R v Fair

[2007] NZCA 282

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/07
[2007] NZCA 282

THE QUEEN

v

BERTRAM CHARLES FAIR

Hearing:11 June 2007

Court:Ellen France, Ronald Young and Keane JJ

Appearances:  N M Dutch for Appellant

M F Laracy for Crown

Judgment:6 July 2007 at 3 pm

JUDGMENT OF THE COURT

AAn extension of time for filing the appeal is granted.

BThe appeal is allowed.

CThe sentence of two years imprisonment, imposed concurrently for the two offences, is reduced in each case to 18 months imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1]       On 29 June 2006 Bertram Fair, aged 65, an indefinitely disqualified chronic alcoholic, was apprehended at the seat of his car in a central Tauranga carpark. He had a can of beer in his hand, as had his two passengers in theirs. He was highly intoxicated. His evidential breath test result was consistent. It was 967 micrograms of alcohol per litre of breath. This was his fourteenth such offence and he had twelve previous convictions for driving while disqualified.

[2]       At trial the issue was whether Mr Fair had driven his car. The constable who apprehended him had seen the car come to a halt in the carpark. In question was whether Mr Fair and a passenger had changed seats. Mr Fair elected not to give evidence but called a friend to confirm that the friend had driven him into Tauranga from Welcome Bay, where he was then staying, and parked his car in the carpark.

[3]       Mr Fair’s friend proved not to assist him. In answer to the trial Judge, Judge Ingram, the friend confirmed that he had parked the car in the carpark before 3pm. He had returned later to find it gone. The constable saw the car return to the carpark towards 6.30pm. She was not able to say for how long beforehand Mr Fair had been driving his car or how far. The Crown’s case, which the jury accepted, was that Mr Fair was clearly the driver for the short time the constable had his car in view.

[4]       In sentencing Mr Fair to two years imprisonment for the excess breath alcohol offence, the maximum sentence able to be imposed, the Judge saw that offence as “within the most serious of cases for which that penalty is prescribed”: s 8(c) Sentencing Act 2002. The Judge considered whether to impose a cumulative term for Mr Fair’s other offence, driving while disqualified. He elected to impose a concurrent two year term. On this appeal Mr Fair contends that this sentence is manifestly excessive.

[5]       Mr Fair’s offending was not, he contends, the worst of its kind. He had not committed any excess breath alcohol offence for seven years and the Judge failed to take into account that he was seen only to drive for a short distance. The Judge failed also to allow for his state of health and the difficulty that would pose for him in serving any sentence of imprisonment let alone the maximum imposed.

[6]       Mr Fair appealed one day out of time. As to that there is no issue. His application for an extension of time for the filing of his appeal is granted.

Decision under appeal

[7]       The Judge considered Mr Fair’s two offences, the one compounding the other, highly serious; the more so when set against his previous related convictions. Mr Fair, the Judge considered, constituted a continuing risk to the community: a chronic alcoholic who had continued to offend undeterred or unhelped by any sentence ever imposed. In sentencing Mr Fair as he did the Judge had express regard to R v McQuillan CA129/04 12 August 2004; Clotworthy v Police (2003) 20 CRNZ 439 (HC); Police v Moore HC NEL CRI 2005-442-9 2 December 2005.

[8]        In taking as his starting point for the excess breath alcohol offence the maximum sentence able to be imposed, two years, the Judge set out to serve two purposes, to deter Mr Fair and others, particularly Mr Fair, and to protect the community:

[9]The community is entitled to a rest from you and your inability to control yourself. One of these days if you continue to behave in this way, I have little doubt that someone will suffer serious injury or death at your hands. In any event, the sentence I impose has to be recognised within the community at large, as representing their concerns over repeated drink drivers offending and re-offending in this district. There are far too many of them.

[10]This is serious offending. It carries a maximum of two years imprisonment. Your level is high. Your list of prior convictions is lengthy. In my view this is simply the most serious case that comes before the Courts on a charge of this kind. Whilst it might be said that a higher level could be imagined, or somebody with more convictions, in my view once someone reaches a dozen, as you have, then the position is that the Court must treat it as being just the worst possible case.

[11]You have been told, and repeatedly told, that if you continue to offend you will go to prison, and in my view the provisions of s 8(1)(c) of the Sentencing Act apply, and I need to impose the maximum penalty if the offending is in the most serious cases. The harm that results from drink drivers is obvious. They pose a risk to the community. The sentence imposed must reflect the nature and quality of that risk. In your case it is a very substantial risk, and it is a risk with possibly lethal consequences for the public.

[9]       The Judge then considered whether to impose a lesser sentence having regard to Mr Fair’s vulnerability to alcohol and his fragile state of health. According to the pre‑sentence report Mr Fair’s medical practitioner had described him as an alcoholic unlikely ever to quit; as suffering cardiomyopathy, asthma, emphysema and congestive heart failure, and serious illness, but unwilling to help himself.

[10]     In principle, the Judge accepted, Mr Fair’s state of health might make a sentence of imprisonment more difficult for him than for others. That did not lead the Judge to impose a sentence less than the maximum. It did dissuade him from imposing a cumulative sentence for the driving while disqualified offence. The Judge declined leave to apply for home detention and saw no point in imposing any more than the standard conditions on release.

