Rota v Police

[2019] NZHC 2812

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-90

[2019] NZHC 2812

IN THE MATTER

of an appeal against sentence

BETWEEN

DAVID ROTA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

31 October 2019

Counsel:

PT Birks for appellant

G Banuelos for respondent

Judgment:

31 October 2019

(ORAL) JUDGMENT OF FITZGERALD J

Solicitors:           Gordon Pilditch, Rotorua To:           P Birks, Rotorua

Rota v New Zealand Police [2019] NZHC 2812 [31 October 2019]

[1]    Mr Rota pleaded guilty to one charge of driving with excess blood alcohol (third or subsequent).1 He was sentenced to 90 hours of community work and was disqualified from driving for one year and one day.2 He now appeals this sentence.

Offending

[2]    Mr Rota was stopped at approximately 12.30 am on 29 August 2019 for compulsory alcohol and licence checks. Breath testing procedures were commenced, and a subsequent evidential breath test gave a reading of 557 micrograms of alcohol per litre of breath, over the statutory maximum of 400 micrograms as set out in s 56(1) of the Land Transport Act.

[3]    The summary of facts records that Mr Rota told Police he was driving a family member back to his house to stop an argument.

District Court decision

[4]    Judge Hollister-Jones described the offending, and noted it had apparently occurred because Mr Rota was driving his friend’s son and grandson because he was concerned about some tension where they had been.  The Judge recorded this was  Mr Rota’s fifth excess breath alcohol incident but acknowledged he had not offended in this way for 18 years. He described Mr Rota’s breath alcohol level as “in the medium range”.3

[5]    The Judge took a starting point of 120 hours community work, and reduced it by 25 per cent, or 30 hours, for a guilty plea. Accordingly, Mr Rota was sentenced to 90 hours community work and disqualified for one year and one day.

[6]    Mr Rota appeared in person at the sentencing hearing, without the assistance of legal counsel.

1      Land Transport Act 1998, s 56(1), s 56(4). Maximum penalty two years’ imprisonment or $6,000 fine, and the Court must order the person to be disqualified from driving for more than one year.

2      Police v Rota [2019] NZDC 20048.

3 At [1].

Criminal history

[7]    Mr Rota is 69 years of age. He has over 40 previous convictions, but almost all are historic. His only conviction since 2001 is for assault on a Police officer in 2010, for which he received a $300 fine, so it can be inferred it was minor offending. Indeed, given Mr Rota has only ever received sentences of fines, suspended sentences, and non-residential periodic detention, it can be inferred that all his previous offences have been relatively minor.

[8]    As the District Court Judge acknowledged, this is Mr Rota’s fifth conviction for driving with excess breath alcohol, but he has not offended in this manner since 2001.

Submissions for Mr Rota

[9]    Mr Birks for Mr Rota submits the Judge erred by not accepting submissions made by Mr Rota on his own behalf at the sentencing hearing. If the Judge had accepted Mr Rota’s submissions, he would have given more weight to the mitigating circumstances, in particular that Mr Rota had not anticipated driving that night and only did so to remove a young person, I am told aged around 4, from a harmful situation. Mr Birks also emphasised the absence of any suggestion of erratic driving by Mr Rota on this occasion and the very lengthy time since his earlier offending of this type.

[10]   Given the mitigating circumstances, Mr Birks further submits that there may be grounds in this case to impose a lesser period of disqualification from driving than the mandatory period of one year or more. He notes s 81 of the Land Transport Act 1998 enables the Court to impose the mandatory disqualification period “unless for special reasons relating to the offence it thinks fit to order otherwise”. He suggests the situation Mr Rota found himself in was an unexpected emergency which justifies a lesser period. Ultimately, Mr Birks urges that the sentence be quashed, and the matter be remitted to the District Court for Mr Rota to be resentenced on a fuller factual basis.

Submissions for the Police

[11]   Ms Banuelos for the Crown responds that the District Court Judge was entitled to reject Mr Rota’s submission he was trying to protect a young person from a fight between family friends. She says if Mr Rota wanted to go beyond the summary of facts to which he pleaded guilty, he should have adduced further evidence prior to sentencing or sought a disputed facts hearing under s 24 of the Sentencing Act 2002.

[12]   However, even if the Court accepts that there was a fight, Ms Banuelos submits that this does not constitute a good reason for driving, citing authority that imminent or life-threatening danger is needed before the Court will accept there were special circumstances that might justify a lower sentence or a lesser period of disqualification.4 While she accepts Mr Rota may have found himself in an unpleasant situation, there is no indication it was life-threatening, or involving imminent and real danger. Further, should Mr Rota have considered there was a real emergency, she submits he should have called the Police rather than driving intoxicated. Alternatively, had he wanted to remove persons from the home, he could have left the house on foot and could have subsequently called a taxi.

Jurisdiction on appeal

[13]   Appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011:

250     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

4      Including Dawson v Police [2014] NZHC 2991; Anderson v Police [2016] NZHC 942; Brown v Police HC Hamilton CRI-419-87-04, 7 October 2004.

[14]   An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.5 Unless there is a material error in sentence, for example, leading to a sentence that it is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.6

Evaluation

[15]   As a preliminary point, it is not clear that the District Court Judge did in fact disregard or wholly disregard Mr Rota’s submission as to the mitigating factors of the offending. I note the respondent’s submissions indicate that the Judge may have rejected the submission during the course of the hearing. However, the Judge nonetheless acknowledged in his sentencing notes that Mr Rota was apparently driving his friend’s son and grandson away from an address where there was some tension. It is unclear whether, or to what extent, this factored in to the Judge’s assessment of the 120-hour start point of community work.

