R v Hopkins

[2014] NZHC 2957

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2014-083-001073 [2014] NZHC 2957

THE QUEEN

v

KAL JULY HOPKINS

Hearing:	24 November 2014
Counsel:	N A Refoy-Butler for Crown S Burlace for Prisoner
Judgment:	24 November 2014

JUDGMENT OF WILLIAMS J

[1]      The appellant pleaded guilty on 13 August 2014 to two counts of excess breath alcohol (third or subsequent), and two counts of driving while disqualified (third or subsequent).

[2]      On the first excess breath alcohol charge, the test result was 858 micrograms of alcohol per litre of breath; and on the second, the figure was 843 micrograms.  A particularly aggravating factor was that the appellant was on bail for the first bout of drink driving and driving while disqualified when caught committing the second bout.   He was sentenced in the District Court at Whanganui to two years’ imprisonment.  He now appeals that sentence.

[3]      The  learned  District  Court  Judge  emphasised  the  number  of  previous convictions both for drink driving and driving while disqualified that the appellant

had collected. These were the appellant’s eighth and ninth drink driving charges, and

R v HOPKINS [2014] NZHC 2957 [24 November 2014]

eleventh and twelfth driving while disqualified.   The Judge emphasised that the appellant had become “a social menace” and “a danger to others on the roads”.1

[4]      The fact that the appellant was on bail for the first set of charges and awaiting sentence when caught a second time demonstrated the need, the Judge said, for a “condign sentence”.  The learned Judge accepted that it was perhaps a “moot point” as to whether the sentence would help the appellant change his ways but at least, while he was in prison, “the public here in Whanganui will be safer on the roads than

when you are out.”2

[5]      The appellant’s submission is that the prison term is excessive.  The appellant submits that the learned Judge failed to adopt proper sentencing methodology – setting a starting point based on the offence, discounting for personal factors and then for guilty plea.  The practical effect of this failure to adopt orthodox sentencing methodology was to take the case out of the permissible range of sentences by reference to previous authority.   It led, the appellant says, to the Judge adopting a starting point (albeit notionally), that was far too high (two years eight months) while causing him to fail to take account of mitigating personal factors.

[6]      The appellant submits further that, in light of his partner’s mental health difficulties, home detention is an appropriate sentence.  His partner struggles to cope and needs his support and assistance at home.

[7]      The respondent denied that the Judge’s reasoning was faulty.   The Crown submitted that an end point of two years must have meant a notional starting point of two years eight months.  And given the gravity of the offending and the number of previous offences of the same type, that starting point was readily available to the learned Judge based on established authorities.

[8]      My  discretion  on  appeal  is  circumscribed  by  s 250(2)  of  the  Criminal

Procedure Act 2011.  It is not open to me to substitute my own view for that of the

1 At [9].

2 At [9].

sentencing Judge.  Rather, I must identify an error, and the error must be such that it demands the imposition of a different sentence.

[9]      Thus a sentence that is, as a matter of principle, too long or too short, must be corrected.     Similarly  if  a  sentence  involving  multiple  or  non-custodial  penal responses is wrongly constructed in principle, then an adjustment is required.  But a sentence that is plainly open to the sentencing Judge ought not to be disturbed even if the appellate Tribunal would have set it at a different level.

[10]    I consider that the learned Judge’s failure to adopt orthodox sentencing procedure led him to ignore potential mitigating factors (notwithstanding the seriousness of the offending), and the failure to do so led him into error.

[11]     On any analysis, this offending is at the extreme end of the scale for both the drink driving and driving while disqualified charges.  It was hardly surprising that the learned Judge imposed a stern sentence.  But in my view, the Judge needed to address two personal mitigating factors that were clearly relevant to sentence.

[12]     First, the long gap – over a decade – since the last excess breath alcohol offending, and the five year break in any offending at all.  Second, the appellant’s domestic circumstances.   I should note in that respect that there was no evidence before the Judge in relation to the appellant’s domestic situation.  There is evidence before me however and it is open to me now to take account of it.  A third factor perhaps is totality, though my concerns in that regard are ultimately assuaged when discounts are taken for the two factors already mentioned.

[13]     The lead offences for the purpose of setting a starting point were the excess breath alcohol charges.  Clotworthy v New Zealand Police usefully sets out relevant factors in that respect.  The time gap since last offending is identified as relevant, as

are “any mitigating factors”.3

3      Clotworthy v New Zealand Police HC Wanganui CRI-2003-483-000013, 25 September 2003.

[14]     In my view, the time gap factor should have taken some of the sting out of the aggravating effect of the appellant’s otherwise extreme offending history.   It was certainly wrong in principle to (effectively) treat that mitigating factor as irrelevant.

[15]     The second factor – domestic circumstances – ought also to have counted. The appellant’s partner apparently suffers from a relatively serious psychiatric disorder and is very reliant on the appellant for support and assistance both  in managing her mental wellness and in support and assistance around the home.  The appellant has filed a letter to this effect from his partner.  The letter appears to be heartfelt and genuine.

[16]     The concern in this regard is corroborated by a letter from a registered nurse from Te Oranganui Iwi Health Authority.  It provides in part:

There are concerns that without Kal’s support, [A] will have difficulties managing  her  home  environment  and  maintaining  medical  compliance. There is a high potential of relapse of mental illness should Kal not be available to provide ongoing support to [A].

[17]     This material provided to me post-dates sentencing in the District Court, and was therefore not before the learned Judge for consideration.  It may have made a difference if it was.

[18]     Considered overall, a discount of six months is warranted for gap between current and historic offending, and for personal circumstances.  This leads to an end sentence of 18 months.

[19]     Home detention was sought, but in my view was correctly declined.  I accept there are real concerns with respect to the appellant’s partner and I have factored them into his end sentence, but it must not be lost sight of that the appellant’s record of similar offending is egregious.  Home detention would have been altogether too lenient  for  offending  of  this  nature,  even  considering  the  special  circumstances around the appellant’s domestic situation. The best that can be done in that respect is to ensure the appellant’s imprisonment is no longer than absolutely necessary to properly denounce this offending.

[20]     In the meantime, I very much hope that the iwi health authority and (perhaps) the DHB will ensure that the appellant’s partner is properly cared for until his release.

[21]     The appeal is allowed.  The sentence of two years is quashed.  A sentence of

18 months’ imprisonment is substituted.

Williams J

Solicitors:

Crown Solicitor, Whanganui

Treadwell Gordon, Whanganui