Sam v Police HC Auckland CRI 2010-404-386

[2010] NZHC 1934

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-386

CHARLIE STEPHEN SAM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 November 2010

Appearances: G H Vear and J T Edgar for the Appellant

P Singh for the Respondent

Judgment:      4 November 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 4 November 2010 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Crown Solicitors, PO Box 2213, Auckland 1140

Public Defence Service, PO Box 21448, Henderson.

SAM V POLICE HC AK CRI-2010-404-386  4 November 2010

[1]      On 5 October 2010 Mr Sam was sentenced in the Waitakere District Court effectively for two offences of drink driving.

[2]      The first offence occurred on 12 June 2010 when Mr Sam was stopped for minor traffic offences but when asked to give an evidential breath test it yielded an incomplete result.   Mr Sam was then asked to provide a blood specimen but he declined to cooperate.  He was accordingly charged with refusing to comply with a request for a blood specimen, having been convicted of at least two previous drink drive offences, contrary to s 60(1) of the Land Transport Act 1998.  Mr Sam pleaded guilty to that charge on 6 July and the matter was then adjourned to enable preparation of a pre-sentence report.

[3]      Before Mr Sam could be sentenced for that first offence and while on bail with a condition that no alcohol be consumed, Mr Sam was again stopped by police while driving on 30 July at 2.40 am.   The result of an evidential breath test administered at that time was a reading of 817 micrograms i.e. more than twice the permitted limit.  Mr Sam also pleaded guilty to the charge that followed that incident and the 5 October 2010 sentencing related to both that and the earlier charge.

[4]      Mr Sam was sentenced to four months imprisonment on each of the two charges to be served cumulatively (each sentence having been reduced from a six month starting point to reflect Mr Sam’s guilty pleas), indefinite disqualification in terms of s 65 of the Land Transport Act on each charge and an order prohibiting Mr Sam  having  any  interest  in  a  motor  vehicle  for  12  months  (s  131  of  the Sentencing Act 2002).

[5]      Mr Sam appealed the sentence of imprisonment on the grounds that it is manifestly excessive.   More particularly he contended that a community-based sentence should have been imposed, but alternatively that cumulative sentences were inappropriate and the total length of imprisonment was out of proportion to the totality of his offending.

[6]      The critical part of Judge Wade’s sentencing notes is to be found at [6]–[8]:

[6]       So these are now your third and fourth offences of drink driving, all at the age of 25 years which is an appalling record by anybody’s standard, but we have hardly broken the ice yet on just how bad your record is because I see, to your detriment, noted on your criminal history is the fact that on no fewer than five occasions you have breached community work orders, you have also breached a supervision order, you have breached a domestic protection order and you have already been through community detention.

[7]       It is plain from all that that you are totally unsuitable to be dealt with by any community-based sentence because you simply cannot be trusted to keep to the conditions and I am sure that if I was to impose the suggested sentence  on  you  today  of  community  detention  or  home  detention,  you would be back having breached that.  I think you have to learn your lesson the hard way.

[8]       I take as a starting point a sentence of six months’ imprisonment for each of these offences but I reduce them to four months, on each, to reflect the guilty pleas but they will be served cumulatively.

[7]      In  support  of  a  community-based  sentence  Ms  Vear  fairly accepted  that Mr Sam’s  history of  compliance  with  such  sentences  was  not  a  happy  one  but pointed out that he had in fact complied with the last such (community detention) sentence he had received, which had been electronically monitored.  Ms Vear also submitted  that  the  learned  District  Court  Judge  failed  to  give  due  weight  to Mr Sam’s personal circumstances and in particular the fact that his offending was caused by his addiction to alcohol and his role in assisting his mother in caring for his disabled brother.  She said that the rehabilitation needed by Mr Sam could better be achieved by a non-custodial sentence and that his need and potential for rehabilitation  was  a  matter  that  the  learned  District  Court  Judge  had  failed  to consider.

[8]      As regards the decision to impose cumulative sentences, Ms Vear submitted that the two offences in question were properly to be seen as of a similar kind and, by virtue of that similarity, connected.   On that basis she said that the sentencing judge had failed to have proper regard to the guidance set out in s 84(1) of the Sentencing Act.

[9]      Ms Singh for the respondent submitted that it was open to Judge Wade to be sceptical both as to the effectiveness of a community-based sentence and as to Mr Sam’s likely compliance with such a sentence.  She said that the total sentence imposed (which is what must be the appellate court’s focus in determining an appeal

such as this) could not be regarded as out of line with the sentences imposed in other similar cases and that it was supported by an application of the non-exhaustive list of factors identified as relevant to the fixing the level of such sentences in Clotworthy v Police.[1]    She placed particular emphasis on the need to protect the public in cases involving recidivist drink driving such as Mr Sam’s.

