Police v D W HC Whangarei CRI 2005-488-20
[2005] NZHC 1728
•22 April 2005
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2005-488-00020
NEW ZEALAND POLICE
Appellant
v
[B J D W]
Respondent
Hearing: 21 April 2005 Appearances: B O’Connor for Appellant
D Owen-Tana for Respondent Judgment: 22 April 2005
RESERVED DECISION OF LAURENSON J.
Solicitors:
Crown Solicitor, Whangarei Law North Partners, Whangarei
NEW ZEALAND POLICE V [B J D W] HC WHA CRI 2005-488-00020 [22 April 2005]
Introduction
[1] This is an appeal against sentence brought by the police as informant pursuant to s115A of the Summary Proceedings Act 1957, the consent of the Solicitor-General having first been obtained and then lodged with the notice of appeal.
[2] The appeal relates to a sentence of 250 hours community work and supervision for 12 months imposed in the District Court at Kaikohe on 11 November 2004, in respect of one charge of driving with excess breath alcohol, the respondent having been convicted at least twice previously of an offence against s56(1) of the Land Transport Act 1998.
Factual background
[3] The summary of facts reveals that the respondent was seen to be driving his car from a hotel carpark in Kerikeri at 9.30pm on Friday 10 September 2004. He was stopped and when asked, admitted having consumed alcohol prior to driving. Breath tests procedures were carried out with a positive result of 938 micrograms of alcohol per litre of breath being recorded.
[4]Details of the two previous convictions are:
[a]On 8 February 2001 the appellant was sentenced to a fine of $600 and disqualified from driving for 6 months, having been apprehended on 3 February 2001 with a positive reading of 723 micrograms of alcohol per litre of breath. He does have his young children from a previous relatinship.
[b]On 28 May 2001 he was sentenced to 6 months non-residential periodic detention and disqualified from driving for one year after, having been apprehended on 9 May 2001 whilst driving with a breath alcohol reading of 938 micrograms of alcohol per litre of breath. On this occasion he was also sentenced to one year’s supervision and a final warning was noted.
The respondent has the following further convictions:
[a]Driving whilst disqualified on 13 April 2001.
[b]Operating a vehicle carelessly and driving whilst disqualified on 19 May 2001.
[c]Breach of supervision on 27 February 2002.
The probation report referred to the following matters:
[a]The respondent is 27 years of age. He has been in a permanent relationship for the past 2 years and has no dependants.
[b]In April 2003 he was severely injured in a motor accident which did not involve the consumption of drink, or any fault on the respondent’s part. He has spent the last 20 months on ACC and has recently been able to return to his work as a forecourt attendant.
[c]On the day when he was apprehended he had been on his own for about a month. He was waiting confirmation for a further operation on his leg. He decided to go to the hotel, drank too much and therefore decided to have a sleep in his car. About an hour later he woke up and decided to go home and then he was apprehended.
[d]He has voluntarily made an appointment for an alcohol and drug assessment with a view to obtaining counselling.
[e]His risk of reoffending is assessed as high.
[d] The recommendation was for imprisonment.
[7] The respondent wrote to the court candidly admitting that he had had a problem with alcohol since his late teens. After his conviction for drinking 3 years ago he had seriously though about his lifestyle. He engaged in working and pursuing hobbies to help keep his drinking under control. These were, however, disrupted by the serious accident and the ensuing injuries. He again accepts that he has as drinking problem that needs to be fixed and he may need professional help. He expressed his remorse for having committed the offence and his anger and disappointment at himself.
[8]The sentencing Judge noted the following matters:
[3] The previous list is not a long one and those two drink-driving convictions are in fact your only drink driving convictions. This then is your third. It is not unheard of for people who appear on their third drink driving conviction to receive a lengthy term of imprisonment and it is a fine line. The High Court case of Clotworthy, which I am bound by, definitely allows the Court to impose a sentence of imprisonment in these circumstances. However, it also allows a Court such as this one to impose a community- based sentence where that is considered appropriate.
[4] There is no doubt Mr [D W] that you are really finely balanced here in this sentencing exercise and it seems to me that, by a fine margin, community work can be imposed today. That is because the final warning you were given is three years old now, you do have only two convictions although I have already mentioned that the last conviction was for a significantly high reading and so is this one but in terms of your personal circumstances, I take into account the fact that you have now permanent employment to go to and you have the support of your partner who ahs indicated, to you at least, a willingness to transport you to and from community work.
[9]Section 383(2) of the Crimes Act 1961 states:
(2) The Solicitor-General, with the leave of the [court appealed to, may appeal to the Court of Appeal or the Supreme Court] against the sentence passed on the conviction of any person on indictment, unless the sentence is one fixed by law.
