Rogers v Police HC Rotorua CRI 2007 463 6

[2007] NZHC 1616

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007 463 6

BETWEEN  DAVID KEPA ROGERS Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         14 February 2007

Counsel:        P T Birks for the Appellant

C Macklin for the Respondent

Judgment:      14 February 2007

ORAL JUDGMENT OF WILD J

[1]      This is an appeal against a sentence of 12 months imprisonment  imposed following a fifth excess breath alcohol (EBA) conviction.  The appellant submits that the  sentence,  imposed  by  Judge  McGuire  in  the  Rotorua  District  Court  on  15

January, is manifestly excessive and wrong in principle.

[2]      After something of a family argument at his sister’s home, the appellant left to drive to his brother’s home a short distance away in Rotorua.  He was stopped by the Police at  a random checkpoint.   A subsequent  evidential breath test  gave a reading of 1150 i.e. approximately three times the legal limit of 400 mg alcohol/litre of breath.

[3]      Nothing erratic about the appellant’s driving attracted the attention of the

Police, and he was cooperative with them throughout.

[4]      The appellant pleaded guilty.

ROGERS V NEW ZEALAND POLICE HC ROT CRI 2007 463 6  14 February 2007

[5]      This was a fifth EBA conviction for the appellant.   His history of relevant

driving offences is:

Date	Offence(s)	Level	Penalty
April 1990	1.  EBA (1st)	194/	40    days    PD;    6    months disqualification
August 1990	1.  EBA (2nd) 2.         Driving     while disqualified	329/	3  months  PD;  15  months disqualification
June 1993	1.  EBA (3rd)	1028/400	4    months    PD;    indefinite disqualification;  ordered  to attend an assessment centre
May 1999	1.  EBA (4th) 2.     Driving         while disqualified        on 19.5.05 (2nd). 3.     Driving         while disqualified        on 20.5.05 (3rd). 4.     Wilful  damage  on 19.5.05 5.     Wilful  damage  on 20.5.05	913/	10 months imprisonment
June 2001	1.         Driving     while disqualified (4th)	-	$500 fine

[6]      Judge McGuire’s sentencing remarks are brief.  He noted the appellant’s age (39)  and  his  past  drink  driving  record,  although  he  did  not  refer  to  his  four convictions for driving while disqualified, most recently in mid-2001.  He described the appellant as “plainly an alcoholic” and as having “a massive ongoing problem with alcohol”.   He noted the appellant had undertaken the Straight Thinking programme, but lamented the appellant’s failure to behave like a responsible adult and make any real attempt to come to grips with his alcohol problem and repeated drink driving.

[7]      The  following  critical  passage  in  the  Judge’s  sentencing  remarks  well captures his view of the appellant and his drink driving:

[4]       All I can do today, Mr Rogers, is try to lessen the opportunity that you have shown by your conduct thus far of eventually killing somebody when you are driving drunk.  So I am really sorry about your job situation

and again, the report tells me there are problems there with your alcohol consumption because today you will lose that job because there is only one possible outcome and that is a term of imprisonment.  You can’t be driving drunk out on the roads while you are in jail.  Now I don’t know what a Judge has to tell a 39 year old about this.   You know what I am telling you and only you can make the decisions about how you are going to behave.

[8]      The probation report dated 15 January 2007 provided to the Judge included these points:

a)       The appellant lived with his mother, and had for 30 years.  He had no partner or dependants.

b)       Family members had suggested to the appellant that he had a drinking problem and should “cut down” his alcohol consumption, as it was getting him into trouble.

c)       He was a cleaner, well regarded by his employer for the thoroughness of his work.  But he had been reprimanded and warned in recent times for coming to work drunk, or not turning up at all.  His employer had told him he had “no more chances”.

d)       His motivation to address his drink driving problem was assessed at

“medium”.

e)       Of the risk of recidivism, the probation officer stated:

Mr Rogers is assessed as low risk of re-offending.  However, given this is his fifth appearance for drink driving, this risk could easily increase.

f)        He had “an extremely high pattern of drinking in the previous two months”.

g)       He was in “dire need of intervention to address his alcohol issues”.

[9]      The recommendation in the report was community work plus six months supervision   with     special         conditions                 requiring    the   appellant    to    attend   and

satisfactorily complete alcohol counselling and to attend and complete any other counselling if directed by the probation officer.

[10]     Mr Birks’ submissions this morning are these:

a)       The 12 month sentence imposed by the Judge was clearly incremental on the 10 month sentence imposed in 1999 following the fourth EBA conviction.   But the Judge overlooked that that 10 month sentence was also for two offences of driving while disqualified and two offences of wilful damage, all committed over a two day period.  The

10 month sentence was appropriate only because of the totality of that offending.

b)       The Judge gave no weight or insufficient weight to mitigating factors, primarily the appellant’s guilty plea, but also his cooperation with the Police from the outset.

c)      The Judge gave inadequate weight to the appellant’s personal circumstances.   Mr Birks did not really elaborate on these, but the Judge had a letter dated 3 January 2007 from the appellant’s brother which stated:

My brother David Rogers is currently the caregiver and guardian for our mother Pamela Rogers … Our mother is 73 years of age and has failing health.  I hope this is taken into consideration when my brother is due for sentencing. …

d)The Judge had no regard to s8(g) Sentencing Act requiring him to impose the least restrictive sentence appropriate in the circumstances, and he imposed a solely retributive sentence without regard for the appellant’s rehabilitation.

