Police v Tawhara HC Whangarei CRI 2010-488-44
[2010] NZHC 1564
•8 September 2010
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2010-488-44
BETWEEN NEW ZEALAND POLICE Appellant
ANDANDREW TAWHARA Respondent
Hearing: 2 September 2010
Counsel: L E P Henderson and D Stevens for Appellant
C S Cull for Respondent
Judgment: 8 September 2010
JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Counsel:C Cull, 212 Waipapa Road, RD 2, Kerikeri
POLICE V TAWHARA HC WHA CRI 2010-488-44 8 September 2010
The appeal
[1] With the consent of the Solicitor General,[1] the New Zealand Police appeals against a sentence of two years’ imprisonment imposed by Judge de Ridder, in the District Court at Kaikohe, on 2 July 2010.
[1] Summary Proceedings Act 1957, s 115A(2).
[2] The ground of appeal is that the Judge, by not accumulating sentences of imprisonment on separate charges of driving with an excess breath alcohol concentration and driving while disqualified, imposed a manifestly inadequate end sentence.
The facts
[3] On 26 September 2008, Mr Tawhara was convicted on his eighteenth charge of driving with an excess breath (or blood) alcohol concentration. At that time, he was disqualified for an indefinite period.
[4] At about 9.50pm on 22 April 2010, Mr Tawhara was driving a Honda motor vehicle on a bypass, near Kerikeri. A checkpoint had been set up by Police to stop drivers, to ascertain whether they were driving within or outside permissible breath or blood alcohol levels.
[5] Having seen the checkpoint, Mr Tawhara turned about 50 metres short of it and began to drive away in the opposite direction. Nevertheless, he was subsequently stopped by the Police. An evidential breath test revealed a result of
613 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath.[2]
[2] Land Transport Act 1995, s 11(a).
[6] Mr Tawhara was affected significantly by the amount of alcohol he had consumed; he was slurring his words and was unsteady on his feet. The two
passengers in the vehicle, Mr Tawhara’s partner and son, were also heavily affected by alcohol.
Sentencing in the District Court
[7] Mr Tawhara entered pleas of guilty promptly. He appeared for sentence in the District Court on 2 July 2010. After reciting relevant facts, Judge de Ridder recorded that Mr Tawhara had 19[3] previous convictions for alcohol-impaired driving; those convictions having been entered between 1980 and 2008. Since 2005, five convictions for offences of that type had been recorded and, on the last four of those, Mr Tawhara had been sentenced to imprisonment. Mr Tawhara also had 34 previous convictions for driving while disqualified.
[3] On my count, the correct total is 18; but that is not material to the point on appeal.
[8] The pre-sentence report indicated that Mr Tawhara minimised the extent of his consumption of alcohol and his ability to drive. It also indicated that, although rehabilitative options had previously been tried, Mr Tawhara had reoffended, when subject to release conditions in 2009. No motivation to make any changes to his lifestyle was reported. In particular, Mr Tawhara said that he would not stop consuming alcohol.
[9] The Judge recognised that accountability, denunciation, deterrence and protection of the community[4] were the prime sentencing goals. He was concerned with the recidivist offending, both in respect of driving while impaired by alcohol and driving while disqualified. Judge de Ridder took the view that the principles of sentencing required him to impose the maximum penalty, if the offending was within the most serious of the cases for which the penalty was prescribed.[5] In terms of s 16(2) of the Sentencing Act, it was clear that a sentence of imprisonment was required to mark the offending.
[4] Sentencing Act 2002, s 7(1)(a), (e), (f) and (g).
[5] Ibid, s 8(c).
[10] Judge de Ridder considered that a starting point for sentence, on each charge, was a period of imprisonment of two years. That reflects the maximum penalty
available for each offence. The Judge accepted that the guilty pleas were entered at the earliest possible time, entitling Mr Tawhara to a credit of one-third.[6] On that basis, an end sentence of one year and four months’ imprisonment would have been appropriate on each charge.
[6] Hessell v R [2010] 2 NZLR 298 (CA) at para [15].
