Police v M HC Nelson CRI-2005-442-9

[2005] NZHC 321

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2005-442-9

BETWEEN  NEW ZEALAND POLICE Appellant

ANDM  Respondent

Hearing:         22 November 2005

Appearances: R G Marshall for appellant

M K Moorhead for respondent

Judgment:      2 December 2005 at 10.30 a.m.

JUDGMENT OF MACKENZIE J

[1]      This is an appeal by the informant against the sentence imposed on the respondent in respect of a charge of driving a motor vehicle with excess blood alcohol, having been convicted at least twice previously.  The appeal was filed out of time, and an application for extension of time was filed, and heard with the substantive appeal.

[2]      The brief facts are that the respondent pleaded guilty in the District Court at Nelson to one charge under s 56(2) of the Land Transport Act 1998 and to one charge of refusing to accompany an enforcement officer under s 59(1)(b) of the Act. The summary of facts disclosed that the appellant was the driver of his motor car in the car-park of an hotel at Motueka at about 10.30 p.m. on Thursday, 16 June 2005. He had been drinking in the hotel and had an associate as a passenger.   A police patrol arrived and activated its red and blue flashing lights, at which time the defendant drove a further 40 metres and parked the car in another part of the parking

area.  When spoken to by police, he admitted having consumed alcohol, stated that

POLICE V M  HC NEL CRI-2005-442-9 2 December 2005

there was no way he was going to undergo a breath screening test and began walking off towards the street.  The attending constable cautioned him and required him to accompany him without delay to the Motueka police station for further breath test procedures.  The defendant refused and was placed under arrest.   A blood sample was  taken  and  subsequent  examination  showed  it  to  contain  128  milligrams  of alcohol per 100 millilitres of blood.  In explanation, the respondent stated that he was only intending to move his car to another part of the car-park and did not intend to drive it home.

[3]      On the charge of driving with excess blood alcohol, he was convicted and fined $3,000, court costs $130, reparation $165.50 to be paid at the rate of $50 per week.  He was disqualified for 18 months and was not to have an interest in a motor vehicle for 12 months.  On the charge of refusing to accompany, he was convicted and discharged.

[4]      The appellant seeks to appeal against sentence.  The grounds of the appeal are that the part of the sentence of $3,000 fine is manifestly inadequately and wrong in principle.   Leave of the Solicitor-General to the appeal was sought, pursuant to s 115A of the Summary Proceedings Act 1957.   Consent was given, by a notice dated at Wellington on 21 October 2005.  The appeal itself was filed on 26 October

2005.  Sentencing took place on 26 September 2005, so that the 28 day period provided for in s 116 expired on 24 October 2005.  That day was a public holiday, Labour Day, so that the last day for filing the appeal was 25 October 2005.   The appeal was accordingly one day late.

[5]      The circumstances are explained in the affidavit in support of the application for extension of time.   The file was forwarded to the Legal Service Centre of the New Zealand Police at the Canterbury District Headquarters, to ascertain whether an appeal against sentence would be appropriate.  The file was received in Christchurch on 3 October 2005.  From there, the file was forwarded to the Crown Law Office to ascertain whether the Solicitor-General would consent to an appeal.  Consent was granted and dated 21 October 2005.   The Crown Law Office wrote to the Police Legal Service Centre at Christchurch advising of the consent.  The form of consent itself was sent direct to the Nelson District Court.  On 25 October, an email message,

timed at 10.31 a.m., was sent to the officer responsible in Nelson advising of the consent.  He deposes that on that day he was prosecuting in a list day at the Nelson District Court.  He returned to the office during his lunch break but did not check his emails during that break.  The court list finished after 4.00 p.m., and on his return he commenced preparing for the following day’s court work, so that it was not until Wednesday, 26 October that he checked his emails for the previous day, at around

8.00 a.m.  He filed the appeal in the High Court at Nelson at about 8.30 a.m. on that day.

[6]      Section 123 of the Summary Proceedings Act 1957 provides that a Judge of this Court may extend time for appealing.  The factors to be considered on such an application were stated in Police v Hill (1990) 6 CRNZ 280 as generally including

(a)      Whether the failure to file within time has arisen in circumstances which ought reasonably to be excused;

(b)      Whether the proposed respondent has suffered any prejudice by the delay, other than that inherent in the extension of time itself;

(c)      Whether the proposed appeal has sufficient prima facie merit, and, in the case of an appeal on a point of law by an informant, sufficient prima facie utility and justice, to warrant the extension of time sought; and

(d)      Any other matters relevant to the particular case.

