Samson v Police

[2015] NZHC 748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000051 [2015] NZHC 748

BETWEEN

JARRED SAMSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 April 2015
Counsel:	K M Penrose for the Appellant E C Rutherford for the Respondent
Judgment:	17 April 2015

JUDGMENT OF WHATA J [Re: Appeal against sentence]

This judgment was delivered by Justice Whata on 17 April 2015 at 400 pm pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ……………………..

SAMSON v NZ POLICE [2015] NZHC 748 [17 April 2015]

[1]      Mr Samson was found guilty on charges of driving with excess breath alcohol for a third or subsequent time and driving while disqualified.  He was sentenced to

26  months’ imprisonment,  together  with  indefinite  disqualification  for  the  EBA

offending, and disqualification for 18 months for the driving while disqualified.

[2]      Mr Samson appeals his sentence on the basis that it was manifestly excessive.

Background

[3]      Mr  Samson  has  a  sustained  history of  both  EBA and  disqualified  while driving offending, as the following bullet point chronology reveals:

·13 January 2006        –  Excess breath alcohol, 867 mcg/L; (Disqualified from driving for 6 months)

·13 November  2009    –  Excess breath alcohol, 779 mcg/L; (Disqualified from driving for 6 months)

·	26 February	2010	–	Driving while disqualified; (Disqualified from driving for 6 months)
·	14 April 2010	–	Driving while disqualified;
(Disqualified from driving for 6 months)
·	23 December	2010	–	Driving while disqualified (x3); (Community detention, disqualified from driving for
1 year)
·	21 January	2011	–	Excess breath alcohol, 706 mcg/L; (Community detention, indefinite disqualification)
·	20 September	2011	–	Driving while disqualified (Three months’ home detention; disqualified for one
year);
·	27 December	2011	–	Driving while disqualified (Three months’ home detention; disqualified for one
year);
·	27 December	2011	–	Excess breath alcohol, 585 mcg/L (Three months’ home detention; Disqualified for one
year);

·        30 November  2012   –  Driving while disqualified

(Three months’ home detention; disqualified for one

year from 27 February 2013).

[4]      The facts of the present offending are described by Judge Mather in the

District Court as follows:

… On 29 June last year you drove a vehicle at high speed up Great North Road in Henderson attracting the attention of a police officer parked in a car nearby.  The officer went to your address where you drove in and, as I found on  his  evidence, the  officer  saw  you  getting out of  the  car.   You  were impaired by alcohol and you were breath-tested. Your breath alcohol reading was 729 which is nearly twice the legal limit.

[5]      Judge  Mather  adopted  a  cumulative  approach  to  sentencing,  though  he regarded the EBA offending as more serious because it was Mr Samson’s fifth EBA offence and because his breath alcohol reading was nearly twice the alcohol limit. A starting point of 20 months and 18 months was adopted for the EBA and driving while  disqualified  offending  respectively,  leaving  a  cumulative  sentence  of  38 months.    The  starting  point  was  then  reduced  by  12  months,  having  regard  to Mr Samson’s stable work and family life, resulting in an end sentence of 26 months’ imprisonment.

Jurisdiction

[6]      This is an appeal pursuant to s 250 of the Criminal Procedure Act 2011.  In light of Tutukangahau v R,1  I may allow an appeal against sentence if I find a material error, including that the sentence was manifestly excessive.

Issues on appeal

[7]      Ms  Penrose  appearing  for  Mr  Samson  challenges  the  sentence  on  the following key grounds:

(a)      The sentence was manifestly excessive;

(b)The Judge took into account    irrelevant considerations, namely the level of alcohol reading and the speed of driving;

1      Tutukangahau v R [2014] NZCA 279.

(d)      A cumulative approach was markedly out of proportion;

(e)       Inadequate recognition was given to Mr Samson’s recent compliance; (f)     Home detention should be considered.

[8]      Overall, the central claim made by Ms Penrose is that the combined effect of the disproportionate starting points and a cumulative approach meant that the end sentence was markedly out of line with previous sentences for similar offending.

