Sands v Police
[2012] NZHC 3011
•13 November 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2012-409-000072
CRI 2012-409-000073 [2012] NZHC 3011
BETWEEN IAN CRAIG SANDS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 8 November 2012
Counsel: R A Peters for the Appellant
D J Orchard for the Respondent
Judgment: 13 November 2012
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 13 November 2012 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
R A Peters: [email protected]
D J Orchard: [email protected]
SANDS V POLICE HC CHCH CRI 2012-409-000072 [13 November 2012]
[1] Mr Sands appeals a sentence imposed on him by Judge DJL Saunders in the District Court at Christchurch. Mr Sands was sentenced to one year and 11 months’ imprisonment on the following charges:
(a) Driving with excess breath alcohol — third or subsequent offence on
30 September 2011;
(b) Driving with excess breath alcohol — third or subsequent offence on
29 December 2011;
(c) Driving while his license was suspended on 10 January 2012.
Mr Sands was also disqualified from driving indefinitely, with a minimum period of disqualification of 12 months. A further order was made that Mr Sands is not to acquire any interest in a motor vehicle for a period of 12 months. Reparation for the damage caused on 29 December 2011 was ordered and post-release conditions were imposed.
[2] Mr Sands asserts that the sentence was manifestly excessive.
Background
[3] On 30 September 2011, Mr Sands was driving a motor vehicle. He was stopped by the police and breath tested. The breath test returned a reading of
1064 micrograms of alcohol per litre of breath. When Mr Sands was spoken to by the police, he admitted to having had two beers and two or three rums. Mr Sands was released on bail, following a very early guilty plea.
[4] Some two months later, on 29 December 2011, Mr Sands was again driving. He entered the drive-through of a KFC outlet and collided with the car in front of him, causing moderate damage to its rear bumper. He was breath tested. The evidential breath test returned a reading of 1057 micrograms per litre of breath. When spoken to by the police, Mr Sands admitted that he had had six small beers, but he offered no other explanation. This offending was committed while Mr Sands
was on bail in relation to the earlier offence, and he was suspended from driving for
28 days.
[5] On 19 January 2012, within the 28-day disqualification period, Mr Sands was apprehended while he was driving a motor vehicle. He admitted that he was a suspended driver and stated that he was driving to a work mate’s place.
[6] Mr Sands has an appalling drink-driving record. He has eight previous convictions for drink-driving, two convictions for driving in a careless manner, one conviction for driving in a dangerous manner, five convictions for driving whilst disqualified and two convictions for refusing to provide a blood specimen.
Judge Saunders’ Sentencing Notes
[7] Judge Saunders noted that Mr Sands has got himself into a desperate situation, as a result of his addiction to and abuse of alcohol. He observed that Mr Sands has an entrenched drinking and driving problem, and that he is a major risk to innocent road users. He stated that when Mr Sands drinks, he drinks to excess and that he puts not only his own life, but the lives of other road users as risk. He referred to the relevant sentencing principles and emphasised that it was important to try and achieve some treatment for Mr Sands while he is subject to sentence. He took the view that an appropriate starting point would have been in the range of 20 months’ imprisonment in relation to the September offending, and the additional offending had to be considered on top of that. He gave Mr Sands credit for his guilty pleas. He discussed the totality principle. He imposed a sentence of imprisonment of 15 months on the September charge and a cumulative sentence of eight months’ imprisonment in relation to the December charge. A term of
12 months’ imprisonment was imposed for driving while disqualified, to be served on a concurrent basis. The end sentence was one of 23 months’ imprisonment. The additional orders noted above were also made.
[8] Mr Peters, on Mr Sands’ behalf, submitted that the sentence is manifestly excessive. He noted that the notice of appeal asserted that the Judge did not take into account psychological and mental health matters. He advised that that ground was not being pursued. Mr Peters submitted that the starting point of 20 months in relation to the September offending was too high. He acknowledged that Mr Sands has a significant number of previous convictions, but submitted that this was not the worst case of its kind which has come before the Courts. He acknowledged that an uplift was appropriate given the proximity of the later offending, but submitted that that uplift needed to be balanced against the totality principle. He noted that the Judge specifically referred to the totality principle, but submitted that he did not appear to make any allowance for it. He asserted that the only allowance made in the sentencing process was a 25 percent reduction for the early guilty plea. He submitted that the Judge should have allowed more of a discount for apparent remorse as evidenced by the pleas, and by the acknowledgements given to the police at the time, and also to allow for the fact that Mr Sands has indicated that he is prepared to confront the problems underlying his offending. Mr Peters acknowledged that the only possible sentence was one of imprisonment, but submitted that the term imposed was excessive in the circumstances. He expressly recorded that there was no challenge to the other orders made by Judge Saunders, and that the appeal was limited to the term of imprisonment imposed.