Within the most serious of cases

[11]     Mr Fair’s excess breath alcohol level, while high, the Judge rightly recognised, was not at the extreme. That Mr Fair was proved only to have driven for a relatively brief time and without incident may have been a further reason that dissuaded the Judge, despite an admission attributed to Mr Fair in the pre-sentence report, from imposing a cumulative term for the related offence. In that too, we consider, the Judge was right.

[12]     What impelled the Judge to take as his starting point for the excess breath alcohol offence the maximum penalty was the number of times that Mr Fair had offended in that way previously. That was a very important factor. It was not the only one. Particularly where, as here, the issue is whether the offence lies “within the most serious of cases”, an exercise in judgment, taking all factors into account, is called for: R v Stoves CA264/06 7 November 2006.

[13]     Sometimes, even in the absence of other highly aggravating factors, sheer recidivism can call for a sentence at or close to the maximum: McKinlay v Police HC CHCH CRI2006-409-116 7 August 2006.  But the number of convictions needs to be set against the span over which they were incurred and when within the span. Convictions remote in time, of themselves, may amount to little more than a statistic. They may derive such significance as they have from the convictions that follow. Generally speaking, the closer convictions are to the offence for sentence the more aggravating they become. If they are close in time they can be highly aggravating; if there has been a significant gap less so. Once again an exercise in judgment is called for.

[14]     Mr Fair’s first four convictions for driving with an excess breath alcohol lie in the eight year span, 1973 – 1981. None involved driving while disqualified. Then in quick succession, in 1982 – 1983, Mr Fair was convicted of four offences of driving while disqualified. None involved driving with an excess breath alcohol level. These offences are now so remote that they are not significant as part of Mr Fair’s more proximate pattern of offending.

[15]     In June 1984, for the first time, Mr Fair committed the two offences together. He was not sentenced until September 1988. Why that was so is not evident. That did mark the beginning of a recurring pattern culminating in 1998 – 1999. Apart from Mr Fair’s sixth excess breath alcohol offence in December 1992, for which he was convicted and sentenced immediately in January 1993, Mr Fair began to offend more regularly and to evade accountability. He began to give false information as to identity and to breach bail.

[16]     On 4 July 1997, Mr Fair was sentenced to six months imprisonment and nine months supervision, and indefinitely disqualified, for three excess breath alcohol offences, his seventh and eighth in 1993 when he also drove while disqualified, his ninth in 1997. He had also committed three breaches of bail. On 23 November 1998 Mr Fair was sentenced to nine months imprisonment and supervision for one year for three more excess breath alcohol offences, all in 1998, all involving driving while disqualified. The term of imprisonment imposed was for those latter offences. He remained indefinitely disqualified. This time he had given false details as to his identity twice. In December 1999 Mr Fair once more drove while disqualified and with an excess breath alcohol, the latter his thirteenth offence. He was not convicted and sentenced until September 2002; the sentence this time community work. Once more he had given false details as to his identity.

[17]     That was when Mr Fair’s highly concerning pattern of offending reached full spate. Apart from his twelfth driving while disqualified offence in July 2003, for which he was promptly convicted and sentenced to further community work and given a final warning, Mr Fair did not offend again in this way until these most recent offences. He had not committed any excess breath alcohol offence for almost seven years.

[18]     Within those seven years, as counsel for the Crown points out, Mr Fair did drive while disqualified and though he had been intending to undergo a remedial program in 1998, that never happened and his dependence on alcohol remains entrenched even today. The Judge had no alternative but to impose a lengthy term of imprisonment. With that we agree. In adopting the maximum term as his starting point and eventual sentence, however, the Judge, we consider, did not take sufficient account of two factors.

[19]     Within the preceding seven years Mr Fair may have driven once while disqualified. Of greater significance was that he had not driven with an excess breath alcohol level; and that seven year period was far from negligible. Also, perhaps fortuitously for Mr Fair, he was seen only to drive very briefly and without any incident. These factors combined take Mr Fair’s two offences out of the most serious category. They lie rather “near to the most serious of cases”: s 8(d). A starting point of 20 months for each offence is the most we consider justifiable.

State of health

[20]     Even had Mr Fair’s offence been within the most serious category, s 8(c) did not require the maximum sentence to be imposed. The maximum is not to be imposed, s 8(c) continues to say, where “circumstances relating to the offender make that inappropriate”. And s 8(g) requires the sentence be the least restrictive appropriate and s 8(h) that account be taken of any circumstance that would make an otherwise appropriate sentence disproportionately severe. These must be given equal weight, at least in the analysis.

[21]     At the time of sentence Mr Fair was in fragile health and presumably still is. That did not mean then, nor does it mean now, that a sentence of imprisonment is disproportionately severe. He will receive good medical care and that is what is critical: R v Pomana [2007] NZCA138.  Nevertheless, we accept, Mr Fair’s state of health does mean that he may find imprisonment harder than others do. That ought to be recognised if only modestly.  A reduction of two months is appropriate.  Unsurprisingly no issue of home detention was raised with us.

Result

[22]     Mr Fair’s two offences, especially the excess breath alcohol offence, we agree with the Judge, called for a significant sentence of imprisonment. For the two reasons that we have given, we consider the maximum concurrent penalties imposed cannot be supported. Each sentence will be quashed. Mr Fair will be sentenced instead for each offence concurrently to 18 months imprisonment.

Solicitors:
Crown Law Office, Wellington