[7]      In this case, the failure to file within time has been explained, and I consider that those circumstances are ones which ought reasonably to be excused.   No prejudice arising from the delay, apart from that inherent in the extension of time, has been shown.  That must be the case, since the appeal was in fact filed very early on the day following the last day for filing.  As to the third factor, whether the appeal has sufficient prima facie merit, I consider, for the reasons which I give in dealing with  the  substantive  appeal,  that  the  appeal  has  sufficient  prima  facie  merit  to warrant the extension of time.  This is an appeal by an informant, though not one on a point of law.  I consider that, on an informant’s appeal against sentence, the general importance,  or  otherwise,  of  the  point  raised  by  the  appeal  is  a  relevant

consideration.  I consider that the appeal here has sufficient general importance to warrant the extension.  As to other matters which might be relevant to the exercise of the discretion in this case, counsel for the respondent submits that the respondent has relied on the sentence by paying off the fine at the required rate.  She further submits that, because the respondent’s liberty is at risk, the Crown should be expected to comply with time limits strictly.   I do not regard the first of these as particularly significant in this case.  The second is important, but it must be viewed in the light of the short period of delay involved.  I consider that the circumstances here are such that it is in the interests of justice to extend the time.  An extension of time is accordingly granted.

[8]      Turning to the appeal itself, the appeal is on the grounds that the sentence of a $3,000 fine was manifestly inadequate and wrong in principle.  The sentencing Judge noted that he had received submissions from the police, which he said was an unusual situation.  In those submissions, the informant had noted that the respondent had nine previous convictions for similar drink driving offences, made submissions as to each of the 10 factors noted in Clotworthy v Police (2002) 20 CRNZ 439, and submitted that the appropriate sentence was 12 to 15 months’ imprisonment.   The sentencing Judge in his sentencing remarks said that the respondent had been to prison, had been on community work, had been on periodic detention, had been fined, and nothing had worked.  He noted that the last time the respondent was in prison was in 2002.  He noted that there had been a decrease in his use of alcohol when driving.   He noted the respondent’s claim that he was just moving the car within  the  car-park  and  said  that  he  would  give  him  the  benefit  of  the  doubt, although he had his suspicions, and so took into account that this was not driving on the road proper (although the car-park was, of course, within the legal definition of “road”).   He noted that the respondent had support and a job.   On the choice of penalty, he said:

[3]       One school of thought would say that (and this I think is the school that the Police belong to) you have had your chance, you went to prison in

2002 and you have taken absolutely no notice of it, and here you are again.

The other school says that you are almost coming around on the merry go round and I should be starting again.  As I have said previously today, a sentence of imprisonment is not going to do you much good and the Police ask me to impose it because the community needs to be protected from you as a recidivist drink driver.

[9]      The appellant refers to Clotworthy, and to the comments of the Court of Appeal in McQuillan v R (CA 129/04, 12 August 2004) and of the Full Court in Brown v Police (High Court, Hamilton, CRI 419-87-04, 22 October 2004, Priestley and Winkelmann JJ), and submits that the sentence was manifestly inadequate. Counsel submits that the important sentencing principles must be deterrence and protection of the public from the offender and that a custodial sentence would have been appropriate, and that to impose a sentence other than a custodial sentence was manifestly inadequate.

[10]   In Clotworthy, Wild J undertook a thorough and helpful analysis of a considerable number of recent decisions of this Court on appeal.  He also set out a representative sample of some recent sentences imposed by nine different District Court Judges for comparable offending.  In all but one of the cases to which he referred, involving fourth or subsequent convictions for excess blood and breath alcohol (“EBA”), a sentence of imprisonment was imposed.  The one exception was a ninth time EBA offender sentenced to 180 hours’ community work plus $200 fine, a sentence which Wild J clearly regarded as lenient.  The Court of Appeal considered that survey of the cases in McQuillan.  McGrath J, delivering the judgment of the Court, said:

[20] ….   The survey by Wild J in Clotworthy demonstrates that such a pattern of repeat drink driving offending is unfortunately not rare in New Zealand,  and  that  Judges  of  the  High  Court  have  consistently  upheld sentences of imprisonment in the order of the twelve month terms which were imposed for the separate instances of offending in this case. Imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending.   This reflects the policy of the Land Transport Act 1998.  Under s58(3), if a person commits a third or subsequent driving offence involving drinking, the maximum term of imprisonment becomes one of two years rather than the three months for the first or second offence (ss56(1), 56(2), 58(2) and 60(1)).

[11]    In Brown, the Full Court of Priestley and Winkelmann JJ referred to both Clotworthy and McQuillan, and in that case reduced a 15 month term of imprisonment imposed for an eighth conviction for excess breath alcohol, the previous conviction having been in 1998, from 15 months to 12 months.