[9]      Ms  Penrose  accepts  that  the  EBA  is  the  more  serious  charge  and  that Clotworthy v Police2  provides the proper frame for the analysis.   She says that in light of the various factors noted in Clotworthy and recent authority, the starting point should have been somewhere between six and 12 months.  As to the driving while disqualified, she submits that 18 months is also excessive, having regard to Taylor v Police3  and Himiona v Police4  where sentences of four months and 13 months were adopted in relation to seven and 13 driving while disqualified convictions respectively.

[10]     Ms Penrose also does not dispute that a cumulative sentence was available to the Judge.  But she submits that the end result is excessive when considered in light of the totality of the offending, citing Waitokia v Police,5 Hansch v Police,6 and Hart

v Police,7 for comparative purposes.

[11]     Ms Gibson,8 for the Police, responds that (in summary):

(a)       The  starting  points  adopted  were  within  range,  citing  Spooner  v

Police;9

2      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

3      Taylor v Police HC Wellington AP 61/96, 3 April 1996.

4      Himiona v Police [2012] NZHC 1756.

5      Waitokia v Police HC Invercargill CRI-2011-425-000008, 20 May 2011.

6      Hansch v Police [2014] NZHC 2438.

7      Hart v Police [2014] NZHC 429.

8      The written submissions were filed by Ms Rutherford. Ms Gibson appeared as counsel.

9      Spooner v Police HC Rotorua CRI 2010-463-55, 31 August 2010.

(c)       An  end  sentence  of  26  months  is  within  range,  having  regard  to

Himiona v Police and Koopu v Police;10 and

(d)Home  detention  is  not  appropriate  given  that  it  failed  to  deter Mr Samson from repeat offending, and Mr Samson also has multiple convictions for breaching court orders.

Structure of Assessment

[12]     I will structure my response to the appeal in the following way:

(a)       I will identify a framework for the assessment of the EBA offending; (b)      I will review the starting points used by the Judge;

(c)       I will examine the discount given;

(d)      I will assess whether the end sentence overall was excessive;

(e)      I  will  consider  whether  home  detention  should  be  imposed  (if available).

A frame work of assessment

[13]     Clotworthy v Police11 continues to provide the frame for sentencing for EBA offending (third and subsequent) in terms of aggravating and mitigating factors, namely:

[a]       The breath or blood alcohol level.

[b]       The length of time that had elapsed since the last drink driving conviction  (in  this  respect  the  five  year  period  referred  to  in s 65(2)(b)   of   the   Land   Transport   Act   1998   is   perhaps   of significance).

[c]       Conviction  for  two  or  more  drink  driving  offences  in  close succession.

10     Koopu v Police [2013] NZHC 1356.

11     Clotworthy, above n 2, at [20].

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

[e]       Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).

[f]       The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.

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

[h]      The  offender’s  record,  if  any,  of  convictions  for  other  types  of

offending.

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

[j]        Any mitigating personal or family circumstances contributing to the offending.

[14]     I regard items [a]-[e] as aggravating factors for the purpose of assessing the start point for the offending, while [g] and [h] are relevant to uplift for aggravating personal circumstances.  Items [f] and [i]-[j] are mitigating factors.

[15]     Unsurprisingly, sentencing for this type of offending is not amenable to tariff- like categorisation.   But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear  to  be  similar  fact  offending.     In  order  to  make  some  sense  of  the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v

Police,12  I have reviewed a number of authorities for the purpose of identifying

where the current offending might sit in the spectrum of cases that have come before this Court.  As a result, I think some broad generalisations about starting points are supportable, namely:

(a)       No seriously or only moderately aggravating factors, 9–12 months;13

12     Bechan v Police [2015] NZHC 747. Both matters were heard on the same afternoon. I issued a minute on the morning of the appeals inviting comment on a table of various cases and the categorisation of types of EBA sentences. Helpfully, counsel provided their views in oral argument and subsequently in written submission after the hearing of the appeals had concluded.