[11] The Judge then considered whether he was entitled to impose cumulative sentences for the breath alcohol and disqualification charges. He said:
[15] Then comes the real issue in this case Mr Tawhara of whether those sentences should be served at the same time or whether they should be served one on top of the other. Sections 83 and 84 of the Sentencing Act are relevant to this decision, in particular s 84. It seems to me it cannot be argued other than that these two offences are inextricably linked. The core element of course is your driving; the two distinct elements of that are that you were driving whilst disqualified and you were also driving with excess breath alcohol and it seems to me that it is distorting s 84 to regard these as somehow different offending.
[16] Therefore, based on s 84 it appears that the sentences must be served at the same time. However, I take the view that in respect of each of those charges they are aggravated by the other charge, that is, you were driving with excess breath alcohol while driving when you were not supposed to be, and vice versa you were driving when you were not supposed to be and you aggravated that by also driving after consuming alcohol. Therefore, I take the view I am entitled to take an uplift from that 16 months sentence, the point I reached in respect of both charges, to take account of the aggravating feature. That uplift in my view should be to the maximum penalty that can be imposed and on each of these charges you are convicted and sentenced to imprisonment for the maximum period of two years and you are also disqualified for two years.
Competing submissions
[12] Ms Henderson, for the Police, submitted that Judge de Ridder erred in holding that he had no power to sentence on a cumulative basis. She submitted that the offences with which Mr Tawhara was charged were different in kind. As a result of the imposition of concurrent sentences, Ms Henderson submitted that the end sentence imposed was manifestly inadequate. Nevertheless, Ms Henderson acknowledged that, on an informant’s appeal, a sentence at the lowest end of the
appropriate range should be imposed, if a sentence were increased.[7]
[7] R v Donaldson (1997) 14 CRNZ 537 (CA), and R v Xie [2007] 2 NZLR 240 (CA) at para [31].
[13] Ms Cull, for Mr Tawhara, submitted that the Judge had not erred and that his choice to impose a concurrent sentence was not one with which the Court should interfere on appeal. While at the lower end of the available range, Ms Cull submitted that the sentence was available for the Judge to impose.
Analysis
[14] On behalf of the Police, Ms Henderson and Mr Stevens compiled and presented a very helpful summary of authorities. In addition, I shall refer to two other cases located in the course of preparing this judgment.[8]
[8] R v McQuillan CA129/04, 12 August 2004 and Sands v Police HC Christchurch CRI 2006-409-170,
27 September 2006.
[15] The starting point is ss 83 and 84 of the Sentencing Act 2002 (the Act), in which the circumstances for imposition of cumulative sentences is discussed. For present purposes, the following provisions are relevant:
83 Cumulative and concurrent sentences of imprisonment
(1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.
...
(5) Any sentence of imprisonment may be imposed concurrently with any other sentence of imprisonment.
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
[16] If cumulative sentences were imposed, it remains for the Court to consider whether the effective end sentence is “wholly out of proportion to the gravity of the overall offending”; the totality principle.[9] Section 85 of the Act states:
[9] Sentencing Act 2002, s 85.
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence. (my emphasis)
[17] In R v McQuillan,[10]the Court of Appeal approved the imposition of cumulative sentences to reflect the gravity of the overall offending, in the context of recidivist offending involving driving while disqualified and with an excess breath/blood alcohol concentration.[11] On the particular occasion in issue, Mr McQuillan had been sentenced on two sets of offending that took place within a
[10] R v McQuillan CA129/04 12 August 2004.
[11] Ibid, at para [24].
12 month period, the latter (in Christchurch) after he had absconded while on bail in respect of the former (in Cromwell). The Court of Appeal said:
[23] The two sets of offending for which the appellant was sentenced took place within a 12 month period between April 2002 and March 2003. That is a serious matter in itself. The sentencing Judge was however also required to take into account a further aggravating circumstance which graphically demonstrated the appellant’s contemptuous attitude to his responsibilities. All repetitive drink driving offending by disqualified drivers involves disobedience of court orders as well as disregard for public safety. In the case of the appellant, at the time he offended in Christchurch he knew that the Cromwell charges remained outstanding and that the Court had not been able to deal with them because he had run away from Central Otago. A warrant for his arrest had to be issued. The appellant did not desist from his dangerous conduct and the warrant was executed by the police when the appellant came to their attention as a result of the Christchurch offending. Only then did he face the inevitable and plead guilty to the Cromwell charges in Christchurch.