[9] Ms Orchard, for the Crown, submitted the sentence imposed by Judge Saunders was not manifestly excessive. She argued that Mr Sands is clearly a recidivist drink-driver, that the alcohol levels detected on both 30 September and
29 December 2011 were very high and that the second and third offences were aggravated by the fact that they occurred while the first matter was still before the Court for consideration. She noted Mr Sands’ appalling driving record. She submitted that the Judge had dealt with remorse appropriately, and that really, Mr Sands was not expressing remorse, but rather, sorrow at the situation in which he finds himself.
[10] An appeal against a sentence is a general appeal by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.
[11] The approach to be taken to appeals under s 121(3) was discussed in Yorston v Police: [1]
[1] Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[12] This Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
[13] Here, the sentence imposed by Judge Saunders was stern, but I do not consider that it can be said to be manifestly excessive.
[14] Sentencing in relation to drink-driving offences was comprehensively considered by this Court in 2003 in Clotworthy v Police.[2]Wild J looked at comparable sentences upheld or substituted by the High Court on such appeals. He also considered these current sentencing levels in the District Court. He noted those features that are likely to be relevant to sentencing in such cases. They include the breath or blood alcohol level, the length of time that has lapsed since the last drink- driving conviction, convictions for two or more drink-driving offences in close
proximity, the manner of driving, whether the offender was disqualified or forbidden
at the time, the pleas entered and their timing, sentence imposed for previous convictions, the offender’s record, any genuine remorse shown and any mitigating circumstances.[3]
[2] Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[3] Ibid, at [20].
[15] To my mind, when Mr Sands’ offending is considered by reference to these matters, Judge Saunders had no alternative but to impose a substantial term of imprisonment. Mr Sands is clearly a recidivist drink driver. His breath alcohol levels were extremely high. They were some two and a half times the legal limit. While Mr Sands’ last conviction for driving with excess breath alcohol was in 2006, the second and third offences here in issue occurred whilst Mr Sands was on bail. His driving on 29 December 2011 resulted in a minor accident. On all three occasions, he was aware of the circumstances that meant that he should not have been driving. He appears to have given no thought to the responsibility of his actions at all. He has an appalling driving record. The Court has endeavoured to intervene in various alternative ways over the years. These alternative attempts at intervention have proved ineffective. I have no doubt but that Mr Sands represents a major risk to innocent road users, and that he should not be on the road, at least as things stand at present.
[16] Moreover, I do not consider that the sentence imposed by Judge Saunders is markedly out of step with the decisions discussed in Clotworthy, and it is consistent with sentences imposed in more recent cases. I refer to Waitokia v Police,[4] where Whata J upheld a sentence of two years and two months’ imprisonment for two charges of excess breath alcohol, and one charge of driving while disqualified, and one charge of breach of release conditions. The appellant’s breath alcohol level was
706 micrograms of alcohol per litre of breath. The appellant had 71 previous convictions, including eight for driving with excess breath/blood alcohol, and six convictions for driving while disqualified. Whata J agreed with the District Court Judge in holding that the driving was premeditated, and that the appellant had abused the trust that other road users have that people coming towards them will be sober.
He considered that the appellant presented a high risk of re-offending, and that he
had a very poor compliance history. The Judge held that while the sentence was higher than that imposed in many similar cases, it was not manifestly excessive.
[4] Waitokia v Police HC Invercargill CRI 2011-425-000008, 9 May 2011.
[17] I also note the decision of Woodhouse J in Hakiwai v Police.[5] In that case, the appellant had been sentenced to two years and four months’ imprisonment for two charges of driving while disqualified, and one charge of driving with excess breath alcohol — 180 milligrams of alcohol per 100 millilitres of blood. The appellant had 14 previous convictions for excess breath alcohol, and 31 previous convictions for driving while disqualified. He hit a pedestrian barrier while reversing down the road to look for a petrol station. The District Court Judge had set the starting point at 18 months’ imprisonment, with a four-month reduction for the guilty plea. For the driving while disqualified charge, the Judge set the starting point at two years’ imprisonment, with a 10-month reduction for the guilty plea. On appeal, Woodhouse J did not find the final sentence to be manifestly excessive.
[5] Hakiwai v Police [2012] NZHC 2625.
[18] Here, in my judgment, the starting point adopted by the Judge, while stern, was not inappropriate, and the end sentence did not offend the totality principle. The Judge properly made an appropriate allowance for Mr Sands’ early guilty pleas. He did not make any discrete allowance for remorse, nor for the fact that Mr Sands asserts that he is now prepared to confront his underlying drinking problems. In my view, he was not obliged to do so. There is no evidence of any genuine remorse, and Mr Sands’ assertions are simply self-serving. Mr Sands has had ample time to address his drinking problems in the past, but has patently failed to do so. Put bluntly, “enough is enough”. In the circumstances, the sentence was not manifestly excessive.
[19] The appeal is dismissed.
Wylie J
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