S v Police HC Auckland Cri-2010-404-340

[2010] NZHC 2095

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000340

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 November 2010

Appearances: A Rasheed for Appellant

S Waalkens for Crown

Judgment:      22 November 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            S Waalkens, Auckland

S V NEW ZEALAND POLICE HC AK CRI-2010-404-000340  22 November 2010

Introduction

[1]      On 15 April this year, having pleaded guilty to a charge of driving a motor vehicle with excess breath alcohol, the appellant was sentenced to 240 hours of community work and disqualified from holding or obtaining a driver’s licence for one year three months.

[2]      The appellant appeals against the sentence imposed on the grounds that:

a)       he may have been sentenced as an offender convicted of a third or subsequent offence;

b)the sentence was manifestly excessive for a first offender, both in relation to the sentence of community work and the period of disqualification.

Preliminary issue

[3]      There is a preliminary issue.   The appeal was lodged out of time.   In his notice of appeal the appellant explains that he only became aware of the possibility of an appeal and legal aid in August 2008.  For the reasons that are outlined in the Crown’s submissions the Crown do not oppose leave being granted for the appeal to be brought out of time.  I formally grant leave for the appeal to be brought out of time.

Background

[4]      The circumstances leading to the conviction following the appellant’s plea of guilty are relevant to this appeal against sentence.  They can be stated shortly.  On 25

March Mr S   was driving a Toyota vehicle along Station Road, Papatoetoe.

[5]      His vehicle was observed by a member of the public.  Mr S  ’s vehicle was weaving over the road.  At one stage the appellant drove his vehicle onto a raised island at an intersection.   The appellant then drove the vehicle home.   He was located, spoken to and given a breath screening test which he failed.   He then underwent an evidentiary breath test at the Manukau Police Station which disclosed a reading of 1132 micrograms of alcohol per litre of breath.  The appellant admitted the facts and stated he had been drinking and had finished a 1125 ml bottle of rum. At the time the appellant was employed as a taxi driver.   He had not previously appeared before the Court.

[6]      The appellant pleaded guilty on the first opportunity and was sentenced by the Judge to 240 hours community work and disqualified for the 15 months as noted. The Judge noted that it was necessary to take into account the extremely high level of alcohol in his breath, balanced against the fact that he had pleaded guilty at the first opportunity.

Sentenced as a first offender

[7]      The first point taken on appeal is that the Judge may have sentenced on a misapprehension that this was the appellant’s third or subsequent offence.   That submission is based on the wording of the original information before the Court.  It was drafted on that basis.  However, the original information from the District Court now before this Court has the provision relating to third or subsequent offence deleted.  Further, the summary of facts that the Judge referred to identifies the charge as one of driving with excess breath alcohol being a first or second offence.

[8]      Next,  in  the  sentencing  notes,  the  Judge  does  not  suggest  that  this  was anything other than a first offence for the appellant.  For those reasons I am satisfied that the Judge proceeded on the correct basis, namely that this was a first offence for the appellant.

Was the sentence manifestly excessive?

[9]      The remaining ground of appeal is that the sentence is manifestly excessive, both in terms of the sentence of community work and the period of disqualification. Both counsel referred to a number of authorities where the sentences imposed for excess  breath  alcohol  have  been  considered,  including  Clotworthy  v  Police;[1]

McEachen  v  Police;[2]      Findlay  v  Police;[3]      R  v  Stone;[4]     Wilkins  v  NZ  Police;[5]

Donoghue  v  Ministry  of  Transport;[6]      Kelly  v  Ministry  of  Transport;[7]     Jones  v

Police.[8]

[1] Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[2] McEachen v Police [1995] 2 NZLR 251.

[3] Findlay v Police HC Whangarei CRI-2010-488-000016, 5 August 2010.

[4] R v Stone [2009] NZCA 539.

[5] Wilkins v NZ Police HC Christchurch CRI-2008-409-000008, 21 February 2008.