[10] The headnote to R v Pue & Anor [1974] 2 NZLR 393 (Court of Appeal), states:
Held, The Court should not consider increasing a sentence unless:
(a) On a review of the facts and circumstances, it is clearly of opinion that the sentence imposed was manifestly inadequate; or
(b) The Crown is able to point to some error in principle into which the sentencing Judge has fallen.
[11]In R v Wihapi [1976] 1 NZLR 422 at 424, the Court of Appeal said:
… It is unquestionably free to increase a sentence when it appears that the sentence is manifestly inadequate. But we think it correct to say that in practice the court requires the considerations justifying an increase to speak more powerfully than those which ordinarily might justify a reduction … Moreover, this court must always be careful that it does not discourage the exercise of the fundamental right and responsibility of a trial judge, in appropriate cases, to allow the promptings of mercy to operate and, even in cases which normally call for a deterrent sentence, to conclude that the state is best served by taking a form of action calculated to encourage reformation.
The appeal
[12]The appellant has appealed against the sentence imposed on two grounds:
[a]That the failure to impose a term of imprisonment amounts to an error in principle given the terms of s56(4) of the Land Transport Act 1998 which imposes a maximum penalty of imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000. Against the background of this provision, the Judge failed to give proper weight to the deterrent purpose required in this sentencing.
[b]The second ground was that, in the particular circumstances, the sentence was manifestly inadequate.
[13] In 1998 Parliament increased the maximum penalties in relation to third and subsequent offences of driving with an excess blood or breath alcohol content to two years imprisonment or a fine not exceeding $6,000, and disqualification for one year or more.
[14] This increase clearly signalled a firm intention to deter drunken drivers and to thereby protect the public from the havoc which they create.
[15] Whilst deterrence is the primary sentencing purposes in such cases, the other sentencing purposes referred to in s7 of the Sentencing Act 2002 (“the Act”) must also be considered. In the present case, it is clear that the Judge did go about a balancing exercise when considering the sentence. On the one hand, he considered
the question of imprisonment and, on the other, he considered the respondent’s personal situation.
[16] It is unfortunate, however, that the Judge did not make any reference to the need to afford clear regard to the purpose of deterrence. It is this aspect which gives rise to the appellant’s submission that there has been an error in principle.
[17] The net result is that this Court is now required to consider whether the sentence actually imposed can be seen to have in fact paid an appropriate regard to this factor.
[18] Section 7 of the Act refers to the purposes of sentencing which must be considered. Those which are particularly relevant to this case are a combination of the need to:
…
(e)denounce the conduct in which the offender was involved; or
(f)deter the offender or other persons from committing the same or a similar offence; or
…
(h) assist in the offender's rehabilitation and reintegration.
[19] The principles referred to in s8 of the Act which are particularly relevant to this case are:
(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
…
(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
(g) must impose the least restrictive outcome that is appropriate in the circumstances; and
[20] Aggravating and mitigating factors which are generally relevant to cases such as this were defined by Wild J in Clothworthy v Police (2003) 20 CRNZ at 439. I will refer to these shortly. Before doing so, it is appropriate to start by considering the range of sentencing which is apparent from previous sentencing decisions. Included in Clothworthy is a schedule of relevant material decisions. There are three which are directly relevant to this case. All relate to cases where sentences were imposed for a third offence. They are:
[a]Ussher v Police HC CHCH A12/02 27 February 2002, where 5 months imprisonment was upheld on appeal after allowing 3 months for the guilty plea.
[b]Putara v Police HC AK A191/02 29 November 2002, where a sentence of 3 months imprisonment was substituted for 6 months.
[c]Anderson v Police HC NWP AP26/02 9 July 2002, where a sentence of 2 months was substituted for a sentence of 3 months.
In each of these cases pleas of guilty had been entered.
[21] I was also referred to further decisions dealing with third convictions, where pleas of guilty were entered.
[a]Te Awhe Morgan v Police HC WN AP195/99 15 July 1999. In this case a sentence of 6 months imprisonment was upheld.
[b]Carolyn Morgan v Police HC WANG AP17/99 18 November 1999. In this case a sentence of 2 months was upheld.
[22] I was also referred to two other decisions where imprisonment had not been imposed:
[a]Bell v Police HC AK A184/01 5 March 2002, where a fine of $2,500 was reduced on appeal to $1,000.