[11]     Responding  to  the  appeal  for  the  Police,  Mr  Macklin  accepted  that  the Judge’s sentencing remarks were brief, and in particular did not identify a sentencing starting point or any discrete discount for the appellant’s guilty plea.  However, even if I undertook the sentencing exercise afresh, as Mr Macklin suggested might be

appropriate, he submitted that the sentence under appeal was justified.  He based that submission on the analysis of cases in Clotworthy v Police (2003) 20 CRNZ 439 and on two more recent judgments of this Court.  The first of those is the judgment of John  Hansen  J  in  Phillipson  v  Police  HC  Invercargill,  CRI  2004  425  32  10

September 2004, the second that of a Full High Court (Priestley and Winkelmann JJ) in Brown v Police HC HAM CRI 419 87 04 22 October 2004.  I will return to those two cases.

[12]     Appeals such as this are not easy.  Sentencing responses to a fifth (or greater) EBA conviction could – and have – ranged from a sentence of community work to varying sentences of imprisonment, though not I think of the order imposed by Judge McGuire.  Police v Noble, cited at [27] in Clotworthy is an instance of the former sentencing response (180 hours community work and a $200 fine imposed for a ninth EBA).

[13]     Barry v Police (listed at p444 in Clotworthy), Police v Tanner (p449) and Police v Herewini (p451) are the three cases where sentences of 12 months imprisonment were imposed following a fifth EBA conviction.   However, each of those  three  cases  can  be  distinguished  from  this  one  because  none  involved sentencing for a fourth EA offence only.  The sentence in Barry was also imposed in respect of a third conviction for driving while disqualified and the convictions were within a year or so of the fourth EBA conviction.   Significantly, in upholding the sentence under appeal, Rodney Hansen J observed that he considered the sentence was  “at  the  upper  end  of the  range  for  offending  of  its  kind  but  not  of  itself manifestly excessive”.

[14]     In Tanner the fifth EBA followed four EBA convictions within the previous five years, three in the same year as the fifth EBA.  The offender was also sentenced for careless use:  the car was overturned on the centre island of the road.

[15]     In Herewini the sentence was imposed for both a fourth and a fifth EBA offence, committed within two weeks of each other.  The offender was also charged with failing to  stop on the first  EBA occasion,  and the  fifth EBA offence was committed while the offender was on bail for the fourth.  On that fifth occasion the

offender’s licence was also suspended and the driving resulted in minor property damage.  The offender had been given a final warning when convicted of EBA for the third time in 2001.  The breath levels were high on all those occasions.  From a two  year  starting  point,  the  sentencing  Judge  in  Herewini  discounted  for  the offender’s guilty pleas, genuine remorse and genuine attempt to address his drinking problem.

[16]     The chart at 455 in Clotworthy indicates a sentencing range of 4-15 months imprisonment  for fifth to twelfth EBA convictions,  and the summaries of cases include many sentences for fifth to eleventh EBAs in the range 4-12 months imprisonment, with solid groupings at or around the six months imprisonment level.

[17]     Based on the cases reviewed in Clotworthy, the sentence under appeal here is out of range for a fifth EBA conviction alone i.e. without concurrent convictions for

‘bad’ driving and/or driving while disqualified.

[18]     Too much weight is not to be placed on comparisons with other cases, a point made by the Court of Appeal in R v McQuillan CA129/04 12 August 2004 at [22] with specific reference to the analysis I undertook in Clotworthy.   I reiterate the comments I made in Clotworthy at [26].

[19]     As  I  mentioned,  Mr  Macklin  relied  on  this  Court’s  post-  Clotworthy judgments in Phillipson and Brown.  Phillipson was stopped with a breath alcohol level of 647.   It was his fifth EBA conviction and followed just under 12 months after his fourth.  The appellant had failed successfully to address his alcohol abuse problems.    In  reducing  the  sentence  from 15  to  12  months  imprisonment  John Hansen J said this at [4] with reference to the analysis of cases I did in Clotworthy:

What is clear from that case, and is accepted responsibly by Ms McKenzie, is that a sentence of 12 months imprisonment could be expected as normal for this particular offending.

With respect to my brother Judge, careful analysis of the cases listed in Clotworthy

does not bear that out.  I trust I have demonstrated that earlier in this judgment.