[12]     All of those cases involved appeals by defendants, on the grounds that the sentence was manifestly excessive.  Two decisions which I have found of particular

assistance because they are informants’ appeals, are Police v De Weyer (High Court, Whangarei,  CRI  2005-488-00020,  22  April  2005,  Laurenson  J)  and  Police  v Akarana (High Court, Auckland, CRI 2004-404-00505, 8 June 2005, Cooper J).  In De Weyer, for a third excess breath alcohol, with a breath alcohol level of 938 micrograms of alcohol per litre of breath, a sentence of 250 hours’ community work and supervision for 12 months was held to be manifestly inadequate.  Laurenson J said:

[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.

[13]    In Akarana, a sentence of 250 hours’ community work and 12 months’ supervision for a twelfth excess breath alcohol conviction was held manifestly inadequate.  Cooper J considered, on the basis of the authorities, a starting point of between 15 and 18 months’ imprisonment would have been warranted.

[14]     That analysis of the authorities makes it clear that, as the Court of Appeal said in McQuillan, “Imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending.”.

[15]     However, regard must be had to the provision which Parliament has made for penalties for this category of offending.  Under s 56(4) of the Land Transport Act, the maximum penalty is imprisonment for a term not exceeding two years, or a fine not  exceeding  $6,000.     No  provision  is  made  for  the  imposition  of  both imprisonment and a fine.  Accordingly, s 19(1) of the Sentencing Act 2002 applies to preclude the use of some combination of a fine and imprisonment.  Similarly, s 20(2) precludes a combination of a fine and community work.   The combined effect of these provisions is that the sentencing court must adopt a sentencing approach which involves either imprisonment (or a community-based alternative) or a fine, but not both.  Further, s 13 of that Act requires the Court to regard a fine as the appropriate sentence, unless the requirements of that section are met.

[16]    The sentencing Judge here has adopted the option of a fine.  The issue is whether, in doing so, he has erred in principle or imposed a penalty which is manifestly inadequate.

[17]     The individual circumstances of each case must be considered in determining the appropriate sentence.  In this case, the blood alcohol level was 128 milligrams, as opposed to the legal maximum of 80.  The last EBA conviction was in July 2002, with a very high level.   The nine previous  convictions were spread from 1983 through to 2003.   There was no driving fault involved, the defendant was in possession of a licence, and pleaded guilty early.  The offending occurred in a car- park, rather than on the road proper.  The refusal to accompany charge was an aggravating factor.  The respondent had been subject to all of the sentencing options over the period of his offending and had 46 previous convictions for a wide range of offences.     As to his  willingness  to  address  his  alcohol  problems,  he  had  many sentences of supervision in the past, and no particular mitigating circumstances were raised.

[18]     The fact that Parliament has provided for the imposition of a fine alone as one of the sentencing options available for this offence, and the injunction in s 13 of the Sentencing Act to regard that as the appropriate sentence unless the requirements of that section are satisfied, means, in my view, that the sentencing Judge cannot be said to have erred in principle in adopting that option.  A fine may, in principle, be appropriate for this category of offence.  An illustration of that is Police v Matthews (High Court, Invercargill, CRI 2004-425-000020, 4 August 2004, Fogarty J).  There, the sentencing Judge had initially considered imprisonment, but in the end imposed a fine of $5,000.  That decision was upheld, on an appeal by the informant.  It is not apparent from the decision how many previous offences there had been.  However, it is clear that the offence was a serious one, in that the sentencing Judge had been considering a term of 12 months’ imprisonment.

[19]     From his sentencing remarks in this case, it appears that the sentencing Judge had  decided  against  imprisonment,  among  other  reasons,  because  that  had  not worked in the past.  The sense of frustration of the sentencing Judge, faced with an offender for whom nothing had worked, is understandable.  That would not, of itself,

justify the non-imposition of a custodial sentence, if that was otherwise required. However, in taking that into account as a factor, I do not consider that the Judge has erred in principle.  The range of sentencing options available required him to choose between a fine and imprisonment.   Considerations of the likely deterrent or rehabilitative effects so far as the offender is concerned are relevant to the exercise by  the  sentencing  Judge  of  the  discretion  as  to  which  option  to  adopt.    That discretion is not lightly to be interfered with on appeal.

[20]     For these reasons, I hold that the decision to proceed by way of fine cannot be said to be an error in principle.  As to whether the level of fine was manifestly inadequate, the limited financial information in the sentencing notes indicates that the respondent’s income was $400 per week.  The fine, and the rate at which it is to be paid, were substantial in the light of that.  The Crown did not seek to argue, in the event that its submission that a custodial sentence was required was not accepted, that the level of the fine was manifestly inadequate.  The sentence is not shown to be manifestly inadequate.

[21]     For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors

Crown Solicitor, Nelson, for appellant

Zindels, Nelson, for respondent