[b]Fairbrother v Police HCC MAS MA16/02 5 December 2002, where a fine of $1,500 had been imposed. This was not challenged on appeal which related to the period of disqualification of 2 years, which was upheld. Reference was made in this decision to Gregory v Police HC PMN ap36/00 16 August 2000, where the fine was reduced on appeal.
[23] I conclude from my perusal of these cases that there is no set penalty for a third excess blood alcohol or blood offence but, consistent with the amendment to the maximum penalty in 1998 the penalty is likely to be imprisonment within a range of 2 to 6 months, depending on an assessment of the particular facts and in relation to the particular offender.
Assessment of the culpability in this case
[24]I note the following in relation to the ten factors referred to in Clotworthy
(supra):
[a]The breath or blood alcohol level – the three levels established in this case were 2004 – 938 micrograms; May 2001 – 1320 micrograms; February 2001 – 723 micrograms. These all represent instances of grossly excessive drinking.
[b]The length of time that had elapsed since the last drink/driving conviction (in this respect the 5 year period referred to in s65(2)(b) of the Land Transport Act 1998 is perhaps of significance.
I was advised from the Bar that the two offences in 2001 were committed when the respondent was under considerable stress at the time of the breakdown of his relationship with his partner. The appellant was in no position to confirm or otherwise that this was correct. According to the respondent, he took stock of his life at this point and the present defence did not occur for a period of some 3½ years later when he was in a state of some depression. It appears that s65(2)(b) does apply to this case, and I will refer to this further shortly.
[c]Conviction for two or more drink/driving offences in close succession. The first two were in close succession but, so far as the present sentencing is concerned, I consider that the 3½ year gap to the present offence is significant.
[d]The manner of driving: innocuous or dangerous; accident in an injury resulting or neither? - in the present case, this must be regarded as a neutral factor because the respondent was apprehended almost immediately after he commenced driving.
[e]Whether the offender was disqualified or forbidden from driving at the time – in this case the respondent’s earlier disqualification had expired.
[f]The plea and, if guilty, whether that plea was entered at an early stage or only belatedly – in this case it is accepted that the plea was entered as soon as possible and indeed, had been intimated prior to the plea being entered.
[g]The sentences (in particular whether they included imprisonment, imposed for previous EBA convictions and the response (or lack of it)) to those offences. The first offence in 2001 was met with a fine of
$600 together with disqualification for 6 months.
On 28 May 2001 the respondent was convicted of driving whilst disqualified on 13 April 2001 and, all on 19 May 2001 operating a vehicle carelessly; driving while disqualified; and driving with an excess breath alcohol content. The total offending dealt with on this date was met by a sentence of non-residential periodic detention together with disqualification for one year, and supervision for one year.
On 10 July 2002 he was convicted of a breach of supervision and discharged. As far as this is concerned, the Court accepted an explanation that the respondent had breached a reporting clause because he had instead gone to work.
[h]The offender’s record, if any, of conviction for any other types of offending – see above.
[i]Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
The pre-sentence report states that the respondent has recognised an alcohol problem and that, after the offending in 2001, his efforts to control this had apparently, been successful to some degree. So far as the present charge is concerned, he had voluntarily made an appointment for an alcohol and drug assessment, but this had not been followed through because the counsellor had left the area. As noted previously, the report indicates that he is assessed as having a high risk of reoffending, but he understands the serious nature of his repeat offending, and the likelihood of a term of imprisonment. Although the report does not refer to the issue of remorse, I consider from other material placed before the Court that the respondent is remorseful and wishes to further control his drinking problem.
[j]Any mitigating personal or family circumstances contributing to the offending – so far as the present offence is concerned, it seems that the respondent was in a depressed state due in part to the month long absence of his partner, and the difficulties presented to him by his serious injuries.
[25] If the question of sentence fell to be determined solely on these factors, my assessment would be that the Court could have been justified in imposing a sentence of 3 months imprisonment, less one month to take into account the plea of guilty. Viewed in this light, it would appear that there has been an error in principle, namely failing to pay sufficient regard to the need to deter, and that the sentence imposed is manifestly inadequate.
[26] It seems to me, however, that even though the appellant has satisfied me on these two points, there still remains an issue whether the sentence should necessarily be increased.
[27] It is clear from Pue (supra) and Wihapi (supra) that a sentence should not be increased unless one or other of the above thresholds can be established. That does not, however, mean to say that, having been established, a sentence must be increased.