[6] Donoghue v Ministry of Transport HC Christchurch AP46/87, 9 April 1987.

[7] Kelly v Ministry of Transport HC Auckland AP45/87, 8 May 1987.

[8] Jones v Police HC Auckland CRI-2007-404-000325, 21 February 2010.

[10]     The  principles  arising out  of  those  cases  for  repeat  offenders  are  drawn together in the cases of Clotworthy and in Stone in particular.   In relation to first offending perhaps the most helpful decision is that of McEachen. In that case the Court noted the Court should look for guidance to decided cases, particularly cases determined on appeal and to evidence before it indicating what other Judges may consider to be appropriate periods of disqualification and sentence.

[11]     I accept Mr Rasheed’s submission that community work is a step up the hierarchy of sentences provided for by the Sentencing Act.  In this case the appellant could  have  been  dealt  with  by way of  a  fine  (which  would  have  had  to  be  a substantial one) and disqualification as opposed to the sentence of community work and disqualification.  He confirmed to the Court that he is presently only working on a part-time basis.  He was obviously unable to carry out his former employment as a taxi driver given his disqualification.   He only now works part-time as a tax accountant.    A  substantial  fine  may  have  been  difficult  to  meet.    Further,  I understand that the appellant has carried out 192 hours of the sentence already.

[12]     The sentence of community work, while perhaps unusual for a first offender was, in the circumstances, available to the Judge bearing in mind the level of breath

alcohol in this case and his circumstances.  However, the Crown has confirmed that it would not oppose the appeal being allowed and a lesser number of hours of community work being imposed provided it was balanced with an appropriate period of disqualification.

[13]     I accept that, in the circumstances of this case, even taking account of the high breath alcohol reading the sentence of 240 hours community work can be seen as manifestly excessive.  I propose to allow the appeal to the extent that the hours of community work will be reduced to 200.

The period of disqualification

[14]     That leaves the issue of the period of disqualification.   Mr Rasheed  has argued through his written submissions, supplemented by his oral submissions, that the sentence of community work and disqualification must be considered together and that when the Court takes account of the period of community work, even reduced to 200 hours, the sentence of 15 months disqualification was manifestly excessive.  He submitted a disqualification more in the range of about seven or eight or perhaps, at the outside nine months, would have been appropriate.

[15]     As discussed with counsel, sentencing in cases  of this nature involves  a combination of sentences.  As the full Court of this Court said in McEachen v Police the penalty by way of fine, (in this case community work), and the penalty by way of disqualification are not amenable to being traded off one against the other.  A period of disqualification serves two purposes.   It is not just a punishment but is also a means of protecting the public from further drunken driving[9].   I note that in McEachen one of the appellants, Mr Scott had a breath alcohol reading of 1047.  He was fined $1,250 and disqualified for 14 months.   While the Court allowed the

appeals by the other appellants, it noted that a period of 12 months’ disqualification for Mr Scott could not be said to be out of line and so a period of 14 months could not be described as manifestly excessive.   The appeal in relation to Mr Scott’s disqualification was accordingly dismissed.

[9] At 254.

[16]     In the present case the appellant’s reading at 1132 is even higher than that of Mr Scott.  However, given the Crown’s concession and the later authorities I have been referred to, I accept that a period of 15 months’ disqualification for a first offence where the appellant pleaded guilty at the first opportunity, is manifestly excessive.  I am unable, however, to accept Mr Rasheed’s submission that the period of disqualification should be anything less than 12 months.   The level of the appellant’s breath alcohol was very high.  There is a need to protect the public from people who drive with alcohol levels at that level.

Result

[17]     The end result is that the appeal is allowed.  The order for community work of 240 hours and disqualification for 15 months is quashed but is replaced with a sentence of 200 hours community work and a disqualification of 12 months.  The disqualification is to run from the date the initial disqualification was imposed, 15

April 2010.

Venning J