R v Stoves CA264/06
[2006] NZCA 483
•7 November 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA264/06
THE QUEEN
v
COLYN DAVID STOVES
Hearing: 24 October 2006
Court: Ellen France, John Hansen and MacKenzie JJ Counsel: Appellant in person
S B Edwards for Crown
Judgment: 7 November 2006 at 11 am
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by MacKenzie J)
[1] The appellant pleaded guilty in the District Court at Christchurch to two counts of driving with excess breath alcohol (in each case being a third or subsequent offence) and one count of conversion of a motor vehicle. Those counts were dealt with indictably. He also faced a summarily laid charge of driving while suspended,
being a first or second offence.
R V STOVES CA CA264/06 7 November 2006
Background
[2] The charges arose out of two separate incidents. The first occurred in the early hours of Saturday, 23 July 2005. The appellant was asked to leave a bar in Christchurch. He got into his truck parked in a mall car park, drove across a grass verge, over the footpath and gutter and out on to the street, where he stopped and was found by the police sitting in his truck. Breath testing procedures produced an evidential breath test of 1,043 micrograms of alcohol per litre of breath. He was suspended from driving for a period of 28 days starting immediately. The second incident occurred during the period of that suspension, in the early hours of
15 August 2005. While walking down the street, he entered a motor vehicle parked on the roadside and drove away. He was stopped by police a short time later. An evidential breath test produced a reading of 734 micrograms of alcohol per litre of breath.
[3] After initially electing trial by jury, the appellant pleaded guilty to all charges. On the first count, the excess breath alcohol charge on 23 July 2005, the appellant was sentenced to nine months’ imprisonment. On the excess breath alcohol charge and the conversion charge on 15 August 2005, he was sentenced to nine months’ imprisonment, concurrent with each other but cumulative on the sentence on the first count. On the charge of driving while suspended, he was sentenced to one month’s imprisonment concurrent with counts two and three. Leave to apply for home detention was declined. Release conditions relating to assessment and treatment for alcohol were imposed, disqualification orders were made and reparation of $176 (for damage to the converted vehicle) was ordered. The appeal is against the sentence imposed, and against the refusal to grant leave to apply for home detention.
Submissions
[4] The appellant submits that the overall sentence of 18 months’ imprisonment is manifestly excessive. Before dealing directly with that submission, it is necessary to address specifically two of the grounds of appeal, namely that aggravating factors
referred to by the prosecution and the Judge were factually wrong, and that the Judge wrongly referred to witness statements as proven facts to negate mitigating circumstances.
[5] The Judge regarded as an aggravating factor the fact that the appellant was disqualified when he drove on both occasions, and that on the second occasion his licence had been suspended as a result of the July incident. The disqualification arose from an earlier incident in September 2002. Because of some procedural events which it is unnecessary to detail, that matter did not finally come to trial until November 2004, when Mr Stoves pleaded guilty on arraignment and was disqualified from holding or obtaining a motor vehicle driver’s licence for 12 months. Mr Stoves appealed against both conviction and sentence to this Court. That appeal was dismissed by a judgment of this Court delivered on 24 May 2005. Leave to appeal to the Supreme Court was sought, and refused on
22 September 2005.
[6] In his written submissions on this appeal, Mr Stoves submits that he was not a disqualified driver in July and August 2005, in that the sentence imposed in November 2004 was suspended during the appeal process. As Ms Edwards for the Crown correctly pointed out, neither the appeal to this Court nor the application for leave to appeal to the Supreme Court operated as a suspension of the disqualification. An express direction under s 399(1) of the Crimes Act 1961 would have been required. In his oral submissions at the hearing, Mr Stoves acknowledged that to be the position, but submitted that it is relevant that he had thought that the disqualification was suspended.
[7] People do have a responsibility to know their driving status. We accept, however, that if Mr Stoves believed that the disqualification was suspended, that lack of awareness could be seen to make it less culpable than knowingly driving whilst disqualified. In this case, we do not consider there has been such a reduction in culpability given that any belief Mr Stoves may have had that he was not disqualified could not have applied to the second occasion. He was aware then that his licence
had been suspended, as his guilty plea to that charge acknowledges. There is no merit in this point of appeal.
[8] The appellant also submits that the Judge wrongly referred to witness statements as proven facts to negate mitigating circumstances. Mr Stoves’ counsel had submitted that in the 23 July incident he had got into the truck and removed it from the car park because he felt that his personal safety and the security of his possessions were both under threat. The Judge rejected that contention as inconsistent with the evidence at the preliminary hearing, and as a belated attempt to justify his conduct. We consider that the Judge was entitled to reject that as a mitigating factor. The summary of facts in respect of this incident was brief, and recorded only, as we have earlier noted, that the defendant drove across a grass verge, over the footpath and gutter and out on to the street. There was no evidence before the Court on which to base the submission that Mr Stoves had reason to fear for his safety. The onus was on the appellant to prove the basis for his claimed fear for his safety, under s 24(2)(d) of the Sentencing Act 2002, that being a fact not related to the nature of the offence or the appellant’s part in it. No disputed facts hearing was sought. This ground of the appeal must also be rejected.
Discussion
[9] That brings us to the essential question in this appeal, which is whether the total sentence of 18 months’ imprisonment was manifestly excessive. This Court in R v McQuillan (CA 129/04, 12 August 2004) referred to the judgment of Wild J in the High Court in Clotworthy v Police (2003) 20 CRNZ 439 where a number of factors relevant to sentencing for recidivist drink driving offending (within which category the appellant here falls) were considered. It is convenient to consider the circumstances here by addressing those factors.
(a) The breath alcohol level
The levels were high on both occasions, at about two and two and a half times the limit respectively.
The previous offending had occurred in September 2002, and the conviction had been entered in November 2004.