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

[10]     Ms Singh also stressed that the second offence was aggravated by the fact that it involved a breach by Mr Sam of his bail conditions and said that care needed to be taken in giving any significant weight to Mr Sam’s personal circumstances.  In particular she said that Mr Sam’s role in caring for his brother had not been particularly emphasised by him to the writer of the pre-sentence report and was also somewhat inconsistent with the fact that he had (prior to his incarceration) been in full time employment.  She also emphasised that, notwithstanding the existence of a longstanding problem with alcohol, Mr Sam had neither previously accepted this (having, rather, expressed a sense of entitlement in that respect) nor taken any steps to address it (having, rather, failed to undertake CADS counselling that had previously been ordered by the Court).  She said his (acknowledged) rehabilitative needs could be addressed in prison and through standard release conditions.

[11]     Similarly, Ms Singh submitted that the use of cumulative sentences was open to the learned District Court Judge.  She said while the offences were similar in kind they  were  not  “connected”  in  the  required  sense,  citing  R  v  Clarke[2]and

[2] R v Clarke CA 128/06, 6 June 2006.

R v Wharewaka.[3]   She also referred me to Court of Appeal authority to the effect that

committing a further offence after the grant of bail is an aggravating factor that may justify the imposition of a sentence that is cumulative on the sentence for the offence in respect of which bail was granted: R v Wallace[4] and R v Johansen.[5]

Discussion

[3] R v Wharewaka HC Auckland CRI 2004-092-4373, 28 April 2005.

[4] R v Wallace [1983] NZLR 758 (CA).

[5] R v Johansen (1997) 15 CRNZ 111 (CA).

[12]     I do not consider, in the circumstances of this case, that the sentence imposed by Judge  Wade  can  be  regarded  as  manifestly excessive.    On  the  basis  of  the authorities cited to me by Ms Singh and the terms of s 84 I also consider it was open to him to impose cumulative sentences for the two offences.  And even if I am wrong in that, the imposition of concurrent sentences with a starting point of 12 months for the lead offence (uplifted to take account of the totality of the offending) would in my view have been justifiable having regard to:

a)        Mr Sam’s high breath alcohol level (being twice the legal limit);

b)The  fact  that  although  three  years  had  elapsed  since  Mr  Sam’s previous EBA conviction, there was only a very short period of time (six weeks) between the two offences for which he was being sentenced;

c)        Mr Sam’s two previous EBA convictions;

d)The manner of his driving (which while not apparently dangerous had been sufficient to attract Police attention);

e)       The previous (ineffective) sentences imposed for not only Mr Sam’s previous EBA offending but for other offending; and

f)        The  fact  that  the  second  offence  also  involved  breach  of  bail conditions.

[13]     In  terms  of  any  discount  for  mitigating  features  I  do  not  consider  that Judge Wade was wrong to regard those fairly limited circumstances identified by Ms Vear as carrying little weight.  I record that it was quite properly not disputed by Ms Vear that the learned Judge did take appropriate account of Mr Sam’s early guilty pleas.

[14]     Having reached that point I must, as did Judge Wade, acknowledge that a sentence of home detention remained open to him.  It is trite that such a sentence also has a deterrent aspect and is not to be regarded as a “soft option”.  That said, however, I am cognisant of the authorities which make it plain that in the absence of

some clear error of approach an appellate judge should give a considerable amount of deference to the sentencing judge on this issue.  The words of French J in Ebdell v Police[6] appear particularly apt in the present case.  She said:

[35]     Most  importantly,  the  [sentencing]  Judge  was  not  saying  the sentence of home detention does not have a deterrent aspect, but simply that in this case the particular circumstances required more. That was a view that was clearly open to him. As recent Court of Appeal decisions such as R v Edmonds [2009] NZCA 152 and R v Taiepa [2009] NZCA 120 make clear, there is no prevailing presumption as such in favour of home detention, and that in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not. I am mindful, too, of what was said in R v D [2008] NZCA 254, where the Court talked about affording greater weight to the views of the sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried. As the Court of Appeal said, the sentencing Judge from those jurisdictions “will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.”

[6] Ebdell v Police HC Christchurch CRI-2009-409-4831, 30 July 2009

[15]     In conclusion, therefore, there is simply no basis upon which I can properly conclude that in sentencing Mr Sam as he did, Judge Wade has erred in principle, taken into account irrelevant matters, failed to take account of relevant ones or reached a conclusion that was plainly wrong.

[16]     Accordingly in my view the appeal must fail.

Rebecca Ellis J