[16]   In my view, however, this lack of clarity is not particularly material, because Mr Rota’s submissions at the hearing, and the content of the summary of facts upon which the Judge sentenced Mr Rota, is broadly similar. In my view, this is quite a different case from Dawson, where the District Court Judge had considered the appellant had outright lied about needing to drive to get medication for his wife.7 There, Whata J held that the Judge should have afforded Mr Dawson some opportunity to present evidence supporting his reason for driving if that reason was challenged.8

[17]   Here, there does not appear to be such a challenge. The gist of both the summary of facts and Mr Rota’s submissions at the sentencing hearing is the needed to drive someone away from an address because there had been an argument or even a fight. There appears to be little difference between what is in the summary of facts (namely, that Mr Rota “was driving a family member back to his house to stop an

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].

6      At [32]-[35].

7      Dawson v Police [2014] NZHC 2991.

8 At [9].

argument”) and the slightly more detailed submissions at the hearing that Mr Rota was “driving [his] friend’s son and grandson because [he] was concerned about some tension”.

[18]   In any event, I consider it was available to the sentencing Judge to decline to consider Mr Rota’s explanation as a factor that particularly mitigated his offending. I accept Mr Birks’ submission that Samson v Police provides a useful frame for excess breath alcohol sentencing, and I note that case considered the length of time since an offender’s previous conviction, as well as any personal or family circumstances which contributed to the offending, as relevant to sentence length.9 Nonetheless, I accept Ms Banuelos’ submission that even if Mr Rota’s submissions as to events as advanced at the hearing are accepted, they are insufficient to justify a lesser sentence, or a period of disqualification below the statutory mandatory period. In Dawson, despite considering the District Court should have let Mr Dawson adduce evidence on the point, Whata J held that Mr Dawson’s decision to deliver medicine for his wife “falls well short of demonstrating relevant necessity that might otherwise be relevant as a mitigating factor”, so could “see no unfairness arising because of the absence of the evidence”.10

[19]   A term of imprisonment of 15 months was substituted for a term of 12 months in Brown, on the grounds the District Court Judge had failed to give adequate consideration to mitigating factors.11 There, the appellant had stopped drinking some 11 hours prior and drove upon hearing news that his mother was critically ill and had a short time to live. Mr Rota’s circumstances are in my view far removed from the situation which confronted the appellant in Brown. He had been drinking that same evening and as Ms Banuelos notes, there is no indication of imminent danger at the property he drove from, only a brewing or, I accept, potentially an actual fight. There were also other options should he have felt that the situation had become dangerous, including calling the Police.

9      Samson v Police [2015] NZHC 748 at [13].

10     Dawson v Police [2014] NZHC 2991 at [11]. I note he allowed the appeal on a different point.

11     Brown v Police HC Hamilton CRI-419-87-04, 7 October 2004.

[20]   Given driving with an intoxicated driver is itself a dangerous activity, there are clearly strong policy reasons why the courts in the cases cited earlier have only considered situations involving life-threatening or imminent danger to mitigate this type of offending.

[21]   Finally, on this aspect of the appeal, even if the Judge had fallen into error in the manner suggested, I must still consider whether a different sentence ought to have been imposed. I do not consider the sentence of 90 hours community work is remarkable. As noted, this is Mr Rota’s fifth conviction for excess blood alcohol. Had the offending followed on more closely from his last such offending, a term of imprisonment or home detention could well have been considered. The Judge plainly, however, took into account and gave Mr Rota considerable credit for the substantial time period since his last conviction for excess blood alcohol. He was right to do so. The sentence of 90 hours community work cannot be described as manifestly excessive. At the hearing before me, Mr Birks quite properly and responsibly in my view accepted that this aspect of the sentence was accordingly not the focus of the appeal.

[22]   Turning to the submission that special reasons existed for the purposes of s 81 of the Land Transport Act, Wylie J’s comments in Anderson, in the context of what constitutes “special reasons” warranting a lesser period of disqualification, are also particularly salient:12

[16] A Court will not lightly find that there  are special reasons in the  alcohol impairment context. Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerableimportance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.

[23]   For the same reasons discussed above as to why mitigating circumstances did not exist, the presently explained circumstances of Mr Rota’s offending fall short, in my view, of reaching the threshold of “special reasons”. As noted, there are strong

12     Anderson v Police [2016] NZHC 942. Citations omitted.

policy reasons why Parliament has taken a strict approach to excess breath alcohol offending and accordingly a high threshold for establishing special reasons.

[24]   While Mr Rota may potentially have admirable reasons for wanting to remove a young boy from a highly unpleasant situation, on the materials before the Court, there is no suggestion of an actual emergency or life-threatening situation, rather than what I accept was likely to have been a very unpleasant or potentially traumatic situation, particularly for a young child. There is also no suggestion other alternatives to driving were explored, and this is a point of some significance in the authorities I have discussed. I was informed at the hearing today that Mr Rota was driving from and on Ranulf Street in Rotorua, such that both the options of calling the Police or leaving the property and calling a taxi ought to have been available.

[25]   Given the above, and while I appreciate the difficult situation in which Mr Rota now finds himself, I am bound to dismiss the appeal.

Fitzgerald J