[24] ... The Court was required by s85(1) of the Sentencing Act 2002 to impose a sentence that reflected the seriousness of [the Christchurch] offence and, given the aggravating circumstances mentioned, it would have been open to the Judge to impose a term of imprisonment that was closer to the maximum. It was also open for the Judge to deal with the gravity of the matter, as he did, by imposing a cumulative sentence for the Christchurch charges. The overall sentence reflected the failure of previous shorter terms of imprisonment for drink driving offences to bring home to the appellant his responsibilities and the need to deter him from further repetition of his offending in the interest of public safety. In the context in which the Christchurch offending took place in succession to that in Cromwell, we consider that the overall term of imprisonment imposed by the District Court is not disproportionate to the gravity of the overall offending. The requirements of s85(2) of the Sentencing Act are accordingly met. (my emphasis)
While McQuillan was a case in which cumulative sentences were imposed in respect of different events, the observations[12] about the need to ensure the end sentence is sufficient to meet relevant sentencing goals is equally applicable to a case like the present.
[12] Ibid.
[18] Both before and after McQuillan, this Court has consistently approved the imposition of cumulative sentences to reflect the totality of criminality when breath/blood alcohol and driving while disqualified offences are charged in tandem.[13] Cumulative sentences have been imposed to reflect the difference in kind between alcohol impaired driving (a public safety concern) and driving while
[13] See Collins v Police HC Hamilton AP100/02, 16 December 2002, Hughes v Police HC Invercargill CRI 2003-425-017, 31 October 2003, Sykes v Police HC Dunedin CRI 2006-412-0004, 15 March 2006, Miles v Police HC Hamilton CRI 2005-419-42, 2 May 2006, Sands v Police HC Christchurch CRI 2006-409-170, 27 September 2006, and Moon v Police HC Whangarei CRI 2010-488-0007, 9 July 2010.
disqualified (an administration of justice offence, involving deliberate disobedience of a Court order).[14] The totality principle has then been applied to ensure that the cumulative sentences imposed do not “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.[15]
[14] Sentencing Act 2002, ss 83(1) and 84(1); see also Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 669 (Cooke P and Richardson J) and R v McQuillan CA129/04, 12 August 2004 at para [23]; set out at para [17] above.
[15] Ibid, s 85(2).
[19] With respect, Judge de Ridder fell into error in holding that he was required, by the combined provisions of ss 83 and 84 of the Sentencing Act,[16] to impose a concurrent sentence because the two offences were “inextricably linked” as the “core element” was driving. That approach was clearly contrary to the weight of authority in this Court. Having said that, the Judge was entitled, in the course of a busy sentencing list, to have expected some assistance from counsel for the Informant,
[16] Set out at para [15] above.
identifying the authorities to which I was referred on appeal.
[20] The Judge having made an error in law, it is necessary for me to re-sentence. [21] A useful approach is to consider comparator cases to ascertain how they have
been resolved. All involve the entry of guilty pleas[17] and “unremarkable” driving at
[17] Some of the earlier cases involved the entry of guilty pleas before Hessell v R [2010] 2 NZLR 298 (CA) was decided.
the time of apprehension.[18]
[18] A possible exception is Sands v Police HC Christchurch CRI 2006-409-170, 27 September 2006, in which one of the incidents involved dangerous driving.
[22] In Collins v Police,[19] the offender was before the Court on his thirteenth excess breath alcohol and twentieth driving while disqualified charge. This Court upheld a total cumulative sentence of two years and six months’ imprisonment.
[19] Collins v Police HC Hamilton AP100/02, 16 December 2002.
[23] In Hughes v Police,[20] the offender was for sentence on his fifteenth conviction for driving with an excess breath alcohol concentration and twentieth for driving while disqualified. A cumulative sentence of three years’ imprisonment was imposed.
[20] Hughes v Police HC Invercargill CRI 2003-425-017, 31 October 2003.