13     Fonoti v Police [2015] NZHC 200; Matkovich v Police [2013] NZHC 872; Bidois v Police HC

(b)      One or more seriously aggravating factors,  12–18 months;14

(c)       Multiple offences with seriously aggravating factors, 18–20 months;15

and

(d)Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.16

[16]   Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close  proximity in  previous  EBA offending,  and/or  a prolonged and  continuous history of driving-related offending.   Conversely, the following mitigating factors appeared  significant  in  terms  of  the  length  of  end  sentence  and/or  the  type  of sentence (e.g. home detention):17

(a)       The absence of seriously aggravating factors; (b)        High levels of remorse;

(c)       Genuine attempts to address the underlying causes of the offending; (d)       No previous sentence of imprisonment;

(e)       No previous sentence with a rehabilitative focus; and/or

Hamilton CRI-2006-419-123, 1 November 2006; Phillipson v Police HC Invercargill CRI-2004-

425-32, 10 September 2004.   In the table I provided to counsel I included, as an example, Mokotupu v Police HC Christchurch CRI-2009-409-19, 19 February 2009. On closer inspection that decision came to the High Court on a question of whether home detention should be imposed, with no consideration given by the High Court to the term of imprisonment. I therefore do not consider this case helpful in identifying appropriate starting points. Carran v Police [2013] NZHC 1450 is another decision that might fall into this category with a starting point of

10 months adopted, but the excess breath reading was very high (1226 mcg/L). Notably in that case the central issue was whether a sentence of home detention should be imposed having regard to the very extended gap between the offending rather than the start point.

14     Hansch, above n 6; Koopu, above n 10; Vitali v R [2013] NZHC 1944; Toetoe v Police [2013] NZHC 2686; Te Papa v Police [2013] NZHC 3218; Spooner, above n 9; Hart v Police [2014] NZHC 429; Tutahi v Police [2014] NZHC 3334; Clotworthy, above n 2.

15     Dick v Police [2014] NZHC 434; Sands v Police [2012] NZHC 3011; R v Fair [2007] NZCA

282.

16     Himiona v Police, above n 4; McGee v Police HC Whangarei CRI-2010-488-47, 8 December

2010; Police v Tawhara HC Whangarei CRI-2010-488-044, 9 September 2010; Hughes v R

[2012] NZCA 388.

17     Fonoti, above n 13; Afamasaga v Police [2013] NZHC 273; Tinei v Police [2012] NZHC 2003; Hansch, above n 6; Carran v Police [2013] NZHC 1450; Williams v Police HC Auckland A178/01; Bidois v Police CRI-2006-419-123.

(f)       Lengthy gaps between the current and prior offending.

[17]     To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered.18   It is simply the outcome of a canvass of authorities which  I have found useful for the purpose of commencing the finer grained assessment required in this appeal.   Indeed, the following analysis aptly illustrates the care that must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence.

The 20 month starting point for the EBA offending appears excessive

[18]     Multiple aggravating factors are present, namely:

(a)      Mr Samson was almost double the legal limit.  The clear policy of the Land Transport Act 1998, recently affirmed by the Supreme Court,19 to deter drink driving militates strongly against a finding that the level of intoxication was low.20 Nevertheless I consider this to be a moderately aggravating factor.

(b)Mr Samson was indefinitely disqualified at the time of the offending (having been previously disqualified on no less than eight occasions). I consider this to be a seriously aggravating feature and indicative of blatant disregard of driving regulation at the time of the offending.

(c) There is an almost unbroken chain of prior driving related offending since 2006 as illustrated at [3]. I also consider this to be a seriously aggravating factor, indicating not only serious, but prolonged

disregard for driving regulation.

18     As the Court of Appeal emphasised in R v McQuillan CA 129/04 at [22], this type of offending is not amenable to tarrif categorisation. Furthermore, as with any sentencing, there will be sentences that do not fit into a particular box.

19     Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].

