S v Police HC Christchurch Cri-2010-409-113

[2010] NZHC 1493

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000113

CRI-2010-409-000114

S

Appellant

v

POLICE

Respondent

Hearing:         19 August 2010

Appearances: Appellant in person

C E Butchard for Respondent

Judgment:      19 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      The appellant, Ms S  , was  sentenced in  the District Court to  six months’ community detention on review of an earlier sentence of community work.

Factual background

[3]      In July 2009 Ms S   was sentenced to 140 hours’ community work on a charge of driving with excess breath alcohol.  The level was 501 micrograms of

S V POLICE HC CHCH CRI-2010-409-000113  19 August 2010

alcohol per litre of breath.   Ms S   was also disqualified indefinitely from holding or obtaining a driver licence for a minimum period of one year and one day.

[4]      The offending was aggravated by the fact of a previous conviction in 2007 for drink driving.  On that occasion there was a very high blood alcohol level of 232. She had been sentenced to 100 hours’ community work.

[5]      Due to a medical condition, Ms S   was unable to comply with the sentence of community work imposed in 2009.   She, herself, then applied to the Court for cancellation and review.  At the time of her application, she had only been able to complete nine and a half hours.

[6]      The Court was also asked to deal with Ms S  ’s outstanding fines. These amounted to $7460, and had been imposed for a variety of infringement offences such as unlicensed motor vehicle, no warrant of fitness, failing to produce a licence and giving false details.

[7]      In his decision the District Court Judge stated that he was proposing to deal with the matter on a totality basis.  The Judge cancelled the sentence of community work and instead imposed a six-month community detention sentence with a 12-hour curfew from 7 p.m. to 7 a.m., seven days a week.  As regards the outstanding fines, the Judge imposed the same sentence (i.e. six months community detention) on a concurrent basis.

The appeal

[8]      Ms S   represented herself on this appeal.

[9]      As  at  today’s  date,  she  has  served  approximately  half  her  community detention sentence.  She asks that both it and the disqualification period be reduced.

Discussion

[10]     Unfortunately, there are no authorities regarding the appropriate conversion rate, as it were, from community work to community detention.

[11]     The maximum penalty for the drink driving offence was three months’ imprisonment, and in most cases where community detention is imposed in lieu of prison, the length of the community detention period is usually shorter than the prison term that would otherwise have applied.

[12]      Having regard to that fact, and the fact that in the hierarchy of sentences under the Sentencing Act, community detention is a more restrictive sentence than community work, I consider that six months’ community detention for the drink driving offence must be considered manifestly excessive.

[13]     I am reinforced in that conclusion by the decision of Police v Pongi DC Tauranga CRI-2009-070-001186, 6 May 2009, Judge Rollo, where four months’ community detention was imposed on a fifth conviction for driving with excess breath alcohol.  See also the decision of Police v Wagstaff DC Tauranga CRI-2008-

070-8876, 7 April 2009, Judge Bidois.

[14]     In my view, an appropriate sentence for the drink driving charge would have been in the vicinity of six weeks’ community detention, with a further uplift of another six weeks on account of the remission of the fines.  That would have resulted in a total sentence of only three months’ community detention.

[15]     As regards the disqualification, that was a mandatory sentence imposed as a result of s 65 of the Land Transport Act 1998.  There is no basis on which I could interfere with that aspect of the original sentence.

Outcome

[16]     The outcome of the hearing is that the appeal is allowed in part.

[17]      The sentence of six months’ community detention is quashed in respect of the drink driving charge and substituted with a sentence of three months’ community detention, while a term of three months’ community detention is imposed in lieu of the outstanding fines instead of the six months imposed by the District Court.  The three month terms are to be served concurrently. The disqualification is confirmed.

[18]     Finally, I would like to record the Court’s gratitude to Ms Butchard for her very helpful and responsible approach to this matter.

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to Appellant