R v Police HC Hamilton CRI 2009-419-24

[2009] NZHC 884

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-24

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 July 2009

Appearances: L Caley for the Appellant

P Cornege for the Respondent

Judgment:      24 July 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr L Caley, Barrister, Hamilton

Mr P Cornege, Almao Douch, Office of the Crown Solicitor, Hamilton

R V NEW ZEALAND POLICE HC HAM CRI 2009-419-24 24 July 2009

[1]      Mrs R   was sentenced on 2 March 2009 having pleaded guilty to a charge of driving with excess blood alcohol.  The level was 285 milligrams.  That is some 3 ½ times over the limit.   Judge Spear sentenced Mrs R   to intensive supervision for a period of 12 months subject to a number of conditions relating to alcohol  assessment  and  treatment.     The  sentence  is  also  subject  to  judicial monitoring.   Mrs R   was ordered to pay the analyst’s fee of $93 and she was disqualified from holding a driver’s licence for 2 years.

[2]      Mrs  R    was  sentenced  at  the  same  time  for  assault  on  her  grand- daughter.   That offence occurred on an occasion separate from the driving.   The driving offence occurred on 10 August 2008.  The sentence of intensive supervision applied to the assault charge as well.

[3]      The appeal is against the disqualification for 2 years only.  The submission is that it is manifestly excessive.

[4]      It is apparent from the Judge’s notes on sentencing that he  gave  careful consideration to the appropriate sentence and it was imposed following a pre- sentence report.   Central to the judgment is an assessment that Mrs R   has a serious alcohol problem and one which she minimised.  Also highly relevant to the sentence is the fact that Mrs R   was convicted in June 2003 for driving with 198 milligrams of blood alcohol.  That offence occurred in April 2003 – that is to say, a little over 5 years before the present offence.  On that earlier occasion Mrs R   was fined and disqualified for 8 months.

[5]      The following passages from the Judge’s sentencing notes express some of the central considerations:

[2]       The reading in respect of the drink driving was very high, 285 on the blood alcohol scale, which is well over three times the maximum permitted by law.   Without question, you were grossly intoxicated and you had no business being behind the wheel of a car at all.  You presented yourself as a real danger to other people on the road and, of course, to yourself.

[3]       The disturbing factor here is that you have a previous conviction from 2003 for driving with an excess blood alcohol level and that was 198 o the blood/alcohol scale.

[4]       All this points to a real problem that you have with alcohol.  The fact that you have a problem with alcohol and that you combine this with driving means that the community has a problem with you and your driving.

[5]       The probation officer’s assessment is that there is “a problematic use of alcohol”.  That obvious assessment notwithstanding, you appear to try to minimise this offending.  You claim that you do not really have a problem with alcohol although you are prepared to do a course if the Court directs it.

[6]      The Judge did not refer in his sentencing notes to the circumstances which led to Mrs R  ’ arrest.  The information on the Court file is sparse.  The summary of facts simply notes that Mrs R   “vehicle was stopped by Police to carry out alcohol checks on the driver who showed signs of recent alcohol intake”.   Both counsel have confirmed that the Police spoke to Mrs R   after a witness had observed erratic driving and called the Police.

[7]      The question on appeal is, of course, whether the disqualification of 2 years is manifestly excessive.  Mr Cornege, for the Crown, acknowledged that the sentence could be described as severe but submitted that it is not manifestly excessive.  Mr Caley submitted that the general level of sentencing for a second offence, and even at this level of blood alcohol, is between 8 to 12 months.  However, and although I am not in any way questioning Mr Caley’s experience or what he has just submitted to me, neither counsel have put any comparative  cases  before me  other  than  a decision of Chisholm J in Wilkins v Police (HC CH, CRI 2008-409-008, 21 February

2008).  That was a first offence.  The level was 2 ½ times the limit.  The appellant crashed her car.  She was fined $1,000, ordered to pay reparation in excess of $5,000 and disqualified for 15 months.  Chisholm J, after reviewing relevant considerations, recorded that the disqualification was “clearly at the highest end of the range”, but he was not persuaded in all the circumstances of that case that it was manifestly excessive.

[8]      I was referred by Mr Caley to Bradley v Morrison (1988) 3 CRNZ 599,

Graham v Ministry of Transport (1990) 6 CRNZ 403 and McEachen v R (1994) 12

CRNZ 440.  Bradley involved special considerations which have no application here. McEachen was a decision of the full Court and involved a careful survey of the range of sentencing, but for first offenders.