20     I note that in Clotworthy Wild J considered 764 mcgs/L to be a “relatively low breath alcohol level”. However, Wild J was comparing the level of intoxication against the sentences that he had been given.  I do not think the same comparison is available today in light of most recent authority.

[19]     The Crown maintains that the Judge did not err in finding that Mr Samson was driving at speed at the time of the offending.   The evidence on the speed at which Mr Samson was driving was sparse.  Sergeant Leonard said:

… [I] heard the high pitched sound of an engine revving, being, sounded to me like it was being driven at high speed …

…

I just clearly recall one vehicle coming up the road at very high speed which is immediately why my attention was drawn to that sound and then to seeing the vehicle …

[20]     Furthermore, it does not appear that Mr Samson was ticketed for driving in excess of the speed limit or charged with dangerous driving.   I therefore adopt a neutral position as to whether the driving was dangerous or innocuous in terms of the Clotworthy factors.

[21]     In any event, it will be seen that the offending is marked by multiple and seriously aggravating factors and at first blush a starting point of 20 months is supported by authority.21     But on closer scrutiny, the cases applying a 20 month starting point have been marked by very high levels of culpability across multiple factors, including a very high level of intoxication,22  indefinite disqualification, a very lengthy history of prior offending,23 and/or a prior sentence of imprisonment.24

For my part, the present offending, while serious, is not in this category of offending.

[22]     But I am equally satisfied that the offending does not fall at the minor end of EBA  offending  that  might  attract  a  starting  point  of  less  than  12  months  as Ms Penrose suggested in oral argument.   Those cases are equally marked by less aggravating features, for example an extended period between offending.25   I accept that there is authority to suggest that arguably comparable offending has attracted a start point of 12 months.26   It seems to me, therefore, that an indicative starting point

between 12–18 months could be supported by reference to authorities.

21     See [14(c)]-[d], above.

22     Sands, above n 15 (1064 mcg/L; eight previous EBA convictions).

23     Hughes, above n 15 (indefinite disqualification, 24th driving while disqualified offense).

24     McGee, above n 16; see also Himiona, above n 4.

25     Fonoti, above n 13.

26     Hansch above n 6; Phillipson, above n 14; Tutahi v Police, above n 14.

The starting point for disqualified driving was also excessive

[23]     Turning then to the disqualified while driving starting point, I consider that an 18 month starting point is excessive by reference to the weight of authority27 and I think excessive in the circumstances.  A 12 month starting point would appear in my view to be more appropriate.

A very generous discount

[24]     The Judge allowed a very generous discount of 12 months or nearly one-third of sentence. Arguably that is well outside the ordinary run of discounts that might be expected for the personal factors identified by the Judge.   Indeed, I would have thought a discount in the order of 15–20 per cent would have been more appropriate to reflect Mr Samson’s stable work and family life.

A cumulative sentence appropriate

[25]     A cumulative sentence can and, in my view, should be imposed for this type of  offending  (at  least  for  the  purpose  a  fixing  an  appropriate  end  sentence).28

Applying my assessment of the components parts of the sentence, I arrive at starting point in the order of 24–30 months, less a discount of 15–20 per cent or 3–6 months, resulting in an end sentence of 19–25 months.  On that basis the Judge’s assessment is within a supportable arithmetic range.

The end sentence is manifestly excessive

[26]     But  my  review  of  the  case  law  has  led  me  to  the  conclusion  that  the cumulative   approach   when   applied   in   this   arithmetic   way   has   led   to   a disproportionate sentence overall.  To illustrate, I refer to Himiona v Police where an end sentence of 24 months’ imprisonment cumulative (including nine months for a

13th  driving while disqualified conviction) was imposed.  In that case, Mr Himiona

had a breath alcohol level of 1,520 mcgs/L, it was his fifth EBA conviction, and the

27     Drinkwater v Police [2013] NZHC 1036 (although in this case Ronald Young J noted that with

11 previous convictions for driving while disqualified a start point close to the maximum could have been imposed); Keenan v Police [2014] NZHC 1894; Harre v Police [2013] NZHC 1740; Hokianga v Police [2013] NZHC 1355; Iwikau v Police [2013] NZHC 2515.