(c) Conviction for two or more drink driving offences in close succession
These two incidents were separated by less than a month. (d) Manner of driving
The appellant’s driving was such as to attract the attention of police officers, but not alleged to be otherwise dangerous. In the July incident, in particular, the distance driven was very short.
(e) Whether disqualified at the time
We have already addressed this in some detail. (f) The plea, and when entered
Although there were guilty pleas on both breath alcohol charges, the circumstances were such that the Judge rightly gave little credit for the guilty plea. The appellant had indicated a guilty plea to the August charges about three weeks before trial, but failed to appear for trial. Pleas were entered at a callover on 7 July 2006 after the appellant had been apprehended.
(g) Previous sentences and responses to those sentences
The appellant has had sentences of fines, non-residential periodic detention and community work imposed for drink driving offences. None of those have worked.
The appellant has numerous convictions for a range of dishonesty and other offences.
(i) Remorse or willingness to confront alcohol problems
The appellant has not displayed any remorse or any willingness to address the problem which he plainly has in relation to alcohol abuse and driving.
(j) Mitigating personal or family circumstances
There are no relevant factors.
[10] As this Court noted in McQuillan, sentencing is not an exact science, the circumstances of offenders and offending are widely variable, and a comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, does not dispense with the need for the normal exercise of judgment by the sentencing judge. The sentence must not involve a mechanical increase in the length of sentence solely dependent upon the number of times a person has been convicted of this particular type of offence. It is not right, as a matter of principle, for a sentence close to the maximum to be available only when a certain number of offences has been committed.
[11] In McQuillan, this Court regarded a sentence of two years, for two separate driving incidents 11 months apart, as not manifestly excessive. The alcohol levels were broadly similar to those here, about two and two and a quarter times the legal limit. The driving involved in that case was not sufficiently notable to be mentioned, beyond the inherent risk posed to the public by driving under the influence of alcohol. Both there and here, the driving was while disqualified although the appellant in McQuillan also faced charges on that account. The appellant here has four previous drink driving offences. Mr McQuillan had five such previous convictions. He also had, a feature not present here, a conviction for dangerous
driving causing death. The Court in McQuillan noted that the individual sentences of 12 months’ imprisonment imposed were not out of the ordinary, and that there is no requirement that instances of offending must reach double figures before such terms of imprisonment are imposed.
[12] When the two cases are compared, therefore, we see them as broadly comparable though Mr McQuillan’s higher number of previous convictions, which included a conviction for dangerous driving causing death, explain in part his more lengthy sentence. Here, the conversion charge, and Mr Stoves’ record of other offending are aggravating factors. The sentence imposed on Mr Stoves was lower than that considered appropriate in McQuillan. The appellant also refers to the fact that he had lost his job as a truck driver following his suspension in July, and the indefinite disqualification, in support of his submission that the sentence was manifestly excessive. We do not agree. Those were consequences which necessarily followed, and do not result in the sentence being manifestly excessive. Further, as Ms Edwards points out, it appears that the appellant continued working as a truck driver after his earlier disqualification had begun, and this might well be regarded as an aggravating factor. In all the circumstances, we consider that the sentence imposed here was stern, but not outside the available range. Cumulative sentences were appropriate, and the totality principle was properly reflected in the final sentence imposed. The sentence was accordingly not manifestly excessive.
[13] Mr Stoves sought to rely upon newspaper reports of two sentences in other cases, in support of his submission that his sentence was manifestly excessive. As we have noted, the circumstances of offenders and offending are widely variable. It is not appropriate to place weight, for comparison purposes, upon a sentence imposed in another case unless all the circumstances are known.
Refusal to grant home detention
[14] As to the appeal against refusal of leave to apply for home detention, the
Judge relied on three factors:
(a) The appellant’s poor response to the community work sentence imposed in November 2004;
(b) The appellant’s poor response to his bail obligations; and
(c) The repeat nature of this offending.
[15] The appellant submits that all community-based sentences imposed prior to the November 2004 sentence have been fully served without incident. He submits that the community work sentence was subject to appeal, that action against him for failing to attend community work on three occasions had been withdrawn, and that he has never been convicted of any offences relating to failing to perform a community-based sentence, nor are there any charges waiting to be heard in relation to such a sentence, and that this should not have been used as a reason to justify refusal. Counsel for the Crown submits that the Judge was entitled to take into account the information in the pre-sentence report that the appellant had completed only 2.5 of the required 250 hours, given the nine month period since the Supreme Court had refused leave to appeal further against that sentence, and submits that the absence of a conviction for breach of community work is irrelevant. We agree that the Judge was entitled to take this matter into account.
[16] As to the response to bail conditions, the appellant does not dispute that he did not attend the hearing but points out that he was never charged with breach of bail. He says that, while he did not appear, he remained at his bailed address and so could have been easily located. He submits that because he was never charged or convicted of any breach of bail it should not have been used as a ground for refusing to grant leave to apply for home detention. We consider that the Judge was entitled to take this into account.
[17] As to the third matter, the repeat nature of the offending, the appellant does not dispute that these are the fifth and sixth such convictions. However, he submits that this is the only ground for refusal which has any merit, and that others appearing for sentence on multiple offences have been granted leave to apply for home detention.
[18] An appeal against refusal to grant leave to apply for home detention is an appeal against the exercise of a discretion, and the appellant must show that the discretion was exercised on a wrong principle or was plainly wrong. Leave to apply may only be granted if the Court is satisfied that that would be appropriate, taking into account the nature and seriousness of the offence and the circumstances and background of the offender. We are not satisfied that the appellant has demonstrated that the Judge was wrong to reach the conclusion that he was not so satisfied. The appeal against refusal of leave must accordingly fail.
Result
[19] For these reasons, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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