[20]     Brown was an appeal against conviction as well as sentence.  The appellant’s breath alcohol level was 624.  It was his eighth conviction for excess breath alcohol entered following a defended  hearing.    Briefly,  the circumstances were that the appellant had not driven immediately after drinking but about 11 hours later and following news that his mother was fatally ill.  He was stopped after being observed swerving dangerously across the centre line of the road.   The Court regarded the sentence of 15 months imprisonment imposed in the District Court as manifestly excessive and reduced it to 12 months.  In doing so, the Court commented:

[91]     A lower term of imprisonment might have been appropriate in the circumstances had the appellant’s breath alcohol analysis been lower and had his driving not been demonstrably erratic.   His  driving undoubtedly constituted  a  significant  hazard  to  the safety  of  other  road  users  which justifies a 12 month term.

[21]     More relevant, I consider, is application to this case of the factors listed at

[20] in Clotworthy.  I go through them in turn:

a)       The breath or blood alcohol level

Almost three times the legal limit, and noted by Judge McGuire.

b)       The  length  of  time  that  had  elapsed  since  the  last  drink  driving conviction

Seven years.  Although the Judge noted the last EBA conviction was in 1999, he does not appear to have focused on the fact that that was seven years earlier.

c)       Conviction for two or more drink driving offences in close succession

Not here.

d)The manner of driving:  innocuous or dangerous; accident and injury resulting or neither?  Sometimes this manifests itself in an additional charge(s)

No ‘bad’ driving involved here.  The Judge does not appear to have factored  this  in.     The  relevance  of  bad  driving  to  sentence  is highlighted by the passage I have cited in [20] from the Full Court’s decision in Brown.

e)       Whether the offender was disqualified or forbidden from driving at the time

Not here, and not noted by the Judge.

f)        The plea and, if guilty, whether that plea was entered at an early stage or only belatedly

The appellant first appeared on 12 October, and pleaded guilty on 12

December at the status hearing.  In the meantime, there had been one remand because no disclosure had been received, and on a later occasion (22 November) it appears the appellant failed to appear and was arrested before again being released on bail the following day. Nowhere in his sentencing remarks does the Judge refer to the guilty plea, and he gave no discrete discount off a nominated starting point for that plea.   As I have mentioned, Mr Macklin very responsibly accepts that those are significant difficulties with the Judge’s decision.

g)The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences

The Judge does not refer specifically to the previous sentences imposed, in particular to the sentence of 10  months  imprisonment imposed in 1999.  However, the whole tenor of the Judge’s sentencing remarks is that the appellant has not responded to previous sentences and counselling.  Mr Birks’ submission that the sentence under appeal was  an  increment  on  the  10  month  sentence  imposed  in  1999,

acknowledges that the Judge must have had that sentence well in his mind.

h)       The  offender’s  record,  if  any,  of  convictions  for  other  types  of offending

The appellant’s four convictions for driving while disqualified, most recently in 2001, are again relevant here.  The Judge did not refer to them.

i)        Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems

As I have mentioned, the probation officer reported such a willingness on the appellant’s part.   But the Judge did  not refer to it, I think because he did not accept it.  As mentioned, the Judge’s view was that the  appellant  had  yet  to  take  a grip  on his situation,  as could  be expected of a responsible adult.  Again, the relevance to sentence of an offender’s preparedness to try to come to grips with a drink driving problem is emphasised by John Hansen J’s judgment in Phillipson.

j)        Any mitigating personal or family circumstances contributing to the offending

None are referred to by the Judge.  The family argument that preceded this drink driving features prominently in the probation report.   The appellant’s brother’s letter to the Court, to  which I  have referred, could also be regarded as relevant under this last heading.

[22]     If this review of the paragraph [20] Clotworthy factors appears critical of Judge McGuire, it is certainly not intended to be.  District Courts are busy places and District Court Judges do not have the time for consideration that is, or at least ought to be, afforded to appellate Judges.

[23]     However, the exercise I have just gone through confirms my view that the 12 month sentence under appeal is out of range and manifestly excessive.

[24]     However  I  reject  Mr  Birks’  submission  that  the  sentence  is  wrong  in principle.   Indeed, Mr Birks rather  abandoned that  submission,  accepting  that  a sentence of imprisonment was inevitable.  Another Judge, more sympathetic to the appellant, might have adopted the sentencing approach recommended by the probation officer.  But in no way can a sentence of imprisonment be said to be wrong in principle for the appellant.

[25]     I consider Mr Birks is right on the mark in submitting that the correct starting point  was a sentence of 9 months imprisonment.   But  I cannot  accept  his  next submission, that the appellant should be given a one-third discount for his guilty plea.   First, it was not entered at the first opportunity.   In saying that, I do not overlook that Mr Birks did not have full disclosure for a time.  Second, EBA charges carry a very high likelihood of conviction or, to  put  it  differently,  very limited avenues for acquittal.  A one-third discount is in my view too high.  I consider that a

2 month discount is appropriate.

[26]     The appeal is accordingly allowed.  The sentence of 12 months imprisonment is quashed and a sentence of 7 months imprisonment substituted.  Leave to apply for home detention is refused.  I entirely agree with Judge McGuire that it needs to be brought home to the appellant that he simply must address his drinking problem and that he must not ever again drink and drive.

Solicitors:

Crown Solicitor, Rotorua for the Respondent