28     See Hughes, above n 15.

convictions spanned the period 1990 to 2008.  For my part, that sentence must be considered at the top end and the offending was more serious than the present.

[27]     Similarly, the cumulative starting points of 36 months for McGee, 30 months for Hughes and 36 months for Tawhara, all related to offending which is demonstrably more serious than the present offending.  In Hughes, the offender had

18 previous EBA convictions and 24 previous driving while disqualified convictions, while in McGee and Tawhara, the offenders had already been subject to lengthy terms of imprisonment for previous EBA offending. This latter aspect in particular is a very important distinguishing factor.

[28]     A corollary of all of this is that Mr Samson is plainly not in the worst category of the offending and, therefore, his cumulative starting point should not be the same.29

[29]     I consider that a combined starting point needed to be reduced to properly reflect the totality of the offending and its severity relative to other offending, and I think a cumulative starting point of 20 months would have been more appropriate in all of the circumstances.  Applying a discount of 20 per cent to take into account Mr Samson’s personal circumstances [refer [30]]; this should have resulted in an end sentence of 16 months.  This would bring it into line with a range of cases of similar or moderately worse offending, including Dick v Police, Hokianga v Police and R v Fair.

Home detention not appropriate

[30]     The end sentence brings into focus whether a sentence of home detention is appropriate.  There are competing considerations.  Mr Samson’s track record is very poor and the circumstances of the offending were serious, though not at the top end. His attendance at various programmes including a CADS course has not had the desired effect. Between December 2004 and August 2013 Mr Samson accumulated a total of 32 convictions, the majority of them driving relating and breach of Court

imposed conditions.   Balanced against this, Mr Samson has not been subject to a

29     I am fortified in this view by approach taken by Pankhurst J in Hokianga v Police [2013] NZHC

1355 at [20].

sentence of imprisonment previously and the previous sentences of home detention have been relatively modest.  Furthermore, he was compliant with the most recent sentence.  The presentencing report also notes that “Mr Samson may have addressed, to some degree, some of the factors behind his offending.”  The report recommends an  electronically  monitored  sentence,  together  with  a  condition  regarding  a residential rehabilitation programme.  I am also conscious of Mr Samson’s personal circumstances, a father of three young children and as the presentencing report also notes:

Mr Samson appears to have achieved some real benefits to his home life through positive actions in recent years: the fear of losing what he has gained motivates him not to make the same mistakes again.

[31]     I have nevertheless come to the view that a third sentence of home detention for driving related convictions will not properly serve the composite principles of sentencing in this case.   Rather a term of imprisonment is appropriate because it necessary to denounce and hold Mr Samson accountable for his repeated offending, to protect the public from him and to deter him and others from similar repeat offending.

Outcome

[32]     The appeal is accordingly allowed and the sentence of imprisonment of 26 months is substituted with a sentence of 16 months on each of the charges, to be served concurrently.30    I also consider that a special condition should be imposed pursuant to s 93(2) of the Sentencing Act 2002 in accordance with the recommendation made in the pre-sentence report, namely:

To be assessed and, if found suitable, to complete a One For The Road (or similar) programme to the satisfaction of the programme provider and the probation officer.

To attend and complete an assessment, counselling, treatment or programme for alcohol rehabilitation (including residential) as directed by the probation

officer.

To be assessed and, if found suitable, to complete a departmental programme to the satisfaction of the programme provider and the probation officer.

[33]     This special condition is to expire four months after the sentence expiry date.

30     I am conscious that this end sentence may result in a similar time served once eligibility for parole is considered. But that is not a relevant consideration in fixing sentence.

[34]     Ms Gibson helpfully noted that concurrent sentences of 26 months were recorded as imposed by the District Court Judge.  The maximum sentence for both

types of offending is 24 months. This issue is resolved with my adjusted sentence.

Whata J