[24] In Sykes v Police,[21] a sentence of two years and six months’ imprisonment was upheld, in respect of an offender who had thirty-seven previous convictions for driving while disqualified and eleven for driving while impaired by alcohol.
[21] Sykes v Police HC Dunedin CRI 2006-412-0004, 15 March 2006.
[25] In Miles v Police,[22] the offender was for sentence on his nineteenth charge of driving with an excess breath/blood alcohol concentration and his twenty-third of driving while disqualified. A sentence of two years and six months’ imprisonment was confirmed, on appeal.
[22] Miles v Police HC Hamilton CRI 2005-419-42, 2 May 2006.
[26] In Sands v Police,[23]the High Court upheld cumulative sentences totalling two years and four months’ imprisonment on recidivist breath/blood alcohol and disqualification charges; Mr Sands had previously been convicted on eight occasions for alcohol impaired driving and on three occasions for driving while disqualified. While the sentences responded to wider offending, the Judge specifically found that a cumulative sentence of two years and four months’ imprisonment on the drink- driving and disqualification offences was not manifestly excessive, having regard to the totality principle.[24]
[23] Sands v Police HC Christchurch CRI 2006-409-170, 27 September 2006.
[24] Ibid at para [25].
[27] In Moon v Police,[25] the offender was before the Court on his eleventh breath/blood alcohol and sixteenth driving while disqualified convictions. A final sentence of two years and six months’ imprisonment was upheld.
[25] Moon v Police HC Whangarei CRI 2010-488-0007, 9 July 2010.
[28] The sentence of two years’ imprisonment imposed by Judge de Ridder was, with respect, manifestly inadequate having regard to the authorities to which I have referred.
[29] The appropriate approach is to fix a sentence for each of the offences for which convictions have been entered.[26] Having done that, the sentencing Judge is required to determine whether to impose cumulative or concurrent sentences to mark
[26] Sentencing Act 2002, s 85(1).
the offending.[27] It is then necessary to stand back and determine whether the effective end sentence is “wholly out of proportion to the gravity of the overall offending”.[28] If so, a lesser sentence should be imposed; if not, cumulative sentences are appropriate.
[27] Ibid, ss 83(1) and 84(1).
[28] Ibid, ss 83(1) and 84(1).
[30] Like the District Court Judge, I take the view that this offending was of the worst of its type, because of its recidivist nature. I adhere to the approach I took in Moon v Police:[29]
[29] Moon v Police HC Whangarei CRI 2010-488-0007, 9 July 2010.
[14] This was a case where the Judge was entitled to treat the offending as near to the worst of its type. In fact, I would regard it as falling within the category of the worst of its type. While one can always posit cases in which a greater number of convictions for prior offending may have taken place or worse driving results, at some point the Court must say enough is enough and treat the sentencing exercise as one that can be begun from close to or the maximum sentence capable of being imposed.
[31] I would adopt a starting point of two years’ imprisonment on each charge, representing the maximum penalty available on each. Mr Tawhara is entitled to a credit of one third to reflect his early guilty pleas.[30] That equates to a credit of eight months on each charge. That brings the end sentence on each charge to one year and four months’ imprisonment. Accumulated, those sentences result in an effective term of imprisonment of two years and eight months. In my view, such a sentence
[30] Hessell v R [2010] 2 NZLR 298 (CA), at para [15].
responds adequately to the overall offending.
[32] Applying the principles applicable on an Informant’s appeal against sentence, I consider that the appropriate end sentence is one of two years and six months’ imprisonment. In my view, that sentence is the lowest of the range of available sentences, having regard to the circumstances of this case and the terms of imprisonment imposed in the comparator cases to which I have referred.[31]
[31] See paras [22]-[27] above.
Result
[33] The Informant’s appeal against the sentence of imprisonment imposed is allowed. The sentence of two years’ imprisonment on each charge, to be served concurrently, is set aside. In substitution, a sentence of imprisonment of one year and three months’ imprisonment on each charge is imposed, to be served cumulatively. That makes an effective end sentence of imprisonment of two years and six months. The order for disqualification that was made in the District Court
stands.
P R Heath J
Delivered at 3pm on 8 September 2010
0