[9]      Becroft  &  Hall’s  Transport  Law  contains  some  helpful  case  notes  of sentences imposed for first and second offences.   Caution is needed in comparing one case with another, but some of the cases referred to in this summary tend to indicate that the period of disqualification in this case may be manifestly excessive. I refer in particular to Lake v Police (HC PN, AP14/03, 4 June 2003, Ronald Young J) and Galligan v Police (HC AK, CRI 2004-404-160, 6 August 2004, Williams J).

[10]     Lake was concerned with a second offence.  The blood alcohol level was 163 milligrams.  This is, of course, a great deal less than the blood alcohol in this case. The period of disqualification imposed was 15 months.   That was held to be manifestly excessive and was reduced to 9 months.

[11]     The case note for Galligan includes the following:

G drove his vehicle into the car ahead about five times with sufficient force that the two vehicles spun out of control.   Breath-tested, he was found to have 810 mcg.   He was charged with driving with excess breath alcohol, driving in a dangerous manner and failing to stop and ascertain if anyone was injured.  Some 18 months later he was involved in an accident when his vehicle crossed the centre line and collided with an oncoming vehicle.  His breath alcohol level was 1027 mcg and he was also charged with careless use.  Three weeks later he was stopped, breath tested, and his level was 827 mcg and he was suspended for 28 days.  However, eight days later he was seen driving.   That gave rise to an additional charge of driving whilst suspended.  Two months later he went through a red light.  He was stopped and breath tested and the result was a level of 1306 mcg.  Interspersed with these seven drink driving offences were numerous breaches of bail and an offence of being found in an enclosed yard.

Disqualification for 3 years was reduced to 2 years.

[12]     The full Court decision in McEachen is of assistance on this appeal  for statements of general principle and which endorsed such statements in the earlier Graham decision.  In McEachen the Court summarised relevant principles as follows (at 442):

(a)That consistency and evenhandedness in sentencing is particularly desirable in  the  area  of  blood  and  breath-alcohol  cases,  both  as between different Courts and as between different defendants in the same Court;

(b)That common sense requires, because of the sheer number of such cases, that Judges have some guidelines which may be applied in the

general run of cases providing for graduated increases in penalties by way of fines and disqualifications depending upon the level of alcohol in the breath or blood as the case may be;

(c)       That such guides cannot be applied rigidly, as it is always necessary to consider aggravation and mitigation arising either from the circumstances of the offending or of the offender, and when used simply as a guide need not derogate from the individual Judge’s freedom to tailor the penalty to the individual case as the circumstances require, and indeed are a means by which true consistency of sentencing will be promoted;

(d)That notwithstanding the cautions against mechanical application of the analysis of other sentences indicated in Fleming v Commissioner of Transport [1958] NZLR 101 and Police v Barke [1959] NZLR

478, national statistics indicating the general level of penalties for such offences can be relevant and helpful, provided they are used with appropriate caution; and

(e)       That  while  it  is  appropriate  the  general  level  of  penalty  be considered so far as it can be ascertained, and bearing in mind the wide variety of relevant circumstances, it is only one factor and in the end this Court must bring its own view to bear upon the matter, in accordance with the approach adopted by Shorland J in Police v Barke.

[13]   The first principle is the need, so far as possible, for consistency and evenhandedness – and that aspect I have already dealt with.

[14]     I also recognise the careful consideration given by the Judge to the most appropriate sentence in this case in respect of intensive supervision.  The essential elements of that are designed to protect the public as well as to impose restrictions by way of penalty on Mrs R  .  One additional aspect of sentencing which is not addressed in the Judge’s notes is the need, so far as weight can be given to this, to rehabilitate with encouragement.   That can only be taken so far.   Of greater importance is the need for deterrence and to protect the public.   Nevertheless, disqualification  of  2  years,  where  there  is  as  part  of  the  sentence  intensive supervision and judicial oversight in the first 12 months, does seem to me to take the period of disqualification beyond severe to a point where it is manifestly excessive when these considerations are coupled with the matters earlier referred to.

[15]     Two other considerations may be briefly noted.  The first is that the statutory minimum for third or subsequent offences is 12 months.  In this case, of course, the

period of disqualification for a second offence is double the minimum for a third or subsequent offence.

[16]     The remaining consideration is that if the period of disqualification is in excess of 12 months it will be necessary for Mrs R   to make application for reinstatement of her licence.   It is, in my judgment, appropriate that the period of disqualification   exceed   12   months   to   reinforce   the   objectives   of   intensive supervision.

[17]     Weighing all of these considerations, and giving full weight to the matters referred to by the Judge, in my judgment the disqualification was manifestly excessive and the appropriate period of disqualification should be 15 months.

[18]     There will therefore be an order quashing the order for disqualification of 2 years and substituting a disqualification for 15 months from 2 March 2009.

Peter Woodhouse J