[28] In Pue reference was made to R v Bustard (unreported, Wellington, 2 July 1971, Court of Appeal, 17/19/71) as follows:
“Both counsel drew our attention to a number of cases in Australia and in Canada where similar or somewhat similar provisions exist enabling the Crown to appeal against the inadequacy of a sentence. We have considered these cases, but in the end we have come to the conclusion that it is undesirable for this Court to attempt to lay down in any detail the lines of approach which the Court should follow when considering an application by the Crown for an increase in the sentence, for really each case must be decided on its own particular facts. This being the view we take, we think it will be sufficient for us to say that in our opinion this Court should not consider increasing a sentence unless either on a review of the facts and circumstances it clearly [sic] of opinion that the sentence imposed was manifestly inadequate, or the crown is able to point to some error in principle into which the sentencing Judge has fallen.”
[29] This statement is consistent with the statement in Wihapi, which I have referred to in para [11] above.
[30] So far as the present case is concerned, there are a number of further matters which I consider should be brought into account when considering whether the respondent’s sentence should be increased even though the threshold criteria required before an increase should be considered, have been demonstrated.
[31]These further factors are:
[a]Apart from his very bad offending in relation to drunken driving the respondent is, in other respects apparently, a person of good character.
[b]He has already completed 67 hours of the community service sentence working at the Eureka Hospice Shop in Kerikeri. Furthermore, he has, according to that organisation “proved to be an excellent worker and of invaluable assistance in helping with the heavier lifting, moving and general maintenance involved in this kind of shop. His manner is pleasant and helpful and he is always punctual. He seems well motivated to complete his hours of community service and has no problem with working extremely hard while he is doing this.”
[c]His present employers speak very well of him but note, that following a change in the ownership of the business, if the respondent is forced to leave his job now, it will not be available to him on his return.
[d]It has now been realised that s65 of the Land Transport Act 1998 applies to this case. This section states:
65 Mandatory penalties for repeat offences involving use of alcohol or drugs
(1) This section applies to offences against any of sections 56 to 62.
(2)If—
(a) A court convicts a person of an offence to which this section applies; and
(b) The person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court,—
the court must (unless prevented by subsection (3)) make an order requiring the person to attend an Assessment Centre and disqualifying the person from holding or obtaining a driver licence until the Director removes that disqualification under section 100.
(3) The court may not make an order referred to in subsection (2) unless at least 1 of the offences was—
(a) An offence to which this section applies where either—
(i) The proportion of alcohol in the person's breath, as ascertained by an evidential breath test, exceeded 1,000 micrograms of alcohol per litre of breath; or
(ii) The proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; …
[32] The conviction entered on 28 May 2001 (i.e. within 5 years of the present conviction) related to a reading of 1320 micrograms of alcohol per litre of breath. The result is that the respondent will be unable to drive again until the disqualification is removed in accordance with s100.
[33] If these further matters are taken into account in the context of an informant’s appeal, I consider that the Court is left with having to decide whether the state, which has a legitimate interest in ensuring that drunken drivers are deterred, is best served by:
[a]The imposition of a sentence of 2 months (with the possibility of release after one month); or
[b]Accepting that the respondent is responding well to providing a worthwhile benefit in the community and will, in addition, be able to retain his employment.
[34] It would be very easy in this case to simply accept the apparent inadequacy of the sentence and remedy this by allowing the appeal and imposing a sentence of 2 months imprisonment.
[35] I have concluded that, in the circumstances of this case, it would be unjust to impose a sentence of imprisonment for the following reasons:
[a]It is clear that there is a range of sentencing applicable to cases such as this, and that this range does not necessarily involve imprisonment.
[b]The earlier offending was confined to a period of 3 months following which there was an interval of 3½ years.
[c]The present offending was quite unacceptable and serious. It is not, however, indicative of persistent and blatant offending, as is so often the case.
[d]The respondent is 27 years of age. He is, in all other respects, a person of good character.
[e]There are indications that he is remorseful and aware of his responsibilities, and had taken steps to get help.
[f]He has demonstrated his willingness to atone for his latest offence to the extent he can by his positive attitude to community work.
[g]His future as a driver will be entirely dependent on the assessments to be made under s65 of the Act.
[36] In my view, any benefit to the state, which may be obtained by the imposition of a short sentence, would be out of all proportion to the impact on the respondent, who has already embarked on his present sentence.
[37] Having decided that imprisonment should not be imposed, I nevertheless allow the appeal by:
[a]Quashing the order for disqualification for one year.
[b]Ordering in its stead, pursuant to s65 of the Land Transport Act 1998, that the respondent be required to attend an assessment centre and further, disqualifying the respondent from holding or obtaining a driver’s license until the Director removes that disqualification under s100 of the same Act.
[c]In all other respects, the existing sentence is to continue.
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