second point on appeal was the failure to examine the option of home detention or community detention, short of imprisonment. I do not think that that is, in this case, an error of principle. On his third conviction, the appellant was sentenced to community detention. There is no rule that says that the sentencing must go up in grades so that his next sentence must be home detention if it is less than what would be a prison sentence of two years. And as I said at the outset of this judgment, there is ample support in Clotworthy and generally around the country for short, sharp prison sentences to be imposed on offenders of three or more convictions for blood alcohol offending. I conclude, in my view, that this Court should not disturb the decision of the Judge to impose a sentence of imprisonment but should disturb the term of that term of imprisonment. Based on Clotworthy, the sentence should have been in the region of three to four months.
[18] The appeal is allowed. The sentence is reduced to four months imprisonment.
Name and case reference Brief details Sentence Priestly v Police
4.2.00 Williams J HC Auckland A14/00
4th EBA conviction. Guilty plea. Last conviction
entered only 2 months earlier. Reading 1350. Appellant had finally accepted he had an alcohol problem. Mitigating family circumstances. Judge declined to suspend substituted sentence.
Appeal allowed.
6 months
substituted for 9 months.
Te Awhe Morgan v
Police 15.7.99
Gendall J HC Wellington AP195/99
4th EBA and at least 3rd conviction for driving while
disqualified. Guilty pleas to both. Level 469. Previous
3 EBA convictions spanned period 1992-June 1998.Other minor convictions for “nuisance type offending”.
Appeal dismissed.
6 months upheld. Carolyn Morgan v
Police 18.11.99
Gendall J HC Wanganui AP17/99
4th EBA conviction. Also convicted for driving while
disqualified. Appellant had pleaded guilty. Previous convictions spanned period 1990-1995. Alcohol level when last convicted 1211 – sentenced to 6 months PD. Appellant a mother with a 16 year old daughter.
Appeal dismissed.
2 months upheld.
Leave for LHD
confirmed.Police v Chas Rapa
21.5.03 Crosbie DCJ DC Wanganui CRN2083017581
ETC
4th EBA. Also convicted for driving while forbidden.
Guilty pleas to both. Level 955. Previous EBA convictions were in 1996 (9 months imprisonment) and 2 in April 2000 (counts of 1020 and 1034 – 4 months imprisonment on each). Judge described appellant as “a binge drinker” who was a risk to herself, her children and public generally. He said:
“However repeat drink drivers appear not to be getting the message in our region. They appear to come back in droves.
…
I need to denounce your conduct and promote in you a
sense of responsibility.”
12 months
imprisonment. LHD granted.
NB: Comparables: 2 years between convictions
Limits mid-sixties to mid-seventies.
5
0
1